[HISTORY: Adopted by the Board of Trustees of the Village of Lawrence
3-13-2002 by L.L. No. 4-2002. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 212.
The telecommunications Act of 1996 affirmed the Village of Lawrence's
authority concerning the placement, construction and modification of wireless
telecommunications facilities. The Village finds that wireless telecommunications
facilities may pose significant concerns to the health, safety, public welfare,
character and environment of the Village and its inhabitants. The Village
also recognizes that facilitating the development of wireless service technology
can be an economic development asset to the Village and of significant benefit
to the Village and its residents. In order to insure that the placement, construction
or modification of wireless telecommunications facilities is consistent with
the Village's land use policies, the Village is adopting a single, comprehensive,
wireless telecommunications facilities application and permit process. The
intent of this chapter is to minimize the negative impact of wireless telecommunications
facilities, establish a fair and efficient process for review and approval
of applications, assure an integrated, comprehensive review of environmental
impacts of such facilities, and protect the health, safety and welfare of
the Village of Lawrence.
This chapter shall be known and cited as the "Wireless Telecommunications
Facilities Siting Local Law for the Village of Lawrence."
A.
If any word, phrase, sentence, part, section, subsection,
or other portion of this chapter or any application thereof to any person
or circumstance is declared void, unconstitutional, or invalid for any reason,
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.
Any special use 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 competent authority,
or is overturned by a competent authority, the permit shall be void in total,
upon determination by the Village.
A.
For purposes of this chapter, and where not inconsistent
with the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meaning given in this
section. When not inconsistent with the context, words in the present tense
include the future tense, words used in the plural number include words in
the singular number and words in the singular number include the plural number.
The word "shall" is always mandatory, and not merely directory.
B.
ACCESSORY FACILITY OR STRUCTURE
APPLICANT
APPLICATION
ANTENNA
COLLOCATION
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
COMPLETED APPLICATION
FAA
FCC
HEIGHT
NIER
PERSON
PERSONAL WIRELESS FACILITY
PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE
or PCS
TELECOMMUNICATION SITE
SPECIAL USE PERMIT
STATE
STEALTH or STEALTH TECHNOLOGY
TELECOMMUNICATIONS
TELECOMMUNICATIONS STRUCTURE
TEMPORARY
VILLAGE
WIRELESS TELECOMMUNICATIONS FACILITIES
As used in this chapter, the following terms shall have
the meanings indicated:
An accessory facility or structure serving or being used in conjunction
with wireless telecommunications facilities, and located on the same property
or lot as the wireless telecommunications facilities, including, but not limited
to, utility or transmission equipment storage sheds or cabinets.
Any wireless service provider submitting an application for a special
use permit for wireless telecommunications facilities.
All necessary and appropriate documentation that an applicant submits
in order to receive a special use permit for wireless telecommunications facilities.
A system of electrical conductors that transmit or receive electromagnetic
waves or radio frequency or other wireless signals. Such shall include, but
not be limited to, radio, television, cellular, paging, personal telecommunications
services (PCS), microwave telecommunications and services not licensed by
the FCC, but not expressly exempt from the Village's siting, building and
permitting authority.
The use of a tower or structure to support antennas for the provision
of wireless services without increasing the height of the tower or structure.
The inability to perform an act on terms that are reasonable in commerce;
the cause or occurrence of which could not have been reasonably anticipated
or foreseen and that jeopardizes the financial efficacy of the project. The
inability to achieve a satisfactory financial return on investment or profit,
standing alone, shall not deem a situation to be commercially impracticable
and shall not render an act or the terms of an agreement commercially impracticable.
An application that contains all information and/or data necessary
to enable an informed decision to be made with respect to an application.
The Federal Aviation Administration, or its duly designated and authorized
successor agency.
The Federal Communications Commission or its duly designated and
authorized successor agency.
When referring to a tower or structure, the distance measured from
the preexisting grade level to the highest point on the tower or structure,
even if said highest point is an antenna or lightening protection device.
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.
See definition for "wireless telecommunications facilities."
The official document or permit by which an applicant is allowed
to construct and use wireless telecommunications facilities as granted or
issued by the Village.
The State of New York.
