The following terms shall have the meanings ascribed to them
in this section, unless the context explicitly indicates a different
meaning. Terms which are not defined or which are found to be ambiguous
shall be defined in accordance with the Act, and any successor law,
together with the rulings and regulations pursuant thereto.
ACCESSORY FACILITY OR STRUCTURE
Includes any building or other structure which is accessory
to the principal use, being subordinate in size, area, extent and
purpose to the principal use, and located on the same lot as the principal
use.
ANTENNA and/or BEACON
A whip (omnidirectional antenna), panel (directional antenna),
disc (parabolic antenna) or similar device used for transmission and/or
reception of radio frequency waves, including radio navigation, radio
and television frequencies (excluding radar), wireless and microwave
communications, generally ranging from 10 hertz to 300,000 megahertz,
and/or used in communications that radiate or capture electromagnetic
waves, digital or analog signals, or other communications signals.
COLLOCATION
The placement of two or more wireless communication facilities
upon a single structure in the same location.
FAA
The Federal Aviation Administration of the United States.
FCC
The Federal Communications Commission of the United States.
HEIGHT
The distance measured from the finished mean grade of the
parcel to the highest point on the building, tower, telecommunication
facility, or other structure attached thereto.
MOUNT
A tower, structure or surface upon which antennas are mounted.
MUNICIPAL FACILITIES
Village-owned water towers, street poles and lamps, lighting
fixtures, electrifiers, flagpoles, and other similar Village-owned
structures.
MUNICIPAL PROPERTY
Village-owned property and buildings, and the space in, upon,
above, along, across and over real property, that is under the sole
ownership, jurisdiction, possession and control of the Village of
Farmingdale except: property leased or licensed to or by the Village;
any property where the Village holds an easement or other beneficial
interest; public rights-of-ways; and underwater lands.
PUBLIC RIGHTS-OF-WAY
The space in, upon, above, along, across and over the public
streets, roads, highways, lanes, courts, ways, alleys, sidewalks,
and similar places, including public utility easements and public
service easements, that are under the jurisdiction and exclusive control
of the Village of Farmingdale. The term shall not include county,
state, or federal rights-of-way or places owned by the Village of
Farmingdale jointly with another person or entity.
TELECOMMUNICATIONS FACILITY OR FACILITIES
Shall have the same meaning as "wireless telecommunications
facility or facilities" and shall be defined as follows: Any antenna,
beacon, tower and any other structure, equipment, installation, facility,
device, wires, cables or appurtenance designed, installed or intended
to be used for transmitting, receiving, distributing, providing or
accommodating cellular, radio, television, SMR, enhanced specialized
mobile radio (ESMR), paging, 911, personal communication services
(PCS), commercial satellite services, microwave, mobile and any commercial
wireless telecommunication service not licensed by the FCC, including
without limit, mounts, towers of all types, structures, buildings,
church steeples, or anything that is used to support antennas or its
functional equivalent; and distributed antenna systems (DAS), including
all accessory facilities, installations, and equipment, such as transmission
cables, wires, mounts, cabling, equipment shelters and other appurtenances.
Telecommunication facilities shall include those structures that house,
support or form part of the antennas or other transmitting or receiving
devices.
TOWER
Any structure which is designed, constructed or installed primarily for the purpose of supporting one or more antennas for telephone, television, radio and other communication purposes, including self-supporting lattice towers, or monopole towers, radio and television transmission and reception towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures and similar structures. A tower shall include the structure and any support systems appurtenant thereto. "Tower" shall not include amateur radio operators' equipment, as licensed by the FCC. Guyed towers shall not be permitted unless the applicant is granted a waiver pursuant to §
582-6M.
Telecommunication facilities shall comply with the following
requirements, unless otherwise required by the Act, FAA, FCC or other
applicable authority:
A. Color; design. All wireless telecommunication facilities shall be
of a neutral color or such other color(s), as the Board of Trustees
may require, to reduce the visual impact to surrounding areas. All
facilities, antennas, beacons or other structures and their supporting
electrical and mechanical components must be of a color that is identical
to or closely compatible with the color of the supporting structure
so as to render it as visually unobtrusive as practicable. All wireless
telecommunication facilities shall, to the extent practicable, use
materials, colors, textures, screening and landscaping that will blend
them into the natural setting and surrounding buildings. All telecommunication
facilities, antennas, towers and accessory structures shall be designed
to blend into the surrounding environment through the use of color
and camouflaging architectural treatment, except in instances where
the color is indicated by federal or state authorities such as the
Federal Aviation Administration. All telecommunication facilities,
antennas, towers and accessory structures shall be of neutral colors
that are harmonious with, and that blend with, the natural features,
buildings and structures surrounding such antennas and structures.
