[HISTORY: Adopted by the Board of Trustees of the Village
of New Hempstead 6-23-2005 by L.L.
No. 3-2005. Amendments noted where applicable.]
A.
The purpose of this chapter is to regulate the location, design,
and use of wireless telecommunications facilities in order to:
(1)
Protect the health, safety, and general welfare of residents of the
Village of New Hempstead.
(2)
Establish predictable and balanced regulations for the siting and
screening of wireless telecommunications facilities in order to accommodate
the growth of communications services within the Village.
(3)
Maximize the use of tall buildings and other high structures and
locations to reduce the number of new towers needed to serve the community.
(4)
Avoid potential damage to adjacent properties from tower failure
through structural standards and setback requirements.
(5)
Ensure harmony and compatibility with surrounding land use patterns.
(6)
Protect the historic rural character, natural features and irreplaceable
scenic qualities of the Village with special attention to open space,
mountain ridges, recreation areas, scenic roads, viewsheds and historic
sites, through careful design, siting, landscaping, screening and
innovative camouflaging techniques.
B.
These regulations are not intended to prohibit or have the effect
of prohibiting the provision of personal wireless services, nor shall
they be used to discriminate among providers of functionally equivalent
services, consistent with federal regulations.
A.
Use regulations. These regulations govern the installation and/or
use of all wireless telecommunications facilities as defined herein.
Any proposed user of wireless telecommunications facilities shall
be an FCC-licensed provider of wireless services and must obtain site
plan approval and/or a special permit, whether or not the proposed
user will install and own the facilities. The construction of a wireless
telecommunications facility shall require a building permit in all
cases.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(1)
Permitted uses, existing structures. A wireless telecommunications
facility may be permitted to locate on any existing radio or television
transmission tower, guyed tower, lattice tower, monopole, fire tower,
water tower, clock tower, bell tower, cross tower, flagpole, road
sign, steeple, chimney, or other innovative use of appropriate existing
structures, provided that there is no increase in the height of the
existing structure as a result of the installation of the facility.
Use of radio or television transmission towers, guyed towers, lattice
towers, monopoles, or fire towers shall not require a special permit,
unless the use of such tower has been discontinued for a period of
one year or more. All proposed residential/commercial antennas and
self-standing proposed antenna towers are subject to the issuance
of a special permit by the Village Board after site plan review and
the Planning Board makes a SEQRA determination. In nonresidential
zoned areas, all proposed antenna towers are subject to the issuance
of a special permit by the Village Board after review by the Planning
Board.
(2)
Permitted uses, existing buildings. A wireless telecommunications
facility may be permitted to locate on any existing building, with
the exception of a designated historic structure, provided that the
installation of the new facility does not increase the height of the
existing building by more than 20 feet. Such installations shall not
require a special permit but will require site plan approval by the
Planning Board in accordance with customary planning issues.
(3)
Permitted use, existing utility structures. A wireless telecommunications
facility may be permitted to locate on any existing electric utility
transmission and distribution tower, telephone pole and similar existing
utility structure in nonresidential zoned areas, provided that the
installation of the new facility does not increase the height of the
existing structure. These facilities may locate in all areas of the
Village where they are permitted or specially permitted, provided
the new facility does not increase the height of the existing structure.
Such installation shall not require a special permit but will require
the approval of the Building Inspector.
(4)
Special permit. A wireless telecommunications facility involving
construction of one or more ground mounts shall require a special
permit. A special permit may be granted, provided that the proposed
use complies with the height, setback, and other requirements of this
chapter, is placed to minimize visual and aesthetic impacts, and is
placed on the side slope to terrain so that, as much as possible,
the top of the tower does not protrude over the ridgeline. The Village
of New Hempstead defines the placement, construction, and modification
of a wireless telecommunications facility requiring a special permit
as an action under the New York State Environmental Quality Review
Act (SEQRA). The Village Board reserved the right to forward the SEQRA
review to the Planning Board for its consideration.
(a)
If an applicant for a special permit proposes a wireless telecommunications facility which does not meet all dimensional requirements of Chapter 290, Zoning, of the Code of the Village of New Hempstead, including height, area and bulk regulations, the applicant may, as per Village law, apply for an area variance from the Zoning Board of Appeals.
(b)
It shall be the responsibility of the holder of the permit to
inform the Village of New Hempstead of any change in or termination
of contractual agreements which affects any permit issued within 30
days of such change. Any material change in the conditions under which
a special permit was granted shall result in the immediate termination
of the special permit unless agreement has been obtained from the
Village Board prior to the change. These material changes include,
but are not limited to:
[1]
Changes in supporting structures (such as towers), accessory
buildings or access roads.
