[HISTORY: Adopted by the Board of Trustees
of the Village of Depew as indicated in article histories. Amendments
noted where applicable.]
[Adopted 9-22-1997 by L.L. No. 7-1997]
As used in this article, the following terms
shall have the meanings indicated:
Any man-made trees, clock towers, bell steeples, light poles
and similar alternative-design mounting structures that camouflage
or conceal the presence of antennas or towers.
Any device or exterior apparatus mounted on a tower, building,
utility pole, light pole or other structure designed for telephonic,
radio, data, Internet, or television communications to transmit or
receive communication signals or electromagnetic waves for the purpose
of providing cellular services, telecommunications services, personal
communications services, personal wireless services, wireless cable,
commercial paging, data, or wireless services, and its attendant base
station, utilizing microcells or frequencies authorized by the Federal
Communications Commission.
The lines that connect a provider's towers/cell sites to
one or more cellular telephone switching offices, and/or long distance
providers, or the public switched telephone network.
A tact or parcel of land that contains the personal wireless
service facilities including any antenna, support structure, accessory
buildings, and parking, and may include other uses associated with
and ancillary to personal wireless services.
Communication tower and antenna which utilize existing towers,
as defined in this section, for placement of antenna(s) or replacement
of existing towers which do not require construction of a new tower.
Replacement of an existing tower to accommodate collocation, provided
such newer tower does not exceed the height of the existing tower,
will not be deemed to be construction of a new tower as stated in
this definition.
The Federal Aviation Administration.
The radius around a Communication Tower within which all
portions of the Communication Tower and Antennas would fall in the
event of a structural failure of the communication tower and antenna.
Lacking evidence to the contrary the radius required shall be assumed
to be equal to double the height of the tower.
The Federal Communications Commission.
When referring to a tower or other structure, height is the
distance measured from the finished grade of the parcel to the highest
point on the tower or other structure, including the base pad and
any antenna.
Any tower or antenna for which a building permit or special use permit has been properly issued prior to the effective date of § 220-12 of this article, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired.
Any structure that is designed and constructed primarily
for the purpose of supporting one or more antennas for telephone,
radio and similar communication purposes, including self-supporting
lattice towers, guyed towers, or monopole towers. The term includes
radio and television transmission towers, microwave towers, common-carrier
towers, cellular telephone towers, alternative tower structures, and
the like. The term includes the structure and any support thereto.
Real estate located in the Village of Depew which is owned,
leased or otherwise controlled by the Village of Depew.
A.
The purpose of this article is to establish general
guidelines for the siting of communications towers and antennas. The
goals of this article are to:
(1)
Protect residential areas and land uses from potential
adverse impacts of towers and antennas;
(2)
Encourage the location of towers in nonresidential
areas;
(3)
Minimize the total number of towers throughout the
community;
(4)
Strongly encourage the joint use of new and existing
tower sites as a primary option rather than construction of additional
single-use towers;
(5)
Encourage users of towers and antennas to locate them,
to the extent possible, in areas where the adverse impact on the community
is minimal;
(6)
Encourage users of towers and antennas to configure
them in a way that minimizes the adverse visual impact of the towers
and antennas through careful design, siting, landscape screening,
and innovative camouflaging techniques;
(7)
Enhance the ability of the providers of telecommunications
services to provide such services to the community quickly, effectively,
and efficiently;
(8)
Consider the public health and safety of communication
towers; and
(9)
Avoid potential damage to adjacent properties from
tower failure through engineering and careful siting of tower structures.
B.
In furtherance of these goals, the Village of Depew
shall give due consideration to the Village's existing community development,
Zoning Map, existing land uses, and environmentally sensitive areas
in approving sites for the location of towers and antennas.
A.
New towers and antennas. All new towers or antennas
or relocated, rebuilt or extended towers or antennas in the Village
of Depew shall be subject to these regulations, including the general
requirements contained in the Village of Depew Municipal Code.
B.
Amateur radio station operators/receive-only antennas.
This article shall not govern any tower, or the installation of any
antenna, that is under 70 feet in height and is owned and operated
by a federally licensed amateur radio station operator or is used
exclusively for receive-only antennas.
D.
Array. For purposes of implementing this article,
an AM array, consisting of one or more tower units and supporting
ground system which functions as one AM broadcasting antenna, shall
be considered one tower. Measurements for setback distances shall
be measured from the outer perimeter of the towers included in the
AM array. Additional tower units may be added within the perimeter
of the AM array by right.
A.
The following requirements apply to all applicants
who wish to locate, rebuild, relocate or extend a tower or antenna
in the Village of Depew:
(1)
All applicants under this article must obtain a building
permit from the Building Inspector of the Village of Depew. The Building
Inspector shall refer all such applications for building permits to
the Planning Board prior to issuance of a building permits under this
article.
(2)
All applicants under this article are subject to site
plan review by the Village of Depew Building Department and the Planning
Board. The intent of site plan review is to evaluate site plans and
require changes consistent with minimizing conflicts which may result
between the site layout and design of proposed uses and natural site
conditions and features and/or existing or planned adjacent uses.
Site plan review is also responsible for ensuring that development
comply with clearly calculated community development goals and policies
of the Village of Depew.
(3)
An applicant proposing to construct a tower or increase
the height of an existing tower, or mount an antenna on an existing
structure, is required to demonstrate, using technological evidence,
that the tower or antenna must be located where it is proposed in
order to satisfy its function in the applicant's grid system. Further,
the applicant must demonstrate by technological evidence that the
height requested is the minimum height necessary to fulfill the cell
site's function within the grid system.
(4)
The Village of Depew may deny the application to construct
a new tower if the applicant has not provided documentation of a good
faith effort to mount the antenna on an existing structure and/or
public property.
(5)
Applications for necessary permits will only be processed
when the applicant demonstrates that it is either an FCC-licensed
telecommunications provider or has in place agreements with an FCC-licensed
telecommunications provider for use or lease of the support structure
or tower.
(6)
Principal or accessory use. Antennas and towers may
be considered either principal or accessory uses. A different existing
use of an existing structure on the same lot shall not preclude the
installation of an antenna or tower on such lot.
(7)
Lot size. For purpose of determining whether the installation
of a tower or antenna complies with district development regulations,
including but not limited to setback requirements, lot coverage requirements,
and other such requirements, the dimensions of the entire lot shall
control, even though the antennas or towers may be located on leased
parcels within such lot.
(8)
Inventory of existing sites. Each applicant for an
antenna and/or tower shall provide to the Building Inspector an inventory
of its existing towers, antennas, or sites approved for towers or
antennas, that are either within the jurisdiction of the Village of
Depew or within one mile of the border thereof, including specific
information about the location, height, and design of each tower.
The Building Inspector may share such information with other applicants
applying for administrative approvals or special use permits under
this article or other organizations seeking to locate antennas within
the jurisdiction of the Village of Depew; provided, however, that
the Building Inspector is not, by sharing such information, in any
way representing or warranting that such sites are available or suitable.