Accessory structures will be designed to be architecturally compatible
with principal structures on the site. All telecommunication facilities,
towers and accessory structures shall be of stealth design.
B. Landscaping. The Village may require landscaping in excess of the
requirements in the Village Code in order to enhance compatibility
with adjacent land uses. Landscaping shall be installed on the outside
of any fencing. Existing on-site vegetation shall be preserved to
the maximum extent practicable. The base of telecommunication facilities,
towers and any accessory structures shall be landscaped to the satisfaction
of the Board of Trustees and shall be provided with security fencing
to prevent unauthorized entry. Telecommunication facilities, towers
and any accessory structures shall be landscaped with a buffer or
vegetation sufficient to screen the view of such uses from residential
properties and to maintain the aesthetic quality of the surrounding
community. Existing mature tree growth and natural land forms and
topography at the site shall be preserved to the maximum extent possible.
C. Lighting. Telecommunication facilities, towers and any accessory
structures shall not be artificially lighted except as required by
the FAA or other federal or state authority. If applicant demonstrates,
by clear and convincing evidence, that lighting is required or permitted
by the FAA or other federal or state authority, lighting shall be
designed to minimize, to the maximum extent practicable, the resultant
disturbance to the surrounding views and properties and otherwise
comply with federal, state, local and Village law, including any dark
skies legislation. Upon commencement of construction of a tower, in
cases where there are residential uses located within a distance which
is 300% of the height of the tower from the tower and when required
by federal law, dual-mode lighting shall be requested from the Federal
Aviation Administration.
D. Signs. No signs or advertising of any kind shall be permitted on
telecommunications facilities.
E. Location. Telecommunication facilities shall be located in accordance
with the following priority:
(1) Location on municipal facilities and municipal property shall be encouraged over other locations whenever feasible or practical. Location on existing (or approved) municipal facilities or municipal property shall be encouraged over new municipal facilities or municipal property. Locating telecommunication facilities on other locations shall not be permitted unless applicant can demonstrate, by clear and convincing evidence, that the proposed telecommunications or other system or service cannot properly function upon municipal facilities or municipal property and must be located at the proposed location. Where the location upon municipal facilities or municipal property is not feasible, location of such facilities within or upon county, state or federal property and public rights-of-way is encouraged but not required where the facility may be collocated on another existing facility in accordance with Subsection
E(2) and
(3);
(2) Where telecommunication facilities cannot be located in the areas specified in Subsection
E(1), the location of such facilities within or upon existing (or approved) telecommunications facilities located in an industrial zoning district shall be encouraged and required unless the applicant can demonstrate, by clear and convincing evidence, that the proposed telecommunications or other system or service cannot properly function if so located and must be located at the proposed location;
(3) Where telecommunication facilities cannot be located in the areas specified in Subsection
E(1) and
(2), the location of such facilities within or upon existing (or approved) telecommunications facilities shall be encouraged and required unless the applicant can demonstrate, by clear and convincing evidence, that the proposed telecommunications or other system or service cannot properly function if so located and must be located at the proposed location;
(4) Where telecommunication facilities cannot be located in the areas specified in Subsection
E(1),
(2) and
(3), the location of such facilities within an industrial zoning district shall be encouraged and required unless the applicant can demonstrate, by clear and convincing evidence, that a telecommunications or other system or service cannot properly function if so located and must be located at the proposed location;
(5) Telecommunication facilities shall not be located in the D-MU Zoning District, any residential district, or within 500 feet of any residential district unless the applicant can demonstrate, by clear and convincing evidence, that its telecommunications facilities or wireless systems or services cannot properly function in the locations identified in Subsection
E(1),
(2),
(3) and
(4) and must be located at the proposed location. Before erecting an entirely new facility in the D-MU or residentially zoned or utilized area, or within 500 feet of any residential district, the applicant must demonstrate by clear and convincing evidence that it cannot collocate on a permitted telecommunication facility. In the event the Board determines that the telecommunication facilities must be located within the five-hundred-foot distance, the Board shall mandate that the facility be located at the greatest possible distance from the residential district; and
(6) Distance between towers. The required distance between towers shall
be 2,500 feet, measured by drawing or following a straight line between
the base of any existing like use and the base of the proposed use,
delineated on a map or site plan. Said distance requirement may be
reduced by the Board of Trustees only after a finding, by clear and
convincing evidence, that the specific application merits a reduction
and closer siting due to reception, transmission or other limitations
or other relevant factors.