[2]
A change in ownership of the facility or the property on which
the facility is installed, which shall require notification to the
Code Inspector by the holder of the special permit but will not terminate
such permit.
[3]
Cessation of use by the FCC-licensed carrier which has a special
permit for use of the facility.
[4]
A change in the FCC-licensed user of the specially permitted
facility. Nothing herein shall prohibit another FCC-licensed carrier
from using the facility so long as that carrier provides evidence
of need to use that facility and acquires a special permit under this
chapter.
[5]
Loss of the user's FCC license to provide commercial communications
services within the Village of New Hempstead.
B.
Location. Wireless telecommunications facilities shall only be located,
upon the grant of site plan approval and, as applicable, a special
permit, on property which allows wireless telecommunications facilities
as set forth in Table of General Use Requirements of this chapter.
Applicants seeking approval for wireless telecommunications facilities
shall comply with the following:
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(1)
New wireless telecommunications facilities shall be located on existing
structures, including but not limited to buildings, water towers,
existing telecommunications facilities, silos, utility poles and towers,
and related facilities, provided that such installation preserves
the character and integrity of those structures. In particular, applicants
are urged to consider use of existing telephone and electric utility
structures as sites for one or more wireless telecommunications facilities.
If an existing tower or other structure is not feasible, the applicant
shall have the burden of proving that there are no feasible existing
structures on which to locate.
(2)
If the applicant clearly proves that it is not feasible to locate
on an existing structure, wireless telecommunications facilities shall
be designed so as to be camouflaged to the greatest extent possible,
including but not limited to the use of compatible building materials
and colors, screening, landscaping, placement within trees, and the
use of stealth technology to disguise the facility as determined by
the Village Board.
(3)
The applicant must submit documentation of the legal right to install
and use the proposed facility mount at the time of application for
site plan approval and/or special permit.
C.
Dimensional requirements. Wireless telecommunications facilities
shall comply with the following requirements:
(1)
The height of any mount or accessory elements attached to any structure
shall be measured from the ground level to the top of the mount or
the top of the uppermost accessory affixed to the mount, whichever
is higher. The maximum height of a wireless telecommunications facility
is limited to 35 feet above ground level (AGL) in residential districts
and 100 feet in nonresidential district.
(2)
Height waiver. The Village Board may permit wireless telecommunications
facility in excess of 100 feet in nonresidential zones. Notwithstanding
anything stated herein, the Village Board shall be permitted to increase
the height of any tower beyond any limitations set forth herein in
order to accommodate additional users. In reviewing a request for
greater height, the Village Board shall balance the effect of greater
height against the provision of one or more additional towers, or
other alternatives. The height limitation may be waived when the antenna
is mounted on an existing structure or building and is completely
camouflaged, or is located on an existing utility structure. Applicants
may be required to achieve coverage objectives by using multiple existing
or new structures rather than taller structures, which shall not exceed
the height limitations as set forth herein.
(3)
Setbacks. All wireless telecommunications facilities and their equipment
shelters shall comply with the building setback provisions of the
zoning district in which the facility is located. In addition, the
following setbacks shall be observed:
(a)
To ensure public safety, the minimum distance from the base
of any ground-mounted wireless telecommunications facility to any
property line, road, habitable dwelling, business or institutional
use, accessory structure, or public recreation area shall be as determined
by the Planning Board. This setback is considered the "fall zone,"
and shall be, at a minimum, the height of the proposed structure.
Additional setbacks may be required by the Village Board and/or Planning
Board to provide use for wireless telecommunications facilities or
towers or monopoles existing at the time of adoption of this chapter.
(b)
In the event that an existing structure or building is proposed
as a mount for a wireless telecommunications facility, a fall zone
shall not be required unless the Village Board and/or Planning Board
finds that a substantially better design will result from an increased
setback. In making such a finding, the Village Board shall consider
both the visual and safety impacts of the proposed use.
All wireless telecommunications facilities shall comply with
the performance standards set forth in this section.
A.
Camouflage. Wireless telecommunications facilities shall be the least
obtrusive and the most appropriate to the proposed site, as determined
by the Village Board, after recommendation by the Planning Board and
the Architectural Review Board.
(1)
All wireless telecommunications facilities shall be designed to the
blend into the surrounding environment through the use of design,
color and disguise, except in such instances where color is dictated
by federal or state authorities such as the Federal Aviation Administration.
(2)
A wireless telecommunications facility which is roof-mounted on a
building shall be concealed within or behind existing architectural
features to limit its visibility from public ways, and shall be stepped
back from the front facade in order to limit its impact on the building's
silhouette.