(9)
Aesthetics. New towers and antennas or rebuilt, relocated
or extended towers and antennas shall meet the following requirements:
(a)
Towers shall be of a monopole type, either maintain
a galvanized steel finish or, subject to any applicable standards
of the FAA, be painted as directed by a Building Inspector a neutral
color so as to reduce visual obtrusiveness.
(b)
At a tower site, the design of the buildings
and related structures shall, to the extent possible, use materials,
colors, textures, screening, and landscaping that will blend them
into the natural setting and surrounding buildings.
(c)
If an antenna is installed on a structure other
than a tower, the antenna and supporting electrical and mechanical
equipment must be of a neutral color that is identical to, or closely
compatible with, the color of the supporting structure so as to make
the antenna and related equipment as visually unobtrusive as possible.
B.
Fencing. A well-constructed masonry or stone wall,
or chain link fence, not less than six feet in height from finished
grade, shall be provided around each antenna and/or tower and shall
also be equipped with an anticlimbing device. Access to the tower
shall be through a locked gate. No barbed wire shall be used.
C.
Lighting. Towers shall not be artificially lighted,
unless required by the FAA or other applicable authority. If lighting
is required, the lighting alternatives and design chosen must cause
the least disturbance to the surrounding views.
D.
State or federal requirements. All towers and antennas
must meet or exceed current standards and regulations of the FAA,
the FCC, and any other agency of the state or federal government with
the authority to regulate towers and antennas. If such standards and
regulations are changed, then the owners of the towers and antennas
governed by this article shall bring such towers and antennas into
compliance with such revised standards and regulations within six
months of the effective date of such standards and regulations, unless
a different compliance schedule is mandated by the controlling state
or federal agency. Failure to bring towers and antennas into compliance
with such revised standards and regulations shall constitute grounds
for the removal of the tower or antenna at the owner's expense.
E.
Building codes; safety standards. To ensure the structural
integrity of towers and antennas, the owner of a tower or antenna
shall ensure that it is maintained in compliance with standards contained
in applicable state or local building codes and the applicable standards
for towers that are published by the Electronic Industries Association,
as amended from time to time. If, upon inspection, the Village of
Depew concludes that a tower or antenna fails to comply with such
codes and standards and constitutes a danger to persons or property,
then upon notice being provided to the owner of the tower or antenna,
the owner shall have 30 days to bring such tower or antenna into compliance
with such standards. Failure to bring such tower or antenna into compliance
within said 30 days shall constitute grounds for the removal of the
tower or antenna at the owner's expense.
F.
Measurement. For purposes of measurement, tower setbacks
shall be calculated and applied to facilities located in the Village
of Depew irrespective of municipal and county jurisdictional boundaries.
G.
Franchises. Owners and/or operators of towers or antennas
shall certify that all franchises and licenses required by law by
any governmental entity, including the Village of Depew, now or in
the future for the construction and/or operation of a wireless communication
system in the Village of Depew have been obtained and shall file a
copy of all required franchises and licenses with the Building Inspector.
H.
Signs. No signs or advertising material of any nature
shall be allowed on an antenna or tower with the exception of a small
two-foot-by-two-foot sign clearly indicating the name of the tower
owner and a twenty-four-hour emergency telephone number. Any additional
signs necessary to protect public and/or employee safety shall also
be permitted.
I.
Buildings and support equipment. Buildings and support equipment associated with antennas or towers shall comply with the requirements of § 220-8, Buildings or other equipment storage.
J.
Multiple antenna/tower plan. The Village of Depew
encourages the users of towers and antennas to submit a single application
for approval of multiple towers and/or antenna sites. Applications
for approval of multiple sites shall be given priority in the review
process.
K.
The owner of any tower or antenna shall provide the
Village Clerk with a demolition bond equal to twice the cost of removal
of the tower or antenna.
L.
The owner of any tower or antenna shall identify the
entities providing the backhaul network for the antenna or tower described
in the application and other cell sites owned or operated by the applicant
in the Village of Depew, as well as any information detailing the
purpose for the proposed antenna or tower.
N.
Unless otherwise provided, towers and antennae shall
comply with all existing setbacks within any zoning districts. Additional
setbacks, including but not limited to the fall-down zone, may be
required by the Building Inspector or the Village Board, as applicable,
to contain on-site substantially all ice-fall or debris from tower
failure and/or to comply with the purpose of this article. Setbacks
shall apply to all tower parts including guy wire anchors, and to
any accessory facilities.
O.
No tower may be constructed within 500 feet of a school,
church or historic landmark.
A.
General. All applicants who wish to locate a tower or antenna on Village land must submit to the Building Inspector a completed application and detailed plan that complies with the requirements of this article and the Code of the Village of Depew, and must furnish any other pertinent information as may be requested by the Village. In addition, such applicant shall submit along with the application a nonrefundable fee as shall be established by resolution of the Village Board of the Village of Depew. Any such application is subject to the site plan review requirements of Chapter 260, Zoning, of the Code of the Village of Depew. Upon receipt of any such complete application, within the 60 days, the Building Inspector shall refer said application to the Planning Board if he is satisfied that the applicant is in compliance with the requirements contained herein prior to granting or deny building permit pursuant to said application.
B.
Towers or antennas may be located on Village land
provided a license or lease authorizing such antenna or tower has
been approved by the Village of Depew and further provided that the
applicant complies with the provisions of this section.
C.
Priority of users. Priority for the use of Village
land for antennas and towers will be given to the following entities
in descending order:
(1)
Village of Depew;
(2)
Public safety agencies, including law enforcement,
fire, and ambulance services, which are not part of the Village of
Depew and private entities with a public safety agreement with the
Village of Depew;
(3)
Other governmental agencies, for uses which are not
related to public safety; and
(4)
Entities providing licensed commercial wireless telecommunication
services including cellular, personal communication services (PSC),
specialized mobilized radio (SMR), enhanced specialized mobilized
radio (ESMR), data, Internet, paging, and similar services that are
marketed to the general public.
D.
Placement. The placement of antennas or towers on
Village land must comply with the following requirements:
(1)
The antennas or tower will not interfere with the
purpose for which the Village land is intended;
(2)
The antennas or tower will have no adverse impact
on surrounding private property;
(3)
The applicant is willing to obtain adequate liability
insurance and commit to a lease agreement which includes equitable
compensation for the use of Village land and other necessary provisions
and safeguards;
(4)
The applicant will submit a letter of credit, performance
bond, or other security acceptable to the Village of Depew to cover
the costs of the antenna or tower's removal;
(5)
The antennas or tower will not interfere with other
users of Village land;
(6)
Upon reasonable notice, the Village of Depew may require
the antenna or tower to be removed at the applicant's expense;
(7)
The owner of the tower or antenna must reimburse the
Village of Depew for any costs which the Village incurs because of
the presence of the antenna or tower;
(8)
The applicant must obtain all necessary land use approvals;
and
(9)
The applicant will cooperate with the Village of Depew's
objective to promote collocations and thus limit the number of separate
antenna sites requested;
(11)
The tower must comply with the setback requirements of § 220-7B(2)(j).
