The Telecommunications Act of 1996 affirmed the Town of Lysander's
authority concerning the placement, construction and modification
of wireless telecommunications facilities. The Town of Lysander finds
that wireless telecommunications facilities may pose significant concerns
to the health, safety, public welfare, character and environment of
the Town and its inhabitants. The Town also recognizes that facilitating
the development of wireless service technology can be an economic
development asset to the Town and of significant benefit to the Town
and its residents. In order to insure that the placement, construction
or modification of wireless telecommunications facilities is consistent
with the Town's land use policies, the Town is adopting a single,
comprehensive, wireless telecommunications facilities application
and permit process. The intent of this chapter is to minimize impact
of wireless telecommunications facilities, establish a fair and efficient
process for review and approval of applications, assure an integrated,
comprehensive review of environmental impacts of such facilities,
and protect the health, safety and welfare of the Town of Lysander.
This chapter shall be known and cited as the "Wireless Telecommunications
Facilities Siting Local Law for the Town of Lysander."
For purposes of this chapter, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meaning given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
ACCESSORY FACILITY OR STRUCTURE
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including but not limited to, utility or transmission equipment storage
sheds or cabinets.
ANTENNA
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
APPLICANT
Any wireless service provider submitting an application for
a special use permit for wireless telecommunications facilities.
APPLICATION
All necessary and appropriate documentation that an applicant
submits in order to receive a special use permit for wireless telecommunications
facilities.
BOARD
The Town Board of the Town of Lysander.
CO-LOCATION
The use of an existing tower or structure to support antennas
for the provision of wireless services. A replacement tower that is
constructed on the same site as an existing tower will be considered
a co-location as long as the new tower is no taller than the old tower
and that the old tower is removed in a reasonable short time frame
after the new tower is constructed.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
The inability to perform an act on terms that are reasonable
in commerce; the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be "commercially impracticable" and shall not render an act or
the terms of an agreement "commercially impracticable."
COMPLETED APPLICATION
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
DISTRIBUTED ANTENNA SYSTEM or DAS
A network of spatially separated antenna nodes connected
to a common source via a transport medium that provides wireless service
within a geographic area or structure.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated
and authorized successor agency.
HEIGHT
When referring to a "tower" or "structure," the distance
measured from the preexisting grade level to the highest point on
the tower or structure, even if said highest point is an antenna or
lightening protection device.
MODIFICATION or MODIFY
The addition, removal or change of any of the physical and
visually discernible components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernible
components, vehicular access, parking and/or an upgrade or change
out of equipment for better or more modern equipment. Adding a new
wireless carrier or service provider to a telecommunications tower
or telecommunications site as a co-location is a modification. A modification
shall not include the replacement of any components of a wireless
facility where the replacement is identical to the component being
replaced or for any matters that involve the normal repair and maintenance
of a wireless facility without adding, removing or changing corporation,
estate, trust, partnership, joint stock company, association of anything.
NIER
Non-ionizing electromagnetic radiation.
PERSON
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
REPAIRS AND MAINTENANCE
The replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or for any matters that involve the normal repair and maintenance
of a wireless facility without the addition, removal or change of
any of the physical or visually discernible components or aspects
of a wireless facility that will add to the visible appearance of
the facility as originally permitted.
SPECIAL USE PERMIT
The official document or permit by which an applicant is
allowed to file for a building permit to construct and use wireless
telecommunications facilities as granted or issued by the Town.
STATE
The State of New York.
STEALTH or STEALTH TECHNOLOGY
To minimize adverse aesthetic and visual impacts on the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances,
TELECOMMUNICATIONS
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
TEMPORARY
Temporary in relation to all aspects and components of this
chapter, something intended to, or that does not exist for more than
90 days.
TOWER
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
WIRELESS TELECOMMUNICATIONS FACILITIES
Includes a "telecommunications site" and "personal wireless
facility." It means a structure, facility or location designed, or
intended to be used as, or used to support antennas or other transmitting
or receiving devices. This includes, without limit, towers of all
types and kinds and structures, including, but not limited to, buildings,
church steeples, silos, water towers, signs or other structures that
can be used as a support structure for antennas or the functional
equivalent of such. It further includes all related facilities and
equipment such as cabling, equipment shelters and other structures
associated with the site. It is a structure and facility intended
for transmitting and/or receiving radio, television, cellular, SMR,
paging, 911, personal communications services (PCS), commercial satellite
services, microwave services and any commercial wireless telecommunication
service not licensed by the FCC.
In order to ensure that the placement, construction, and modification
of wireless telecommunications facilities protects the Town's
health, safety, public welfare, environmental features, the nature
and character of the community and neighborhood and other aspects
of the quality of life specifically listed elsewhere in this chapter,
the Town hereby adopts an overall policy with respect to a special
use permit for wireless telecommunications facilities for the express
purpose of achieving the following goals:
A. Requiring a special use permit for any new, co-location or modification
of a wireless telecommunications facility.
B. Implementing an application process for person(s) seeking a special
use permit for wireless telecommunications facilities.
C. Establishing a policy for examining an application for and issuing
a special use permit for wireless telecommunications facilities that
is both fair and consistent.
D. Promoting and encouraging, wherever possible, the sharing and/or
co-location of wireless telecommunications facilities among service
providers.