(3)
A wireless telecommunications facility which is side-mounted on a
building shall be painted or constructed of material to match the
color of the building material directly behind it.
(4)
The Village Board may require the use of stealth technology to camouflage
ground mounts, where appropriate.
B.
Lighting. Wireless telecommunications facilities shall not be artificially
lighted or display strobe lights unless required by the Federal Aviation
Administration (FAA) or other applicable authority.
D.
Radiofrequency radiation (RFR) standards. All equipment proposed
for a wireless telecommunications facility shall be authorized per
the FCC Guidelines for Evaluating the Environmental Effects of Radiofrequency
Radiation (FCC Guidelines). The owner of the facility shall submit
evidence of compliance with the FCC standards on a yearly basis to
the Village Board. If new, more restrictive standards are adopted
by any appropriate federal or state agency, the facility shall be
made to comply or the Village Board may restrict continued operations.
The cost of verification or compliance shall be borne by the owner
and/or operator of the facility.
All wireless telecommunications facilities requiring a special
permit shall comply with the regulations set forth in this chapter
and all other provisions of the Code of the Village of New Hempstead.
A.
Design standards.
(1)
Camouflage. Wireless telecommunications facilities shall be camouflaged
by vegetation and/or design as follows:
(a)
Camouflage by vegetation. If wireless telecommunications facilities
are not camouflaged from public viewing by existing buildings or structures,
they shall be surrounded by buffers of dense tree growth and understory
vegetation in all direction to create an effective year-round visual
buffer. Ground-mounted wireless telecommunications facilities shall
provide a vegetative buffer of sufficient height and depth to effectively
screen the entire base facility, taking into account the average tree
canopy. Trees and vegetation may exist on the subject property or
be installed as part of the proposed facility or a combination of
both. The Planning Board shall determine the types of trees and plant
materials and depth of the needed buffer based on the site conditions.
Such buffer shall be maintained in a healthy state or replaced as
necessary to provide continuing camouflaging.
(b)
Camouflage by design. To the extent that any wireless telecommunications
facility extends above the height of the vegetation immediately surrounding
it, the facility shall be camouflaged by design to minimize the adverse
visual and aesthetic impact unless otherwise required by the Planning
Board. Wireless telecommunications facilities shall be camouflaged
to resemble or mimic a native coniferous species of tree such as Balsam
fir, Canadian hemlock, Colorado blue spruce, among others, or by other
means such a new construction of a silo, flagpole, clock tower, bell
tower, cross tower, steeple, fire tower or other innovative replication
of a structure that would be consistent with the character of the
community as determined by the Village Board.
(2)
Lighting. Wireless telecommunications facilities shall not be artificially
lighted or display strobe lights unless required by the Federal Aviation
Administration (FAA) or other applicable authority. Security lighting
of equipment structures and other facilities on site shall be shielded
from abutting properties. There shall be total cutoff of all such
light at the property lines of the parcel to be developed, and footcandle
measurements at the property line shall be 0.0 initial footcandle
when measure at grade.
(3)
Signs.
(a)
Signs shall be limited to those needed to identify the property
and the owner and warn of any danger. No advertising is permitted
anywhere on the facility, with the exception of the identification
signage. All signs shall comply with the requirements of the Village's
sign regulations.[1]
(b)
All ground-mounted wireless telecommunications facilities shall
be surrounded by a security barrier, which shall be posed with "no
trespassing" signs. A twenty-four-hour emergency telephone number,
and the facility operator or manager's name, shall be posted
adjacent to the entry gate. If high voltage is necessary for the operation
of equipment within the facility, signs shall be posted stating "Danger-High
Voltage."
(4)
Equipment shelters. Equipment shelters for wireless telecommunications
facilities shall be designed consistent with one of the following
standards:
(a)
Equipment shelters shall be located in underground vaults; or
(b)
Equipment shelters shall be designed to be architecturally compatible,
both in style and materials, with principal structures on the site
and/or near the site and be compatible with the architecture of homes
in the vicinity, or as may be determined by the Village Board and/or
the Architectural Review Board; or
(c)
Equipment shelters shall be camouflaged behind an effective
year-round landscape buffer equal to the height of the proposed building.
The Village Board, and/or the Planning Board shall determine the types
of materials and depth of the needed buffer based on the site conditions.
Such buffer shall be maintained in a healthy state or replaced as
necessary to provide continuing camouflaging.
