[HISTORY: Adopted by the Board of Trustees of the Village
of Nissequogue 3-20-2007 by L.L. No. 1-2007. Amendments noted where
applicable.]
This chapter shall be known and may be cited as the "Wireless
Telecommunications Facilities Siting Law" for the Incorporated Village
of Nissequogue.
A.
On February 8, 1996, the United States Congress enacted the Telecommunications
Act of 1996 (hereinafter referred to as the "Act"). The purpose of
the Act is to provide a more competitive environment for wired and
wireless communications services in the United States by deregulating
the telecommunications industry. The Act preserves the authority of
local government to regulate the placement, construction, and modification
of wireless telecommunications facilities.
B.
The purpose of this chapter is to establish predictable and balanced
regulations for the siting and screening of wireless telecommunications
facilities in order to accommodate the growth of such systems within
the Incorporated Village of Nissequogue (hereinafter referred to as
the "Village") while protecting the public against any adverse impacts
on aesthetic resources, avoiding potential damage to adjacent properties
from tower failure through structural standards and setback requirements,
and reducing the number of telecommunications structures needed to
service the Village by maximizing the use of towers.
C.
This chapter is intended to regulate the placement, construction,
and modification of wireless telecommunications facilities in order
to protect the health, safety, and welfare of the public, while at
the same time not unreasonably interfering with the development of
the competitive wireless telecommunications marketplace in the Village.
Specifically, this chapter is intended to:
(1)
Establish a fair and efficient process for the review and approval
of applications;
(2)
Regulate the location of the wireless telecommunications facilities
in the Village;
(3)
Protect residential areas and land uses from potential adverse impacts
of wireless telecommunications facilities;
(4)
Minimize negative and adverse visual impacts of wireless telecommunications
facilities through careful design, siting, landscaping, and innovative
camouflaging techniques in order to protect the natural features and
aesthetic character of the Village;
(5)
Promote and encourage shared use or collocation of freestanding towers;
(6)
Promote and encourage, wherever possible, the placement of a wireless
telecommunications facility in such a manner as to cause minimal disruption
to the land, property, buildings and other facilities adjacent to,
surrounding and in generally the same area as the requested location
of such a wireless telecommunications facility and to minimize adverse
aesthetic impacts to the community;
(7)
Promote and encourage utilization of technological designs that will
either eliminate or reduce the need for erection of new telecommunications
structures to support antennas and wireless telecommunications facilities;
(8)
Avoid potential damage to property caused by wireless telecommunications
facilities by ensuring that telecommunications structures are soundly
and carefully designed, constructed, modified, maintained, and removed
when no longer used or determined to be structurally unsound;
(9)
Ensure that wireless telecommunications facilities are compatible
with surrounding land uses; and
(10)
Assure an integrally comprehensive review of environmental impacts
of wireless telecommunications facilities.
D.
Jurisdiction.
(1)
The Communications Act of 1934, as amended by the Act, grants the
Federal Communications Commission (FCC) exclusive jurisdiction over:
(2)
The Village's regulation of wireless telecommunications facilities
in the Village will not have the effect of prohibiting any person
from providing wireless telecommunications services, which effect
would be in violation of the Act.
For the 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.
An accessory building, facility, or structure serving or
being used in conjunction with a wireless telecommunications facility
and located on the same property or lot as the wireless telecommunications
facility, including but not limited to utility or transmission equipment
storage sheds or cabinets, and/or base stations designed and used
to shelter equipment and/or to support personal wireless services.
The term "accessory structure" does not include offices, long-term
storage of vehicles or other equipment storage, or broadcast studios.
A device used to propagate and/or collect electromagnetic
waves or radio frequency signals.
All poles or devices that attach an antenna to a telecommunications
structure, including all connection cables.
Any person submitting an application to the Village for a
special use permit for a wireless telecommunications facility.
The process by which an applicant submits a request to the
Planning Board for a special use permit for a wireless telecommunications
facility. The application shall include all necessary, appropriate,
and written documentation, verbal statements, and representations,
in whatever form or forum submitted or made by an applicant to the
Planning Board concerning such request.
The construction of a wireless telecommunications facility
so that the towers and/or antennas blend readily with the landscape,
neighborhood, and adjacent architectural features.
The use of the same telecommunications structure to carry
two or more antennas for the provision of wireless services by two
or more persons or entities.
Shall have the meaning in this chapter and any special use
permit granted hereunder as is defined and applied under the United
States Uniform Commercial Code (UCC).
An application that contains all information and/or data
necessary to enable the Planning Board to evaluate the merits of the
application and to make an informed decision with respect to the effect
and impact of the wireless telecommunications facility on the Village
in the context of the permitted land use for the particular location
requested.
The environmental assessment form approved by the New York
State Department of Environmental Conservation.
Any person licensed by the State of New York to practice
engineering services.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
A self-supporting monopole structure specifically designed
for the purpose of supporting and enclosing antennas used in connection
with a wireless telecommunications facility.
When referring to a freestanding tower, 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.
Any property included in the New York State Register of Historic
Places or the National Register of Historic Places.
Nonionizing electromagnetic radiation.
Any person with fee title or a long-term (exceeding 10 years)
leasehold to any parcel of land within the Village who desires to
develop or construct, build, modify or erect a tower upon such parcel
of land.
Any natural person, firm, partnership, association, corporation,
company or other legal entity, private or public, whether for profit
or not for profit.
Commercial mobile services, unlicensed wireless services,
and common carrier wireless exchange access services as defined by
47 U.S.C. § 332.
The duly appointed Planning Board of the Village of Nissequogue.
The property, including all buildings and structures located
thereon, on which a wireless telecommunications facility is, or is
proposed to be, located.