E.
Special requirements. The use of certain Village land,
such as parks, for antennas or towers brings with it special concerns
due to the unique nature of these sites. The placement of antennas
or towers on these special Village land will be allowed only when
the following additional requirements are met:
(1)
Parks. The presence of certain antennas or towers
represent a potential conflict with the purpose of some parks owned
by the Village of Depew. In no case shall towers be allowed in designated
conservation areas unless they are to be installed in areas which
currently contain tower facilities. Antennas or towers will be considered
only in the following parks after the recommendation of the Parks
and Recreation Committee and approval by the Village Board of the
Village of Depew.
F.
Termination.
(1)
The Village Board of the Village of Depew may terminate
any lease if it determines that any one of the following conditions
exist:
(a)
A potential user with a higher priority as described in § 220-5B cannot find another adequate location and the potential use would be incompatible with the existing use;
(b)
A user's frequency broadcast unreasonably interferes with other uses of higher priority as described in § 220-5B, regardless of whether or not this interference was adequately predicted in the technical analysis; or
(c)
A user violates any of the standards in this
article or the conditions attached to the Village of Depew's lease
or other authorization.
(2)
Before taking action, the Village of Depew will provide
notice to the user of the intended termination and the reasons for
it, and provide an opportunity for the user to address the Village
Board regarding the proposed action. This procedure need not be followed
in emergency situations.
G.
Reservation of right. Notwithstanding the above, the
Village Board of the Village of Depew reserves the right to deny,
for any reason, the use of any or all Village land by any one or all
applicants.
A.
General. The following provisions shall govern the
issuance of administrative approvals for towers and antennas:
(1)
Applicants for administratively approved uses must comply with the site plan review requirements of Chapter 260, Zoning, of the Code of the Village of Depew.
(2)
The Building Inspector may administratively approve
the uses listed in this section.
(3)
Each applicant for administrative approval shall apply to the Building Inspector by providing to him the information set forth in § 220-7B(1) of this article, complying with the requirements of § 220-4 of this article, and submitting a nonrefundable fee as established by resolution of the Village Board of the Village of Depew.
(4)
The Building Inspector shall review the application for administrative approval and determine if the proposed use complies with § 220-7B(2)(j) of this article and shall also determine if the applicant is in compliance with § 220-4 of this article.
(5)
The Building Inspector shall respond to each such
complete application within 60 days after receiving it by referring
same to the Planning Board or referring same back to the applicant
as incomplete.
B.
List of administratively approved uses. The following
uses may be approved by the Building Inspector after conducting an
administrative review:
(1)
Locating a tower or antenna, or increasing the height of an existing tower or antenna, including the placement of additional buildings or other supporting equipment used in connection with said tower or antenna, in the industrial districts of Chapter 260, Zoning, of the Code of the Village of Depew.
(2)
Locating antennas on existing structures or towers consistent with the terms of Subsection B(1)(a)[1] and [2] hereof and § 220-8.
(a)
Antennas on existing structures. Any proposed
antenna which is not attached to a tower may be approved by the Building
Inspector as an accessory use to any commercial, industrial, professional,
institutional, or multifamily structure of four or more stories, provided:
(b)
Antennas on existing towers. A proposed antenna
to be attached to an existing tower may be approved by the Building
Inspector and the Planning Board and, to minimize adverse visual impacts
associated with the proliferation and clustering of towers, collocation
of antennas by more than one carrier on existing towers shall take
precedence over the construction of new towers, provided such collocation
is accomplished in a manner consistent with the following:
[1]
The existing tower must be able to support the proposed antenna without threatening the structural integrity of the tower. No additional height may be added to the tower except in the industrial districts of Chapter 260, Zoning, of the Code of the Village of Depew.
[a]
The only added structural elements
to the tower are those necessary to attach the proposed antenna to
the existing tower.
(c)
Locating any new tower in a nonresidential zoning district other than industrial districts, provided a licensed professional engineer certifies the tower can structurally accommodate the number of shared users proposed by the applicant, and the Building Inspector concludes the tower is in conformity with the goals set forth in § 220-1 and the requirements of § 220-4, and the tower meets the setback requirements in § 220-7; and the tower meets the following height and usage criteria:
(d)
Locating any alternative tower structure in a zoning district other than the industrial districts that in the judgment of the Building Inspector and the Planning Board is in conformity with the goals set forth in § 220-1 hereof.
(e)
Installing a cable microcell network through
the use of multiple low-powered transmitters/receivers attached to
existing wireline systems, such as conventional cable or telephone
wires, or similar technology that does not require the use of towers.
A.
General. The following provisions shall govern the
issuance of special use permits for the construction of new towers
or antennas, or the reconstruction, relocation or height increase
of existing towers by the Village Board of the Village of Depew:
(1)
Applicants for a special use permit under this section
are subject to the site plan review requirements of Article 30 of
the Zoning Local Law of the Village of Depew.
(2)
If the tower or antenna is not permitted to be approved administratively pursuant to § 220-6 hereof, or whose application pursuant to § 220-5 or § 220-6 hereof has been denied, then a special use permit shall be required for the construction of a tower or the increase in height of a tower or the placement of an antenna in all zoning districts.
(3)
Applications for special use permits under this section shall be subject to the procedures and requirements of Chapter 260, Zoning, of the Code of the Village of Depew.
(4)
In granting a special use permit, the Village Board
may impose conditions to the extent such conditions are necessary
to minimize any adverse effect of the proposed tower or height increase
or antenna on adjoining properties.
(5)
Any information of an engineering nature that the
applicant submits, whether civil, mechanical, or electrical, shall
be certified by a licensed professional engineer.
(6)
An applicant for a special use permit shall submit
the information described in this section and a nonrefundable fee
as established by resolution of the Village Board of the Village of
Depew.
B.
Towers.
(1)
Information required. In addition to any information required for applications for special use permits pursuant to Chapter 260, Zoning, of the Code of the Village of Depew, applicants for a special use permit for a tower shall submit the following information:
(a)
A scaled site plan clearly indicating the location,
type and height of the proposed tower or height increase, on-site
land uses and zoning, adjacent land uses and zoning (including when
adjacent to other municipalities), adjacent roadways, proposed means
of access, setbacks from property lines, elevation drawings of the
proposed tower or increased height and any other structures, topography,
parking, and other information deemed by the Building Inspector to
be necessary to assess compliance with this article.
(b)
Legal description of the parent tract and leased
parcel.
(c)
The setback distance between the proposed tower
or existing tower proposed to be increased in height and the nearest
residentially zoned properties.
(d)
A landscape plan showing specific landscape
materials.
(e)
Method of fencing, and finished color and, if
applicable, the method of camouflage and illumination.
(g)
A notarized statement by the applicant as to
whether construction of the tower will accommodate collocation of
additional antennas for future users.
(h)
Identification of the entities providing the
backhaul network for the tower(s) described in the application and
other cellular sites owned or operated by the applicant in the Village
of Depew.