Minimizing adverse aesthetic and visual impacts on the land, property,
buildings, and other facilities adjacent to, surrounding, and in generally
the same area as the requested location of such wireless telecommunications
facilities, which shall mean using the least visually and physically intrusive
facility that is not technologically or commercially impracticable under the
facts and circumstances.
The transmission and/or reception of audio, video, data, and other
information by wire, radio frequency, light, and other electronic or electromagnetic
systems.
A structure used in the provision of services described in the definition
of "wireless telecommunications facilities."
Temporary in relation to all aspects and components of this chapter,
something intended to, or that does, exist for fewer than 90 days.
The Village of Lawrence.
Includes a telecommunications tower and tower and telecommunications
site and personal wireless facility means a structure, facility or location
designed, or intended to be used as, or used to support, antennas or other
transmitting or receiving devices. This includes, without limit, towers of
all types and kinds and structures that employ camouflage technology, including,
but not limited to, structures such as a multistory building, church steeple,
silo, water tower, sign or other structures that can be used to mitigate the
visual impact of an antenna or the functional equivalent of such, including
all related facilities such as cabling, equipment shelters and other structures
associated with the site. It is a structure and facility intended for transmitting
and/or receiving radio, television, cellular, paging, 911, personal telecommunications
services, commercial satellite services, microwave services and services not
licensed by the FCC, but not expressly exempt from the Village's siting, building
and permitting authority, excluding those used exclusively for the Village's
fire, police or exclusively for private, noncommercial radio and television
reception and private citizen's bands, amateur radio and other similar noncommercial
telecommunications where the height of the facility is below the height limits
set forth in this chapter.
In order to ensure that the placement, construction, and modification
of wireless telecommunications facilities protect the Village's health, safety,
public welfare, environmental features, the nature and character of the community
and neighborhood and other aspects of the quality of life specifically listed
elsewhere in this chapter, the Village hereby adopts an overall policy with
respect to a special use permit for wireless telecommunications facilities
for the express purpose of achieving the following goals:
A.
Implementing an application process for person(s) seeking
a special use permit for wireless telecommunications facilities;
B.
Establishing a policy for examining an application for
and issuing a special use permit for wireless telecommunications facilities
that is both fair and consistent;
C.
Promoting and encouraging, wherever possible, the sharing
and/or collocation of wireless telecommunications facilities among service
providers;
D.
Promoting and encouraging, wherever possible, the placement,
height and quantity of wireless telecommunications facilities in such a manner,
including but not limited to the use of stealth technology, to minimize adverse
aesthetic and visual impacts on the land, property, buildings, and other facilities
adjacent to, surrounding, and in generally the same area as the requested
location of such wireless telecommunications facilities, which shall mean
using the least visually and physically intrusive facility that is not technologically
or not commercially impracticable under the facts and circumstances.
A.
All applicants for a special use permit for wireless
telecommunications facilities or any modification of such facility shall comply
with the requirements set forth in this section. The Board of Trustees is
the officially designated agency or body of the community to whom applications
for a special use permit for wireless telecommunications facilities must be
made, and 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 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 Village with respect to the granting or not granting, recertifying
or not recertifying or revoking special use permits for wireless telecommunications
facilities.
B.
An application for a special use 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, if different than the applicant, shall also sign the application.
At the discretion of the Village, any false or misleading statement in the
application may subject the applicant to denial of the application without
further consideration or opportunity for correction.
C.
Applications not meeting the requirements stated herein
or which are otherwise incomplete may be rejected by the Building Inspector.
D.
The applicant shall include a statement in writing:
(1)
That the applicant's proposed wireless telecommunications
facilities shall be maintained in a safe manner, and in compliance with all
conditions of the special use permit, without exception, unless specifically
granted relief by the Village in writing, as well as all applicable and permissible
local codes, Local Laws, and regulations, including any and all applicable
Village, state and federal laws, rules, and regulations.
(2)
That the construction of the wireless telecommunications
facilities is legally permissible, including, but not limited to, the fact
that the applicant is authorized to do business in the state.
E.
No wireless telecommunications facilities shall be installed
or constructed until the application is reviewed and approved by the Village,
and the special use permit has been issued.
F.
Information contained in application.
