[HISTORY: Adopted by the Village Board of the Village of
Scottsville 3-9-2010 by L.L. No. 2-2010. Amendments noted where applicable.]
The Telecommunications Act of 1996 affirmed the Village of Scottsville's
authority concerning the placement, construction and modification
of wireless telecommunications facilities. The Village of Scottsville
finds that wireless telecommunications facilities may pose significant
concerns to the health, safety, public welfare, character and environment
of the Village and its inhabitants. The Village also recognizes that
facilitating the development of wireless service technology can be
an economic development asset to the Village and of significant benefit
to the Village and its residents. In order to insure that the placement,
construction or modification of wireless telecommunications facilities
is consistent with the Village's land use policies, the Village
is adopting a single, comprehensive wireless telecommunications facilities
application and permit process. The intent of this chapter is to minimize
the negative impact of wireless telecommunications facilities, establish
a fair and efficient process for review and approval of applications,
assure an integrated, comprehensive review of environmental impacts
of such facilities, and protect the health, safety and welfare of
the Village of Scottsville.
This chapter shall be known and cited as the "Wireless Telecommunications
Facilities Siting Local Law for the Village of Scottsville."
A.
If any word, phrase, sentence, part, section, subsection, or other
portion of this chapter or any application thereof to any person or
circumstance is declared void, unconstitutional, or invalid for any
reason, then such word, phrase, sentence, part, section, subsection,
or other portion, or the proscribed application thereof, shall be
severable, and the remaining provisions of this chapter, and all applications
thereof, not having been declared void, unconstitutional, or invalid,
shall remain in full force and effect.
B.
Any special use permit issued under this chapter shall be comprehensive
and not severable. If part of a permit is deemed or ruled to be invalid
or unenforceable, in any material respect, by a competent authority,
or is overturned by a competent authority, the permit shall be void
in total, upon determination by the Village.
For purposes of this chapter, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meaning given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets.
A system of electrical conductors that transmits or receives
electromagnetic waves or radio frequency or other wireless signals.
Such shall include, but not be limited to, radio, television, cellular,
paging, personal telecommunications services (PCS), microwave telecommunications
and services not licensed by the FCC, but not expressly exempt from
the Village's siting, building and permitting authority.
Any wireless service provider submitting an application for
a special use permit for wireless telecommunications facilities.
All necessary and appropriate documentation that an applicant
submits in order to receive a special use permit for wireless telecommunications
facilities.
The Village Board of the Village of Scottsville.
The use of a tower or structure to support antennas for the
provision of wireless services without increasing the height of the
tower or structure.
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be commercially impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna or lightning
protection device.
The addition, removal or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, radios, equipment shelters, landscaping,
fencing, utility feeds, changing the color or materials of any visually
discernable components, vehicular access, parking and/or an upgrade
or changeout of equipment for better or more modern equipment. Adding
a new wireless carrier or service provider to a telecommunications
tower or telecommunications site is a modification. A modification
shall not include the replacement of any components of a wireless
facility where the replacement is identical to the component being
replaced or for any matters that involve the normal repair and maintenance
of a wireless facility without adding, removing or changing anything.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest, or any other entity.
See definition for "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act.
The official document or permit by which an applicant is
allowed to construct and use wireless telecommunications facilities
as granted or issued by the Village.
The State of New York.
Minimize adverse aesthetic and visual impacts on the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
See definition for "wireless telecommunications facilities."
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
Temporary in relation to all aspects and components of this
chapter; something intended to, or that does, exist for fewer than
90 days.
The Village of Scottsville.
Includes a telecommunications tower, and tower, and telecommunications
site and personal wireless facility; a structure, facility or location
designed, or intended to be used as, or used to support, antennas
or other transmitting or receiving devices. This includes, without
limit, towers of all types and kinds and structures that employ camouflage
technology, including, but not limited to, structures such as a multistory
building, church steeple, silo, water tower, sign or other structures
that can be used to mitigate the visual impact of an antenna or the
functional equivalent of such, including all related facilities such
as cabling, equipment shelters and other structures associated with
the site. It is a structure and facility intended for transmitting
and/or receiving radio, television, cellular, paging, 911, personal
telecommunications services, commercial satellite services, microwave
services and services not licensed by the FCC, but not expressly exempt
from the Village's siting, building and permitting authority,
excluding those used exclusively for the Village's fire, police
or exclusively for private, noncommercial radio and television reception
and private citizen's bands, amateur radio and other similar
noncommercial telecommunications where the height of the facility
is below the height limits set forth in this chapter.
In order to ensure that the placement, construction, and modification
of wireless telecommunications facilities protects the Village's
health, safety, public welfare, environmental features, the nature
and character of the community and neighborhood and other aspects
of the quality of life specifically listed elsewhere in this chapter,
the Village hereby adopts an overall policy with respect to a special
use permit for wireless telecommunications facilities for the express
purpose of achieving the following goals:
A.
