[Added 10-6-1997 by L.L. No. 4-1997]
This article may be known and cited as the "Communications Tower/Personal
Wireless Facility Special Use Permit Ordinance for the Village of
Buchanan."
For purposes of this article 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.
Any device used to transmit or receive electromagnetic waves
or frequency signals. The term "antenna" includes frequency signals
for radio, television, paging, personal communications services (PCS)
and microwave communications.
A person submitting an application to the Village of Buchanan
for a special use permit for a communications tower or personal wireless
facility.
The form approved by the Village, together with all necessary
and appropriate documentation, that an applicant submits in its quest
to receive a special use permit for a communications tower or personal
wireless facility.
The Village Board of the Village of Buchanan.
The location on a communications tower or personal wireless
facility which, in the event of a failure of the communications tower
or personal wireless facility, would result in the communications
tower or personal wireless facility falling or collapsing within the
boundaries of the property on which the communications tower or personal
wireless facility is placed.
Any tower or supporting structure that, due to design, location
or appearance, partially or completely hides, obscures, conceals or
otherwise disguises the presence of the tower and one or more antennas
or antenna arrays affixed thereto.
The area in which any portion of a communications tower or
personal wireless facility could or would fall, collapse or plunge
to the ground or into a river or other body of water. The collapse
zone shall be no less than the lateral equivalent of the height of
the communications tower or personal wireless facility, plus 10 feet.
The Village of Buchanan, New York.
Westchester County, New York.
Only programming transmitted or broadcast by satellite directly
to subscribers' premises without the use of ground receiving equipment,
except at the subscribers' premises or in the uplink process to the
satellite.
Any structure, other than a tower, that facilitates the attaching,
placement, locating or mounting of an antenna.
Any structure that serves a dual or multiple purpose, including,
for example, such a tower located within or outside a bell or church
steeple or a tower located within or outside a smokestack or chimney.
The length, either in months or years, of a grant for a special
use permit for a communications tower or personal wireless facility
and any related or appurtenant facilities.
The date on which the special use permit for a communications
tower or personal wireless facility expires. On the expiration date
and thereafter, the continued use of a communications tower or a personal
wireless facility (including the use of any and all antennas or other
telecommunications equipment) is prohibited, unless the holder of
the special use permit for a communications tower or personal wireless
facility has received either an extension or renewal of such special
use permit by the Planning Board.
An initial or subsequent extension or continuance of a special
use permit for a communications tower or personal wireless facility
for a definitive period of time beyond the expiration date of a then
existing special use permit for a communications tower or personal
wireless facility.
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 tower that is not supported by guy wires and ground anchors
or other means of attached or external support.
When referring to a tower or other structure, the distance
measured from the ground level to the highest point on the tower or
other structure, even if said highest point is an antenna.
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest or governmental entity.
A facility or facilities used for the provision of personal
wireless services. For purposes of this article, a communications
tower or personal wireless facility includes any antenna used for
the provision of personal wireless services. For purposes of this
article, the term "a communications tower or personal wireless facility"
does not include an antenna, satellite dish or other type of satellite
or video-receiving device that is mounted or located on an individual
residential unit or an amateur radio operator's tower or antenna,
provided that the amateur radio operator's tower and antenna does
not exceed 50 feet in height above ground level.
Commercial mobile services, unlicensed wireless services
and common-carrier wireless exchange access services.
The officially designated agency of the Village to whom applications
for a special use permit must be made and that is authorized to review,
analyze and evaluate an application for a special use permit and that
the Board relies on to make recommendations to the Board with respect
to granting or not granting, renewing or not renewing, or revoking
a special use permit for a communications tower or personal wireless
facility.
A personal wireless facilities owner, which means the person
who owns, controls or otherwise manages and has financial responsibility
for a telecommunications facility.
The State of New York.
An application that contains all information and/or data
necessary in order for the Village to evaluate the merits of the application
and to make an informed decision with respect to the effect and impact
of the communications tower or personal wireless facility on the Village
in the context of the permitted land use for the particular location
requested.
A tower that is supported, in whole or in part, by guy wires
and ground anchor or other permissible and reliable means of support
in addition to the superstructure of the tower itself.
With respect to any structure or facility associated with
a communications tower or personal wireless facility, any structure
or facility intended to or that does exist for fewer than 30 days.
Any structure that is designed and constructed primarily
for the purpose of supporting one or more antennas, including self-supporting
lattice towers, freestanding towers and supported towers. The term
"tower" or "communications tower" includes radio and television transmission
towers, microwave towers, common-carrier towers, cellular phone towers,
dual tower structures and camouflaged tower structures.
The offering of telecommunications services using duly authorized
devices which do not require individual licenses but does not mean
the provision of direct-to-home satellite services.
A.
The Board recognizes that, under Section 704 of the Telecommunications
Act of 1996, the Congress has preserved the authority of the Board
to make decisions with respect to the placement, construction and
modification of personal wireless facilities.
B.
The Board further recognizes that to the extent permitted by federal
law, the placement, construction and modification of communications
towers and personal wireless facilities must be consistent and compatible
with the Village's zoning or land use code.
C.
In order to ensure that the placement, construction and modification
of personal wireless facilities conforms to the Village's zoning or
land use code, the Board creates a special use permit for a communications
tower or personal wireless facility.
D.
As such, the Board adopts an overall policy with respect to special
use permits for a communications tower or personal wireless facility
for the express purpose of achieving the following goals:
(1)
Implementing an application process for persons seeking a special
use permit for a communications tower or personal wireless facility.
(2)
Establishing a policy for examining and issuing a special use permit
for a communications tower or personal wireless facility that is both
fair and consistent with the current zoning or land use code of the
Village.
(3)
Establishing reasonable time frames for the examination of a completed
application for a special use permit for a communications tower or
personal wireless facility.
(4)
Ensuring that the Planning Board's decision on an application for
a special use permit for a communications tower or personal wireless
facility is supported by substantial evidence contained in a written
record.