(1)
All applications for the construction or installation
of new wireless telecommunications facilities shall contain the information
hereinafter set forth. The application shall be signed by an authorized individual
on behalf of the applicant. Where a certification is called for, such certification
shall bear the signature and seal of a professional engineer licensed in the
State of New York.
(2)
The application shall include the following information:
(a)
Documentation that demonstrates the need for the wireless
telecommunications facility to provide service primarily and essentially within
the Village. Such documentation shall include propagation studies of the proposed
site and all adjoining planned, proposed, in-service or existing sites;
(b)
The name, address and phone number of the person preparing
the report;
(c)
The name, address, and phone number of the property owner,
operator, and applicant, and to include the legal form of the applicant;
(d)
The postal address and Tax Map parcel number of the property;
(e)
The zoning district or designation in which the property
is situated;
(f)
Size of the property stated both in square feet and lot
line dimensions, and a diagram showing the location of all lot lines;
(g)
The location of the nearest residential structure;
(h)
The location, size and height of all structures on the
property which is the subject of the application;
(i)
The location, size and height of all proposed and existing
antennas and all appurtenant structures;
(j)
The type, locations and dimensions of all proposed and
existing landscaping, and fencing;
(k)
The number, type and design of the tower(s) and antenna(s)
proposed and the basis for the calculations of the tower's capacity to accommodate
multiple users;
(l)
The make, model and manufacturer of the tower and antenna(s);
(m)
A description of the proposed tower and antenna(s) and
all related fixtures, structures, appurtenances and apparatus, including height
above preexisting grade, materials, color and lighting;
(n)
The frequency, modulation and class of service of radio
or other transmitting equipment;
(o)
The actual intended transmission and the maximum effective
radiated power of the antenna(s);
(p)
Direction of maximum lobes and associated radiation of
the antenna(s);
(q)
Certification that the NIER levels at the proposed site
are within the threshold levels adopted by the FCC;
(r)
Certification that the proposed antenna(s) will not cause
interference with other telecommunications devices;
(s)
A copy of the FCC license applicable for the intended
use of the wireless telecommunications facilities;
(t)
Certification that a topographic and geomorphologic study
and analysis has been conducted, and that, taking into account the subsurface
and substrata, and the proposed drainage plan, the site is adequate to assure
the stability of the proposed wireless telecommunications facilities on the
proposed site.
G.
In the case of a new tower, the applicant shall be required
to submit a written report demonstrating its meaningful efforts to secure
shared use of existing tower(s) or the use of alternative buildings or other
structures within the Village. Copies of written requests and responses for
shared use shall be provided to the Village in the application, along with
any letters of rejection stating the reason for rejection.
H.
The applicant shall certify that the 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.
I.
The applicant shall certify that the wireless telecommunications
facilities will be effectively grounded and bonded so as to protect persons
and property and installed with appropriate surge protectors.
J.
An applicant may be required to submit an environmental
assessment analysis and a visual addendum. Based on the results of the Analysis,
including the visual addendum, the Village may require submission of a more
detailed visual analysis. The scope of the required environmental and visual
assessment will be reviewed at the pre-application meeting.
K.
The applicant shall furnish a visual impact assessment,
which shall include:
(1)
A "Zone of Visibility Map," which shall be provided in
order to determine locations from which the tower may be seen.
(2)
Pictorial representations of "before" and "after" views
from key viewpoints both inside and outside 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; and from any other location where the site
is visible to a large number of visitors, travelers or residents. Guidance
will be provided concerning the appropriate key sites at a pre-application
meeting.
(3)
An assessment of the visual impact of the tower base,
guy wires and accessory buildings from abutting and adjacent properties and
streets as relates to the need or appropriateness of screening.
L.
The applicant shall demonstrate and provide in writing
and/or by drawing how it shall effectively screen from view the base and all
related facilities and structures of the proposed wireless telecommunications
facilities.
M.
Any and all representations made by the applicant to
the Village on the record 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 Village.
N.
All utilities at a wireless telecommunications facilities
site shall be installed underground and in compliance with all Laws, Local
Laws, rules and regulations of the Village, including specifically, but not
limited to, the National Electrical Safety Code and the National Electrical
Code, where appropriate.
O.
