The Telecommunications Act of 1996 affirmed the Village of Kinderhook's authority concerning the placement, construction and modification of wireless telecommunications facilities. The Village of Kinderhook 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 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 Kinderhook. This chapter also expressly incorporates by reference Article
III, §
130-7, of Chapter
130, Zoning, where applicable.
This chapter shall be known and cited as the
"Wireless Telecommunications Facilities Siting Law for the Village
of Kinderhook."
For purposes of this chapter, and where not
inconsistent with the context of a particular section, the defined
terms, phrases, words, abbreviations, and their derivations shall
have the meaning given in this section. When not inconsistent with
the context, words in the present tense include the future tense,
words used in the plural number include words in the singular number
and words in the singular number include the plural number. The word
"shall" is always mandatory and not merely directory.
ACCESSORY FACILITY OR STRUCTURE
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities and located
on the same property or lot as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets.
ANTENNA
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
APPLICANT
Any wireless service provider submitting an application for
a special use permit for wireless telecommunications facilities.
APPLICATION
All necessary and appropriate documentation that an applicant
submits in order to receive a special use permit for wireless telecommunications
facilities.
BOARD
The Village Board of the Village of Kinderhook.
CO-LOCATION
The use of an existing tower or structure to support antennas
for the provision of wireless services.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be "commercially impracticable" and shall not render an act or
the terms of an agreement "commercially impracticable."
COMPLETED APPLICATION
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated
and authorized successor agency.
HEIGHT
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna or lightning
protection device.
MODIFICATION or MODIFY
The addition, removal or change of any of the physical and
visually discernible components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernible
components, vehicular access, parking and/or an upgrade or changeout
of equipment for better or more modern equipment. Adding a new wireless
carrier or service provider to a telecommunications tower or telecommunications
site as a co-location is a modification. A modification shall not
include the replacement of any components of a wireless facility where
the replacement is identical to the component being replaced or for
any matters that involve the normal repair and maintenance of a wireless
facility without adding, removing or changing anything.
NIER
Nonionizing electromagnetic radiation.
PERSON
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest, or any other entity.
REPAIRS AND MAINTENANCE
The replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or for any matters that involve the normal repair and maintenance
of a wireless facility without the addition, removal or change of
any of the physical or visually discernible components or aspects
of a wireless facility that will add to the visible appearance of
the facility as originally permitted.
SPECIAL USE PERMIT
The official document or permit by which an applicant is
allowed to file for a building permit to construct and use wireless
telecommunications facilities as granted or issued by the Village.
STATE
The State of New York.
STEALTH or STEALTH TECHNOLOGY
To minimize adverse aesthetic and visual impacts on the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
TELECOMMUNICATIONS
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
TEMPORARY
Temporary in relation to all aspects and components of this
chapter, something intended to, or that does, exist for fewer than
90 days.
TOWER
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
WIRELESS TELECOMMUNICATIONS FACILITIES
Means and includes a "telecommunications site" and "personal
wireless facility." A structure, facility or location designed, 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, including, but not limited to, buildings,
church steeples, silos, water towers, signs or other structures that
can be used as a support structure for antennas or the functional
equivalent of such. It further includes all related facilities and
equipment such as cabling, equipment shelters and other structures
associated with the site. It is a structure and facility intended
for transmitting and/or receiving radio, television, cellular, SMR,
paging, 911, personal communications services (PCS), commercial satellite
services, microwave services and any commercial wireless telecommunications
service not licensed by the FCC.
In order to ensure that the placement, construction,
and modification of wireless telecommunications facilities protects
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. Requiring a special use permit for any new co-location
or modification of a wireless telecommunications facility.
B. Implementing an application process for person(s)
seeking a special use permit for wireless telecommunications facilities.
C. Establishing a policy for examining an application
for and issuing a special use permit for wireless telecommunications
facilities that is both fair and consistent.
D. Promoting and encouraging, wherever possible, the
sharing and/or co-location of wireless telecommunications facilities
among service providers.
E. Promoting and encouraging, wherever possible, the
placement, height and quantity of wireless telecommunications facilities
in such a manner, including but not limited to the use of stealth
technology, to minimize adverse aesthetic and visual impacts on the
land, property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
F. That, in granting a special use permit, the Village
has found that the facility shall be the most appropriate site as
regards being the least visually intrusive among those available in
the Village.