F. Height. Compliance with the maximum height limitations of the zoning
district shall be required unless the applicant can show, by clear
and convincing evidence, that the telecommunication service cannot
be provided by such compliance. The applicant shall be required to
demonstrate, by clear and convincing evidence, that the proposed height
is the lowest possible height required for such telecommunication
services.
G. Collocation. A proposal for a telecommunication facility shall not
be approved unless:
(1) The Board of Trustees finds that the facility cannot be accommodated
on an existing or approved facility in accordance with this chapter;
(2) A telecommunication facility shall be designed, structurally, electrically,
and in all respects, to the greatest extent possible, to accommodate
both the applicant's use and additional future users. Facilities must
be designed to allow for future rearrangement of the facility components
and structures. The applicant shall submit to the Board of Trustees
a letter of intent committing the applicant, and his/her successors
in interest, to negotiate in good faith for shared use of the proposed
telecommunication facility in the future. The issuance of a special
use permit shall require the applicant and his/her successors in interest
to agree, in writing, to:
(a)
Respond in a timely and 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 telecommunication facility or tower;
(c)
Allow shared use of the new telecommunication facility or tower
subject to an agreement by the other users to pay appropriate 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 telecommunication facility, tower
or equipment to accommodate a shared user without causing electromagnetic
interference; and
(e)
In order to keep neighboring municipalities informed, and to
facilitate the possibility of directing that an existing tall telecommunication
facility or structure or existing tower in a neighboring municipality
be considered for shared use, the Board of Trustees shall require
that an applicant who proposes a new telecommunication facility or
tower to notify in writing the legislative body of each municipality
that borders the Village and the Nassau County Planning Commissions
and the Suffolk County Division of Planning. 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. Documentation of this modification
shall be submitted to the Board of Trustees at the time of application.
H. Setbacks. Telecommunication facilities, towers and all accessory
structures shall conform with each of the following minimum setback
requirements:
(1) Telecommunication facilities shall be set back from any adjoining
lot line a distance equal to at least 150% of the height of the facility
in order to provide a safe fall zone. For such structures in excess
of 100 feet in height, one additional foot per each foot of facility
height in excess of 100 feet shall be required. This requirement may
be varied only if the Board of Trustees finds by clear and convincing
evidence that the telecommunication facility cannot be located in
accordance with this section and its proposed location does not create
an unsafe condition. The Board of Trustees shall require that the
applicant take appropriate measures, at the applicant's expense, to
eliminate any unsafe conditions. In the event that the facility cannot
be located pursuant to the setback requirements herein, the Board
shall require the greatest possible setback;
(2) All accessory structures shall satisfy the minimum district setback
requirements for the district in which they are located;
(3) Setback requirements for telecommunication facilities shall be measured
from the base of the telecommunication facilities to the property
line of the parcel of land on which they are located;
(4) Setback requirements may be modified, as provided in this chapter,
when placement of a telecommunication facility in a location will
reduce the visual impact and the modification does not create an unsafe
condition. The Board of Trustees shall require that the applicant
take appropriate measures, at the applicant's expense, to eliminate
any unsafe conditions;
(5) A facility's setback may be reduced in the sole discretion of the
Board of Trustees to allow the integration of a facility into an existing
or proposed structure such as a water tower, church steeple, light
pole, power line, or similar structure; and
(6) Facilities are not permitted to be located on a site where the property
line of the site is within 500 feet of the nearest property line of
a lot containing a school, unless the applicant can establish by clear
and convincing evidence that its telecommunications or other system
cannot properly function within or upon an alternate location in any
other zoning district of the Village and must be located at the proposed
location.
I. Structural requirements. All telecommunication facilities must be
designed and certified by an engineer to be structurally sound and,
at a minimum, in conformance with the Village Code, and any other
standards outlined in this chapter. All telecommunication facilities
or towers in operation shall be affixed to land. Guyed towers shall
be prohibited. Telecommunication facilities must be self-supporting
without the use of wires, cables, beams or other means. Where possible,
the design should utilize an open framework or monopole configuration.
Permanent platforms or structures exclusive of antennas that serve
to increase off-site visibility are prohibited. The base of the telecommunication
facility or tower shall occupy not more than 500 square feet, and
the top of such facility shall be no longer or wider than the base.