All wireless telecommunications facilities shall contain
a demonstration that the facility be sited so as to be the least visually
and physically intrusive means that is not commercially or technologically
impracticable, and thereby have the least adverse visual effect on the environment
of the neighborhood and the Village and its character, on existing vegetation,
and on the residences in the general area of the Wireless telecommunications
Facility.
P.
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
it may be affixed and/or to harmonize with the natural surroundings. This
shall include the utilization of stealth or concealment technology as may
be required by the Village.
Q.
At a telecommunications site, an access road, turnaround
space and parking shall be provided to assure adequate emergency and service
access. Maximum use of existing roads, whether public or private, shall be
made to the extent practicable. 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.
R.
A person who holds a special use 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 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 and the National Electrical Code, as well as accepted and responsible
workmanlike industry practices and recommended practices of the National Association
of tower Erectors. The codes referred to are codes that include, but are not
limited to, 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.
S.
A holder of a special use permit granted under this chapter
shall obtain, at its own expense, all permits 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 applicant.
T.
With respect to this application process, the Board will
normally seek to have lead agency status, pursuant to SEQRA. The Board shall
conduct an environmental review of the proposed project in combination with
its review of the application under this law.
U.
An applicant shall submit to the Village the number of
completed applications determined to be needed at the pre-application meeting.
Written notification of the application shall be provided to the legislative
body of all adjacent municipalities.
V.
The applicant shall examine the feasibility of designing
a proposed tower to accommodate future demand for at least five additional
commercial applications, for example, future collocations. The tower shall
be structurally designed to accommodate at least five additional antenna arrays
equal to those of the applicant, and located as close to the applicant's antenna
as possible without causing interference. This requirement may be waived,
provided that the applicant, in writing, demonstrates that the provisions
of future shared usage of the tower is not technologically feasible, is commercially
impracticable or creates an unnecessary and unreasonable burden, based upon:
(1)
The foreseeable number of FCC licenses available for
the area;
(2)
The kind of wireless telecommunications facilities site
and structure proposed;
(3)
The number of existing and potential licenses without
wireless telecommunications facilities spaces/sites;
(4)
Available space on existing and approved towers.
W.
Shared use.
(1)
The owner of the proposed new tower, and his/her successors
in interest, shall negotiate in good faith for the shared use of the proposed
tower by other wireless service providers in the future, and shall:
(a)
Respond within 60 days to a request for information from
a potential shared-use applicant;
(b)
Negotiate in good faith concerning future requests for
shared use of the new tower by other telecommunications providers;
(c)
Allow shared use of the new tower 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 tower or equipment to accommodate a shared user without causing electromagnetic
interference.
(2)
Failure to abide by the conditions outlined above may
be grounds for revocation of the special use permit for the tower.
X.
There shall be a pre-application meeting. The purpose
of the pre-application meeting will be to address issues, which will help
to expedite the review and permitting process. A pre-application meeting shall
also include a site visit if there has not been a prior site visit for the
requested site. Costs of the Village's consultants to prepare for and attend
the pre-application meeting will be borne by the applicant.
Y.
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 Village to modify, relocate or rebuild a wireless telecommunications
facility.
Z.
In order to better inform the public, in the case of
a new telecommunications tower, the applicant shall, prior to the public hearing
on the application, hold a "balloon test." The applicant shall arrange to
fly, or raise upon a temporary mast, a minimum of a three foot in diameter
brightly colored balloon at the maximum height of the proposed tower. The
dates (including a second date, in case of poor visibility on the initial
date), times and location of this balloon test shall be advertised by the
applicant seven and 14 days in advance of the first test date in a newspaper
with a general circulation in the Village. The applicant shall inform the
Village Administrator, in writing, of the dates and times of the test, at
least 14 days in advance. The balloon shall be flown for at least four consecutive
hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen. The primary
date shall be on a weekend, but in case of poor weather on the initial date,
the secondary date may be on a weekday.
AA.
The applicant will provide a written copy of an analysis,
completed by a qualified individual or organization, to determine if the tower
or existing structure intended to support wireless facilities requires lighting
under Federal Aviation Administration Regulation Part 77. This requirement
shall be for any new tower 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 F AA and any related correspondence shall
be provided in a timely manner.