(5)
Establishing reasonable parameters and conditions for special use
permits for a communications tower or personal wireless facility.
(6)
Promoting and encouraging, wherever possible, the sharing and/or
collocation of a communications tower or personal wireless facility
among service providers.
(7)
Minimizing the potential negative effects on property values of properties
adjacent to, or in reasonably close proximity to, the communications
tower or personal wireless facility, such as a surrounding neighborhood
with a distinctive character or appearance.
(8)
Promoting and encouraging, wherever possible, the placement of a
communications tower or personal wireless facility in such a manner
as to cause minimal disruption to aesthetic considerations of the
land, property, buildings and other facilities adjacent to, surrounding,
and in generally the same neighborhood as the requested location of
such a communications tower or personal wireless facility.
A.
No person shall be permitted to place, construct or modify a communications
tower or a personal wireless facility without having first obtained
a special use permit for a communications tower or personal wireless
facility.
B.
Notwithstanding Subsection A of this section, for purposes of this article, satellite dishes and equipment necessary to receive direct-to-home satellite video services shall not be considered a communications tower or personal wireless facility. As such, they are not subject to the provisions of this article and do not require a special use permit for placement, construction and modification.
C.
Notwithstanding Subsection A of this section, for purposes of this article, handheld, vehicular or other portable transmitters or receivers or the antennas needed for such portable transmitters or receivers, including but not limited to cellular phones, CB radios and emergency services radios, shall not be considered a communications tower or personal wireless facility. As such, they are not subject to the provisions of this article and do not require a special use permit for placement, construction and modification.
D.
Notwithstanding Subsection A of this section, but nevertheless subject to Subsection F of this section, any communications tower or personal wireless facility existing on the effective date of this article shall be grandfathered and not required to apply for and receive a special use permit for a communications tower or personal wireless facility unless and until any permit granted allowing for the construction of such either expires or is revoked. For the purpose of this section, an existing communications tower or personal wireless facility includes an existing dual-purpose antenna structure.
E.
Notwithstanding Subsection A of this section, but nevertheless subject to Subsection F of this section, any person who has applied for or submitted a request for the construction, erection or installation of a communications tower or personal wireless facility prior to October 6, 1997, which is the effective date of this article, shall be subject to the provisions of this article and shall be required to comply with its terms and provisions.
F.
For communications towers or personal wireless facilities that are covered under Subsections D and E of this section, the owners of such communications towers or personal wireless facilities will nonetheless be required to secure, obtain and maintain a special use permit for a communications tower or personal wireless facility prior to the time that such facility is relocated, rebuilt or modified or prior to the expiration of a current permit.
A.
Consistent with the Village's desire to have communications towers
or personal wireless facilities placed and located in areas that are
deemed compatible with the surrounding designated zoning or land use
and which should cause minimal disruption to or conflict with the
surrounding aesthetics of a particular zoned land use, the Village
will, within six months from the effective date of this article, conduct
an examination of property that it owns and/or controls to determine
what, if any, property meets the overall criteria noted in this article
and as a result would support the location of a communications tower
or personal wireless facility on such property owned by the Village.
B.
For prescreened, preevaluated Village-owned property that meets the
overall criteria in this article and that is consequently deemed compatible
with the designated surrounding zoning/land use, the Planning Board
designates such property and locations as preapproved for the placement,
construction and modification of a communications tower or personal
wireless facility. As a result, a special use permit for a communications
tower or personal wireless facility shall be issued, so long as the
Planning Board determines that:
(1)
That the applicant's proposed communications tower or personal wireless
facility is designed to be and will be structurally sound.
(2)
The applicant's proposed communications tower or personal wireless
facility will be maintained in a safe manner and in compliance with
the conditions of the special use permit, as well as all applicable
and permissible local codes, ordinances and regulations, including
any and all applicable county, state and federal laws, rules and regulations.
(3)
The applicant is financially sound.
(4)
The construction of the communications tower or personal wireless
facility is otherwise legally permissible, including but not limited
to the following:
(a)
All applicable fees, taxes and/or charges have been paid;
(b)
All necessary and required licenses and permits have been acquired;
(c)
All necessary and required insurance has been obtained and is
in force and effect;
(d)
The corporate or other business structure has not lapsed in
the state;
(e)
There is no history of violations or a lack of compliance with
similar permits and applicable codes in other communities in the past
three years;
(f)
There is no other legal impediment to constructing such a facility;
(g)
That the construction of the communications tower or personal
wireless facility will occur no later than six months after the issuance
of a special use permit;
(h)
That the communications tower or personal wireless facility
will be used for the provision of service, as represented in the application,
within one year of the date of placement or modification;
(i)
That the construction of the communications tower or personal
wireless facility is intended primarily to provide service within
the Village and is not intended primarily to provide service within
an adjacent, adjoining or neighboring municipality, with service in
the Village being merely incidental to the primary service area or
the majority of the service area; and
(j)
That the proposed communications tower or personal wireless
facility is designed to and will accommodate at least one other provider
of telecommunications service.
C.
The special use permit for a communications tower or personal wireless
facility that the Planning Board issues as a result of said prescreening
and preevaluation shall be a standard special use permit for a communications
tower or personal wireless facility that meets at least the minimum
requirements for such a special use permit, which are listed elsewhere
in this article, including any required or negotiated amendments thereto.
A.
A special use permit for a communications tower or personal wireless
facility shall have a duration of five years from the date that the
special use permit for a communications tower or personal wireless
facility is issued, which shall be measured from the date that the
special use permit for a communications tower or personal wireless
facility is executed by the Village. The Village specifically reserves
the right to be the last signatory to the special use permit and any
related agreement. A permit for a term longer than five years may
be requested, but the Village shall not be obligated to grant such
longer term unless the applicant proves, to the satisfaction of the
Planning Board, that such is needed to make the project economically
viable in the context of the time required to realize the payback
of the initial investment with a reasonable rate of return. In other
words, the test for a longer term shall be one of commercial impracticability,
as defined under the Uniform Commercial Code.