The official document or permit by which an applicant is
allowed to construct and use a wireless telecommunications facility
as granted or issued by the Planning Board.
Any tower or wireless telecommunications facility which is
designed to enhance compatibility with adjacent land uses.
The transmission and reception of audio, video, data and
other information by wire, radio frequency, light and other electronic
or electromagnetic systems.
Any structure used in, associated with or necessary for the
provision of wireless services as described in the definition of "wireless
telecommunications facility."
In relation to all aspects and components of this chapter,
fewer than 90 days.
Freestanding tower.
The duly elected Village Board of Trustees of the Village
of Nissequogue.
A structure, facility or location designed or intended to
be used to transmit and/or receive radio, television, cellular, paging,
911 data, or personal telecommunications services, commercial satellite
services, or microwave telecommunications signals. Not included are
services used exclusively for fire, police and other dispatch telecommunications
or exclusively for private radio and television reception and private
citizen band, amateur radios and other similar telecommunications.
A wireless telecommunications facility shall include, without limit,
accessory structures and related equipment, antennas applied to the
facade of a building or roof-mounted antennas, antenna attachments,
freestanding towers, monopoles and similar structures, and all other
accessory structures and related equipment.
Notwithstanding any other provision of the Code of the Village
of Nissequogue (the "Code"), no person shall build, erect, construct,
change, alter, modify, or use any wireless telecommunications facility
upon any parcel of land within any zoning district within the Village
unless a special use permit shall have been issued by the Planning
Board.
A.
The Planning Board is hereby authorized to review, analyze, evaluate
and approve, approve with modifications, or disapprove applications
for special use permits pursuant to this chapter, including decisions
with respect to recertifying or not recertifying, or revoking such
permits. The Planning Board shall have the authority to impose such
reasonable conditions and restrictions as are directly related to
and incidental to the proposed wireless telecommunications facility.
B.
The Planning Board shall review, analyze, evaluate and make decisions
with respect to granting or revoking special use permits for wireless
telecommunications facilities. The Planning Board may, at its discretion,
delegate or designate other official agencies of the Village to accept,
review, analyze, evaluate and make recommendations to the Planning
Board with respect to the granting or not granting, recertifying or
not recertifying, or revoking special use permits for wireless telecommunications
facilities.
C.
A special use permit issued by the Planning Board shall be effective
for a period of three years which shall be renewable thereafter upon
reapplication by the applicant and the payment of the required fee.
A.
All applicants for a special use permit related to a wireless telecommunications
facility shall comply with the requirements set forth in this section.
B.
All applicants for a special use permit related to a wireless telecommunications
facility shall submit an application to the Building Department on
forms prepared by the Village.
C.
An application for a special use permit related to a wireless telecommunications
facility 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 from the applicant, shall also sign the
application. At the discretion of the Planning Board, any false or
misleading statement in the application may subject the applicant
to denial of the application without further consideration or opportunity
for correction.
D.
Applications not meeting the requirements stated herein, or which
are otherwise incomplete, may be rejected by the Planning Board.
E.
The applicant shall include a statement, in writing:
(1)
That the applicant's wireless telecommunications facility 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 Planning Board, in writing, as well as all applicable
and permissible local codes, rules and regulations, including any
and all applicable county, state and federal laws, rules and regulations.
(2)
That the wireless telecommunications facility is legally permissible,
including but not limited to the fact that the applicant is authorized
to do business in New York State.
F.
All applications for a special use permit related to a wireless telecommunications
facility shall be accompanied by a facilities engineering report containing
the information hereinafter set forth. The report shall be signed
by a licensed professional engineer registered in New York State.
Where this section calls for certification, such certification shall
be by a qualified New York State licensed professional engineer acceptable
to the Planning Board, unless otherwise noted. The application shall
include, in addition to the other requirements for the special use
permit, the following information:
(1)
Documentation that demonstrates the need for the wireless telecommunications
facility to provide service primarily within the Village.
(2)
The name, address, and telephone number of the person preparing the
report.
(3)
The name, address, and telephone number of the property owner, lessee,
operator and applicant, including the legal basis for the applicant's
authority.
(4)
The legal description, postal address, and Tax Map designation of
the property.
(5)
The zoning district in which the property is situated.
(6)
The size of the property, stated both in square feet and lot line
dimensions.
(7)
A survey of the property indicating the dimensions of the property,
the location and height of all structures, the location, size and
height of all proposed and existing towers, antennas, and accessory
structures, and the type, size and location of all proposed and existing
landscaping and fencing.
(8)
The location of all residential structures within 750 feet in the
case of a freestanding tower and within 250 feet in the case of all
other wireless telecommunications facility applications.
(9)
The location of all habitable structures within 750 feet in the case
of a freestanding tower and within 250 feet in the case of all other
wireless telecommunications facility applications.
(10)
The names, addresses, and telephone numbers of all owners of
other freestanding towers and wireless telecommunications facilities
located within a one-mile radius of the proposed wireless telecommunications
facility, including Village-owned property. The address and location
of each such freestanding tower or wireless telecommunications facility
shall be indicated.
(11)
The number, type and design of the wireless telecommunications
facility's existing and/or proposed antenna(s) and the basis for the
calculations of the wireless telecommunications facility's capacity
to accommodate multiple users.
(12)
The make, model and manufacturer of the wireless telecommunications
facility and antenna(s).
(13)
A description of the existing and/or proposed wireless telecommunications
facility and antenna(s) and all related fixtures, structures, appurtenances
and apparatus, including height above preexisting grade, materials,
color and lighting.
(14)
The frequency, modulation and class of service of radio or other
transmitting equipment.
(15)
The transmission and maximum effective radiated power of the
antenna(s).
(16)
The direction of maximum lobes and associated radiation of the
antenna(s).