A.
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
four being the lowest priority:
B.
If the proposed site is not the highest priority listed
above, then a detailed explanation must be provided as to why a site of a
higher priority was not selected. The person 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.
C.
An applicant may not bypass sites of higher priority
by stating the site proposed is the only site leased or selected. An application
shall address collocation as the preference of the Village. If such option
is not proposed, the applicant must explain to the reasonable satisfaction
of the Village why collocation is commercially or otherwise impracticable.
Agreements between providers limiting or prohibiting collocation shall not
be a valid basis for any claim of commercial impracticability or hardship.
D.
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 nature and character of the community and neighborhood.
E.
The applicant shall submit a written report demonstrating
the applicant's review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If appropriate, based on
selecting a site of lower priority, a detailed written explanation as to why
sites of a higher priority were not selected shall be included with the application.
F.
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)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with the historic nature or character of a neighborhood
or historical district;
(3)
The use or construction of wireless telecommunications
facilities, which is contrary to an already stated purpose of a specific zoning
or land use designation;
(4)
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;
(5)
Conflicts with the provisions of this chapter.
A.
Locating on existing towers or others structures without
increasing the height, as opposed to the construction of a new tower, shall
always be preferred by the Village. The applicant shall submit a comprehensive
report inventorying existing towers and other suitable structures within four
miles of the location of any proposed new tower, unless the applicant can
show that some other distance is more reasonable and demonstrate conclusively
why an existing tower or other suitable structure cannot be used.
B.
An applicant intending to locate on an existing tower
or other suitable structure shall be required to document the intent of the
existing owner to permit its use by the applicant.
C.
Such shared use shall consist only of the minimum antenna
array technologically required to provide service primarily and essentially
within the Village, to the extent practicable, unless good cause is shown.
A.
The applicant shall submit documentation justifying the
total height of any tower, Facility and/or antenna and the basis therefor.
Such documentation will be analyzed in the context of the justification of
the height needed to provide service primarily and essentially within the
Village, to the extent practicable, unless good cause is shown.
B.
If the need for a new tower can be proven, the maximum
permitted height of a new tower shall be no more than 20 feet above the neighboring
tree height or the height of any nearby obstruction that would effectively
block the signal in that direction, unless a greater height can be proven.
C.
No wireless facility constructed after the effective
date of this chapter, including allowing for all attachments, shall exceed
that height which shall permit operation without required artificial lighting
of any kind in accordance with municipal, Village, state, and/or any federal
statute, law, local law, Village local law, code, rule or regulation.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.
Towers shall be galvanized and 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.
C.
If lighting is required, applicant shall provide a detailed
plan for sufficient lighting of as unobtrusive and inoffensive an effect as
is permissible under state and federal regulations.
All wireless telecommunications facilities and antennas shall be located,
fenced or otherwise secured in a manner that prevents unauthorized access.
Specifically:
A.
All antennas, towers and other supporting structures,
including guy wires, shall be made inaccessible to individuals and constructed
or shielded in such a manner that they cannot be climbed or collided with;
and
B.
Transmitters and telecommunications control points shall
be installed in such a manner that they are readily accessible only to persons
authorized to operate or service them.
Wireless telecommunications facilities shall contain a sign no larger
than four square feet in order to provide adequate notification to persons
in the immediate area of the presence of an antenna that has transmission
capabilities and shall contain the name(s) of the owner(s) and operator(s)
of the antenna(s) as well as emergency phone number(s). The sign shall be
on the equipment shelter or cabinet of the applicant and be visible from the
access point of the site and must identify the equipment owner of the shelter
or cabinet. The sign shall not be lighted, unless lighting is required by
applicable law, rule or regulation. No other signage, including advertising,
shall be permitted.
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded rights-of-way
and road and street lines by the greater of the following distances: a distance
equal to the height of the proposed wireless telecommunications facility structure
plus 10% of the height of the facility or structure, or the existing setback
requirement of the underlying zoning district, whichever is greater. Any accessory
structure shall be located so as to comply with the applicable minimum setback
requirements for the property on which it is situated.
A.
The Village may hire any consultant and/or expert necessary
to assist the Village in reviewing and evaluating the application, including
the construction and modification of the site, once permitted, and any requests
for recertification.