B.
At any time between 12 months and six months from the date that the
special use permit for a communications tower or personal wireless
facility is set to expire, the holder of such a special use permit
may submit a written request for renewal, but in no event shall the
request be accepted later than six months from the date of expiration
of the special use permit. In the event that a request for renewal
is not received by the Planning Board in a timely manner, then the
holder of the special use permit for a communications tower or personal
wireless facility shall have been deemed to have waived any right
to renewal, absent a written waiver of the requirements of this subsection
by the Planning Board. In the written request for renewal, the holder
of such special use permit shall note the following:
(1)
The name of the holder of the special use permit for the communications
tower or personal wireless facility;
(2)
If applicable, the number or title of the special use permit;
(3)
The date of expiration of the special use permit;
(4)
The requested duration or term of the special use permit, if the
requested duration is for a period of time that is other than five
years;
(5)
Whether the communications tower or personal wireless facility has
been moved, relocated, rebuilt, repaired or otherwise modified since
the issuance of the special use permit;
(6)
If the communications tower or personal wireless facility has been
moved, relocated, rebuilt, repaired 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 and abided
by; and
(7)
Any requests for waivers or relief of any kind whatsoever from the
requirements of this article and any requirements for a special use
permit.
C.
Within 90 days from the date that the special use permit is set to
expire, an authorized and qualified representative of the Village
shall inspect the permitted communications tower or personal wireless
facility to verify construction in compliance with the special use
permit and compliance with all applicable codes, laws, rules and regulations.
D.
If, after such review, the Village determines that the permitted
communications tower or personal wireless facility in compliance with
the special use permit and all applicable codes, laws, rules and regulations,
then the Village shall issue a renewal special use permit for a communications
tower or personal wireless facility, which may include any new provisions
that are mutually agreed upon or required by the force of law or regulation.
E.
If the Planning Board does not complete its review, as noted in Subsection C of this section, prior to the expiration date of the special use permit, then the applicant for the permitted communications tower or personal wireless facility shall receive an extension of the special use permit for up to six months, in order for the Village to complete its review as noted in Subsection C of this section.
F.
If the holder of a special use permit for a communications tower or personal wireless facility does not submit a request for renewal 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 expiration, unless the holder of the special use permit adequately demonstrates to the Planning Board that extenuating circumstances prevented a timely renewal request. If the Planning Board agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a renewal request within the Planning Board's new time frame under the conditions noted in Subsection B of this section. If time considerations warrant, then the existing special use permit for a communications tower or personal wireless facility may be extended for up to six months in order to allow the Village adequate time to review the renewal request.
Consistent with the authority granted by Congress in Section
704 of the Telecommunications Act of 1996, the Planning Board is authorized
to issue a special use permit for the placement, construction and
modification of a communications tower or personal wireless facility.
A.
Except as noted in Subsection B of this section, an application, at a minimum, must contain the following information:
(1)
The name of the applicant.
(2)
Whether the applicant is an individual, partnership, limited partnership,
limited liability company, professional corporation, corporation,
professional association, governmental entity or other type of legal
group or association.
(3)
A complete, thorough and accurate description of the proposed communications
tower or personal wireless facility, including a scale drawing or
model of the proposed communications tower or personal wireless facility
at a scale and in sufficient detail to enable the determination of
the adequacy of the design and the structural integrity of the communications
tower or personal wireless facility, as well as its location and placement
with respect to the requested site, including required setbacks.
(4)
The intended use of the proposed communications tower or personal
wireless facility and, where applicable, noting whether the applicant
has a contract, license, lease, letter of understanding, agreement
in principle or other type of agreement or arrangement with another
person or persons for the use of the proposed wireless facility and,
if so, a summary of the agreement or arrangement, disclosing all material
terms and conditions of such, so long as such disclosure would not
reasonably be expected to place the applicant at a competitive disadvantage.
(5)
The proposed location of the communications tower or personal wireless
facility, including both a legal description of the location and a
map of sufficient detail so as to pinpoint the exact location of the
tower and other facilities on the property within 12 inches of their
exact intended location.
(6)
The zoning or land use designation for the site of the proposed communications
tower or personal wireless facility.
(7)
Whether the communications tower or personal wireless facility is
a tower, freestanding tower, supported tower or a dual-purpose tower
and whether the proposed communications tower or personal wireless
facility is a camouflaged tower structure.
(8)
Whether the antennas (transmission and receiving facilities) proposed
are to be located on an existing tower, freestanding tower, supported
tower, a dual-purpose tower or a camouflaged tower structure or a
dual-purpose antenna structure.
(9)
If it is a tower, the height of the proposed communications tower
or personal wireless facility when fully and completely constructed
and erected.
(10)
A certified engineering analysis and/or other data and/or documents
that adequately demonstrate that, in the event of a catastrophic failure,
fall or collapse of the proposed communications tower or personal
wireless facility, said communications tower or personal wireless
facility would fall or collapse completely within the collapse zone
of the communications tower or personal wireless facility and would
not damage, endanger or otherwise negatively impact the real or personal
property of the surrounding property owners or the owner of the proposed
site, if the property on which the communications tower or personal
wireless facility is to be located is leased or rented, or endanger
the safety of persons outside the collapse zone.
(11)
Written evidence that any and all applicable requirements regarding
RF emission standards, as such may exist at any time, will be complied
with, pursuant to applicable authority.
(12)
Documentation that the proposed communications tower or personal
wireless facility will be constructed in a manner that will withstand
sustained winds of at least 150 miles per hour or the expected wind
load created by a five-hundred-year storm, whichever is greater.
(13)
A description of proposed steps to be taken to ensure that aesthetic
considerations are properly and adequately addressed, including a
rendering or other visual representation showing the effect of light
emanating from the site on neighboring residences within 1/4 mile.