J. Separation and buffer requirements. For the purpose of this chapter,
the separation distances between telecommunication facilities shall
be measured by drawing or following a straight line between the base
of the existing or approved structure and the proposed base, pursuant
to a site plan, of the proposed telecommunication facilities. Telecommunication
facilities separation distances from residentially zoned lands shall
be measured from the base of a telecommunication facility to the closest
point of residentially zoned property. The minimum telecommunication
facilities separation distances from residentially zoned land and
from other telecommunication facilities shall be calculated and applied
irrespective of Village jurisdictional boundaries. Telecommunication
facilities shall be separated from all residentially zoned lands by
a minimum of 500 feet. Proposed telecommunication facilities must
meet the following minimum separation requirements from existing telecommunication
facilities (or those which have approval but are not yet constructed).
Monopole tower structures shall be separated from all other towers,
whether monopole or self-supporting lattice, by a minimum of 2,500
feet.
K. Security fencing. Telecommunication facilities shall be surrounded
by security fencing, satisfactory to the Board of Trustees, which
shall be equipped with appropriate anticlimbing devices and be of
sufficient height to safeguard the public.
L. Other conditions.
(1) The operator of every telecommunication facility and accessory structure
shall submit to the Village Clerk copies of all licenses and permits
required by other agencies and governments with jurisdiction over
the design, construction, location and operation of the proposed telecommunication
facility and accessory structure and shall maintain such licenses
and permits and provide evidence of renewal or extension thereof when
granted; and
(2) Every special use permit granted hereunder shall state that any assignment
or transfer of the special use permit or of any rights thereunder
may be made only with the approval of the Village.
M. Notwithstanding the requirements provided in this section, the Board
of Trustees may waive or modify any of the requirements of this chapter
subject to the following:
(1) An application to modify the requirements is submitted along with
the application for telecommunication facilities, which shall include:
(a)
A description of how the plan addresses any adverse impact that
might occur as a result of approving the modification;
(b)
A description of off-site or on-site factors which mitigate
any adverse impacts which might occur as a result of the modification;
(c)
A technical study that documents and supports the criteria submitted
by the applicant upon which the request for modification is based.
The technical study shall be certified by a qualified professional
and shall document the existence of the facts related to the proposed
modification and shall demonstrate by clear and convincing evidence
that the proposed telecommunications or other system or service cannot
properly function if the waiver or modification is not granted;
(d)
For a modification of the setback requirement, the application
shall identify the efforts made to locate the proposed telecommunication
facility in compliance with this chapter, including any attempts by
the applicant to contract and negotiate an agreement for collocation,
and the result of such attempts; and
(e)
The Board of Trustees may require, at the applicant's expense,
the application to be reviewed by an independent engineer or other
qualified professional to determine whether the applicant's submissions
support the basis for the modification requested.
(2) The Board of Trustees shall consider the application for modification
based on the following criteria:
(a)
That the facility as modified will be compatible with and not
adversely impact the character and integrity of surrounding properties;
(b)
Off-site or on-site conditions exist which mitigate the adverse
impacts, if any, created by the modification; and
(c)
The Board of Trustees may include conditions which are necessary
to preserve the character and integrity of the neighborhoods affected
by the proposed facility and which mitigate any adverse impacts which
arise in connection with the approval of the modification.
(3) In the following cases, the Board of Trustees shall consider the
following:
(a)
In the case of a requested modification to the setback requirements,
that the setback requirement cannot be met on the parcel of land upon
which the facility is proposed and the alternative for the applicant
is to locate the facility on another site which is closer in proximity
to a residentially zoned land.
(b)
In the case of a requested modification to the separation and
buffer requirements from other facilities, that the proposed site
is zoned industrial or the proposed site is at least the double minimum
standard for separation from residentially zoned lands.
(c)
In the case of a requested modification of the separation and
buffer requirements from residentially zoned land, if the person provides
written technical evidence from a qualified professional that the
proposed facility must be located at the proposed site in order to
meet the coverage requirements of the applicant's wireless communications
system, and if the applicant, at the applicant's expense, provides
landscaping and other buffers to screen the facility from being visible
to residentially zoned property.
(d)
In the case of a request for modification of the height limit,
that the modification is necessary to facilitate collocation of telecommunications
facilities in order to avoid construction of a new facility or to
meet the coverage requirements of the applicant's wireless communications
system, which requirements must be documented with written technical
evidence from a qualified professional that demonstrates that the
height of the proposed facility is the minimum height required to
function satisfactorily, and no facility that is taller than such
minimum height shall be approved.