B.
An applicant shall deposit with the Village funds sufficient
to reimburse the Village for all reasonable costs of consultant and expert
evaluation and consultation to the Village in connection with the review of
any application, including the construction and modification of the site,
once permitted. The initial deposit shall be $8,500.00. The placement of the
$8,500 with the Village shall precede the pre-application meeting. The Village
will maintain a separate escrow account for all such funds. The Village's
consultants/experts shall invoice the Village for their services in reviewing
the application, 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. 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.
C.
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.
A.
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 for wireless telecommunications facilities. Notwithstanding
anything to the contrary in this section, no special use permit shall be required
for those noncommercial exceptions noted in the definition of "wireless telecommunications
facilities."
B.
All wireless telecommunications facilities existing on
or before the effective date of this chapter shall be allowed to continue
as they presently exist; provided, however, that any visible modification
of an existing Wireless telecommunications Facility must comply with this
chapter.
A.
Prior to the approval of any application for a special
use permit for wireless telecommunications facilities, a public hearing shall
be held by the Village, 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 in order that the Village may notify nearby landowners.
The application shall contain the names and address of all landowners whose
property is located within 1,500 feet of any property line of the lot or parcel
on which the new wireless telecommunications facilities are proposed to be
located.
B.
There shall be no public hearing required for an application
to collocate on an existing tower or other structure, as long as there is
no proposed increase in the height of the tower or structure, including attachments
thereto.
A.
The Village will undertake a review of an application
pursuant to this chapter in a timely fashion, 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 and need to be involved, and the applicant's desire for
a timely resolution.
B.
The Village may refer any application or part thereof
to any advisory or other committee for a nonbinding recommendation.
C.
After the public hearing and after formally considering
the application, the Village may approve, approve with conditions, or deny
a special use permit. Its decision shall be in writing and shall be supported
by substantial evidence contained in a written record. The burden of proof
for the grant of the permit shall always be upon the applicant.
D.
If the Village approves the special use permit for a
wireless telecommunications facility, then the applicant shall be notified
of such approval in writing within 10 calendar days of the Village's action,
and the special use permit shall be issued within 30 days after such approval.
Except for necessary building permits, and subsequent certificates of compliance,
once a special use permit has been granted hereunder, no additional permits
or approvals from the Village, such as site plan or zoning approvals, shall
be required by the Village for the wireless telecommunications facilities
covered by the special use permit.
E.
If the Village denies the special use permit for wireless
telecommunications facilities, then the applicant shall be notified of such
denial in writing within 10 calendar days of the Village's action.
A.
Between 12 months and six months prior to the five-year
anniversary date after the effective date of the special use permit and all
subsequent five-year anniversaries of the effective date of the original special
use permit for wireless telecommunications facilities, the holder of a special
use permit for such wireless telecommunications facilities shall submit a
signed written request to the Village for recertification. In the written
request for recertification, the holder of such special use permit shall note
the following:
(1)
The name of the holder of the special use permit for
the wireless telecommunications facilities;
(2)
If applicable, the number or title of the special use
permit;
(3)
The date of the original granting of the special use
permit;
(4)
Whether the wireless telecommunications facilities have
been moved, relocated, rebuilt, or otherwise visibly modified since the issuance
of the special use permit and, if so, in what manner;
(5)
If the wireless telecommunications facilities have been
moved, relocated, rebuilt, or otherwise visibly modified, then whether the
Village approved such action, and under what terms and conditions, and whether
those terms and conditions were complied with;
(6)
That the wireless telecommunications facilities are in
compliance with the special use permit and in compliance with all applicable
codes, laws, rules and regulations;
(7)
Recertification that the tower and attachments both 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 by a professional engineer licensed in the state,
the cost of which shall be borne by the applicant.
B.
If, after such review, the Village determines that the
permitted wireless telecommunications facilities are in compliance with the
special use permit and all applicable statutes, laws, local laws, codes, rules
and regulations, then the Village shall issue a recertification of the special
use permit for the wireless telecommunications facilities, which may include
any new provisions or conditions that are mutually agreed upon, or that are
required by applicable statutes, laws, local laws, codes, rules or regulations.