(5)
Accessory structures. Accessory structures for wireless telecommunications
facilities shall be permitted only if the structures are constructed
for the sole and exclusive use and operation of the communications
facility, are the minimum size necessary to meet the needs of the
specific site, and meet the following requirements:
(a)
Accessory structures may not include office, long-term vehicle
storage, other outdoor storage or other uses that are not needed to
send or receive wireless telecommunications transmissions.
(b)
Accessory structures must be less than 500 square feet in area
and 15 feet in height.
(c)
Accessory structures must be camouflaged behind an effective
year-round landscape buffer equal in height to the proposed structure.
Such buffer shall be maintained in a healthy state or replaced as
necessary to provide continuing camouflaging.
(d)
In residential zones, the use of compatible building materials
such as wood, brick or stucco is required for all accessory structures,
which shall be designed to match architecturally the exterior of residential
structures in the neighborhood, as determined by the Village Board
and/or the Architectural Review Board. In no case will metal siding
be allowed for accessory structures.
(6)
Scenic landscapes and vistas. Wireless telecommunications facilities
that are not camouflaged shall not be located within open areas that
are visible from public roads, recreational areas or residential development.
All ground-mounted wireless telecommunications facilities shall be
surrounded by a buffer of dense tree growth and shall be camouflaged
by design to minimize adverse visual and aesthetic impacts.
(7)
Utility service lines. All electric power supply and telephone service
lines to new towers and accompanying facilities shall be installed
underground from the existing power source.
(8)
Access and parking.
(a)
A road and parking plan shall be provided to ensure adequate
emergency and service access and shall meet the requirements of the
Village Board. Any driveway shall meet the requirements of the Village
Board and the highway authority for the road on which driveway fronts.
(b)
Maximum use of existing public and private roads shall be made,
consistent with safety and aesthetic considerations.
(c)
Road construction shall minimize ground and vegetation disturbance.
Road grades shall follow natural contours to reduce soil erosion potential
and to ensure that roads are aesthetically compatible with the character
of the surrounding area.
(d)
The Planning Board may require an erosion and sedimentation
control plan and may refer the site plan to the appropriate county
or state agency, Village Engineer, and/or Village Planner for review.
(e)
Unpaved roads shall be considered unless conditions require
paving, as determined by the Planning Board, in consultation with
the appropriate authorities or consultants.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(9)
Maintenance, testing and inspection.
(a)
The originally approved appearance of the exteriors of all towers,
accessory buildings and any other structure must be retained through
regular maintenance by the applicant.
(b)
Before commercial transmission begins, the applicant shall require
certification by a licensed professional engineer that the facility
will not exceed the maximum permissible exposure limits for the level
of electromagnetic radiation using standards in accordance with the
FCC Guidelines.
(10)
Removal of facilities.
(a)
Towers and antennas shall be removed if the owner's or
user's special permit for these facilities has expired or been
terminated or if the facilities are no longer being used by the FCC
licensee. Towers and antennas shall be removed if there is not at
least one operator with a valid special permit using the tower. Potential
or planned future use of any facility for commercial communications
service is not sufficient to avoid the requirement for removal. The
Village Board shall require the owner, user or both to post bond or
escrow cash to guarantee the removal of terminated or unused facilities.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(b)
If the removal of towers and antennas is required, accessory
buildings and other structures shall also be removed unless the Village
Board decides that removal of these structures is not required.
(c)
Each applicant seeking a special permit for a wireless telecommunications facility shall provide a written contract with the Village of New Hempstead, agreeing to be fully responsible for removal, and indemnifying the Village for the costs for removal, of antennas, appurtenances, including, but not limited to, driveway, fencing, parking, accessory buildings and supporting structures such as towers when removal is required by Chapter 290, Zoning, of the Village Code.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(d)
If a proposed wireless telecommunications facility will be owned
by an entity other than an FCC-licensed carrier which will use that
facility, the carrier shall provide to the Village Board a copy of
a contract between the facility owner and the FCC-licensed carrier
in which the owner agrees to remove the facility, including any tower,
antennas, appurtenances, including, but not limited to, parking, driveway,
fencing and accessory structures, and indemnify the Village for the
costs of such removal, when these facilities are no longer being used
by an FCC-licensed operator with a valid Village of New Hempstead
special permit.
(e)
A decision to require removal shall be the responsibility of
the Village Board after consulting with the Code Enforcement Officer
and the Village Attorney. Removal shall occur within 90 days of the
Village Board's decision to require removal unless the Village
Board has agreed to a temporary extension of that time. If not removed
within the designated period, the Village shall have the right to
compel removal, with all costs to be borne by the special permit holder
who owns and/or previously used the facilities. Removal costs may
also be recovered from the owner of the tax parcel on which the facilities
are located.