(17)
A description of the design plan proposed by the applicant.
The applicant must identify its utilization of the most recent technological
design, including microcell design, as part of the design plan. The
applicant must demonstrate the need for a wireless telecommunications
facility to accomplish the provision of the applicant's telecommunications
services.
(18)
A certification that a test has been conducted to determine
the broadcast capability of the wireless telecommunications facility
and antenna(s) and the results of such test.
(19)
The applicant's proposed wireless facility maintenance and inspection
procedures and related system of records.
(20)
Certification, including such documentation as the Planning
Board shall require, that NIER levels at the proposed site are within
the threshold levels adopted by the FCC.
(21)
A certification that the construction and placement of the wireless
telecommunications facility and the proposed antenna(s) will not interfere
with public safety communications, the usual and customary transmission
or reception of radio, television, or other communications services
enjoyed by adjacent residential and nonresidential properties, or
other existing telecommunications devices.
(22)
A certification that the proposed wireless telecommunications
facility can be shared by the Village for use by any fire department,
police department, or any other municipal agency for the purpose of
transmitting public safety communications.
(23)
A copy of the FCC license applicable for the use of the wireless
telecommunications facility.
(24)
Certification that a topographic and geomorphologic study and
analysis has been conducted and, taking into account the subsurface
and substrata and the proposed drainage plan, that the site is adequate
to assure the stability of the proposed wireless telecommunications
tower on the proposed site.
(25)
Propagation studies of the proposed site and all adjoining proposed
or in-service or existing sites.
(26)
The applicant shall disclose, in writing, any agreement in existence
prior to submission of the application that would limit or preclude
the ability of the applicant to share any wireless telecommunications
facility that it constructs.
(27)
Certification that the wireless telecommunications facility,
foundation and attachments are designed and will be constructed "as
built" to meet all local, county, state and federal structural requirements
for loads, including wind and ice loads. If the wireless telecommunications
facility is subsequently approved and constructed, similar "as-built"
certification indicating that the wireless telecommunications facility
has been constructed in accordance with all standards shall be furnished
prior to the Village issuance of a special use permit.
(28)
An affidavit attesting to the fact that the applicant made diligent
but unsuccessful efforts to obtain permission to install or collocate
the applicant's wireless telecommunications facility on freestanding
towers or other existing structures located within a one-mile radius
of the proposed wireless telecommunications facility.
(29)
Written technical evidence from an engineer that the proposed
wireless telecommunications facility cannot be installed or collocated
on a freestanding tower located within a one-mile radius of the proposed
wireless telecommunications facility.
(30)
Certification that the proposed site of the wireless telecommunications
facility does not pose a risk of explosion, fire, or other danger
to life or property due to its proximity to volatile, flammable, explosive,
or hazardous materials such as LP gas, propane, gasoline, natural
gas, or corrosive or other dangerous chemicals.
G.
In the case of a new wireless telecommunications facility, the applicant
shall be required to submit a written report demonstrating its efforts
to secure municipal use or shared use of existing wireless telecommunications
facilities. Copies of written requests and responses for shared use
shall be provided to the Planning Board.
H.
After construction and prior to receiving a special use permit, the
applicant shall furnish written certification that the wireless telecommunications
facility and related facilities are grounded and bonded so as to protect
persons and property and installed with appropriate surge protectors.
I.
The applicant shall submit a completed long-form EAF and a completed
visual EAF addendum. Based on the results of the visual EAF addendum,
the Planning Board may require submission of a more detailed visual
analysis. Applicants are encouraged to seek preapplication meetings
with the Planning Board to address the scope of the required visual
assessment.
J.
The applicant shall submit a visual impact assessment which shall
include:
(1)
A "zone of visibility" map which shall be provided in order to determine
locations where the facility may be seen.
(2)
Pictorial representations of "before" and "after" views from key
viewpoints both inside and outside of the Village to be determined
by the Planning Board, including but not limited to major roads, county
and local parks, other public lands, historic districts, preserves
and historic sites normally open to the public and from any other
location where the wireless telecommunications facility is visible
to a large number of visitors, travelers, or residents. The Village
will provide guidance concerning the appropriate key sites at a preapplication
meeting.
(3)
An assessment of the visual impact of the facility base and accessory
structures from abutting and adjacent properties and streets.
(4)
Multiseasonal color photo simulations showing the proposed site of
the wireless telecommunications facility with a photo-realistic representation
of the proposed wireless telecommunications facility as it would appear
viewed from the closest residential property and from adjacent roadways.
K.
The applicant shall, in a manner approved by the Planning Board,
demonstrate and provide in writing and/or by drawing how it shall
effectively screen from view its proposed wireless telecommunications
facility base and all related facilities and structures.
L.
All utilities serving any wireless telecommunications facility site
shall be installed underground and in compliance with all 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. The Planning Board may waive or vary the requirements
of underground installation of utilities whenever, in the opinion
of the Planning Board, such waiver or variance shall not be detrimental
to the health, safety, general welfare or environment, including the
visual and scenic characteristics of the area.
M.
Any wireless telecommunications facility must have a backup battery-operated
generator with at least a thirty-six-hour capacity.
N.
A demonstration that the wireless telecommunications facility will
be sited so as to have the least adverse visual effect on the environment
and its character, on existing vegetation, and on the residences in
the area of the wireless telecommunications facility site.
O.
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 with the natural surroundings.
P.
Access and parking for vehicles 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 vegetation cutting.
Road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion potential.
Q.
The applicant shall submit 15 copies of the completed application
and such additional copies as may be determined at the preapplication
meeting. A copy of the application shall be provided to the legislative
body of all adjacent municipalities and to the Suffolk County Planning
Commission. The responsibility of providing such notification shall
be borne by the applicant, who shall file an affidavit of compliance
with the Village.