The following shall be exempt from this chapter:
A. The Village's fire and police, Department of Transportation,
New York State Police, Columbia County Sheriff's or other public service
facilities owned and operated by the local government.
B. Any facilities expressly exempt from the Village's
siting, building and permitting authority.
C. Over-the-air reception devices, including the reception
antennas for direct broadcast satellites (DBS), multichannel multipoint
distribution (wireless cable) providers (MMDS), television broadcast
stations (TVBS) and other customer-end antennas that receive and transmit
fixed wireless signals that are primarily used for reception.
D. Facilities exclusively for private, noncommercial
radio and television reception and private citizens bands, licensed
amateur radio and other similar noncommercial telecommunications.
E. Facilities exclusively for providing unlicensed spread
spectrum technologies, such as IEEE 802.11a, 802.11b and 802.11g services
(e.g., Wi-Fi and Bluetooth®), where the facility does not require
a new tower.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
that prevents unauthorized access. Specifically:
A. All antennas, towers and other supporting structures,
including guy anchor points and wires, shall be made inaccessible
to individuals and constructed or shielded in such a manner that they
cannot be climbed or collided with; and
B. Transmitters and telecommunications control points
shall be installed in such a manner that they are readily accessible
only to persons authorized to operate or service them.
Wireless telecommunications facilities shall
contain a sign no larger than four square feet in order to provide
adequate notification to persons in the immediate area of the presence
of RF radiation or to control exposure to RF radiation within a given
area. A sign of the same size is also to be installed to contain the
name(s) of the owner(s) and operator(s) of the antenna(s) as well
as emergency phone number(s). The sign shall be on the equipment shelter
or cabinet of the applicant and be visible from the access point of
the site and must identify the equipment owner of the shelter or cabinet.
On tower sites, an FCC registration site, as applicable, is also to
be present. The signs shall not be lighted unless applicable law,
rule or regulation requires lighting. No other signage, including
advertising, shall be permitted.
All proposed towers and any other proposed wireless
telecommunications facility structures shall be set back from abutting
parcels, recorded rights-of-way and road and street lines by the greater
of the following distances: a distance equal to the height of the
proposed tower or wireless telecommunications facility structure,
plus 10% of the height of the tower or structure, or the existing
setback requirement of the underlying zoning district, whichever is
greater. Any accessory structure shall be located so as to comply
with the applicable minimum setback requirements for the property
on which it is situated.
The extent and parameters of a special use permit
for wireless telecommunications facilities shall be as follows:
A. Such special use permit shall not be assigned, transferred
or conveyed without the express prior written notification to the
Village.
B. 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 by registered mail to the last known address of the holder
of the special use permit.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
At the time that a person submits an application
for a special use permit for a new tower, such person stall pay a
nonrefundable application fee to the Village in an amount set by resolution
of the Village Board. If the application is for a special use permit
for co-locating 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 in an amount set by resolution of the
Village Board.
The applicant and the owner of record of any
proposed wireless telecommunications facilities property site shall,
at its cost and expense, be jointly required to execute and file with
the Village a bond, or other form of security acceptable to the Village
as to type of security and the form and manner of execution, in an
amount of at least $75,000 for a tower facility and $25,000 for a co-location
on an existing tower or other structure and with such sureties as
are deemed sufficient by the Village to assure the faithful performance
of the terms and conditions of this chapter and conditions of any
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, ordinances and regulations
and other applicable requirements, the Village may inspect all facets
of said permit holder's, renter's, lessee's or licensee's placement,
construction, modification and maintenance of such facilities, including,
but not limited to, towers, antennas and buildings or other structures
constructed or located on the permitted site.
If a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special use permit, then the Village shall notify the holder of the special use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in §
116-25, and if a violation is not corrected to the satisfaction of the Village in a reasonable period of time, the special use permit is subject to revocation.
Any applicant desiring relief, waiver or exemption
from any aspect or requirement of this chapter may request such at
the preapplication meeting, provided that the relief or exemption
is contained in the submitted 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 to prove. The applicant shall
bear all costs of the Village in considering the request and the relief,
waiver or exemption. No such relief or exemption shall be approved
unless the applicant demonstrates by clear and convincing evidence
that, if granted, the relief, waiver or exemption will have no significant
effect on the health, safety and welfare of the Village, its residents
and other service providers.
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.