(f)
When towers are removed, site reclamation shall be completed
to the satisfaction of the Village Board within 180 days of structure
removal. Reclamation shall include landscaping, removal of structures,
utility lines and accessory structures, and shall encompass the building
site and buffer area controlled by the facility owner.
(11)
Letter of credit.
(a)
Before the site plan for the wireless telecommunications facility is approved by the New Hempstead Planning Board, the applicant shall be required to post a letter of credit, in accordance with the Planning Board's decision and to the satisfaction of the Village Engineer and Village Building Inspector, to secure to the Village the satisfactory cost of maintenance of the facility and, if discontinued or abandoned, the physical removal of the facility as set forth in § 276-9, Abandonment or discontinuation of use. Such letter of credit shall comply with the requirements of the Village Law and shall be satisfactory to the Village Attorney as to form, sufficiency and manner of execution.
(b)
All required maintenance and physical removal shall be made
at the applicant's expense, without reimbursement by the Village.
(c)
When a letter of credit has been posted and required maintenance
has not been performed within the terms of such letter of credit,
the Village Board may thereupon declare said letter of credit to be
in default.
(d)
Increase in amount of security necessary. The Planning Board
may increase the amount of the letter of credit necessary by an appropriate
amount for required maintenance and physical removal when, after a
public hearing, the Planning Board determines that the cost of maintenance
and physical removal exceeds the amount of security already posted.
The Planning Board can increase the amount of security posted so that
the new amount of security will cover the cost in full of the required
maintenance and physical removal.
B.
Environmental standards.
(1)
Wireless telecommunications facilities shall not be located in wetlands
or in regulated wetland buffer areas, in endangered or threatened
species habitants, water bodies, historic or archaeological sites.
(2)
No hazardous waste shall be discharged on the site of any wireless
telecommunications facility. If any hazardous materials are to be
used on site, there shall be provisions for full containment of such
materials. An enclosed containment area shall be provided with a sealed
floor, designed to contain at least 110% of the volume of the hazardous
materials stored or used on the site.
(3)
All stormwater run-off generated by the use shall be contained on
site.
C.
Safety standards.
(1)
Radiofrequency radiation (RFR) standards. All equipment proposed
for a wireless telecommunications facility shall be authorized per
the FCC Guidelines. The owner of the facility shall submit evidence
of compliance with the FCC Guidelines on yearly basis to the Village
Board. If new, more restrictive standards are adopted by an appropriate
federal or state agency, the facility shall be made to timely comply
or the Village Board may restrict continued operations. The cost of
verification of compliance shall be borne by the owner and/or operator
of the facility.
(2)
Security barrier. All wireless telecommunications facilities shall
be provided with security measures such as fencing, anticlimbing devices,
electronic monitoring, or other methods sufficient to prevent unauthorized
entry and vandalism. Fencing shall include a locking security gate.
Electrified fence, barbed or razor wire shall be permitted. Chain
link fencing shall include the use of screening slats of an earthtone
color.
(3)
Structural soundness and fall zone. Wireless telecommunications facilities
shall be designed by a licensed professional engineer to withstand
overturning and failure. In the event of failure, facilities shall
be designed so that they will fall within the setback area of the
site and/or away from adjacent residential properties. The Village
Board shall require a foundation design and certificate of safety
from the carrier to document structural soundness.
A.
The Village Board is authorized to review and approve, approve with modifications, or disapprove special permits pursuant to Chapter 290, Zoning, Article V, of the Village Code. The Village Board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed antenna, mount, or equipment structure(s). Any decision by the Village Board to deny or approve a request to place, construct, or modify wireless telecommunications facilities shall be in writing and supported by substantial evidence.
B.
Application filing requirements, site plan approval, special permits
and building permits.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(1)
All applicants for a wireless telecommunications facility shall fulfill the site plan requirements of Chapter 290, Zoning, Article IX, of the Code of the Village of New Hempstead, and shall, in addition, provide the following information to obtain any permit:
(a)
Proof that the applicant or coapplicant is an FCC-licensed carrier.
(b)
A statement certified by a professional engineer and approved
by the appropriate agency or department that the installation of the
proposed antenna, including reception and transmission functions,
will not interfere with the radio or television service enjoyed by
adjacent residential and nonresidential properties or with public
safety communications.
(c)
A statement certified by a professional engineer and approved
by the appropriate agency or department documenting the structural
soundness of the wireless telecommunications facility.
(d)
Proof that the wireless telecommunications facility shall be
fully automated and require only occasional maintenance of the facility
and site.