Implementing an application process for person(s) seeking a special
use permit for wireless telecommunications facilities;
B.
Establishing a policy for examining an application for and issuing
a special use permit for wireless telecommunications facilities that
is both fair and consistent.
C.
Establishing reasonable time frames for granting or not granting
a special use permit for a telecommunications tower, or recertifying
or not certifying, or revoking the special use permit granted under
this chapter.
D.
Promoting and encouraging, wherever possible, the sharing and/or
co-location of wireless telecommunications facilities among service
providers;
E.
Promoting and encouraging, wherever possible, the placement, height
and quantity of wireless telecommunications facilities in such a manner,
including but not limited to the use of stealth technology, to minimize
adverse aesthetic and visual impacts on the land, property, buildings,
and other facilities adjacent to, surrounding, and in generally the
same area as the requested location of such wireless telecommunications
facilities, which shall mean using the least visually and physically
intrusive facility that is not technologically or commercially impracticable
under the facts and circumstances.
A.
All applicants for a special use permit for wireless telecommunications
facilities or any modification of such facility shall comply with
the requirements set forth in this section. The Village Board is the
officially designated agency or body of the Village to whom applications
for a special use permit for wireless telecommunications facilities
must be made, and that is authorized to review, analyze, evaluate
and make decisions with respect to granting or not granting, recertifying
or not recertifying, or revoking special use permits for wireless
telecommunications facilities. The Village may at its discretion delegate
or designate other official agencies of the Village or others to accept,
review, analyze, evaluate and make recommendations to the Village
Board with respect to the granting or not granting, recertifying or
not recertifying or revoking special use permits for wireless telecommunications
facilities.
B.
An application for a special use permit for wireless telecommunications
facilities shall be signed on behalf of the applicant by the person
preparing the same and with knowledge of the contents and representations
made therein and attesting to the truth and completeness of the information.
The landowner, if different than the applicant, shall also sign the
application. At the discretion of the Village, any false or misleading
statement in the application may subject the applicant to denial of
the application without further consideration or opportunity for correction.
C.
Applications not meeting the requirements stated herein or which
are otherwise incomplete may be rejected by the Village.
D.
The applicant shall include a statement in writing that:
(1)
The applicant's proposed wireless telecommunications facilities
shall be maintained in a safe manner, and in compliance with all conditions
of the special use permit, without exception, unless specifically
granted relief by the Village in writing, as well as with all applicable
and permissible local codes, ordinances, and regulations, including
any and all applicable Village, state and federal laws, rules, and
regulations;
(2)
The construction of the wireless telecommunications facilities is
legally permissible, including, but not limited to, the fact that
the applicant is authorized to do business in the state.
E.
No wireless telecommunications facilities shall be installed or constructed
until the application is reviewed and approved by the Village, and
the special use permit has been issued.
F.
All applications for the construction or installation of new wireless
telecommunications facilities shall contain the information hereinafter
set forth. The application shall be signed by an authorized individual
on behalf of the applicant. Where a certification is called for, such
certification shall bear the signature and seal of a professional
engineer licensed in the state. The application shall include the
following information:
(1)
Documentation that demonstrates the need for the wireless telecommunications
facility to provide service primarily and essentially within the Village.
Such documentation shall include propagation studies of the proposed
site and all adjoining planned, proposed, in-service or existing sites;
(2)
The name, address and phone number of the person preparing the report;
(3)
The name, address, and phone number of the property owner, operator,
and applicant, and including the legal form of the applicant;
(4)
The postal address and tax map parcel number of the property;
(5)
The zoning district or designation in which the property is situated;
(6)
The size of the property stated both in square feet and lot line
dimensions, and a diagram showing the location of all lot lines;
(7)
The location of the nearest residential structure;
(8)
The location, size and height of all structures on the property which
is the subject of the application;
(9)
The location, size and height of all proposed and existing antennas
and all appurtenant structures;
(10)
The type, locations and dimensions of all proposed and existing
landscaping and fencing;
(11)
The number, type and design of the tower(s) and antenna(s) proposed
and the basis for the calculations of the tower's capacity to
accommodate multiple users;
(12)
The make, model and manufacturer of the tower and antenna(s);
(13)
A description of the proposed tower and antenna(s) and all related
fixtures, structures, appurtenances and apparatus, including height
above preexisting grade, materials, color and lighting;
(14)
The frequency, modulation and class of service of radio or other
transmitting equipment;
(15)
The actual intended transmission and the maximum effective radiated
power of the antenna(s);
(16)
The direction of maximum lobes and associated radiation of the
antenna(s);
(17)
Certification that the NIER levels at the proposed site are
within the threshold levels adopted by the FCC;
(18)
Certification that the proposed antenna(s) will not cause interference
with other telecommunications devices;
(19)
A copy of the FCC license applicable for the intended use of
the wireless telecommunications facilities;
(20)
Certification that a topographic and geomorphologic study and
analysis has been conducted, and that, taking into account the subsurface
and substrata and the proposed drainage plan, the site is adequate
to assure the stability of the proposed wireless telecommunications
facilities on the proposed site.