(i)
A description of the suitability of the use
of existing towers, other structures or alternative technology not
requiring the use of towers or structures to provide the services
to be provided through the use of the proposed new tower.
(j)
A description of the feasible location(s) of
future towers or antennas within the Village of Depew based upon existing
physical, engineering, technological or geographical limitations in
the event the proposed tower is erected.
(2)
Factors considered in granting special use permits for towers. In addition to any standards for consideration of special use permit applications pursuant to Chapter 260, the Village Board of the Village of Depew shall consider the following factors in determining whether to issue a special use permit:
(a)
Height of the proposed tower or the increase
in height proposed to any existing tower;
(b)
Proximity of the proposed or existing tower
to residential structures and residential zoning district boundaries;
(c)
Nature of uses on adjacent and nearby properties;
(d)
Surrounding topography;
(e)
Surrounding tree coverage and foliage;
(f)
Design of the tower, with particular reference
to design characteristics that have the effect of reducing or eliminating
visual obtrusiveness;
(g)
Proposed ingress and egress; and
(h)
Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures, as discussed in § 220-7 of this article.
(i)
Availability of suitable existing towers, other
structures, or alternative technology. No new tower or tower reconstruction,
relocation or height increase shall be permitted unless the applicant
demonstrates to the reasonable satisfaction of the Village Board of
the Village of Depew that no existing tower, structure or alternative
technology that does not require the use of towers or structures can
accommodate the applicant's proposed antenna. An applicant shall submit
information requested by the Village Board related to the availability
of suitable existing towers, other structures or alternative technology.
Evidence submitted to demonstrate that no existing tower, structure
or alternative technology can accommodate the applicant's proposed
antenna may consist of any of the following:
[1]
No existing towers or structures are located
within the geographic area which meet applicant's engineering requirements.
[2]
Existing towers or structures are not of sufficient
height to meet applicant's engineering requirements.
[3]
Existing towers or structures do not have sufficient
structural strength to support applicant's proposed antenna and related
equipment.
[4]
The applicant's proposed antenna would cause
electromagnetic interference with the antenna on the existing towers
or structures, or the antenna on the existing towers or structures
would cause interference with the applicant's proposed antenna.
[5]
The fees, costs, or contractual provisions required
by the owner in order to share an existing tower or structure or to
adapt an existing tower or structure for sharing are unreasonable.
[6]
The applicant demonstrates that there are other
limiting factors that render existing towers and structures unsuitable.
(j)
Setbacks. The following setback requirements
shall apply to all towers for which a special use permit is required:
(k)
Security fencing. Towers shall be enclosed by security fencing as provided in § 220-4 of this article.
(l)
Landscaping. The following requirements shall
govern the landscaping surrounding towers for which a special use
permit is required.
[1]
Tower facilities shall be landscaped with a
buffer of plant materials that effectively screens the view of the
tower compound from property used for residences. The standard buffer
shall consist of a landscaped strip at least four feet wide outside
the perimeter of the compound.
[2]
In locations where the visual impact of the
tower would be minimal, the landscaping requirement may be reduced
or waived.
[3]
Existing mature tree growth and natural land
forms on the site shall be preserved to the maximum extent possible.
In some cases, such as towers sited on large, wooded lots, natural
growth around the property perimeter may be sufficient buffer.
A.
Antennas mounted on structures or rooftops. The equipment
cabinet or structure used in association with antennas shall comply
with the following:
(1)
The cabinet or structure shall not contain more than
300 square feet of gross floor area or be more than 12 feet in height.
In addition, for buildings and structures which are less than 65 feet
in height, the related unmanned equipment structure, if over 300 square
feet of gross floor area or 12 feet in height pursuant to an area
variance granted by the Zoning Board of Appeals of the Village of
Depew, shall be located on the ground and shall not be located on
the roof of the structure.
(2)
If the equipment structure is located on the roof
of a building, the area of the equipment structure and other equipment
and structures shall not occupy more than 25% of the roof area.
(3)
Equipment storage buildings or cabinets shall comply
with all applicable building codes.
B.
Antennas mounted on utility poles or light poles.
The equipment cabinet or structure used in association with antennas
shall be located in accordance with the following:
(1)
In residential districts, the equipment cabinet or
structure may be located:
(a)
In a front or side yard provided the cabinet
or structure is no greater than three feet in height or 16 square
feet of gross floor area and the cabinet/structure is located a minimum
of two feet from all lot lines. The cabinet/structure shall be screened
by an evergreen hedge with an ultimate height of at least 42 inches
to 48 inches and a planted height of at least 36 inches.
(b)
In a rear yard, provided the cabinet or structure
is no greater than 12 feet in height or 140 square feet in gross floor
area. The cabinet/structure shall be screened by an evergreen hedge
with an ultimate height of six feet and a planted eight of at least
36 inches.
(c)
In all other zoning districts the equipment
cabinet or structure shall be no greater than 12 feet in height or
300 square feet in gross floor area. The structure or cabinet shall
be screened by an evergreen hedge with an ultimate height of eight
feet and a planted height of at least 36 inches. In all other instances,
structures or cabinets shall be screened from view of all residential
properties which abut or are directly across the street from the structure
or cabinet by a solid fence eight feet in height or an evergreen hedge
with an ultimate height of eight feet and a planted height of at least
36 inches.
(2)
Antennas located on towers. The related unmanned equipment
structure shall not contain more than 300 square feet of gross floor
area or be more than 12 feet in height, and shall be located in accordance
with the minimum yard requirements of the zoning district in which
located.
Any antenna or tower that is not operated for
a period of 12 months shall be considered abandoned, and the owner
of such antenna or tower shall remove the same within 90 days of receipt
of notice from the Village of Depew notifying the owner of such abandonment.
A.
Nonexpansion of nonconforming use. Towers that are
constructed, and antennas that are installed, in accordance with the
provisions of this article shall not be deemed to constitute the expansion
of a nonconforming use or structure.
B.
Preexisting towers. Preexisting towers shall be allowed
to continue their usage as they presently exist. Routine maintenance
shall be permitted on such preexisting towers. New construction other
than routine maintenance on a preexisting tower shall comply with
the requirements of this article.
C.
Rebuilding damaged or destroyed nonconforming towers or antennas. Notwithstanding § 220-9, bona fide nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to first obtain administrative approval or a special use permit and without having to meet the setback requirements specified in § 220-6. The type, height, and location of the tower on site shall be of the same type and intensity as the original facility approval. Building permits to rebuild the facility shall comply with the then-applicable building codes and shall be obtained within 180 days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in § 220-9 hereof.
If any clause, sentence, paragraph or part of
this article or application thereof to any person or circumstance
shall be adjudged by any court to be invalid, such judgment shall
not affect, impair or invalidate the remainder thereof or the application
thereof to other persons and circumstances but shall be confined in
its operation to the clause, sentence, paragraph or part thereof and
the persons and circumstances directly involved in the controversy
in which such judgment shall have been rendered.