(e)
A survey of all existing structures, buildings and utility structures
within the Village outlining the opportunities for the use of these
existing structures and buildings as an alternative to the proposed
site. The applicant must demonstrate that the proposed wireless telecommunications
facility cannot be accommodated on an existing structure, building
or utility structure. In the event that location on an existing structure,
building or utility structure is not feasible, a written statement
of the reasons for the infeasibility shall be submitted to the Village
Board. The Village Board may hire an independent technical expert(s)
in the field of radiofrequency engineering to verify whether location
on an existing structure, building or utility structure is not feasible
and to evaluate the need for the proposed facility. The cost for such
a technical expert(s) shall be at the expense of the applicant and
shall be fair and in line with similar costs in other communities.
The failure of an applicant to demonstrate a good-faith effort to
collocate may be grounds for denial of the special permit.
(f)
A Village-wide map showing the locations of all existing and
future wireless telecommunications facilities in the Village for this
or any other carrier. The applicant must demonstrate the need for
the proposed facility, showing the impracticality of upgrading or
expanding an existing site, and must project long-range facility expansion
needs within the Village based on market demand. The Village Board
may hire an independent technical expert in the field of RF engineering
to evaluate the impracticability of upgrading or expanding an existing
site. The cost for such a technical expert shall be at the expense
of the applicant and shall be fair and in line with similar costs
in other communities. The failure of an applicant to demonstrate a
good-faith effort to demonstrate the impracticality of upgrading or
expanding an independent site may be grounds for denial of a special
permit.
(g)
Proposed location of antennas, mount and equipment shelter(s),
with total evaluation dimensions and AGL of the highest point, including
latitude and longitude of the proposed mount.
(h)
Proposed security barrier, indicating type and extent as well
as point of controlled entry.
(i)
Drawings, dimensional and to scale, which show the ultimate
appearance and operation of the wireless telecommunications facility
at full build-out, including representations of the proposed mount,
antennas, equipment shelters, cable runs, driveways, parking areas,
and any other construction or development attendant to the wireless
telecommunications facility. If the security barrier will block views
of the wireless telecommunications facility, the barrier drawing shall
be cut away to show the view behind the barrier.
(j)
Materials of the proposed facility specified by generic type
and specific treatment. These shall be provided for the antennas,
mounts, equipment shelters, cables as well as cable runs, and security
barrier. Specific stealth products and features shall be provided.
(k)
Colors of proposed facility represented by a color board showing
actual colors proposed. Colors shall be provided for the antennas,
mounts, equipment shelters, cables and cable runs, and security barrier.
(l)
Landscape plan, including existing trees and shrubs that would
provide screening of the proposed facility by dominant species and
current height, and those proposed to be added, identified by size
of specimen at installation and species.
(m)
The following material shall be provided to allow the appropriate
agency or department to determine the level of visual impact and the
appropriateness of the facility: existing ("before" condition) color
photographs of views of the site from key viewpoints both inside and
outside of the Village, including, but not limited to, state highways
and other major roads, state and local parks, other public lands,
preserves and historic sites normally opened to the public, scenic
roads, and scenic viewsheds identified in the Village of New Hempstead
Comprehensive Plan and from any other location where the site is visible
to a large number of residents or visitors. The appropriate agency
or department shall determine the appropriate key viewpoints from
which the site shall be photographed; proposed ("after" condition)
situations. Each of the existing-condition photographs shall have
the proposed wireless telecommunications facility superimposed on
to it to show what would be seen from the key viewpoints if the proposed
facility were built.
(n)
Within 30 days of filing an application for a special permit,
the applicant shall arrange to fly, or raise upon a temporary crane,
a six-foot brightly colored balloon at the subject site to illustrate
the height of the proposed facility. The dates (including a second
date in case of poor visibility or unfavorable wind conditions), times,
and location of such tests shall be advertised in the official newspaper
of the Village at seven days and 14 days prior to the tests. The applicant
shall meet with the appropriate agency or department prior to arranging
for the balloon tests to review and agree upon acceptable dates, times
and locations from which the photographs shall be taken.
(o)
A photometric plan of all lighting on the site, including tower
lighting if required.
(2)
The appropriate agency or department may waive one or more of the
application filing requirements of this subsection if it finds that
such information is not needed for a thorough review of a proposed
wireless telecommunications facility, based upon a specific request
by the applicant.
C.
Application fee. In addition to other relevant fees outlined in the Fee
Schedule of the Village of New Hempstead, the applicant shall pay
application fees as set by resolution of the Board of Trustees for
wireless telecommunications facilities requiring site plan approval
and for wireless telecommunications facilities requiring a special
permit, or other amount for application fees as indicated in the Village
of New Hempstead Fee Schedule, due upon submission of the application
to the Village Board, to defray the costs of review of the application
by the Village.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
D.