R.
If the applicant is proposing the construction of a freestanding
tower, the applicant shall examine the feasibility of designing a
tower to accommodate future demand for at least two additional commercial
applications, e.g., future collocations. The scope of this examination
shall be determined by the Planning Board. The wireless telecommunications
facility shall be structurally designed to accommodate at least two
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 wireless
telecommunications facility is not technologically feasible or is
commercially impracticable and creates an unnecessary and unreasonable
burden, based upon:
(1)
The number of FCC licenses foreseeably available for the area.
(2)
The kind of wireless telecommunications facility site and structure
proposed.
(3)
The number of existing and potential licenses without wireless telecommunications
facility spaces/sites.
(4)
Available space on existing and approved towers.
S.
Unless waived by the Planning Board, there shall be a preapplication
meeting. The purpose of the preapplication meeting will be to address
issues which will help to expedite the review and permitting process.
Where the application is for the shared use of an existing telecommunications
tower, the applicant can seek to waive any application requirements
that may not be applicable. At the preapplication meeting the waiver
requests, if appropriate, will be decided by the Planning Board. Costs,
including attorneys' fees, of the Village's consultants to prepare
for and attend the preapplication meeting shall be borne by the applicant.
T.
The holder of a special use permit shall notify the appropriate Village
authority of any intended modification of a wireless telecommunications
facility and shall apply to the Village to modify, relocate or rebuild
a wireless telecommunications facility.
U.
Any and all representations made by the applicant to the Planning
Board, 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 Planning Board.
A.
Location priorities.
(1)
Applicants for wireless telecommunications facilities shall locate,
site and erect said wireless telecommunications facilities in accordance
with the following priorities, No. 1 being the highest priority and
No. 4 being the lowest priority:
|
Priority Ranking
|
Location
|
|---|---|
|
1
|
Collocation on an existing freestanding tower.
|
|
2
|
On an existing tall structure that could be used for a wireless
telecommunications facility.
|
|
3
|
On a lot that consists of 10 or more acres.
|
|
4
|
On other property in the Village.
|
(2)
If the proposed property 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
a special use 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.
(3)
An applicant may not bypass sites of higher priority by stating that
the site presented is the only site leased or selected. An application
shall address collocation as an option and, if such option is not
proposed, the applicant must explain 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.
(4)
Notwithstanding the above, the Planning Board may approve any site
located within an area in the above list of priorities, provided that
the Planning Board finds that the proposed site is in the best interest
of the health, safety and welfare of the Village and its inhabitants.
B.
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 the site selected
is not the highest priority, then a detailed written explanation as
to why sites of a higher priority were not selected shall be included
with the application.
C.
The applicant shall, in writing, identify and disclose the number
and locations of any additional sites that the applicant has considered
or is or will be considering, reviewing or planning for wireless telecommunications
facilities in the Village and all municipalities adjoining the Village,
for a two-year period following the date of the application.
D.
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Planning Board
may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and requirements.
(2)
Conflict with traffic needs or traffic laws, or definitive plans
for changes in traffic flow or traffic laws.
(3)
Conflict with the historic nature of a neighborhood or historical
district.
(4)
The use or construction of a wireless telecommunications facility
which is contrary to an already stated purpose of a specific zoning
or land use designation.
(5)
The placement and location of a wireless telecommunications facility
which would create an unacceptable risk or the probability of such
to residents, the public, employees and agents of the Village, or
employees of the service provider or other service providers.
(6)
Conflicts with the provisions of this chapter.
E.
The minimum distance between wireless telecommunications facilities
shall be one mile.
F.
No wireless telecommunications facility shall be located within 300
feet of an historic place.
A.
Location of antennas on preexisting structures shall be considered
and preferred. Shared use of existing towers shall be preferred by
the Village, as opposed to the proposed construction of any new structure.
Where such shared use is unavailable, the applicant shall submit a
comprehensive report which lists an inventory of existing towers and
wireless telecommunications facilities within one mile of any proposed
new tower site, unless the applicant can show that some other distance
is more reasonable, and outlines opportunities for shared use of existing
facilities and the use of other preexisting structures as a preferred
alternative to new construction.
B.
An applicant intending to share use of an existing tower shall be
required to document the intent of the existing owner to share use.
C.
In the event that an application to share the use of an existing
tower does not increase the height of the tower, the Planning Board
shall waive such requirements of the application required by this
chapter as may be for good cause shown.
D.
Such shared use shall consist only of the minimum antenna array technologically
required to provide service within the Village unless good cause is
shown.
E.
An application for a wireless telecommunications facility shall not
be approved unless the Planning Board finds that the antenna planned
for the proposed wireless telecommunications facility cannot be accommodated
on an existing or approved tower or wireless telecommunications facility
within a one-mile radius of the proposed wireless telecommunications
facility due to one or more of the following reasons:
(1)
The antenna would exceed the structural capacity of the existing
or approved tower as documented by a qualified professional engineer,
and the existing or approved tower or wireless telecommunications
facility cannot be reinforced, modified, or replaced to accommodate
the planned or equivalent antenna at a reasonable cost.
(2)
The antenna would cause interference materially impacting the usability
of other existing or planned antenna at the tower or wireless telecommunications
facility as documented by a qualified professional engineer, and the
interference cannot be prevented at a reasonable cost.
(3)
Existing or approved towers and wireless telecommunications facilities
within the one-mile radius cannot accommodate the antenna at a height
necessary to function reasonably as documented by a qualified professional
engineer.
(4)
Other foreseen reasons that make it infeasible to locate the antenna
upon an existing or approved tower or wireless telecommunications
facility.
F.