G.
In the case of a new tower, the applicant shall be required to submit
a written report demonstrating its meaningful efforts to secure shared
use of existing tower(s) or the use of alternative buildings or other
structures within the Village. Copies of written requests and responses
for shared use shall be provided to the Village in the application,
along with any letters of rejection stating the reason for rejection.
H.
The applicant shall certify that the telecommunications facility,
foundation and attachments are designed and will be constructed to
meet all local, Village, state and federal structural requirements
for loads, including wind and ice loads.
I.
The applicant shall certify that the wireless telecommunications
facilities will be effectively grounded and bonded so as to protect
persons and property and installed with appropriate surge protectors.
J.
An applicant may be required to submit an environmental assessment
analysis and a visual addendum. Based on the results of the analysis,
including the visual addendum, the Village may require submission
of a more detailed visual analysis. The scope of the required environmental
and visual assessment will be reviewed at the preapplication meeting.
K.
The applicant shall furnish a visual impact assessment, which shall
include:
(1)
A "zone of visibility" map which shall be provided in order to determine
locations from which the tower may be seen.
(2)
Pictorial representations of before and after views from key viewpoints
both inside and outside of the Village as may be appropriate, including
but not limited to state highways and other major roads; state and
local parks; other public lands; historic districts; preserves and
historic sites normally open to the public; and from any other location
where the site is visible to a large number of visitors, travelers
or residents. Guidance will be provided concerning the appropriate
key sites at a preapplication meeting.
(3)
An assessment of the visual impact of the tower base, guy wires and
accessory buildings from abutting and adjacent properties and streets
as relates to the need or appropriateness of screening.
L.
The applicant shall demonstrate and provide in writing and/or by
drawing how it shall effectively screen from view the base and all
related facilities and structures of the proposed wireless telecommunications
facilities.
M.
Any and all representations made by the applicant to the Village
on the record during the application process, whether written or verbal,
shall be deemed a part of the application and may be relied upon in
good faith by the Village.
N.
All utilities at a wireless telecommunications facilities site shall
be installed underground and in compliance with all laws, ordinances,
rules and regulations of the Village, including specifically, but
not limited to, the National Electrical Safety Code and the National
Electrical Code where appropriate.
O.
All wireless telecommunications facilities shall contain a demonstration
that the facility be sited so as to be the least visually intrusive
reasonably possible and thereby 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.
P.
Both the wireless telecommunications facility and any and all accessory
or associated facilities shall maximize the use of building materials,
colors and textures designed to blend with the structure to which
it may be affixed and/or to harmonize with the natural surroundings;
this shall include the utilization of stealth or concealment technology
as may be required by the Village.
Q.
At a telecommunications site, an access road, turnaround space and
parking shall be provided to assure adequate emergency and service
access. Maximum use of existing roads, whether public or private,
shall be made to the extent practicable. Road construction shall at
all times minimize ground disturbance and the cutting of vegetation.
Road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion.
R.
A person who holds a special use permit for wireless telecommunications
facilities shall construct, operate, maintain, repair, provide for
removal of, modify or restore the permitted wireless telecommunications
facilities in strict compliance with all current applicable technical,
safety and safety-related codes adopted by the Village of Scottsville,
State of New York, including but not limited to the most recent editions
of the National Electrical Safety Code and the National Electrical
Code, as well as accepted and responsible workmanlike industry practices
and recommended practices of the National Association of Tower Erectors.
The codes referred to are codes that include, but are not limited
to, construction, building, electrical, fire, safety, health, and
land use codes. In the event of a conflict between or among any of
the preceding, the more stringent shall apply.
S.
A holder of a special use permit granted under this chapter shall
obtain, at its own expense, all permits and licenses required by applicable
law, rule, regulation or code, and must maintain the same, in full
force and effect, for as long as required by the Village or other
governmental entity or agency having jurisdiction over the applicant.
T.
An applicant shall submit to the Village the number of completed
applications determined to be needed at the preapplication meeting.
Written notification of the application shall be provided to the legislative
body of all adjacent municipalities and to the Village Planning Department.
U.
The applicant shall examine the feasibility of designing a proposed
tower to accommodate future demand for at least five additional commercial
applications, for example, future co-locations. The tower shall be
structurally designed to accommodate at least five additional antenna
arrays equal to those of the applicant, and located as close to the
applicant's antenna as possible without causing interference.
This requirement may be waived, provided that the applicant, in writing,
demonstrates that the provisions of future shared usage of the tower
is not technologically feasible, is commercially impracticable or
creates an unnecessary and unreasonable burden, based upon:
(1)
The foreseeable number of FCC licenses available for the area;
(2)
The kind of wireless telecommunications facilities site and structure
proposed;
(3)
The number of existing and potential licenses without wireless telecommunications
facilities spaces/sites;
(4)
Available space on existing and approved towers.
V.