Consultant fees. The appropriate agency or department may retain
consultants to assist in reviewing the application, its renewal, or
an application for a variance related to a pending application, with
consultant fees to be paid by the applicant. These consultants may
include the Village Engineer, Village Planner, the Village's
attorney, one or more commercial communications facility consultants,
or other consultants as determined by the Village Planning Board and/or
its designated agent. At the beginning of the review process, the
applicable board may require the applicant to fund a separate escrow
account from which the Village may draw to ensure reimbursement of
consultant fees. During review of the application, the applicable
board may require the applicant to add funds to the escrow account
as the applicable board deems necessary. If the required funds are
not added to the escrow account, review of the application by the
applicable board shall be suspended until such time, if any, as payment
of said funds is made. Any remaining funds in the escrow account after
payment of all consultant fees will be returned to the applicant.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
All wireless telecommunications facilities requiring a special
permit shall comply with the following requirements:
A.
Location of other facilities.
(1)
Applicants shall provide a Village-wide map showing the location
of other existing, approved, and proposed wireless telecommunications
facilities within the Village of New Hempstead and all bordering municipalities,
outlining opportunities for collocation use as an alternative to the
proposed site. The applicant must demonstrate that the proposed wireless
telecommunications facility cannot be accommodated on an existing,
approved, or proposed communication tower, structure or facility due
to one or more of the following reasons:
(a)
The antenna would exceed the structural capacity of the existing,
approved, or proposed wireless telecommunications facility, as documented
by a qualified professional engineer, and the existing, approved,
or proposed facility cannot be reinforced, modified, or replaced to
accommodate the planned or equivalent antenna at a reasonable cost.
(b)
The antenna would cause interference materially impacting the
usability of other existing, approved or proposed antennas at the
facility as documented by a qualified professional engineer and the
interference cannot be prevented at a reasonable cost.
(c)
Existing, approved, or proposed wireless telecommunications
facilities cannot accommodate the antenna at a height necessary to
function, as documented by a qualified professional engineer.
(d)
Other foreseen reasons that make it infeasible to locate the
antenna upon an existing, approved, or proposed wireless telecommunications
facility.
(2)
In the event that collocation is not feasible, the applicant shall comply with requirements set forth in § 276-5B(1)(e).
B.
Provision of new facilities.
(1)
Any proposed ground-mounted wireless telecommunications facility
shall be designed, structurally, electrically, and in all respects,
to accommodate both the applicant's antennas and comparable antennas
for at least two additional users if the mount is over 100 feet in
height or for at least one additional user if the mount is over 75
feet in height. Mounts must be designed to allow for future rearrangement
of antennas upon the mount and to accept antennas mounted at varying
heights.
(2)
The applicant shall submit to the Village Board a letter of intent
committing the applicant, and his/her successors in interest, to negotiate
in good faith for the shared use of the proposed facility by any wireless
service providers in the future. The issuance of a permit (assuming
the facility is approved according to this chapter) shall commit the
new facility owner and his/her successors in interest to:
(a)
Respond in a timely, comprehensive manner 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 facility by other wireless service providers.
(c)
Allow shared use of the new facility if another wireless service
provider agrees in writing to pay charges.
(d)
Make no more than a reasonable charge for shared use, based
on generally accepted accounting principles. The charge may include
but is not limited to a pro-rata share of the cost of site selection,
planning, project administration, land costs, site design, construction
and maintenance financing, return on equity, and depreciation, and
all of the costs of adapting the facility to accommodate a shared
user without causing electromagnetic or any other interference.
C.
Intermunicipal cooperation. In order to keep neighboring municipalities
informed, and to facilitate the possibility of directing that an existing
wireless telecommunications facility in a neighboring municipality
be considered for shared use, the Village Board shall require that:
(1)
An applicant who proposes a new wireless telecommunications facility
shall notify in writing the legislative body of each municipality
that borders the Village of New Hempstead as well as the Rockland
County Office of Fire and Emergency Services. Notification shall include
the exact location of the proposed facility and a general description
of the project, including, but not limited to, the height of the facility
and its capacity for future shared use.
(2)
Documentation of this notification shall be submitted to the Village
Board at the time of application.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A modification of a wireless telecommunications facility may
be considered equivalent to an application for a new facility and
will require a special permit when the following events apply:
A.
The applicant shall maintain the wireless telecommunications facility
in good condition, including, but not limited to: structural integrity
of the mount and security barrier, painting, maintenance of stealth
technology camouflaging, and maintenance of the buffer areas and landscaping.