Any proposed tower shall be designed structurally, electrically,
and in all respects to accommodate both the applicant's antennas and
comparable antennas for at least two additional users if the tower
is over 80 feet in height or for at least one additional user if the
tower is over 60 feet in height. Towers must be designed to allow
for future rearrangement of antennas upon the tower and to accept
antennas mounted at varying heights.
G.
The applicant shall submit to the Planning Board a letter of intent
committing the applicant and the owner of the property and their respective
successors in interest to negotiate in good faith for shared use of
the proposed tower by other personal wireless service providers in
the future. The issuance of a special use permit (assuming the wireless
telecommunications facility is approved according to this section)
shall commit the new tower owner, the operator of the wireless telecommunications
facility, and their respective successors in interest, to:
(1)
Respond in a timely comprehensive manner to a request for information
from a potential shared-use applicant.
(2)
Negotiate in good faith concerning future requests for shared use
of the new tower by other personal wireless service providers.
(3)
Allow shared use of the new tower if another personal wireless service
provider agrees in writing to pay charges.
(4)
Require no more than a reasonable charge for shared use, based on
generally accepted accounting principles. The charge may include but
is not limited to a pro rata share of the cost of site selection,
planning, project administration, land costs, site design, construction
and maintenance financing, return on equity, depreciation, and all
of the costs of adapting the tower or equipment to accommodate a shared
user without causing electromagnetic interference.
H.
If the application is granted, the applicant shall submit to the
Village a covenant and restriction, in recordable form, containing
the above restrictions and representations. The declaration of covenants
and restrictions shall be in recordable form to be reviewed by the
Village Attorney. The covenants and restrictions shall run with the
land and be binding upon the applicant, its successors and/or assigns.
A.
The applicant must submit documentation justifying to the Planning
Board the total height of any wireless telecommunications facility
and/or antenna and the basis therefor. Such justification shall be
to provide service within the Village, to the extent practicable,
unless good cause is shown.
B.
Wireless telecommunications facilities shall be no higher than the
minimum height necessary. Unless waived by the Planning Board upon
good cause shown, the maximum height shall be 100 feet. Good cause
shall include but not be limited to the broadcast capability of the
wireless telecommunications facility, the topography, setback and
size of the lot, and the ability to camouflage and minimize the visual
impact on neighboring properties.
C.
The maximum height of any wireless telecommunications facility shall
not exceed that which shall permit operation without artificial lighting
of any kind, except emergency lighting for safety purposes, in accordance
with municipal, county, state and/or federal laws and/or regulations.
A.
The use of guyed towers is prohibited. Freestanding towers must be self-supporting without the use of wires, cables, beams or other means. The design should utilize a monopole configuration and must comply with § 126-16 herein. Permanent platforms or structures exclusive of antennas that serve to increase off-site visibility are prohibited.
B.
No new tower shall be built, constructed, or erected in the Village
unless the tower is capable of supporting another person's operating
wireless telecommunications facility comparable in weight, size, and
surface area to the wireless telecommunications facility installed
by the applicant on the tower within six months of the completion
of the tower construction.
Any antennas which are not attached to a tower may be permitted
on any existing structure, except an historic place. The owner of
such a structure shall, by written certification to the Planning Board,
establish the following at the time plans are submitted for a special
use permit:
A.
The antenna shall not exceed a height of more than 20 feet from the
highest point of the roof of the existing structure.
B.
Any antenna and antenna attachments located above the primary roof
of the structure shall be set back one foot from the edge of the primary
roof for each one foot in height above the primary roof of the antenna.
This setback requirement shall not apply to antennas and their antenna
attachments located above the primary roof of the structure if such
antennas are appropriately screened from view through the use of panels,
walls, fences, or other screening techniques approved by the Planning
Board. Subject to approval by the Planning Board, setback requirements
shall not apply to stealth antennas which are mounted to the exterior
of an existing structure below the primary roof but which do not protrude
more than 18 inches from the side of such structure.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.
Towers, accessory structures, antennas, and antenna attachments shall
be of a galvanized finish or painted with a rust-preventive paint
of an appropriate color to harmonize with the surroundings, as approved
by the Planning Board, and shall be maintained in accordance with
the requirements of this chapter.
C.
If lighting is required, the applicant shall provide a detailed plan
for sufficient lighting of as unobtrusive and inoffensive an effect
as is permissible under state and federal regulations, and an artist's
rendering or other visual representation showing the effect of light
emanating from the site on neighboring habitable structures within
500 feet of all property lines of the parcel on which the wireless
telecommunications facility is located.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner which prevents
unauthorized access. Specifically:
A.
All antennas, towers and accessory structures shall be made inaccessible
to individuals and constructed or shielded in such a manner that they
cannot be climbed or run into.
B.
Transmitters and telecommunications control shall be installed such
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 to provide adequate notification to
persons in the immediate area of the presence of an antenna that has
transmission capabilities. The sign shall contain the name(s) of the
owner(s) and operator(s) of the antenna(s) as well as emergency telephone
number(s). The sign shall be located so as to be visible from the
access point of the site. No other signage, including advertising,
shall be permitted on any wireless telecommunications facilities,
antennas, or antenna towers, unless required by law. Signs, including
their location, shall be approved by the Planning Board.
A.
Unless waived by the Planning Board upon good cause shown, all proposed
wireless telecommunications facilities, antennas, and associated equipment
shall be located on a lot containing at least four acres and shall
be set back from any property line a distance equal to the greater
of existing setback requirements of the underlying zoning district;
and the distance sufficient to substantially contain on site all icefall
or debris from a tower or tower failure, or from an antenna or antenna
attachment failure, and to preserve the privacy and sanctity of any
adjoining properties. Good cause shall include, but not be limited
to, the broadcast capability of the wireless telecommunications facility,
the topography, setback, and size of the lot, and the ability to camouflage
and minimize the visual impact on neighboring properties.