If, after such review, it is determined that the permitted wireless telecommunications
facilities are not in compliance with the special use permit and all applicable
statutes, laws, local laws, codes, rules and regulations, then the Village
may refuse to issue a recertification special use permit for the wireless
telecommunications facilities, and in such event, such wireless telecommunications
facilities shall not be used after the date that the applicant receives written
notice of the decision by the Village until such time as the facility is brought
into compliance. 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 a written record and shall be promptly provided to the owner
of the facility.
C.
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 special use permit, or subsequent five-year anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months, in order for the completion of the review.
D.
If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the time frame noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent five year anniversaries, unless the holder of the special use permit adequately demonstrates that extenuating circumstances prevented a timely recertification request. If the Village agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
The extent and parameters of a special use permit for wireless telecommunications
facilities shall be as follows:
A.
Such special use permit shall be nonexclusive;
B.
Such special use permit shall not be assigned, transferred
or conveyed without the express prior written notification to the Board of
Trustees.
C.
Such special use permit may, following a hearing upon
due prior notice to the applicant, be revoked, canceled, or terminated for
a violation of the conditions and provisions of the special use permit, or
for a material violation of this chapter after prior written notice to the
holder of the special use permit.
A.
At the time that a person submits an application for
a special use permit for a new tower, such person shall pay a nonrefundable
application fee of $5,000 to the Village. If the application is for a special
use permit for collocating on an existing tower or other suitable structure,
where no increase in height of the tower or structure is required, the nonrefundable
fee shall be $2,000.
B.
No application fee is required in order to recertify a special use permit for wireless telecommunications facilities, unless there has been a visible modification of the wireless telecommunications facility since the date of the issuance of the existing 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.
The applicant and the owner of record of any proposed wireless telecommunications
facilities property site shall, at their cost and expense, be jointly required
to execute and file with the Village a bond, or other form of security acceptable
to the Village as to type of security and the form and manner of execution,
in an amount of at least $75,000.00 and with such sureties as are deemed sufficient
by the Board of Trustees to assure the faithful performance of the terms and
conditions of this chapter and conditions of any special use permit issued
pursuant to this chapter. The full amount of the bond or security shall remain
in full force and effect throughout the term of the special use permit and/or
until any necessary site restoration is completed to restore the site to a
condition comparable to that which existed prior to the issuance of the original
special use permit.
In order to verify that the holder of a special use permit for wireless
telecommunications facilities and any and all lessees, renters, and/or licensees
of wireless telecommunications facilities, place and construct such facilities,
including towers and antennas, in accordance with all applicable technical,
safety, fire, building, and zoning codes, laws, local laws and regulations
and other applicable requirements, the Village may inspect all facets of said
permit holder's, renter's, lessee's or licensee's placement, construction,
modification and maintenance of such facilities, including, but not limited
to, towers, antennas and buildings or other structures constructed or located
on the permitted site.
The holder of the special use permit shall, annually, certify to the
Village that NIER levels at the site are within the threshold levels adopted
by the FCC.
A.
A holder of a special use permit for wireless telecommunications
facilities 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:
B.
The commercial general liability insurance policy shall
specifically include the Village and its officers, boards, employees, committee
members, attorneys, agents and consultants as additional named insureds.
C.
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.
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.
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.
Before construction of a permitted wireless telecommunications
facilities is initiated, but in no case later than 15 days after the grant
of the special use permit, the holder of the special use permit shall deliver
to the Village a copy of each of the policies or certificates representing
the insurance in the required amounts.
A.
Any application for Wireless Telecommunication Facilities
that is proposed for Village property, 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, 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,
excepting, however, any portion of such claims, suits, demands, causes of
action, award of damages as may be attributable to the negligent or intentional
acts or omissions of the Village, or its servants or agents. 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.
A.
In the event of a violation of this chapter or any special
use permit issued pursuant to this chapter, the Village may impose and collect,
and the holder of the special use permit for wireless telecommunications facilities
shall pay to the Village, fines or penalties as set forth below.
B.
A violation of this chapter is hereby declared to be
an offense, punishable by a fine up to a maximum of $1,000 per day per occurrence
or imprisonment for a period not to exceed 15 days, or both, for conviction
of an offense.