This article shall take effect immediately upon
filing with the Secretary of State of the State of New York.
[Adopted 2-10-2020 by L.L. No. 1-2020]
A.
APPLICANT
CAMOUFLAGE
CO-LOCATE or CO-LOCATION
CONCEALED INSTALLATION ON BUILDING
GROUND-BASED EQUIPMENT or GROUND-BASED ENCLOSURES
LICENSE
LICENSEE
PERMITTEE
POLE
RIGHT-OF-WAY or ROW
RF
SMALL WIRELESS FACILITY or MICRO WIRELESS FACILITY, SMALL CELL,
"SWF"
(1)
(a)
(b)
(2)
SUPPORT STRUCTURE
UTILITY POLE
Definitions. As used in this article, the following terms shall have
the meanings indicated:
A person or entity submitting an application to the Village
for a special use permit under this article.
To use concealment techniques to blend the installation of
the structure into the surrounding area by mimicking its surroundings
or otherwise disguising it in the environment.
Mounting or installing an SWF on a preexisting structure
and/or modifying a structure for the purpose of mounting or installing
an SWF on that structure.
Building-mounted small wireless facilities that completely
screen all associated equipment and facilities from public view by
approved methods that are in keeping with the character of the building,
surrounding area and any applicable design guidelines or standards
as determined by the Village.
Any equipment associated with installation of a small wireless
facility and/or support structure that will be located on the surface
of the ground with some or all of the facility located above grade.
The document granted to an individual under this article,
which permits its holder, the licensee (see definition), to have all
the rights, privileges, and obligations arising under this article.
Any license issued under this article is nonexclusive and is subject
to the limitations provided herein.
Any person having applied for a license under this article
and holding such a license.
An applicant that has received a special use permit under
this article.
A legally constructed pole, such as a utility, lighting,
traffic, or similar pole.
The area on, below, or above a public roadway, highway, street,
sidewalk, alley, utility easement, or similar property under the jurisdiction
of the Village.
Radio frequency.
A wireless facility that meets both of the following qualifications:
Each antenna is located inside an enclosure measuring no more
than six cubic feet in volume or, in the case of an antenna that has
exposed elements, the antenna and all of its exposed elements could
fit within an imaginary enclosure of no more than six cubic feet;
and
All other wireless equipment associated with the facility measuring
no more than 28 cubic feet in volume.
The following types of associated ancillary equipment are not
included in the calculation of equipment volume: electric meter, concealment
elements, telecommunications demarcation box, ground-based enclosures,
grounding equipment, power transfer switch, cutoff switch, and vertical
cable runs for the connection of power and other services.
A freestanding structure such as a utility pole, monopole,
or other existing or proposed structure designed to support or be
capable of supporting wireless facilities.
A pole or similar structure that is used in whole or in part
for the purpose of carrying electric distribution lines or cables
or wires for telecommunications; cable or electric service; or for
lighting, traffic control, signage, or a similar function regardless
of ownership, including Village-owned poles. Such term shall not include
structures supporting only small wireless facilities.
B.
Purpose and legislative intent.
(1)
The Village desires to encourage small-cell wireless telecommunications
infrastructure investment by providing a fair and predictable process
for the deployment, while enabling the Village to promote the management
of its public ROW in the overall interests of the public health, safety,
and welfare. The Village recognizes that wireless facilities are critical
to delivering wireless access to advanced technology, broadband, and
911 services to homes, businesses, and schools within the Village,
and new technology has increased the need for towers and antennas
to serve the Village. The Village further recognizes that SWFs often
may be deployed most effectively in the ROW. The Village desires to
enact a legal framework which will permit the expedited review process
for the deployment of such SWFs when specified criteria are met and
to permit placement of towers and antennas in locations which will
allow telecommunications services to be rendered in conformity with
both the Federal Telecommunications Act of 1996, and with the goals
of local comprehensive plans and zoning ordinances.
(2)
In enacting this article, the Village is establishing uniform standards
to address issues presented by SWFs, including, without limitation,
to:
(a)
Prevent interference with the use of streets, sidewalks, alleys,
parkways, and other public ways and places;
(b)
Prevent the creation of visual and physical obstructions and
other conditions that are hazardous to vehicular and pedestrian traffic;
(c)
Prevent interference with existing facilities and operations
of facilities presently lawfully located in rights-of-way or public
property;
(d)
Ensure reasonable efforts are made to preserve the character
of neighborhoods in which facilities are installed;
(e)
Protect community aesthetics and visual and historic resources;
(f)
Protect against environmental damage, including damage to trees;
(g)
Facilitate the installation of SWFs to provide benefits of reliable
access to wireless telecommunications technology, broadband, and 911
services to homes, businesses, and schools within the Village.
C.
Applicability. This article applies to all existing SWFs and all
applications and requests for approval to construct, install, modify,
co-locate, relocate, or otherwise deploy SWFs.
D.
Application requirements.
(1)
Special use permit application. All persons wishing to construct,
install, modify (except for in-kind replacements of previously permitted
SWFs), co-locate, relocate, or otherwise deploy SWFs must submit an
application for a special use permit for approval by the Village Board
of the Village of Depew. The Village Board shall follow the procedures
set forth in New York Village Law § 7-725-b for consideration
of the special use permit applications. The SWF special use permit
application shall contain the following, to include nine hard copies
and one digital copy:
(a)
Letter application and applicable application fee(s). The letter
application must contain a detailed description of the proposal, the
number of SWFs involved in the subject application, their proposed
locations, and a description of the proposed locations, including
the zoning districts and nearby land uses. The letter application
must also contain the applicant's name and contact information, as
well as the names and contact information for all consultants acting
on behalf of the applicant, if any.
(b)
Owner's authorization and/or evidence of property rights. The
applicant must demonstrate it has adequate real property rights for
the installation and maintenance of the SWF. This would include, but
not be limited to, owner authorization, an easement, a lease, and/or
a license issued pursuant to this article. The applicant bears all
risk that it has the legal right to construct the SWF in the designated
location.
(c)
Project plans. The applicant must provide a fully dimensioned
site plan and elevation drawings prepared and sealed by a New York
licensed engineer showing any existing wireless facilities with all
existing transmission equipment and other improvements, the proposed
SWF with all proposed transmission equipment and other improvements
and the legal boundaries of the leased, licensed, or owned area in
the general vicinity surrounding the proposed SWF and any associated
access or utility easements.
(d)
Site photos and photo simulations. The applicant must provide
photographs and simulations that show the proposed SWF in context
of the site from reasonable line-of-sight locations from public streets
or other adjacent viewpoints, together with a map that shows the photo
location of each view angle. These simulations must indicate both
location of the proposed SWF as well as design aesthetics that reflect
compliance with this article.