Shared use.
(1)
The owner of the proposed new tower, and his/her successors in interest,
shall negotiate in good faith for the shared use of the proposed tower
by other wireless service providers in the future, and shall:
(a)
Respond within 60 days to a request for information from a potential
shared-use applicant;
(b)
Negotiate in good faith concerning future requests for shared
use of the new tower by other telecommunications providers;
(c)
Allow shared use of the new tower if another telecommunications
provider agrees in writing to pay reasonable charges. The charges
may include, but are not limited to, a pro rata share of the cost
of site selection, planning, project administration, land costs, site
design, construction and maintenance financing, return on equity,
less depreciation, and all of the costs of adapting the tower or equipment
to accommodate a shared user without causing electromagnetic interference.
(2)
Failure to abide by the conditions outlined above may be grounds
for revocation of the special use permit for the tower.
W.
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. A preapplication meeting shall also
include a site visit if there has not been a prior site visit for
the requested site. Costs of the Village's consultants to prepare
for and attend the preapplication meeting will be borne by the applicant.
X.
The holder of a special use permit shall notify the Village of any
intended modification of a wireless telecommunications facility and
shall apply to the Village to modify, relocate or rebuild a wireless
telecommunications facility.
Y.
In order to better inform the public, in the case of a new telecommunications
tower, the applicant shall, prior to the public hearing on the application,
hold a "balloon test." The applicant shall arrange to fly, or raise
upon a temporary mast, a minimum of a three-foot-in-diameter, brightly
colored balloon at the maximum height of the proposed new tower. The
dates (including a second date, in case of poor visibility on the
initial date), times and location of this balloon test shall be advertised
by the applicant seven and 14 days in advance of the first test date
in a newspaper with a general circulation in the Village. The applicant
shall inform the Village, in writing, of the dates and times of the
test, at least 14 days in advance. The balloon shall be flown for
at least four consecutive hours sometime between 7:00 a.m. and 4:00
p.m. on the dates chosen. The primary date shall be on a weekend,
but in case of poor weather on the initial date, the secondary date
may be on a weekday.
Z.
The applicant will provide a written copy of an analysis, completed
by a qualified individual or organization, to determine if the tower
or existing structure intended to support wireless facilities requires
lighting under Federal Aviation Administration Regulation Part 77.
This requirement shall be for any new tower or for an existing structure
or building where the application increases the height of the structure
or building. If this analysis determines that the FAA must be contacted,
then all filings with the FAA, all responses from the FAA and any
related correspondence shall be provided in a timely manner.
A.
Applicants for wireless telecommunications facilities shall locate,
site and erect said wireless telecommunications facilities in accordance
with the following priorities, one being the highest priority and
six being the lowest priority:
(1)
On existing towers or other structures without increasing the height
of the tower or structure;
(2)
On Village-owned properties;
(3)
On properties in areas zoned for heavy industrial use;
(4)
On properties in areas zoned for commercial use;
(5)
On properties in areas zoned for agricultural use;
(6)
On properties in areas zoned for residential use.
B.
If the proposed site is not proposed for the highest priority listed
above, then a detailed explanation must be provided as to why a site
of a higher priority was not selected. The person seeking such an
exception must satisfactorily demonstrate the reason or reasons why
such a permit should be granted for the proposed site, and the hardship
that would be incurred by the applicant if the permit were not granted
for the proposed site.
C.
An applicant may not bypass sites of higher priority by stating the
site proposed is the only site leased or selected. An application
shall address co-location as an option. If such option is not proposed,
the applicant must explain to the reasonable satisfaction of the Village
why co-location is commercially or otherwise impracticable. Agreements
between providers limiting or prohibiting co-location shall not be
a valid basis for any claim of commercial impracticability or hardship.
D.
Notwithstanding the above, the Village may approve any site located
within an area in the above list of priorities, provided that the
Village finds that the proposed site is in the best interest of the
health, safety and welfare of the Village and its inhabitants and
will not have a deleterious effect on the nature and character of
the community and neighborhood.
E.
The applicant shall submit a written report demonstrating the applicant's
review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If appropriate, based
on selecting a site of lower priority, a detailed written explanation
as to why sites of a higher priority were not selected shall be included
with the application.
F.
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Village may
disapprove an application for any of the following reasons.
(1)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with the historic nature or character of a neighborhood
or historical district;
(3)
The use or construction of wireless telecommunications facilities
which is contrary to an already stated purpose of a specific zoning
or land use designation;
(4)
The placement and location of wireless telecommunications facilities
which would create an unacceptable risk, or the reasonable probability
of such, to residents, the public, employees and agents of the Village,
or employees of the service provider or other service providers;
(5)
Conflicts with the provisions of this chapter.
A.
Locating on existing towers or other structures without increasing
the height shall be preferred by the Village, as opposed to the construction
of a new tower. The applicant shall submit a comprehensive report
inventorying existing towers and other suitable structures within
four miles of the location of any proposed new tower, unless the applicant
can show that some other distance is more reasonable and demonstrate
conclusively why an existing tower or other suitable structure cannot
be used.