The following factors, where applicable, shall be considered
for all telecommunication facility applications:
A. The Village's Comprehensive Plan, existing land uses and development,
and environmentally sensitive areas;
B. Height, size, condition, stability, and appearance of the proposed
or existing facility, structure, pole, or device;
C. Proximity of the proposed use to residential structures and residential
district boundaries;
D. Nature of existing and/or proposed uses on adjacent and nearby properties;
E. The topography of the site and surrounding areas;
F. Surrounding tree coverage and foliage;
G. Design and aesthetic appearance of the structure, facility, or device,
with particular reference to design elements that have the effect
of reducing or eliminating visual obtrusiveness;
H. The proposed ingress and egress;
I. Availability of suitable existing uses or structures or poles, or
alternative technologies not requiring the use of new structures,
poles or devices;
J. Whether the proposed telecommunication facility, or its location,
will impede or obstruct vehicular or pedestrian travel, obstruct or
interfere with directional signs or traffic maintenance devices, create
a nuisance or hazard, and/or substantially detract from an historic
landmark, site or district, scenic or visual space or corridor, or
culturally significant resource; and
K. Any other relevant factor, including those found by the Board to
be relevant considerations under statutory and decisional law, and
regulatory agency rulings.
No application for a special permit for a telecommunication
facility shall be granted unless the applicant can demonstrate to
the Village Board of Trustees, by clear and convincing evidence, that:
A. No existing use, building, facility or structure not requiring new
construction or installations can accommodate the applicant's proposed
use. Such evidence may consist of any or all of the following:
(1) That no suitable existing uses or structures are located within the
geographic area which meet the applicant's engineering requirements;
(2) That the fees, costs or contractual provisions required by the owner
of an existing like use or structure in order to share it, or adapt
it for sharing, are not economically feasible or are otherwise unreasonable;
or
(3) When consistent with applicable federal and state law, alternative
technologies not requiring the use of towers or structures, such as
a cable microcell network using multiple low-powered transmitters/receivers
attached to a wireline system, are unsuitable. Costs of alternative
technology that exceed new tower or antenna development shall not
be presumed to render the technology unsuitable; and
B. A significant gap in service exists that requires the location of
wireless communication facilities at the proposed location. In determining
whether a significant gap in service exists at a specific location,
the Board of Trustees must find that the telecommunications failure
is substantial and can only be remedied by the location of the proposed
antennas, DAS system, or tower. The Board may reduce the height of
the proposed structure or make other modifications to the proposed
wireless communication facilities for the purpose of making aesthetic
improvements, even if it means that the gap in service is not fully
remedied; substantial remediation of the gap in service shall be sufficient.
In determining what constitutes substantial remediation of a gap in
service, and to what extent an applicant needs to locate a facility
at a specific location or height, and what level of service is to
be made available to users, the Board shall be guided by standards
set or as interpreted by federal or state law, decisional law and
regulatory agencies.
The Village or its agents shall have authority to enter onto
the property upon which a facility is located to inspect and confirm
compliance with the requirements of this chapter, the Village Code
and all other construction standards provided by the Village Code
and federal and state law. The Village reserves the right to conduct
such inspections at any time, upon reasonable notice, for the purpose
of verifying continuing compliance with the special use permit, building
permit and, where applicable, site plan or other approval. All expenses
related to such inspections by the Village shall be borne by the applicant
or facility owner or operator as the case may be.
The Board of Trustees may, upon notice after a public hearing,
revoke any special use permit if the Board determines that there are
substantial violations of this chapter or the conditions or provisions
of the grant, or if false documents or statements have been submitted
in support of the application.
All applicants for telecommunications facilities shall be required
to pay an application fee which shall be set, from time to time, by
resolution of the Board of Trustees. All applicants shall also be
required to pay all Village costs associated with any application
for telecommunication facilities, including the cost associated with
engineering, environmental, architectural, legal and other consulting
professionals retained by or on behalf of the Village which are deemed
necessary by the Village. The applicant shall, at the time of the
application, deposit with the Village Clerk such amount, as determined
from, time to time, by resolution of the Board of Trustees to cover
such consultation fees and other expenses. No building permit shall
be issued until all such expenses incurred by the Village in connection
with this chapter are reimbursed to the Village by the applicant.
This chapter shall become effective immediately upon filing
with the Secretary of State.