(e)
RF compliance demonstration. The applicant must provide an RF
exposure compliance report prepared and certified by a New York licensed
engineer acceptable to the Village that certifies that the proposed
SWF, as well as any co-located SWF, will comply with applicable federal
RF exposure standards and exposure limits. The RF report must include
the actual frequency and power levels [in watts effective radiated
power ("ERPP")] for all existing and proposed antennas at the site
and exhibits that show the location and orientation of all transmitting
antennas and the boundaries of areas with RF exposures in excess of
the uncontrolled/general population limit (as that term is defined
by the FCC) and also the boundaries of the areas with RF exposures
in excess of the controlled/occupations limit (as that term is defined
by the FCC). Each such boundary shall be clearly marked and identified
for every transmitting antenna at the project site in accordance with
FCC requirements, if applicable.
(f)
Acoustic analysis. The applicant must provide a written report
that analyzes acoustic levels for the proposed SWF and all associated
equipment. The acoustic analysis must be prepared and certified by
an engineer and include an analysis of the manufacturer's specifications
for all noise-emitting equipment and a depiction of the proposed equipment
relative to all adjacent property lines. This requirement may be satisfied
by providing the manufacturer's specifications of the SWF demonstrating
that the equipment does not generate noise or generates noise at an
imperceptible level.
(g)
Project purpose statement/need demonstration. The applicant
must provide a written statement that includes:
[1]
A description of the technical objectives to be achieved, including
the services to be offered and/or improvement of existing services;
[2]
An annotated topographical map that identifies the targeted
service area to be benefited;
[3]
The estimated number of potentially affected users in the targeted
service area; and
[4]
Full-color signal propagation maps with objective units of signal
strength measurements that show the applicant's current service coverage
levels from all adjacent sites without the proposed site, predicted
service coverage levels from all adjacent sites with the proposed
site, and predicted service coverage levels from the proposed site
without all adjacent sites (or a statement that the objectives are
other than coverage related).
(h)
Alternatives analysis. The applicant must list all existing
structures considered as alternatives to the proposed location, together
with a general description of the site design considered at each location.
The applicant must also provide a written explanation for why the
alternatives considered were unacceptable or not feasible, unavailable
or not as consistent with the design standards. This explanation must
include a comparative analysis and such technical information and
other factual justification as are necessary to document the reasons
why each alternative is unacceptable, not feasible, unavailable, or
not as consistent with the design standards in this article as the
proposed location. This would include an analysis of the siting preferences
set forth in this article.
(i)
The applicant shall provide manufacturer's information for the
SWF and support structure, if applicable.
(j)
The applicant shall provide technical specifications of the
SWF and support structure, if applicable, and evidence that such structure
is capable of handling the addition of SWFs.
(k)
The applicant shall provide a written maintenance and removal
plan, made to and acceptable by the Village, to include an agreement
by the applicant and/or owner to remove all the components of the
SWF in the event the facility becomes nonfunctional, ceases to be
used for its originally intended purposes or is otherwise abandoned,
as determined by the Village. The maintenance and removal plan shall
remain in full force for the life of the SWF. An acceptable bond and/or
surety, for the purposes of removing the SWF, submitted to the Village
for review, shall be purchased and remain in force for the life of
the SWF.
(l)
The applicant shall provide any other items that the Village
shall deem necessary for a thorough and complete review of the proposal.
(2)
One application required. Although each SWF requires its own special
use permit, the applicant need submit only one application, regardless
of the number of proposed SWFs or locations. The Board may, in its
sole discretion, deny the application, grant the application in full,
or partially grant the application by issuing special use permits
for only some of the SWF proposed in the application.
(3)
Maintenance. Subject to the requirements for the initial application,
an application shall not be required for routine maintenance or in-kind
replacement, unless otherwise specified within this article. In-kind
replacement shall mean replacement of an existing permitted SWF with
another SWF of the substantially same dimensions, appearance, and
characteristics. Any other modifications or replacements of any portion
of an SWF shall require an amendment to the special use permit, requiring
compliance with all applicable requirements and procedures set forth
in this article.
(4)
Application fees. The applicant shall pay the Village a fee for review
of the special use permit application, in an amount to be determined
by the Village Board by resolution, which may be amended from time
to time by further resolution.
(5)
Third-party professional consultants. The Village, in its sole discretion,
may retain third-party consultants to assist in the review of a proposed
SWF. The cost of such third-party consulting services shall be reimbursed
by the applicant to the Village within 30 days of the Village receiving
an invoice for third-party consulting services.
E.
Exceptions to the special use permit requirement. The following SWFs shall be exempt from the special use permit requirements of § 260-59 and, upon compliance with the substantive requirements of this article, require only an approval determination from the Code Enforcement Officer. The fee for this review by the Code Enforcement Officer shall be in an amount to be determined by the Village Board by resolution, which may be amended from time to time by further resolution.
F.
Site location guidelines.
(1)
Preferred locations. The Village prefers co-location and siting in manufacturing and/or commercial business districts as defined in Chapter 260 over residential zoning districts. The Village prefers co-location as opposed to the construction of a new support structure. The Village prefers the siting on existing buildings, provided they are camouflaged or concealed.
(2)
Discouraged locations. The Village discourages new support structures
and the location in residential zoning districts, although siting
in residential districts may be necessary if no alternatives are available
to meet the provider's objectives. Where possible, efforts should
be made to co-locate or to locate in manufacturing or business zoning
districts. If location in a residential zoning district is necessary,
techniques to minimize aesthetic impacts are mandatory, including
camouflage.
(3)
Prohibited locations. The Village prohibits any structures or parts
of structures associated with SWF placement from obstructing access
to above- or underground traffic control infrastructure, public transportation
vehicles, shelters, street furniture, or other improvements, above-
or underground utility infrastructure, fire hydrants, doors, gates,
or other ingress and egress points to any building appurtenant to
the ROW, or any fire escape. Ground-mounted equipment shall not be
closer than 12 feet from any existing lawful encroachment in the ROW
and driveway aprons.
G.
Design standards.
(1)
Construction categories. Each SWF shall comply with the standards
set forth for each location type.
(a)
Existing support structure or replacement support structure
of the same type, size, and height, in the same location.
[1]
Equipment. All equipment must be installed as close to the support structure as technically feasible to minimize its visibility from public view to the greatest extent feasible. All conduits, conduit attachments, cables, wires, and other connectors shall be concealed from the public view to the greatest extent feasible. Ground-mounted equipment is not preferred and shall be minimized to the greatest extent feasible. Where used, ground-mounted equipment must incorporate concealment techniques in compliance with the requirements of Subsection G(3).
[2]
Minimum clear height. With the exception of any ground-mounted
equipment, no part of the SWF shall be less than 10 feet above grade
or the maximum height permitted by the owner of the utility pole as
confirmed by the utility pole owner in writing.
[3]
Maximum height. No part of the SWF shall exceed 10 feet above
the existing support structure. Ground-mounted cabinets shall be secured
to a concrete slab and shall not exceed three feet in height.
[4]
Maximum volume. The maximum volume of each antenna shall not
exceed six cubic feet.
[5]
Maximum equipment volume. The maximum equipment volume shall
not exceed 28 cubic feet, or 15 cubic feet for ground-mounted equipment.