B.
An applicant intending to locate on an existing tower or other suitable
structure shall be required to document the intent of the existing
owner to permit its use by the applicant.
C.
Such shared use shall consist only of the minimum antenna array technologically
required to provide service primarily and essentially within the Village,
to the extent practicable, unless good cause is shown.
A.
The applicant shall submit documentation justifying the total height
of any tower, facility and/or antenna and the basis therefor. Such
documentation will be analyzed in the context of the justification
of the height needed to provide service primarily and essentially
within the Village, to the extent practicable, unless good cause is
shown.
B.
The maximum permitted height of a new tower shall be 140 feet, based
on six co-located antenna arrays requiring 10 feet of vertical space
each, and an ambient tree height of 80 feet.
C.
No tower constructed after the effective date of this chapter, including
allowing for all attachments, shall exceed that height which shall
permit operation without required artificial lighting of any kind
in accordance with municipal, Village, state, and/or any federal statute,
law, local law, Village ordinance, code, rule or regulation.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.
Towers shall be galvanized and painted with a rust-preventive paint
of an appropriate color to harmonize with the surroundings and shall
be maintained in accordance with the requirements of this chapter.
C.
If lighting is required, 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.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner that prevents
unauthorized access. Specifically:
A.
All antennas, towers and other supporting structures, including guy
wires, shall be made inaccessible to individuals and constructed or
shielded in such a manner that they cannot be climbed or collided
with; and
B.
Transmitters and telecommunications control points shall be installed
in such a manner that they are readily accessible only to persons
authorized to operate or service them.
Wireless telecommunications facilities shall contain a sign
no larger than four square feet in order to provide adequate notification
to persons in the immediate area of the presence of an antenna that
has transmission capabilities, and which shall contain the name(s)
of the owner(s) and operator(s) of the antenna(s) as well as emergency
phone number(s). The sign shall be on the equipment shelter or cabinet
of the applicant and be visible from the access point of the site
and must identify the equipment owner of the shelter or cabinet. The
sign shall not be lighted, unless lighting is required by applicable
law, rule or regulation. No other signage, including advertising,
shall be permitted.
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded
rights-of-way and road and street lines by the greater of the following
distances: a distance equal to the height of the proposed tower or
wireless telecommunications facility structure plus 10% of the height
of the tower or structure, or the existing setback requirement of
the underlying zoning district, whichever is greater. Any accessory
structure shall be located so as to comply with the applicable minimum
setback requirements for the property on which it is situated.
A.
The Village may hire any consultant and/or expert necessary to assist
the Village in reviewing and evaluating the application, including
the construction and modification of the site, once permitted, and
any requests for recertification.
B.
An applicant shall deposit with the Village funds sufficient to reimburse
the Village for all reasonable costs of consultant and expert evaluation
and consultation to the Village in connection with the review of any
application, including the construction and modification of the site,
once permitted. The initial deposit shall be $8,500. The placement
of the $8,500 with the Village shall precede the preapplication meeting.
The Village will maintain a separate escrow account for all such funds.
The Village's consultants/experts shall invoice the Village for
their services in reviewing the application, including the construction
and modification of the site, once permitted. If at any time during
the process this escrow account has a balance less than $2,500, the
applicant shall immediately, upon notification by the Village, replenish
said escrow account so that it has a balance of at least $5,000. Such
additional escrow funds shall be deposited with the Village before
any further action or consideration is taken on the application. In
the event that the amount held in escrow by the Village is more than
the amount of the actual invoicing at the conclusion of the project,
the remaining balance shall be promptly refunded to the applicant.
C.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
A.
No person shall be permitted to site, place, build, construct, modify
or prepare any site for the placement or use of wireless telecommunications
facilities as of the effective date of this chapter without having
first obtained a special use permit for wireless telecommunications
facilities. Notwithstanding anything to the contrary in this section,
no special use permit shall be required for those noncommercial exceptions
noted in the definition of "wireless telecommunications facilities."
B.
All wireless telecommunications facilities existing on or before
the effective date of this chapter shall be allowed to continue as
they presently exist; provided, however, that any visible modification
of an existing wireless telecommunications facility must comply with
this chapter.
A.
Prior to the approval of any application for a special use permit
for wireless telecommunications facilities, a public hearing shall
be held by the Village, notice of which shall be published in the
official newspaper of the Village no less than 10 calendar days prior
to the scheduled date of the public hearing. In order that the Village
may notify nearby landowners, the application shall contain the names
and address of all landowners whose property is located within 1,500
feet of any property line of the lot or parcel on which the new wireless
telecommunications facilities are proposed to be located.
B.
There shall be no public hearing required for an application to co-locate
on an existing tower or other structure, as long as there is no proposed
increase in the height of the tower or structure, including attachments
thereto.
A.