(14)
An acknowledgment that all property owners within 750 feet of
the communications tower or personal wireless facility have been previously
notified of the intended construction and use of the tower or personal
wireless facility.
(15)
Whether the applicant has previously sought a special use permit
for a communications tower or personal wireless facility elsewhere
in the state and, if so, where and what the ultimate disposition of
the application was.
(16)
Whether the applicant has ever had a special use permit, a license,
a franchise, a contract or any other legal authority revoked, rescinded,
canceled or terminated, which authorized the placement of a communications
tower or personal wireless facility.
(17)
A reasonably detailed description of the construction methods
to be used to construct the communications tower or personal wireless
facility.
(18)
The estimated time for completing constructing and/or locating
the communications tower or personal wireless facility.
(19)
The proposed completion date for constructing and/or locating
the communications tower or personal wireless facility.
(20)
If a tower is proposed, a detailed plan for sufficient lighting
of an 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 residences within 1/4 mile.
(21)
A detailed plan outlining proposed security measures, including
limiting access to the communications tower or personal wireless facility
and associated equipment, in order to reduce the likelihood of trespass
and injury from children and others.
(22)
If a tower is proposed, a detailed plan for ingress and egress,
including, where warranted and/or needed, special ingress and egress
routes for emergency vehicles, such as emergency medical technician
vehicles and ambulances and fire, police and other emergency and law
enforcement vehicles, as well as vehicles needed for the maintenance
and emergency repair of the permitted facilities.
(23)
If a tower is proposed, a reasonably detailed preventive maintenance
plan, including a proposed schedule for the regular inspection of
the entire structural facility and any component parts of the structural
facility, in the context of a minimum commitment.
(24)
If a tower or other type of structure is proposed, certification
by a professional engineer with appropriate qualifications and related
experience 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 to the proposed communications tower or personal wireless
facility on the proposed site.
(25)
An acknowledgment that the applicant has read, understands and
intends to comply with this article and the applicable rules and regulations
governing the issuance and enforcement of special use permits for
a communications tower or personal wireless facility.
(26)
The names and qualifications of personnel who will construct
the proposed communications tower or personal wireless facility, or
if that is not known, then data or documentation sufficient to demonstrate
to the Village that the applicant or representatives of the applicant
has the technical ability, experience and wherewithal to construct
the proposed communications tower or personal wireless facility.
(27)
A complete description of the services to be offered that are
enabled to be provided using the communications tower or personal
wireless facility, including but not limited to the frequencies to
be used for each type of service, all relevant and needed RF emissions
information related to the use of the facilities and the height of
attachment to the tower of any and all equipment and antennas or other
arrays to be attached.
(28)
An artist's rendering of the site showing the site after the
completion of all construction and construction-related activity,
including but not limited to the means of vehicular ingress/egress,
drainage work and landscaping and screening or camouflaging work.
(29)
Sufficient data and documentation to demonstrate that applicant
has the finances and funds committed and available that are needed
to construct the proposed communications tower or personal wireless
facility in the manner and in the time frame proposed or as otherwise
required by this article.
(30)
If required by the Planning Board, a map showing any and/or
all alternative locations in the Village that would achieve the desired
service or coverage area, including situations that would require
multiple towers and facilities of a lower height to achieve the desired
service or coverage area, and accompanied by a cost comparison showing
the estimated cost for each approach compared to the cost for the
requested or preferred location, as well as a narrative describing
any anticipated problems associated with the use of any alternative
site or combination of sites.
(31)
Evidence that any and all applicable state requirements have
been or will be fulfilled, including obtaining any required permits
or other required authorization.
B.
Notwithstanding Subsections A and C of this section, a person (including the Village) seeking a special use permit for a communications tower or personal wireless facility, in order to place such facility on land that is owned by the Village, shall, in addition, follow the procedure detailed in § 211-63 of this article.
C.
At the time that a person submits an application for a special use
permit for a communications tower or personal wireless facility, such
person shall also submit an application fee in an amount as set from
time to time by resolution of the Board of Trustees. The application
fee is in addition to any costs that the Village incurs, encounters,
expends or absorbs during its review and evaluative process, and such
additional costs and expenses shall be charged in accordance with
the appropriate provisions of this chapter. The application fee is
nonrefundable, regardless of whether or not the person receives a
special use permit for a communications tower or personal wireless
facility.
[Amended 2-7-2011 by L.L. No. 9-2011]
D.
An application fee in an amount as set from time to time by resolution
of the Board of Trustees is required in order to make application
to extend or renew a special use permit for a communications tower
or personal wireless facility.
[Amended 2-7-2011 by L.L. No. 9-2011]
E.
In the case of a change or modification of an application during
the application process and prior to the issuance or denial of a special
use permit for a communications tower or personal wireless facility
or a change or modification in the plans submitted as part of an application
for a special use permit for a communications tower or personal wireless
facility, the applicant shall pay to the Village a nonrefundable change
of request fee, in an amount as may be established by the Village
from time to time. Moreover, to minimize changes or revisions in applications
that are primarily for the convenience of the applicant or service
provider and on which the efficacy of the project or venture does
not hinge, after the first change or modification, each additional
or subsequent change or modification of the application or of the
plans submitted as part of an application for a special use permit
for a communications tower or personal wireless facility prior to
the issuance or denial of the special use permit shall require an
additional fee that shall increase in increments as established by
the Village, which shall accompany each requested change submitted
either for the same site or under the same permit application. For
purposes of example only, a second change or modification would require
a fee consisting of the amount for an initial application plus the
increment established by the Village for considering changes or revisions
to an initial application.
A.
In its review of the application for a special use permit for personal
wireless facilities, the Planning Board shall evaluate certain factors
in determining whether to grant or deny a special use permit for personal
wireless facilities. Those certain evaluative factors are as follow:
(1)
The proposed duration of the special use permit.
(2)
The proposed location of the communications tower or personal wireless
facility.