Communications facilities over 100 feet in height shall be inspected
annually by a professional engineer approved by the Village Board,
and a copy of the inspection report shall be submitted to the Village
of New Hempstead Building Inspector.
B.
Before the site plan for the wireless telecommunications facility is approved by the New Hempstead Planning Board, the applicant shall be required to post a letter of credit, in accordance with the Planning Board's decision and to the satisfaction of the Village Engineer and Village Building Inspector, to secure to the Village the satisfactory cost of maintenance of the facility and, if discontinued or abandoned, the physical removal of the facility as set forth in § 276-9, Abandonment or discontinuation of use. Such letter of credit shall comply with the requirements of the Village Law and shall be satisfactory to the Village Attorney as to form, sufficiency and manner of execution.
C.
All required maintenance and physical removal shall be made at the
applicant's expense, without reimbursement by the Village.
D.
When a letter of credit has been posted and required maintenance
has not been performed within the terms of such letter of credit,
the Village Board may thereupon declare said letter of credit to be
in default.
E.
Increase in amount of security necessary. The Planning Board may
increase the amount of the letter of credit necessary by an appropriate
amount for required maintenance and physical removal when, after a
public hearing, the Planning Board determines that the cost of maintenance
and physical removal exceeds the amount of security already posted.
The Planning Board can increase the amount of security posted so that
the new amount of security will cover in full the cost of the required
maintenance and physical removal.
A.
Any wireless telecommunications facility that is not operated for
a continuous period of six months shall be considered abandoned, and
the owner of the facility shall physically remove it within 90 days
of a receipt of notice. "Physically remove" shall include, but not
be limited to:
(1)
Removal from the subject property of towers, antennas, mount, equipment
shelters and security barriers, and any foundations and/or footings
created.
(2)
Proper disposal of the waste materials from the site in accordance
with local and state solid waste disposal regulations.
(3)
Restoring the location of the facility to its natural condition,
with the exception of landscaping and grading.
B.
If the carrier fails to remove the facility in accordance with this
section, the Village will have the authority to enter the property
and remove the facility, with the costs of removal assessed against
the property.
A.
A special permit issued for any wireless telecommunications facility
shall be valid for five years. At the end of that time period, the
carrier shall remove the wireless telecommunications facility or a
new special permit shall be required. In reviewing the new application
for a special permit, the Village Board shall determine whether the
technology in the provision of the facility has changed such that
the necessity for the permit at the time of its approval has been
eliminated or modified, and whether the permit should be renewed,
modified or terminated as a result of any such change.
B.
Upon initial issuance of a special permit, the new facility shall
be put into operation within one year of Village Board approval of
the special permit. If the facility is not in operation within the
time frame, the special permit shall expire. The project will be reviewed
as a new application if the special permit is allowed to expire.
Facilities shall be insured by the owner(s) of the tower and/or
the antenna thereon against damage to persons or property. The owner(s)
of the tower and/or antennas thereon shall provide annually to the
Village Clerk a certificate of insurance in the minimum amount of
$2,000,000, or higher amount if required by the Village Board, in
which the Village of New Hempstead shall be an additional named insured.
This insurance shall insure against damage or loss arising from all
structures, towers, or antennas on the property.
A.
The operator of any wireless telecommunications facility existing
at the time that this chapter takes effect shall be permitted to remain
in operation, provided that the operator submits proof within six
months of the enactment of this chapter that the facility complies
with the standards adopted by the Federal Telecommunications Commission
and all requirements of this chapter, as certified by a professional
engineer with qualifications acceptable to the Village of New Hempstead.
B.
If applicable, operating antennas or towers that are legally nonconforming
with respect to the area regulations of this chapter shall be permitted
to remain until such time as a request is made to modify the antenna
or tower. Any facility for which emission, structural and security
compliance documentation is not received shall cease operations within
six months of the enactment of this chapter and be immediately removed
thereafter in accordance with the provisions of this chapter. Any
facility (antenna or tower) in a residential zoning district in operation
prior to the enactment of this chapter shall be considered to be nonconforming.
A.
The Village of New Hempstead as a municipality shall be exempt from
the provisions of this chapter and may operate a wireless telecommunications
facility or permit the operation of a wireless telecommunications
facility on nonresidential-zoned Village property without obtaining
a permit and without being subject to the conditions set forth in
this chapter.
B.
This section acknowledges the interest of the Federal Communications
Commission in promoting amateur radio operations as expressed in FCC
Order PRB-I by imposing the minimum practicable regulation on amateur
radio antennas necessary to accomplish the Village's legitimate
zoning purposes.