The Village Building Inspector will undertake a review of an application
pursuant to this chapter in a timely fashion, and shall act within
a reasonable period of time given the relative complexity of the application
and the circumstances, with due regard for the public's interest
and need to be involved, and the applicant's desire for a timely
resolution.
B.
The Village Building Inspector may refer any application or part
thereof to any advisory or other committee for a nonbinding recommendation.
C.
After the public hearing and after formally considering the application,
the Village may approve, approve with conditions, or deny a special
use permit. Its decision shall be in writing and shall be supported
by substantial evidence contained in a written record. The burden
of proof for the grant of the permit shall always be upon the applicant.
D.
If the Village approves the special use permit for wireless telecommunications
facilities, then the applicant shall be notified of such approval
in writing within 10 calendar days of the Village's action, and
the special use permit shall be issued within 30 days after such approval.
Except for necessary building permits, and subsequent certificates
of compliance, once a special use permit has been granted hereunder,
no additional permits or approvals from the Village, such as site
plan or zoning approvals, shall be required by the Village for the
wireless telecommunications facilities covered by the special use
permit.
E.
If the Village denies the special use permit for wireless telecommunications
facilities, then the applicant shall be notified of such denial in
writing within 10 calendar days of the Village's action.
A.
Between 12 months and six months prior to the five-year anniversary
date after the effective date of the special use permit and all subsequent
five-year anniversaries of the effective date of the original special
use permit for wireless telecommunications facilities, the holder
of a special use permit for such wireless telecommunication facilities
shall submit a signed written request to the Village 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 facilities;
(2)
If applicable, the number or title of the special use permit;
(3)
The date of the original granting of the special use permit;
(4)
Whether the wireless telecommunications facilities have been moved,
relocated, rebuilt, or otherwise visibly modified since the issuance
of the special use permit and if so, in what manner;
(5)
If the wireless telecommunications facilities have been moved, relocated,
rebuilt, or otherwise visibly modified, then whether the Village approved
such action, and under what terms and conditions, and whether those
terms and conditions were complied with;
(6)
That the wireless telecommunications facilities are in compliance
with the special use permit and compliance with all applicable codes,
laws, rules and regulations;
(7)
Recertification that the tower and attachments both are designed
and constructed and continue to meet all local, Village, state and
federal structural requirements for loads, including wind and ice
loads. Such recertification shall be by a professional engineer licensed
in the state, the cost of which shall be borne by the applicant.
B.
If, after such review, the Village determines that the permitted
wireless telecommunications facilities are in compliance with the
special use permit and all applicable statutes, laws, local laws,
ordinances, codes, rules and regulations, then the Village issue a
recertification of the special use permit for the wireless telecommunications
facilities, which may include any new provisions or conditions that
are mutually agreed upon, or that are required by applicable statutes,
laws, ordinances, codes, rules or regulations. If, after such review,
it is determined that the permitted wireless telecommunications facilities
are not in compliance with the special use permit and all applicable
statutes, laws, ordinances, codes, rules and regulations, then the
Village may refuse to issue a recertification special use permit for
the wireless telecommunications facilities, and in such event, such
wireless telecommunications facilities shall not be used after the
date that the applicant receives written notice of the decision by
the Village until such time as the facility is brought into compliance.
Any decision requiring the cessation of use of the facility or imposing
a penalty shall be in writing and supported by substantial evidence
contained in a written record and shall be promptly provided to the
owner of the facility.
C.
If the applicant has submitted all of the information requested and required by this chapter, and if the review is not completed, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent five-year anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months, in order for the completion of the review.
D.
If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the timeframe noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent five-year anniversaries, unless the holder of the special use permit adequately demonstrates that extenuating circumstances prevented a timely recertification request. If the Village agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
The extent and parameters of a special use permit for wireless
telecommunications facilities shall be as follows:
A.
Such special use permit shall be nonexclusive;
B.
Such special use permit shall not be assigned, transferred or conveyed
without the express prior written notification to the Village;
C.
Such special use permit may, following a hearing upon due prior notice
to the applicant, be revoked, canceled, or terminated for a violation
of the conditions and provisions of the special use permit, or for
a material violation of this chapter after prior written notice to
the holder of the special use permit.
A.
At the time that a person submits an application for a special use
permit for a new tower, such person shall pay a nonrefundable application
fee of $5,000 to the Village. If the application is for a special
use permit for co-locating on an existing tower or other suitable
structure, where no increase in height of the tower or structure is
required, the nonrefundable fee shall be $2,000.
B.
No application fee is required in order to recertify a special use permit for wireless telecommunications facilities, unless there has been a visible modification of the wireless telecommunications facility since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in Subsection A shall apply.
The applicant and the owner of record of any proposed wireless
telecommunications facilities property site shall, at their cost and
expense, be jointly required to execute and file with the Village
a bond, or other form of security acceptable to the Village as to
type of security and the form and manner of execution, in an amount
of at least $75,000 and with such sureties as are deemed sufficient
by the Village to assure the faithful performance of the terms and
conditions of this chapter and conditions of any special use permit
issued pursuant to this chapter. The full amount of the bond or security
shall remain in full force and effect throughout the term of the special
use permit and/or until any necessary site restoration is completed
to restore the site to a condition comparable to that which existed
prior to the issuance of the original special use permit.