(3)
The zoning or land use designation of the proposed wireless facility.
(4)
If the proposed communications tower or personal wireless facility
is a tower or a freestanding antenna or supported antenna, then the
height of the tower or freestanding antenna or supported antenna.
(5)
The proposed or the expected or the actual means of access to the
communications tower or personal wireless facility.
(6)
The number of communications towers or personal wireless facilities
already existing within a specific section or grid of the Village
or already existing within the existing zoning or land use designation
and the identification of such on a map to a scale of one inch to
1,000 feet, such map to be provided by the applicant.
(7)
The proximity of the proposed communications tower or personal wireless
facility to residential units or residential subdivisions within 1/2
mile of the proposed site.
(8)
The proposed aesthetic treatment surrounding the communications tower
or personal wireless facility, showing the type of structure and showing
any proposed landscaping, plantings, screening, etc., of the property
immediately surrounding the communications tower or personal wireless
facility.
(9)
The projected collapse zone of the proposed communications tower
or personal wireless facility in relation to surrounding buildings
and property adjacent to the site.
(10)
Plans to visually blend the proposed communications tower or
personal wireless facility with the character of surrounding buildings
and facilities.
(11)
If the proposed communications tower or personal wireless facility
is part of a camouflaged tower or antenna, then the manner in which
it is to be camouflaged.
(12)
If the transmission facilities to be attached to or associated
with the proposed communications tower or personal wireless facility
will comply with all applicable RF emissions limits and requirements.
(13)
Any other factors that are required to be evaluated by the zoning
or land use code of the Village.
B.
In addition to the factors listed in Subsection A of this section, the Planning Board may consider alternatives, if there are any, to granting and/or issuing a special use permit for a communications tower or personal wireless facility in a different section, quadrant or grid of the Village in relation to the Zoning Map of the Village or at a different location within the Village. Among the alternatives are the grant of a special use permit for a communications tower or personal wireless facility at a preapproved or prescreened Village-owned location.
C.
If the proposed or requested site or location for the communications
tower or personal wireless facility is unacceptable for any permissible
reason and if there are alternative locations that are acceptable
to the Village, the Village may require the applicant to locate at
one or more of the alternative sites, so long as doing so does not
have the effect of prohibiting the emergence of a new service provider
or is not commercially impracticable as defined under the United States
Uniform Commercial Code.
A.
From the date that a person submits a completed application for a
special use permit for a communications tower or personal wireless
facility, the Village shall have up to 120 days in which to examine
and evaluate the application in a manner consistent with both the
policies and evaluative criteria outlined in this article.
B.
Notwithstanding Subsection A of this section, the Village may request additional information from an applicant if needed, even if the application is substantially completed, in order for the Village to conclude its evaluation and examination of said application. The applicant shall comply with such a request in a timely manner. However, such a request shall not extend the time frame for the Village to conclude its evaluation and examination of said application, unless the information is not provided within the time frame established by the Village. In the event that the requested information is not provided in a timely manner, the time for the evaluation and examination of said application shall be tolled until the requested information is provided.
C.
On the date that the Village concludes its examination and evaluation
of an application for a special use permit for a communications tower
or personal wireless facility, it shall:
A.
The Planning Board shall complete its examination and evaluation
within a reasonable period of time as prescribed by law.
B.
The Planning Board shall consider an application for a special use
permit for a communications tower or personal wireless facility at
a hearing open to the public that is duly noted and/or advertised
to the public according to applicable rules. The public hearing shall
allow for public input from interested parties.
C.
The Village shall give the applicant at least 21 days' notice in advance of the public hearing to consider the applicant's application for a special use permit for a communications tower or personal wireless facility. The applicant may request a rescheduling of the public hearing date, and for sufficient cause, the Planning Board may reschedule the public hearing date. However, in such a case, the Planning Board shall be under no obligation to formally consider the application within the time frame noted in Subsection A of this section. This specifically means that if an applicant requests an earlier date for the public hearing than was originally set and such a request is granted, then the Planning Board shall have until the expiration of time allowed under Subsection A as measured from the date of the hearing as originally set.
D.
During the hearing, the Planning Board shall receive input from the
applicant; staff, representatives and consultants for the Village;
the Planning Board; and the public, which includes representatives
from homeowners' or civic associations. During the public hearing,
the Planning Board may question any person that speaks for or against
the issuance of a special use permit for a communications tower or
personal wireless facility.
E.
After formally considering the application, the Planning Board may
take one of three actions:
F.
If the Planning Board approves the special use permit for a communications
tower or personal wireless facility, then the applicant shall be notified
in writing within 10 calendar days of the Planning Board's action,
and the special use permit shall be issued and executed within 30
days after such approval, with the Village reserving the right to
be the last signatory to the special use permit and any related agreement.
G.
If the Planning Board denies the special use permit for a communications
tower or personal wireless facility, then the applicant shall be notified
in writing within 10 calendar days of the Planning Board's action.
The notification shall explain in detail the reasons for the denial
and shall, where practical, reference any deficiencies among the evaluative
criteria noted elsewhere in this article.
H.
If the Planning Board conditionally approves the special use permit
for a communications tower or personal wireless facility, then the
applicant shall be notified within 10 calendar days of the Planning
Board's action. The notification shall precisely detail the reasons
for the conditional approval. A conditional approval for a special
use permit for a communications tower or personal wireless facility
may be granted in those circumstances where only minor deficiencies
or issues in the evaluative process remain, such as final approval
of specific details of an acceptable plan regarding the aesthetic
treatment. Under no circumstances shall such conditional approval
extend beyond 60 days from the date of the Planning Board's action.
I.
In the case of a conditional approval of a special use permit for
a communications tower or personal wireless facility, such special
use permit shall not be issued until the Planning Board is satisfied
that all legal, technical, safety, aesthetic, financial and conditional
concerns have been met or exceeded.
The extent and parameters of a special use permit for a communications
tower or personal wireless facility shall be as follows:
A.