[6]
Reservation of rights. The Village reserves its right to request
additional information, analysis, studies, including further expert
opinion, at the applicant's expense, pertaining to the application
and any issues of concern.
[7]
Each SWF shall be on one support structure.
[8]
Each SWF shall be at least 500 feet from another SWF.
(b)
New support structure.
[1]
Basis. The Village will consider new poles only if the applicant
can demonstrate that replacing or utilizing an existing pole is not
possible or feasible. Any new poles must meet all Village and other
applicable laws.
[2]
Support structure requirements. All applicants shall propose
new support structures that complement the community character of
the area, and any applicable design guidelines that may exist for
the area. When existing utility poles exist, new support structures
may feature a similar design and aesthetic. Where no existing utility
poles exist, architecturally significant support structures shall
be proposed, including, but not limited to, flag poles and decorative
light standards.
[3]
Equipment. All equipment must be installed as close to the support structure as technically feasible to minimize its visibility from public view. All conduits, conduit attachments, cables, wires, and other connectors shall be concealed from the public view to the greatest extent feasible. Ground-mounted equipment is not preferred and shall be minimized to the greatest extent feasible. Where used, ground-mounted equipment must incorporate concealment techniques in compliance with the requirements of Subsection G(3).
[4]
Minimum clear height. With the exception of any ground-mounted
equipment, no part of the SWF shall be less than 10 feet above grade
or the maximum height permitted by the owner of the utility pole as
confirmed by the utility pole owner in writing.
[5]
Maximum height. No part of the SWF shall exceed 50 feet above
ground level or 10 feet above the average height of all utility poles
within a 500-foot radius, whichever is greater. This is the maximum
height, and the Village may approve a lesser height depending on the
surrounding structures and character. Ground-mounted cabinets shall
be secured to a concrete slab and shall not exceed three feet in height.
[6]
Maximum diameter. The maximum diameter of any new poles not
intended for public distribution shall not exceed 24 inches at the
base.
[7]
Maximum volume. The maximum volume of each antenna shall not
exceed six cubic feet.
[8]
Maximum equipment volume. The maximum equipment volume shall
not exceed 28 cubic feet, or 15 cubic feet for ground-mounted equipment.
[9]
Installation. Any new poles not intended for public distribution
shall:
[a]
Be installed as far as practicable off the traveled
way;
[b]
Meet the height requirements set forth herein;
[c]
Not be installed in the ROW unless fixed objects
exist at the same or closer distance from the roadway;
[d]
Not be any closer to the roadway than any existing
pole line;
[e]
Be buried with no foundation unless an exception
is justified and approved by the Village Engineer or designee; and
[f]
To the extent practicable, be located outside of
residentially zoned neighborhoods.
[10]
Reservation of rights. The Village reserves its
right to:
[a]
Reject new poles for any of the following reasons:
traffic, safety, conflict with existing structure or utilities, conflict
with pedestrian or complete street features, or future planned activities.
Any notice of denial must be in writing and explain the basis for
the denial, and be sent to the applicant and the authority controlling
the ROW, if not controlled by the Village of Depew.
[b]
Request additional information, analysis, studies,
including further expert opinion, at the applicant's expense, pertaining
to the application and any issues of concern.
(c)
Concealed installation on building.
[1]
Equipment. All equipment must be installed such that its visual appearance is consistent with other accessory mechanical and/or building service appurtenances. All conduits, conduit attachments, cables, wires, and other connectors shall match the color of existing building mechanicals or the adjacent building material color. Ground-mounted equipment is not preferred and shall be minimized to the greatest extent feasible. Where used, ground-mounted equipment must incorporate concealment techniques in compliance with the requirements of Subsection G(3).
[2]
Minimum clear height. With the exception of any ground-mounted
equipment, no part of the SWF shall be less than 10 feet above grade.
[3]
Maximum height. No part of the SWF shall exceed 10 feet above
the building roof or parapet wall. Ground-mounted cabinets shall be
secured to a concrete slab and shall not exceed three feet in height.
[4]
Maximum volume. The maximum volume of each antenna shall not
exceed six cubic feet.
[5]
Maximum equipment volume. The maximum equipment volume shall
not exceed 28 cubic feet, or 15 cubic feet for ground-mounted equipment.
[6]
Applications. Applicants must secure an approved building permit.
(2)
Engineering requirements. The applicant must provide an installation
design prepared by a professional engineer licensed in New York State
that demonstrates the pole strength of the pole to be used.
(3)
Aesthetic requirements. The character of the neighborhood and the
visual quality of the surroundings must be taken into account when
installing SWF, whether to new or existing poles. In order to avoid
unnecessary adverse visual impacts and to preserve the area in which
the SWFs are being installed, and in addition to the conditions set
forth above, all SWFs shall meet the following requirements:
(a)
Poles and equipment shall be painted in a neutral color that
is consistent with other new and existing poles in the general geographic
area so as to reduce visual intrusiveness, unless existing surrounding
poles are not painted.
(b)
Poles shall be constructed of the same or similar material as
other new and existing poles in the general geographic area.
(c)
Poles shall be constructed in the same or similar shape as other
new and existing poles in the general geographic area.
(d)
Poles may be camouflaged or disguised as deemed appropriate
by the Village Board.
(e)
No artificial lighting is permitted on the pole unless otherwise
required by law or permitted, e.g., where no existing utility poles
exist and a decorative light pole is used with express permission.
Any permitted lighting must be consistent in design and bulb type
with other lighting fixtures in the general geographic area.
(f)
Commercial signage is not permitted on any pole unless already
existing at the time of the installation.
(g)
Equipment shall be affixed to the pole in a tight, neat, and
orderly fashion. Where possible, equipment shall be flush mounted
with the pole, and in no case shall offset mounting exceed the greater
of six inches or the minimum distance permitted by the owner of the
pole as confirmed by the owner of the pole in writing. No wires may
be loose or dangling, with a preference that the wires be enclosed
within the pole where possible.
(h)
Equipment shall be consistent in size with the pole to which
it is being attached and minimally shall be consistent with the suggested
designs shown in the Appendix to this article.[1]
[1]
Maximum volume. The maximum volume of each antenna shall not
exceed six cubic feet.
[2]
Maximum equipment volume. The maximum equipment volume shall
not exceed 28 cubic feet.
[1]
Editor's Note: Said appendix is on file in the Village offices.
(i)
Ground-mounted equipment shall be minimized to the greatest
extent feasible. Where used, ground-mounted equipment shall incorporate
camouflage techniques matching color and materials of the wireless
support structure, unless other materials or colors are approved by
the Village. Applications shall include proposed camouflage techniques
for ground-mounted equipment, which may include, but are not limited
to, strategic choice of color, paint, and/or materials, landscaping,
placement in less visible locations, and placement within existing
or replacement street furniture.
H.
Waiver. For good cause shown, the Village Board may grant a waiver
of any of the provisions of this article. The burden of demonstrating
good cause is on the applicant.
I.