[Amended 9-11-2002 by L.L.
No. 5-2002]
C.
Notwithstanding anything in this chapter, the holder
of the special use permit for wireless telecommunications facilities 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 special use permit to termination
and revocation of the special use 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.
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 special use permit, then the Village shall notify the holder of the special
use 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.
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 special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Village may revoke such special use permit for wireless telecommunications facilities, and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the Village may determine
that the health, safety, and welfare interests of the Village warrant and
require the removal of wireless telecommunications facilities:
(1)
Wireless telecommunications facilities with a permit
have been abandoned (i.e., not used as wireless telecommunications facilities)
for a period exceeding 90 days or a total of 180 days in any three-hundred-sixty-five-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)
Permitted wireless telecommunications facilities fall
into such a state of disrepair that they create a health or safety hazard;
(3)
Wireless telecommunications facilities have been located,
constructed, or modified without first obtaining, or in a manner not authorized
by, the required special use permit, or any other necessary authorization.
B.
If the Village makes such a determination as noted in Subsection A of this section, then the Village shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed; the Village may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the special use permit, or its successors
or assigns, shall dismantle and remove such wireless telecommunications facilities,
and all associated structures and facilities, from the site and restore the
site to as close to its original condition as is possible, such restoration
being limited only by physical or commercial impracticability, within 90 days
of receipt of written notice from the Village. However, if the owner of the
property upon which the wireless telecommunications facilities are located
wishes to retain any access roadway to the wireless telecommunications facilities,
the owner may do so with the approval of the Board of Trustees.
D.
If wireless telecommunications facilities are not removed
or substantial progress has not been made to remove the wireless telecommunications
facilities within 90 days after the permit holder has received notice, then
the Village may order officials or representatives of the Village to remove
the wireless telecommunications facilities at the sole expense of the owner
or special use permit holder.
E.
If, the Village removes, or causes to be removed, wireless
telecommunications facilities, and the owner of the wireless telecommunications
facilities 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
facilities abandoned, and sell them and their components.
F.
Notwithstanding anything in this section to the contrary,
the Village may approve a temporary use permit/agreement for the wireless
telecommunications facilities, for no more than 90 days, during which time
a suitable plan for removal, conversion, or relocation of the affected wireless
telecommunications facilities shall be developed by the holder of the special
use permit, subject to the approval of the Village, and an agreement to such
plan shall be executed by the holder of the special use permit and the Village.
If such a plan is not developed, approved and executed within the ninety-day
time period, then the Village may take possession of and dispose of the affected
wireless telecommunications facilities in the manner provided in this section.
Any applicant or permittee desiring relief, waiver or exemption from
any aspect or requirement of this chapter may request such at the pre-application
meeting, provided that the relief or exemption is contained in the original
application for either a special use permit or, in the case of an existing
or previously granted special use permit, a request for modification of its
tower and/or facilities. Such relief may be temporary or permanent, partial
or complete. However, the burden of proving the need for the requested relief,
waiver or exemption is solely on the applicant. No such relief or exemption
shall be approved unless the applicant demonstrates by clear and convincing
evidence that, if granted, the relief, waiver or exemption will have no significant
effect on the health, safety and welfare of the Village, its residents and
other service providers.
A.
The Village may at any time conduct a review and examination
of this entire chapter.
B.
If, after such a periodic review and examination of this
chapter, the Village determines that one or more provisions of this chapter
should be amended, repealed, revised, clarified, or deleted, then the Village
may take whatever measures are necessary in accordance with applicable local
law in order to accomplish the same. It is noted that where warranted, and
in the best interests of the Village, the Village may repeal this entire chapter
at any time.
A.
To the extent that the holder of a special use permit
for wireless telecommunications facilities has not received relief, or is
otherwise exempt, from appropriate state and/or federal agency rules or regulations,
then the holder of such a special use 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.
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, and security, are changed and/or are modified
during the duration of a special use permit for wireless telecommunications
facilities, then the holder of such a special use permit shall conform the
permitted wireless telecommunications facilities to the applicable changed
and/or modified rule, regulation, standard, or provision within a maximum
of 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 the Village, state
or federal government, this chapter shall apply.