Such special use permit shall be nonexclusive;
B.
Such special use permit shall not be assignable or transferable without
the express written consent of the Planning Board;
C.
Such special use permit shall not be extended or renewed, except
in accordance with the procedures detailed in this article; and
D.
Such special use permit may be revoked, canceled or terminated for
a violation of the conditions and provisions of the special use permit
for a communications tower or personal wireless facility or for a
violation of this article.
A.
Except as noted in Subsection E of this section, a communications tower or personal wireless facility must be located in a compatible location and/or zoning or land use designation.
B.
Consistent with the Village's zoning or land use code, a permitted
communications tower or personal wireless facility may be placed in
areas designated as M-1 of the Village Zoning Map.
C.
Consistent with the Village's zoning or land use code, a communications
tower or a personal wireless facility may not be placed in any other
location and/or zoning or land use designated on the Village Zoning
Map other than those locations designated as an M-1 Zone on the Village
Zoning Map.
D.
While not limited to the following, locating a communications tower or personal wireless facility in a zoning or land use designation noted in Subsection C of this section would not be compatible for 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 residential
section of the Village;
(4)
The use or construction of a communications tower or personal wireless
facility is contrary to an already stated purpose of a specific zoning
or land use designation; or
(5)
The placement and location would create an unacceptable risk or the
probability of such to residents, the public, Village employees and
agents or employees of the service provider.
E.
Notwithstanding the other provisions of this section, a person may
seek to locate a communications tower or personal wireless facility
within a noncompatible zoning or land use designation. However, the
person seeking such an exception must satisfactorily demonstrate to
the Planning Board the reason or reasons why such a waiver should
be granted and the hardship that would be incurred by the applicant
or service provider if not granted or the benefits that might inure
because of the exemption and the beneficiaries of the exemption.
F.
The Planning Board may grant a waiver for one or more of the following
reasons:
(1)
The ruling of a state or federal agency of competent jurisdiction
and authority requires the location of a communications tower or personal
wireless facility within a noncompatible zoning or land use designation.
(2)
Federal or state law requires the location of a communications tower
or personal wireless facility within a noncompatible zoning or land
use designation.
(3)
A court or administrative body of competent jurisdiction and authority
requires or orders the location of a communications tower or personal
wireless facility within a noncompatible zoning or land use designation.
(4)
There is no other location or combination of locations available
within the Village that would serve the intended purpose of the proposed
site for the communications tower or personal wireless facility.
(5)
The proposed location for the proposed communications tower or personal
wireless facility is an essential and/or necessary component of an
overall telecommunications network for which there is no comparable
or functional siting alternative as regards the desired service area.
(6)
The proposed location for the proposed communications tower or personal
wireless facility is an essential and/or necessary component of an
overall telecommunications plan of the Village.
G.
Notwithstanding the fact that the Planning Board may grant a waiver
with respect to the zoning or land use designation, a proposed communications
tower or personal wireless facility must still satisfy all other evaluative
criteria before the Planning Board grants a special use permit for
a communications tower or personal wireless facility.
A.
Should the Planning Board issue a special use permit for a communications
tower or personal wireless facility, such special use permit shall
be sufficiently detailed so as to clearly delineate the rights, duties
and obligations of the parties concerned.
B.
At a minimum, the special use permit shall contain provisions addressing
and clearly delineating the following:
(1)
Duration of the special use permit, including a specific expiration
date;
(2)
Insurance requirements and obligations;
(3)
Indemnification requirements and obligations;
(4)
Agreement to adherence to all applicable laws, codes, rules, regulations
and fees requirements;
(5)
If applicable, conditions or provisions concerning all matters relating
to site preparation;
(6)
Conditions or provisions concerning the adherence to any and all
maintenance standards and requirements;
(7)
Conditions or provisions concerning an assignment or transfer of
the special use permit;
(8)
Conditions or provisions concerning the repair, rebuild or modification
of the communications tower or personal wireless facility;
(9)
Conditions or provisions concerning the removal of any communications
tower or personal wireless facility; and
(10)
Termination, revocation, and/or cancellation of the special
use permit.
A.
To the extent that the holder of a special use permit for a communications
tower or personal wireless facility 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 a communications tower
or personal wireless facility, then the holder of such a special use
permit shall conform the permitted communications tower or personal
wireless 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.
A.
A holder of a special use permit for a communications tower or personal
wireless facility shall secure and at all times maintain public liability
insurance, property damage insurance and umbrella insurance coverage
for the duration of the special use permit in at least the following
amounts:
B.
The public and personal liability and property damage insurance policy
shall specifically include the Village and its officials, employees
and agents as additional insureds.
C.
The public and personal liability insurance and property damage insurance
policy shall be issued by an agent or representative of an insurance
company licensed to do business in the state and which has one of
the three highest ratings or best ratings from the Alfred M. Best
Company or an equally recognized rating company.
D.
The public liability and property damage insurance policy shall contain
an endorsement obligating the insurance company to furnish the Planning
Board with at least 30 days' written notice in advance of the cancellation
of the insurance.
E.
Renewal or replacement policies or certificates shall be delivered
to the Planning Board at least 15 days before the expiration of the
insurance which such policies are to renew or replace.
F.
Before construction of a permitted communications tower or personal
wireless 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 Clerk a copy of each of the
policies or certificates representing the insurance in the required
amounts.
G.
Absent a written extension of time for the delivery of the required copy(s) of the insurance policy or certificate(s) of insurance, should an applicant for a special use permit or a communications tower or personal wireless facility fail to provide said proof of insurance in a timely manner as set forth in Subsection F of this section, the special use permit shall be deemed revoked without the need for further proceedings or action by the Village, except that the Village must, within five days of the deadline, notify the holder of the special use permit of the revocation in writing.
A.