[Amended 12-18-2007 by L.L. No. 8-2007]
B.
Accessory structures shall be located so as to comply with the minimum
setback requirements for the property on which they are situated.
C.
Setback requirements for towers shall be measured from the base of
the tower to the property line of the parcel of land on which it is
located.
D.
The setback of a tower or antenna may be reduced in the sole discretion
of the Planning Board to allow the integration of a tower or antenna
into an existing or proposed structure such as a light pole, power
line, or similar structure.
Antennas, antenna attachments, towers and accessory structures
shall be designed by use of camouflaging and stealth design to facilitate
their blending into the surrounding environment through the use of
color and camouflaging architectural treatment, except in instances
where the color is indicated by federal or state authorities such
as the FAA. Every antenna, antenna attachment, tower and accessory
structure shall be of neutral colors that are harmonious with, and
that blend with, the natural features, buildings and structures surrounding
such towers, antenna, antenna attachments and structures; provided,
however, that directional or panel antennas and omnidirectional or
whip antennas located on an existing structure shall be of colors
that match, and cause the antenna to blend with, the exterior of the
structure. Accessory structures will be designed to be architecturally
compatible with principal structures on the site.
All landscaping and buffer areas on a parcel of land containing
towers or wireless telecommunications facilities shall be in accordance
with the applicable landscaping and buffer requirements in the zoning
district where the tower or wireless telecommunications facilities
are located. The Planning Board may require landscaping or buffer
areas in excess of the requirements in the Village Code in order to
enhance compatibility with adjacent land uses. Landscaping shall be
installed on the outside of any fencing. Existing on-site vegetation
shall be preserved to the maximum extent practicable. The base of
the tower and any accessory structures shall be landscaped.
A.
The Planning Board may hire any consultant and/or expert necessary
to assist the Planning Board in reviewing and evaluating the application
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
provided to the Village in connection with the review of any application
and for all related attorneys' fees. The initial deposit shall be
$7,500. These funds shall accompany the filing of an application,
and the Village will maintain a separate escrow account for all such
funds. The Village's consultants/experts shall bill or invoice the
Village no more frequently than monthly for its services in reviewing
the application and performing its duties. If at any time during the
review 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 billing or invoicing at the conclusion
of the review process, the difference shall be promptly refunded to
the applicant.
C.
The total amount of the funds 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 by the Planning Board or its consultants/experts to complete the necessary review and analysis. Additional escrow funds, as reasonably required and requested by the Village, shall be paid by the applicant.
A.
Prior to the approval of any application for a special use permit
for a wireless telecommunications facility, a public hearing shall
be held by the Planning Board, notice of which shall be published
in the official newspaper of the Village no less than 10 calendar
days prior to the scheduled date of the public hearing.
B.
In order that nearby landowners are provided notice of the hearing,
the applicant, at least three weeks prior to the date of said public
hearing, shall provide the names and addresses of all landowners whose
property is located within 300 feet of any property line of the lot
on which the new wireless telecommunications facility is proposed
to be located. The applicant shall send notice of the public hearing
to all such landowners via certified or registered mail, return receipt
requested, at least 10 days prior to the scheduled date of the public
hearing, and shall submit to the Planning Board at the public hearing
proof of mailing of the notice of public hearing.
A.
The Planning Board will undertake a review of an application pursuant
to this chapter in a timely fashion, consistent with its responsibilities
with the State Environmental Quality Review Act ("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 Planning Board shall be the lead agency pursuant to the SEQRA.
In addition, the Planning Board shall review the application pursuant
to its site plan review authority, including any environmental criteria
or considerations contained therein.
C.
The Planning Board may refer any application or part thereof to any
other agency or committee for comments and nonbinding recommendations.
D.
The Planning Board may require an applicant to supplement any information
that the Planning Board considers inadequate or that the applicant
has failed to supply. The Planning Board may deny an application on
the basis that the applicant has not satisfactorily supplied the information
required in this subsection.
E.
After the public hearing and after formally considering the application,
the Planning Board may approve and issue 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.
F.
If the Planning Board 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 Planning
Board's action, and the special use permit shall be issued within
30 days after such approval.
G.
If the Planning Board denies the special use permit for a wireless
telecommunications facility, the applicant shall be notified of such
denial, in writing, within 10 calendar days of the Planning Board's
action.
A.
At any time between 12 months and six months prior to the three-year
anniversary date after the effective date of the special use permit
and all subsequent third anniversaries of the effective date of the
original special use permit for a wireless telecommunications facility,
the holder of a special use permit for such wireless telecommunications
facility shall submit a signed written request to the Planning Board
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 facility;
(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 facility has been moved,
relocated, rebuilt, or otherwise modified since the issuance of the
special use permit and, if so, in what manner;
(5)
If the wireless telecommunications facility has been moved, relocated,
rebuilt, or otherwise modified, then whether the Planning Board approved
such action, and under what terms and conditions, and whether those
terms and conditions were complied with;
(6)
Any requests for waivers or relief of any kind whatsoever from the
requirements of this chapter and any requirements for a special use
permit;
(7)
That the wireless telecommunications facility is in compliance with
the special use permit and in compliance with all applicable codes,
laws, rules and regulations; and
(8)
Recertification that the wireless telecommunications facility is
designed and constructed ("as built") and continues to meet all local,
county, state and federal structural requirements for loads, including
wind and ice loads. Such recertification shall be by a qualified New
York State licensed professional engineer acceptable to the Village,
the cost of which shall be borne by the applicant.
B.