In order to verify that the holder of a special use permit for
wireless telecommunications facilities and any and all lessees, renters,
and/or licensees of wireless telecommunications facilities place and
construct such facilities, including towers and antennas, in accordance
with all applicable technical, safety, fire, building, and zoning
codes, laws, ordinances and regulations and other applicable requirements,
the Village may inspect all facets of said permit holder's, renter's,
lessee's or licensee's placement, construction, modification
and maintenance of such facilities, including, but not limited to,
towers, antennas and buildings or other structures constructed or
located on the permitted site.
The holder of the special use permit shall, annually, certify
to the Village that NIER levels at the site are within the threshold
levels adopted by the FCC.
A.
A holder of a special use permit for wireless telecommunications
facilities shall secure and at all times maintain public liability
insurance for personal injuries, death and property damage, and umbrella
insurance coverage, for the duration of the special use permit in
amounts as set forth below:
B.
The commercial general liability insurance policy shall specifically
include the Village and its officers, boards, employees, committee
members, attorneys, agents and consultants as additional named insureds.
C.
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the state and with
a Best's rating of at least A.
D.
The insurance policies shall contain an endorsement obligating the
insurance company to furnish the Village with at least 30 days'
prior written notice in advance of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall be delivered
to the Village at least 15 days before the expiration of the insurance
that such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications facilities
is initiated, but in no case later than 15 days after the grant of
the special use permit, the holder of the special use permit shall
deliver to the Village a copy of each of the policies or certificates
representing the insurance in the required amounts.
A.
Any application for wireless telecommunication facilities that is
proposed for Village property, pursuant to this chapter, shall contain
a provision with respect to indemnification. Such provision shall
require the applicant, to the extent permitted by the law, to at all
times defend, indemnify, protect, save, hold harmless, and exempt
the Village and its officers, boards, employees, committee members,
attorneys, agents, and consultants from any and all penalties, damages,
costs, or charges arising out of any and all claims, suits, demands,
causes of action, or award of damages, whether compensatory or punitive,
or expenses arising therefrom, either at law or in equity, which might
arise out of, or are caused by, the placement, construction, erection,
modification, location, product performance, use, operation, maintenance,
repair, installation, replacement, removal, or restoration of said
facility, excepting, however, any portion of such claims, suits, demands,
causes of action or award of damages as may be attributable to the
negligent or intentional acts or omissions of the Village or its servants
or agents. With respect to the penalties, damages or charges referenced
herein, reasonable attorneys' fees, consultants' fees, and
expert witness fees are included in those costs that are recoverable
by the Village.
A.
In the event of a violation of this chapter or any special use permit
issued pursuant to this chapter, the Village may impose and collect,
and the holder of the special use permit for wireless telecommunications
facilities shall pay to the Village, fines or penalties as set forth
below.
B.
A violation of this chapter is hereby declared to be an offense,
punishable by a fine not exceeding $350 per day per occurrence or
imprisonment for a period not to exceed six months, or both, for conviction
of a first offense; for conviction of a second offense, both of which
were committed within a period of five years, punishable by a fine
not less than $350 nor more than $750 or imprisonment for a period
not to exceed six months, or both; and, upon conviction for a third
or subsequent offense, all of which were committed within a period
of five years, punishable by a fine not less than $750 nor more than
$1,000 or imprisonment for a period not to exceed six months, or both.
However, for the purpose of conferring jurisdiction upon courts and
judicial officers generally, violations of this chapter or of such
ordinance or regulation shall be deemed misdemeanors and for such
purpose only all provisions of law relating to misdemeanors shall
apply to such violations. Each week's continued violation shall
constitute a separate additional violation.
C.
Notwithstanding anything in this chapter, the holder of the special
use permit for wireless telecommunications facilities may not use
the payment of fines, liquidated damages or other penalties to evade
or avoid compliance with this chapter or any section of this chapter.
An attempt to do so shall subject the holder of the special use permit
to termination and revocation of the special use permit. The Village
may also seek injunctive relief to prevent the continued violation
of this chapter, without limiting other remedies available to the
Village.
A.
If wireless telecommunications facilities are repaired, rebuilt,
placed, moved, relocated, modified or maintained in a way that is
inconsistent or not in compliance with the provisions of this chapter
or of the special use permit, then the Village shall notify the holder
of the special use permit in writing of such violation. Such notice
shall specify the nature of the violation or noncompliance and that
the violations must be corrected within seven days of the date of
the postmark of the notice, or of the date of personal service of
the notice, whichever is earlier. Notwithstanding anything to the
contrary in this subsection or any other section of this chapter,
if the violation causes, creates or presents an imminent danger or
threat to the health or safety of lives or property, the Village may,
at its sole discretion, order the violation remedied within 24 hours.