Any special use permit issued for the construction and/or location
of a telecommunications facility shall contain a provision with respect
to indemnity. Such a provision shall require the holder of the special
use permit to the extent permitted by the law, to at all times defend,
indemnify, protect, save, hold harmless and exempt the Village, Board
and Supervisor, their officers, agents, servants and employees, from
any and all penalties, damage or charges arising out of 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 construction, erection,
modification, location, products performance, operation, maintenance,
repair, installation, replacement, removal or restoration of a telecommunications
facility, specifically including a tower or antenna, within the Village.
With respect to the penalties, damages or charges referenced herein,
reasonable attorney's fees, consultant fees and expert witness fees
are included in those costs that are recoverable by the Village.
B.
Notwithstanding the requirements noted in Subsection A of this section, an indemnity provision will not be required in those instances where the Village itself applies for and secures a special use permit for a communications tower or personal wireless facility. The rationale for such an exemption is that the Village need not indemnify itself against loss or damage and, therefore, in such an instance, requiring an indemnity provision would be unnecessary.
A.
A person who holds a special use permit for a communications tower
or personal wireless facility shall construct, operate, maintain,
repair, modify or restore the permitted communications tower or personal
wireless facility in strict compliance with all current technical,
safety and safety-related codes adopted by the Village, the county,
the state or the United States, including but not limited to the most
recent editions of the National Electrical Safety Code and the National
Electrical Code, as well as accepted and responsibly workmanlike industry
practices and recommended practices of the National Association of
Tower Erectors.
For the duration of any special use permit for a communications
tower or personal wireless facility, the permitted communications
tower or personal wireless facility must adhere to the following minimum
maintenance standards:
A.
In order to minimize visual sighting concerns and the likelihood
of deterioration affecting the structural integrity of the structural
components of any permitted communications tower or personal wireless
facility or a change in the condition of the structural components
of the facility, if the permitted communications tower or personal
wireless facility is a tower, then the tower shall be maintained in
good condition at all times, shall be coated with a galvanized steel
finish or other rust-resistant metal or be painted a neutral color
using a rust-preventive paint or other treatment of proven good quality,
subject to any applicable standards and requirements of the FAA and
the National Association of Tower Erectors;
B.
If the permitted communications tower or personal wireless facility
is a dual-purpose tower, then the openings in the other structure
that is not a tower, such as a building or other enclosure and the
equipment in the other structure shall be protected, including by
fire sprinklers where applicable and/or required, against ingress
or penetration and resultant damage by fire and windblown embers,
or any other factor that could cause a fire;
C.
Any signs located on a permitted a communications tower or personal
wireless facility must be consistent and compatible with the aesthetic
treatment of the site as approved by the Planning Board, must be located
so as not to interfere with routine, periodic and/or customary maintenance
of the permitted communications tower or personal wireless facility
and, if intended for the public, must be plainly visible and able
to be read from a distance of no less than the outer limit of the
collapse zone of the permitted communications tower or personal wireless
facility; and
D.
Any debris, including but not limited to tree limbs, grass cuttings,
abandoned solid waste or trash, construction materials or any other
materials which would, in the sole determination of the Village, pose
a threat to the health or safety of persons or property, whether real
or personal, or reasonably create an aesthetic concern, shall not
at any time be permitted to exist but, in any event, shall be removed
within 24 hours of notification by the Village.
A.
In order to verify that not only the holder of a special use permit for a communications tower or personal wireless facility, but also any and all lessees, renters and/or licensees of a communications tower or personal wireless facility, places and constructs such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building and zoning or land use codes or other applicable requirements, the Village reserves the right to inspect all facets of said 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. This specifically includes any temporary structure or facility, as defined in § 211-60 of this article.
B.
The Village shall pay for all of its costs associated with such an
inspection, except for those circumstances occasioned by said holder's,
lessee's or licensee's refusal to provide necessary information or
necessary access to such facilities, including towers, antennas and
appurtenant or associated facilities, or refusal to otherwise cooperate
with the Village with respect to an inspection.
C.
Payment of such reimbursement shall be made to the Village within
30 days from the date of the invoice or other demand for reimbursement.
In the event that the finding(s) of violation is/are appealed in accordance
with the procedures set forth in this article, said reimbursement
payment must still be paid to the Village, and the reimbursement shall
be placed in an escrow account established by the Village specifically
for this purpose, pending the final decision on appeal.
A holder of a special use permit for a communications tower
or personal wireless facility shall obtain, at its own expense, all
permits and licenses required by applicable law, rule, regulation
or ordinance and must maintain the same, in full force and effect,
for as long as required by the Village or other appropriate governmental
entity or agency.
A.
When any permitted communications tower or personal wireless facility
is repaired, rebuilt, placed, moved, relocated, modified or maintained
in a way that is inconsistent or not in compliance with either the
Village's zoning or land use code or the provisions of this article
or of the special use permit, then the Planning Board shall notify
the holder of the special use permit for a communications tower or
personal wireless facility of the specific inconsistent, noncompliant
or violative use or situation. Such notice shall indicate that the
communications tower or personal wireless facility and any appurtenant
or related facilities located at the permitted site is in violation
of or noncompliance with the requirements of this article or the special
use permit and that the holder of the special use permit is in default
of its special use permit and that the facilities must be returned
to consistent, compliant use and status within 10 days of the date
of the postmark of the notice or of the date of personal service of
the notice, whichever is applicable. Notwithstanding anything to the
contrary in this subsection, if the situation causes, creates or presents
an imminent danger or threat to the health or safety of lives or property,
in the sole determination of the Village, the Village may, at its
sole discretion, order the violative or noncompliant situation remedied
within 24 hours.
B.
If, within 10 days, the affected and noncompliant communications
tower or personal wireless facility is not brought into compliance
with either the zoning or land use or with an applicable law, rule
or regulation or substantial steps are not taken in order to bring
the affected communications tower or personal wireless facility into
compliance with either this article, the zoning or land use code or
with applicable law, rule or regulation, then the Planning Board may
revoke such special use permit for a communications tower or personal
wireless facility and shall notify the holder of the special use permit
within 48 hours of such action.