If after such review the Planning Board determines that the permitted
wireless telecommunications facility is in compliance with the special
use permit and all applicable statutes, laws, local laws, ordinances,
codes, rules and regulations, then the Planning Board shall issue
a recertification special use permit for the wireless telecommunications
facility, which may include any new provisions or conditions that
are mutually agreed upon or required by applicable statutes, laws,
local laws, ordinances, codes, rules and regulations. If after such
review, the Planning Board determines that the permitted wireless
telecommunications facility is not in compliance with the special
use permit and all applicable statutes, local laws, ordinances, codes,
rules and regulations, then the Planning Board may refuse to issue
a recertification special use permit for the wireless telecommunications
facility, and in such event, such wireless telecommunications facility
shall not be used after the date that the applicant receives written
notice of such decision by the Planning Board. Any such decision shall
be in writing and supported by substantial evidence contained in a
written record.
C.
If the applicant has submitted all of the information requested by the Planning Board and required by this chapter and if the Planning Board does not complete its review, as noted in Subsection B of this section, prior to the three-year anniversary date of the special use permit or subsequent third-year anniversaries, then the applicant for the permitted wireless telecommunications facility shall receive an extension of the special use permit for up to six months, in order for the Planning Board to complete its review.
D.
If the holder of a special use permit for a wireless telecommunications facility 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 third anniversary of the original granting of the special use permit, or subsequent third-year anniversaries, unless the holder of the special use permit adequately demonstrates to the Planning Board that extenuating circumstances prevented a timely recertification request. If the Planning Board agrees that there were legitimate 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 a wireless
telecommunications facility 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 consent of the Planning Board, and
such consent shall not be unreasonably withheld.
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 for the
wireless telecommunications facility, or for a material violation
of this chapter after prior written notice to the applicant and the
holder of the special use permit.
D.
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 or regulation 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.
E.
Applicants shall submit information on the proposed power density
of their proposed wireless telecommunications facility and demonstrate
how this meets FCC standards. Applicants shall submit evidence of
compliance with FCC standards on a yearly basis to the Village. If
new, more restrictive standards are adopted, the antennas shall be
made to comply, or continued operations may be restricted by the Planning
Board. The cost of verification of compliance shall be borne by the
owner and operator of the tower.
F.
All wireless telecommunications facilities shall be certified by
an engineer to be structurally sound and in conformance with the requirements
of the Building Code and all other construction standards set forth
by the Village's Code and federal and state law. Such certification
shall be submitted with an application pursuant to this chapter and
every three years thereafter. The owner of the wireless telecommunications
facility may be required by the Village to submit more frequent certifications
should there be reason to believe that the structural and electrical
integrity of the wireless telecommunications facility is jeopardized.
G.
Owners of a wireless telecommunications facility shall at all times
employ ordinary and reasonable care and shall install and maintain
in use nothing less than commonly accepted methods and devices for
preventing failures and accidents which are likely to cause damage,
injuries, or nuisances to the public.
H.
Owners of a wireless telecommunications facility shall install and
maintain towers, antennas, antenna attachments, accessory structures,
wires, cables, fixtures and all other equipment of the wireless telecommunications
facility in substantial compliance with the requirements of the National
Electric Safety Code and all FCC, state, and local regulations, and
in such manner that will not interfere with the use of other property.
I.
All wireless telecommunications facilities shall at all times be
kept and maintained in good condition, order, and repair so that the
same shall not menace or endanger the life or property of any person.
J.
All maintenance or construction of wireless telecommunications facilities
shall be performed by licensed maintenance and construction personnel.
K.
All wireless telecommunications facilities shall maintain compliance
with current RF emission standards of the FCC.
L.
In the event that the use of a wireless telecommunications facility
is discontinued by the wireless telecommunications facility owner,
the wireless telecommunications facility owner shall provide written
notice to the Village of its intent to discontinue use and the date
when the use shall be discontinued.
A.
At the time that a person submits an application for a special use
permit for a wireless telecommunications facility, 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 where no increase in height of the tower is required, the application
fee shall be $2,000.
B.
No application fee is required in order to recertify a special use permit for a wireless telecommunications facility, unless there has been a 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 application fees provided in Subsection A shall apply.
The applicant of any proposed wireless telecommunications facility
property site shall, at its cost and expense, be 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 and with such sureties as are deemed
sufficient by the Planning Board to assure the faithful performance
of the terms and conditions of this chapter and the 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 the removal of the
wireless telecommunications facility and any necessary site restoration
is completed. The failure to pay any annual premium for the renewal
of any such security shall be a violation of the provisions of the
special use permit and shall entitle the Planning Board to revoke
the special use permit after prior written notice to the applicant
and holder of the permit and after a hearing upon due prior notice
to the applicant and holder of the special use permit.
A.
In order to verify that the holder of a special use permit for a
wireless telecommunications facility and any and all lessees, renters,
and/or licensees of wireless telecommunications facilities, place,
construct and maintain such facilities, including towers, antennas,
antenna attachments and accessory structures, in accordance with all
applicable technical, safety, fire, building, and zoning codes, laws,
ordinances and regulations and other applicable requirements, the
Village shall have authority to enter onto the property upon which
the wireless telecommunications facility is located to inspect all
facets of said permit holder's, renter's, lessee's, licensee's, or
owner's placement, construction, modification and maintenance of such
facilities, including but not limited to towers, antennas, antenna
attachments, accessory structures, buildings or other structures constructed
or located on the permitted site.
B.
The Village reserves the right to conduct such inspections at any
time, upon reasonable notice to the property owner and operator of
the wireless telecommunications facility. All expenses related to
such inspections by the Village shall be borne by the owner of the
wireless telecommunications facility.
The holder of the special use permit shall annually certify
in writing to the Village that NIER levels at the site are within
the threshold levels adopted by the FCC. The certifying engineer must
be licensed to practice engineering in the State of New York.
A.