Standard conditions of approval. In addition to any other conditions
imposed by the Village Board or the Code Enforcement Officer in the
case of applications exempt from the special use permit requirement,
special use permits and approvals by the Code Enforcement Officer
for the installation of SWFs shall be automatically subject to the
conditions set forth herein. The Village Board and/or the Code Enforcement
Officer shall have discretion to modify or amend these conditions
on a case-by-case basis as may be necessary or appropriate under the
circumstances to allow for the proper operation of the approved facility
consistent with the goals of this article.
(1)
Approved plans. Before the permittee submits any applications to
the Building Department, the permittee must incorporate the permit,
all conditions associated with this permit and the approved photo
simulations into the project plans. The permittee must construct,
install and operate the SWF in strict compliance with the approved
plans. Any alterations, modifications or other changes to the approved
plans, whether requested by the permittee or required by other departments
or public agencies, must be submitted in a written request subject
to the Building Department prior to review and approval, who may refer
the request to the Village Board if it is found that the requested
alteration, modification or other change implicates a significant
or substantial land use concern.
(2)
Build-out period. The permit will automatically expire one year from
the issuance date unless the permittee obtains all other permits and
approvals required to install, construct, and/or operate the approved
SWFs and commences the installation and construction, which includes,
without limitation, any permits or approvals required by any federal,
state, or local public agencies with jurisdiction over the subject
property, the SWF, or its use. The Village may grant extensions to
a date certain when the permittee shows good cause to extend the limitations
period in a written request for an extension submitted at least 30
days prior to the automatic expiration date in this condition.
(3)
Maintenance obligations: vandalism. The permittee shall keep the
site, which includes, without limitation, any and all improvements,
equipment, structures, and access routes, in a neat, clean, and safe
condition in accordance with the approved plans and all conditions
in the permit. The permittee shall keep the site area free from all
litter and debris at all times. The permittee, at no cost to the Village,
shall remove and remediate any graffiti or other vandalism at the
site within 48 hours after the permittee received notice or otherwise
becomes aware that such graffiti or other vandalism occurred.
(4)
Compliance with laws. The permittee shall maintain compliance at
all times with all federal, state, and local statutes, regulations,
orders or other rules that carry the force of law applicable to the
permittee, the subject property, the SWF or any use or activities
in connection with the use authorized in the permit. The permittee
expressly acknowledges and agrees that this obligation is intended
to be broadly construed and that no other specific requirements in
these conditions are intended to reduce, relieve, or otherwise lessen
the permittee's obligations to maintain compliance with all applicable
laws, regulations, orders, and rules.
(5)
Inspections. The permittee expressly acknowledges and agrees that
the Village or its designee may enter onto the site and inspect the
improvements and equipment upon reasonable prior notice to the permittee;
provided, however, that the Village may, but will not be obligated
to, enter onto the site area without prior notice to support, repair,
disable, or remove any improvements or equipment in emergencies or
when such improvements or equipment threatens actual, imminent harm
to property or persons. The permittee will be permitted to supervise
the Village or its designee while such inspection or emergency access
occurs.
(6)
Contact information. The permittee shall furnish the Village with
accurate and up-to-date contact information for a person responsible
for the SWF, which includes, without limitation, such person's full
name, title, direct telephone number, facsimile number, mailing address,
and email address. The permittee shall keep such contact information
up-to-date at all times.
(7)
Rescission of permit for noncompliance. The Village Board may rescind
any permit issued under this article for review at any time due to
noncompliance with applicable law or any approval conditions. At a
duly noticed hearing and in accordance with all applicable laws, the
Village Board may revoke any such permit or amend these conditions
as the approval authority deems necessary or appropriate to correct
any such noncompliance.
(8)
Record retention. The permittee shall retain full and complete copies
of all licenses, permits, and other regulatory approvals issued in
connection with the SWF, which includes, without limitation, all conditions
of approval, approved plans, resolutions, and other documentation
associated with the license, permit, or regulatory approval.
A.
Applicability. The contents of this section are applied in addition to the contents of § 220-13 for applicants proposing SWFs located in the Village ROW.
B.
License. Where the proposed SWF is in the Village ROW, before any
application may be submitted, a nonexclusive license to place the
SWF is required. No SWF is allowed in the Village ROW unless first
a nonexclusive license is obtained from the Village by the applicant.
(1)
No exclusive, irrevocable property right or any other interest is
created by the license. There is no right to convey, express or implied,
with the license.
(2)
The license may not be assigned, except upon written consent of the
Village, which shall not be unreasonably withheld, provided the assignee
assumes all obligations of the license, agrees to abide by its terms,
in writing, and meets all other criteria as set forth in this article.
(3)
A general license will be granted per applicant for all Village ROWs,
provided that the applicant meets the requirements for such a license.
(4)
An applicant shall demonstrate the entitlement to use the land for
the designated purpose, e.g., through demonstration that the Village
owns the fee of the highway at issue, through the grant of an easement
or a pole attachment agreement, and/or other legal mechanisms that
may be applicable. The applicant bears any and all risk that it has
the legal right to construct the SWF in the location that it has chosen.
(5)
The license agreement shall be in the general form as developed by
the Village.
(6)
Each license agreement is subject to approval by the Village Board.
(7)
By issuance of a license, the Village does not represent or warrant
title or ownership of the ROW. The applicant proceeds at its own risk.
(8)
Indemnification. Any license agreement shall contain indemnification
provisions, indemnifying the Village for the licensee's use of the
Village ROW and related activities, to the maximum extent permitted
by law.
(9)
Performance bond/surety. Any license agreement shall contain the
requirements that the licensee provide a performance bond or other
appropriate surety, as approved by the Village Board in an amount
equal to or greater than a written estimate from a New York licensed
engineer with experience in SWF removal. The written estimate must
include the cost to remove all equipment and other improvements, which
includes, without limitation, all antennas, radios, batteries, generators,
utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits,
structures, shelters, towers, poles, footings, and foundations, whether
aboveground or below ground, constructed or installed, in connection
with the SWF. In establishing or adjusting the bond amount required
under this condition, and in accordance with New York Code, the Village
shall take into consideration information provided by the licensee
regarding the cost to remove the wireless facility.
(10)
The license shall require compliance with this article, as may
be amended by the Village Board.
(11)
Insurance. Without limiting the indemnification provision herein,
and in addition to the performance bond/surety required herein, the
license agreement shall contain a requirement that the licensee procure,
at the licensee's expense, insurance in an amount sufficient as determined
by the Village Board, with the Village named as an additional insured.
C.
Rates and fees. In addition to the fees outlined in § 220-13 of this article, the following fees apply for SWFs to be located in the Village ROW:
(1)
License review fee. The applicant shall pay the Village a license
review fee upon execution of the license, in the amount to be determined
by the Village Board by resolution, which may be amended from time
to time by further resolution.
(2)
Annual license fee. A wireless provider authorized to place SWFs
in the ROW shall pay to the Village an annual license fee in an amount
to be determined by the Village Board by resolution, which may be
amended from time to time by further resolution.