A.
Under the following circumstances, the Planning Board may determine
that the health, safety and welfare interests of the Village warrant
and require the removal of a communications tower or personal wireless
facility:
(1)
A permitted communications tower or personal wireless facility has
been abandoned for a period exceeding 30 days, which in this case
means not used for the intended and permitted purpose for a period
of 30 days, except for situations caused by the commonly recognized
definition of force majeure or acts of God of an extraordinary and
catastrophic nature and effect.
(2)
A permitted communications tower or personal wireless facility falls
into such a state of disrepair that it creates a health or safety
hazard for the public.
(3)
The Planning Board elects not to renew the special permit for a communications
tower or personal wireless facility.
(4)
A communications tower or personal wireless facility has been located,
constructed or modified on property located within the Village without
having obtained the required special use permit or other necessary
authorization.
B.
If the Planning Board makes such a determination as noted in Subsection A of this section, then the Planning Board shall notify the holder of the special use permit for the communications tower or personal wireless facility within 48 hours that said communications tower or personal wireless facility must and shall be removed, unless the Planning Board approves an interim temporary use agreement/permit, such as to enable the sale of the communications tower or personal wireless facility.
C.
If a communications tower or personal wireless facility is not removed
voluntarily within 90 days after the permit holder has received notice
or substantial progress has not been made to remove the communications
tower or personal wireless facility within 90 days, then the Planning
Board may order officials or representatives of the Village to remove
the communications tower or personal wireless facility at the sole
expense of the owner or permit holder or the Village may take possession
of the communications tower or personal wireless facility.
D.
If, pursuant to Subsection C of this section, officials, employees or representatives of the Village remove a communications tower or personal wireless facility and the owner of the communications tower or personal wireless facility does not claim the property within 10 days of its removal, then the Planning Board may take whatever steps are available under state law to declare the communications tower or personal wireless facility surplus and sell the facility and its components.
E.
If the Planning Board approves an interim temporary use agreement/permit for the communications tower or personal wireless facility, such agreement/permit shall be for no more 90 days, during which time a suitable plan for removal or conversion or relocation of the affected communications tower or personal wireless facility shall be developed by the holder of the permit, subject to the approval of the Village, and an agreement to such plan shall be executed by the holder of the permit and the Village. If such a plan is not developed within the ninety-day time frame, then the Village may take possession of and dispose of the effected communications tower or personal wireless facility in the manner noted in Subsection C of this section.
To the extent permitted by federal and state law, any person
adversely affected by the Planning Board's actions with respect to
an initial application, renewal application or revocation of a special
use permit for a communications tower or personal wireless facility
shall have the right to appeal the adverse decision to the Planning
Board and, if necessary, subsequently to the Village Board Planning
Board. In the event of such an internal administrative appeal, to
be consistent with the spirit and intent of Section 704 of the Telecommunications
Act of 1996, said appeal shall be handled on an expedited basis, within
30 days of the date of the appeal. In the event of an appeal to a
state or federal court or administrative agency of competent jurisdiction
(including, where applicable, the PSC the FCC and the FAA), said appeal
shall be filed in the manner and procedure prescribed by federal and
state law and within the time frames noted under federal and state
law.
A.
Between 210 and 30 days prior to the fourth and eighth anniversary
dates of the effective date of this article, the Board shall conduct
a review and examination of this entire article.
B.
In conducting such a periodic review and examination of this article,
the Board shall consider, among other things, the following:
(1)
Whether one or more provisions have been superseded, clarified or
modified by federal or state law.
(2)
Whether one or more provisions have been superseded, clarified or
modified by a subsequent binding judicial decision.
(3)
Whether one of more provisions are unnecessary or ineffective in
light of emerging technologies.
(4)
Whether new or different trends relating to a communications tower
or personal wireless facility warrant or necessitate additional safeguards
for the public at large.
(5)
Whether subsequent safety or technological advances and/or innovations
have lessened the need for one or more provisions.
C.
If after such a periodic review and examination of this article,
the Board determines that one or more provisions of this article should
be amended, repealed, revised clarified, or deleted, then the Board
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 Board may repeal this
entire article at any time.
A.
In the event of a violation of this article, the Village may impose
and collect, and the holder of the special use permit for a communications
tower or personal wireless facility shall pay to the Village, fines
as set forth hereafter in this section.
B.
Each day that a violation exists after 48 hours following written
notification by the Village to the permittee shall constitute a separate
violation, subject to a separate fine.
C.
For situations that create an imminent threat to the health or safety
of the public or the employees of any user or occupant of the communications
tower or personal wireless facility, there shall be no requirement
for written notification by the Village to the holder of the special
use permit for a communications tower or personal wireless facility.
Rather, in such situations, verbal notification, delivered personally
or telephonically, shall be deemed sufficient notice.
(1)
For violation of any safety-related requirement: $1,000 per day per
occurrence.
(2)
For failure to maintain the permitted site in a safe condition and
as required, $500 per day per occurrence.
(3)
For undertaking any change or modification in or to a communications
tower or personal wireless facility without the express written permission
of the Village: $500 per day per occurrence.
(4)
For failure to comply with any applicable Village, county, state
or federal laws, ordinances, rules, regulations or requirements: $100
per day per occurrence.
D.
Notwithstanding anything in this section or any other section of
this article, the holder of the special use permit for a communications
tower or personal wireless facility may not use the payment of fines,
liquidated damages or other penalties as may permitted and assessed
to evade or avoid compliance with this article or any section of this
article. An attempt to do so shall subject the holder of the special
use permit to termination and revocation of the special use permit.
Any applicant desiring relief or exemption from any aspect or
requirement of this article may request such from the Planning Board,
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, at the sole discretion of the Planning Board.
However, the burden of proving the need for the requested relief or
exemption and its lack of significant effect on the Village or its
residents or other service providers 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 tower or facilities
without the specific written permission of the Planning Board.