A holder of a special use permit for a wireless telecommunications
facility shall secure and at all times maintain public liability insurance
for personal injuries, death and property damage, and umbrella insurance
coverage, for the duration of the special use permit in amounts as
set forth below:
B.
The commercial general liability insurance policy shall specifically
include the Village as an additional named insured.
C.
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the State of New
York 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
which such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications facility
is initiated, but in no case later than 15 days after the grant of
the special use permit, 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 a wireless telecommunications facility that is
proposed for Village property 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, product performance, use, operation, maintenance, repair,
installation, replacement, removal, or restoration of said wireless
telecommunications facility. With respect to the penalties, damages
or charges referenced herein, reasonable attorneys' fees, consultants'
fees, and expert witness fees are included in those costs that are
recoverable by the Village.
A.
In the event of a violation of this chapter or any special use permit
issued pursuant to this chapter, the holder of the special use permit
for the wireless telecommunications facility, and the owner of the
property on which the wireless telecommunications facility is located,
shall be guilty of a violation and shall, upon conviction by a court
of competent jurisdiction, be sentenced to a fine as set forth below.
B.
A violation of this chapter shall be punishable by a fine not exceeding
$250 for conviction of a first offense; for conviction of a second
offense both of which were committed within a period of five years,
the violation shall be punishable by a fine of not less than $250
nor more than $500; and, upon conviction for a third or subsequent
offense all of which were committed within a period of five years,
the violation shall be punishable by a fine of not less than $500
nor more than $1,000.
C.
Notwithstanding anything in this chapter, the holder of the special
use permit for a wireless telecommunications facility may not use
the payment of fines, liquidated damages or other penalties to evade
or avoid compliance with this chapter or any section of this chapter.
An attempt to do so shall subject the holder of the 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 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 Planning Board 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 Planning
Board 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 facility is 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 facility into compliance, then the Planning Board may revoke such special use permit for the wireless telecommunications facility, and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the Village Board may determine
that the health, safety, and welfare interests of the Village warrant
and require the removal of a wireless telecommunications facility.
(1)
A wireless telecommunications facility with a permit has been abandoned
(i.e., not used as a wireless telecommunications facility) 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)
A permitted wireless telecommunications facility falls into such
a state of disrepair, as determined by the Village Board, that it
creates a health or safety hazard.
(3)
A wireless telecommunications facility has 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 Board makes such a determination as noted in Subsection A of this section, then the Village Board shall notify the holder of the special use permit for the wireless telecommunications facility and the owner of the property within 48 hours that said wireless telecommunications facility is to be removed. The Village Board may approve an interim, temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facility.
C.
The holder of the special use permit, or its successors or assigns,
or the property owner, shall dismantle and remove such wireless telecommunications
facility and all associated structures and facilities from the site
and restore the site to as close to its original condition as is possible,
such restoration being limited only by physical or commercial impracticability,
within 90 days of receipt of written notice from the Village Board.
However, if the owner of the property upon which the wireless telecommunications
facility is located wishes to retain any access roadway to the wireless
telecommunications facility, the owner may do so with the approval
of the Planning Board.
D.
If a wireless telecommunications facility is not removed or substantial
progress has not been made to remove the wireless telecommunications
facility within 90 days after the permit holder and the property owner
have received notice, then the Planning Board may order officials
or representatives of the Village to remove the wireless telecommunications
facility at the sole expense of the owner and/or the special use permit
holder.
E.
If the Village removes or causes to be removed the wireless telecommunications
facility, and the owner or operator of the wireless telecommunications
facility or the property owner does not claim and remove it from the
site to a lawful location within 10 days, then the Village may take
steps to declare the wireless telecommunications facility abandoned,
and sell it and its components.
F.
Notwithstanding anything in this section to the contrary, the Planning
Board may approve a temporary use permit/agreement for the wireless
telecommunications facility, for no more than 90 days, during which
time a suitable plan for removal, conversion, or relocation of the
affected wireless telecommunications facility shall be developed by
the holder of the special use permit, subject to the approval of the
Planning Board, and upon such approval 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 facility in the
manner provided in this section.
Any applicant desiring relief or exemption from any aspect or
requirement of this chapter may request such from the Planning Board
at a preapplication 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 wireless telecommunications
facility. Such relief may be temporary or permanent; partial or complete,
at the sole discretion of the Planning Board. However, the burden
of proving the need for the requested relief or exemption is solely
on the applicant to prove to the satisfaction of the Planning Board.
The applicant shall bear all costs of the Planning Board or the Village
in considering the request and the relief shall not be transferable
to a new or different holder of the permit or owner of the wireless
telecommunications facility without the specific written permission
of the Planning Board. No such relief or exemption shall be approved
unless the applicant demonstrates by clear and convincing evidence
that, if granted, the relief or exemption will have no significant
effect on the health, safety and welfare of the Village, its residents
and other service providers, and the Planning Board must determine
that the grant of relief or exemption does not conflict with and/or
violate the intent of this chapter. Under no circumstances are the
provisions for public hearing contained in this chapter to be waived.
A.
To the extent that the holder of a special use permit for a wireless
telecommunications facility has not received relief or is otherwise
exempt from appropriate state and/or federal agency rules or regulations,
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 a wireless telecommunications
facility, the holder of such a special use permit shall conform the
permitted wireless telecommunications facility 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 county, state or federal government, the more restrictive or
protective of the Village and the public shall apply.
This chapter is enacted pursuant to the Municipal Home Rule
Law. This chapter shall supersede the provisions of Village Law to
the extent it is inconsistent with the same, and to the extent permitted
by the New York State Constitution, the Municipal Home Rule Law, or
any other applicable statute.
This chapter shall take effect 10 days after publication, posting,
and filing with the Secretary of State.