B.
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this chapter, or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Village may revoke such special use permit for wireless telecommunications facilities, and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the Village may determine that
the health, safety, and welfare interests of the Village warrant and
require the removal of wireless telecommunications facilities:
(1)
Wireless telecommunications facilities with a permit have been abandoned
(i.e., not used as wireless telecommunications facilities) for a period
exceeding 90 consecutive days or a total of 180 days in any three-hundred-sixty-five-day
period, except for periods caused by force majeure or acts of God,
in which case repair or removal shall commence within 90 days;
(2)
Permitted wireless telecommunications facilities fall into such a
state of disrepair that they create health or safety hazard;
(3)
Wireless telecommunications facilities have been located, constructed,
or modified without first obtaining, or in a manner not authorized
by, the required special use permit, or any other necessary authorization.
B.
If the Village makes such a determination as noted in Subsection A of this section, then the Village shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed; the Village may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the special use permit, or its successors or assigns,
shall dismantle and remove such wireless telecommunications facilities,
and all associated structures and facilities, from the site and restore
the site to as close to its original condition as is possible, such
restoration being limited only by physical or commercial impracticability,
within 90 days of receipt of written notice from the Village. However,
if the owner of the property upon which the wireless telecommunications
facilities are located wishes to retain any access roadway to the
wireless telecommunications facilities, the owner may do so with the
approval of the Village.
D.
If wireless telecommunications facilities are not removed or substantial
progress has not been made to remove the wireless telecommunications
facilities within 90 days after the permit holder has received notice,
then the Village may order officials or representatives of the Village
to remove the wireless telecommunications facilities at the sole expense
of the owner or special use permit holder.
E.
If the Village removes, or causes to be removed, wireless telecommunications
facilities, and the owner of the wireless telecommunications facilities
does not claim and remove them from the site to a lawful location
within 10 days, then the Village may take steps to declare the wireless
telecommunications facilities abandoned, and sell them and their components.
F.
Notwithstanding anything in this section to the contrary, the Village
may approve a temporary use permit/agreement for the wireless telecommunications
facilities, for no more than 90 days, during which time a suitable
plan for removal, conversion, or relocation of the affected wireless
telecommunications facilities shall be developed by the holder of
the special use permit, subject to the approval of the Village, and
an agreement to such plan shall be executed by the holder of the special
use permit and the Village. If such a plan is not developed, approved
and executed within the ninety-day time period, then the Village may
take possession of and dispose of the affected wireless telecommunications
facilities in the manner provided in this section.
Any applicant desiring relief, waiver or exemption from any
aspect or requirement of this chapter may request such at the preapplication
meeting, provided that the relief or exemption is contained in the
original application for either a special use permit or, in the case
of an existing or previously granted special use permit, a request
for modification of its tower and/or facilities. Such relief may be
temporary or permanent, partial or complete. However, the burden of
proving the need for the requested relief, waiver or exemption is
solely on the applicant to prove. The applicant shall bear all costs
of the Village in considering the request and the relief, waiver or
exemption. No such relief or exemption shall be approved unless the
applicant demonstrates by clear and convincing evidence that, if granted,
the relief, waiver or exemption will have no significant effect on
the health, safety and welfare of the Village, its residents and other
service providers.
A.
The Village may at any time conduct a review and examination of this
entire chapter.
B.
If, after such a periodic review and examination of this chapter,
the Village determines that one or more provisions of this chapter
should be amended, repealed, revised, clarified, or deleted, then
the Village may take whatever measures are necessary in accordance
with applicable law in order to accomplish the same. It is noted that
where warranted, and in the best interests of the Village, the Village
may repeal this entire chapter at any time.
A.
To the extent that the holder of a special use permit for wireless
telecommunications facilities has not received relief, or is otherwise
exempt, from appropriate state and/or federal agency rules or regulations,
then the holder of such a special use permit shall adhere to, and
comply with, all applicable rules, regulations, standards, and provisions
of any state or federal agency, including, but not limited to, the
FAA and the FCC. Specifically included in this requirement are any
rules and regulations regarding height, lighting, security, electrical
and RF emission standards.
B.
To the extent that applicable rules, regulations, standards, and
provisions of any state or federal agency, including, but not limited
to, the FAA and the FCC, and specifically including any rules and
regulations regarding height, lighting, and security, are changed
and/or are modified during the duration of a special use permit for
wireless telecommunications facilities, then the holder of such a
special use permit shall conform the permitted wireless telecommunications
facilities to the applicable changed and/or modified rule, regulation,
standard, or provision within a maximum of 24 months of the effective
date of the applicable changed and/or modified rule, regulation, standard,
or provision, or sooner as may be required by the issuing entity.
Where this chapter differs or conflicts with other laws, rules
and regulations, unless the right to do so is preempted or prohibited
by the Village, state or federal government, this chapter shall apply.