E. Promoting and encouraging, wherever possible, the placement, height
and quantity of wireless telecommunications facilities in such a manner,
including but not limited to the use of stealth technology, to minimize
adverse aesthetic and visual impacts on the land, property, buildings,
and other facilities adjacent to, surrounding, and in generally the
same area as the requested location of such wireless telecommunications
facilities, which shall mean using the least visually and physically
intrusive facility that is not technologically or commercially impracticable
under the facts and circumstances.
F. That in granting a special use permit, the Town has found that the
facility shall be the most appropriate site as regards being the least
visually intrusive among those available in the Town.
The following shall be exempt from this chapter:
A. The Town's fire, police, department of transportation or other
public service facilities owned and operated by the local government.
B. Any facilities expressly exempt from the Town's siting, building
and permitting authority.
C. Over-the-air reception devices including the reception antennas for
direct broadcast satellites (DBS), multichannel multipoint distribution
(wireless cable) providers (MMDS), television broadcast stations (TVBS)
and other customer-end antennas that receive and transmit fixed wireless
signals that are primarily used for reception.
D. Facilities exclusively for private, noncommercial radio and television
reception and private citizen's bands, licensed amateur radio
and other similar noncommercial telecommunications.
E. Facilities used exclusively for providing unlicensed spread spectrum
technology, i.e., Bluetooth or a "hot spot," where the facility does
not require a new tower, where the service is not to be used for commercial
purposes, where there is no fee or charge for the use of the service
and where the service is intended to be usable for less than 200 feet.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner that prevents
unauthorized access. Specifically:
A. All antennas, towers and other supporting structures, including guy
anchor points and wires, shall be made inaccessible to individuals
and constructed or shielded in such a manner that they cannot be climbed
or collided with; and
B. Transmitters and telecommunications control points shall be installed
in such a manner that they are readily accessible only to persons
authorized to operate or service them.
Wireless telecommunications facilities shall contain a sign
no larger than four square feet in order to provide adequate notification
to persons in the immediate area of the presence of RF radiation or
to control exposure to RF radiation within a given area. A sign of
the same size is also to be installed to contain the name(s) of the
owner(s) and operator(s) of the antenna(s) as well as emergency phone
number(s). The sign shall be on the equipment shelter or cabinet of
the applicant and be visible from the access point of the site and
must identify the equipment owner of the shelter or cabinet. On tower
sites, an FCC registration site as applicable is also to be present.
The signs shall not be lighted, unless applicable law, rule or regulation
requires lighting. No other signage, including advertising, shall
be permitted.
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded
rights-of-way and road and street lines by the greater of the following
distances: a distance equal to the height of the proposed tower or
wireless telecommunications facility structure plus 10% of the height
of the tower or structure, or the existing setback requirement of
the underlying zoning district, whichever is greater. Any accessory
structure shall be located so as to comply with the applicable minimum
setback requirements for the property on which it is situated.
The extent and parameters of a special use permit for wireless
telecommunications facilities shall be as follows:
A. Such special use permit shall not be assigned, transferred or conveyed
without the express prior written notification to the Town.
B. Such special use permit may, following a hearing upon due prior notice
to the applicant, be revoked, canceled, or terminated for a violation
of the conditions and provisions of the special use permit, or for
a material violation of this chapter after prior written notice to
the holder of the special use permit.
At the time that a person submits an application for a special
use permit for a new tower, such person shall pay a nonrefundable
application fee of $5,000 to the Town. If the application is for a
special use permit for modifying or co-locating on an existing tower
or other suitable structure, where no increase in height of the tower
or structure is required, or for a temporary facility, the nonrefundable
fee shall be $2,500.
The applicant and the owner of record of any proposed wireless
telecommunications facilities property site shall, at its cost and
expense, be jointly required to execute and file with the Town a bond,
or other form of security acceptable to the Town as to type of security
and the form and manner of execution, in an amount of at least $75,000
for a tower facility and $25,000 for a co-location on an existing
tower or other structure and with such sureties as are deemed sufficient
by the Town to assure the faithful performance of the terms and conditions
of this chapter and conditions of any special use permit issued pursuant
to this chapter. The full amount of the bond or security shall remain
in full force and effect throughout the term of the special use permit
and/or until any necessary site restoration is completed to restore
the site to a condition comparable to that, which existed prior to
the issuance of the original special use permit.
In order to verify that the holder of a special use permit for
wireless telecommunications facilities and any and all lessees, renters,
and/or licensees of wireless telecommunications facilities, place
and construct such facilities, including towers and antennas, in accordance
with all applicable technical, safety, fire, building, and zoning
codes, laws, ordinances and regulations and other applicable requirements,
the Town may inspect all facets of said permit holder's, renter's,
lessee's or licensee's placement, construction, modification
and maintenance of such facilities, including, but not limited to,
towers, antennas and buildings or other structures constructed or
located on the permitted site.
If a wireless telecommunications facility is repaired, rebuilt, placed, moved, re-located, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special use permit, then the Town shall notify the holder of the special use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in §
312-25 and if a violation is not corrected to the satisfaction of the Town in a reasonable period of time the special use permit is subject to revocation.
Any applicant desiring relief, waiver or exemption from any
aspect or requirement of this chapter may request such, provided that
the relief or exemption is contained in the submitted application
for either a special use permit, or in the case of an existing or
previously granted special use permit a request for modification of
its tower and/or facilities. Such relief may be temporary or permanent,
partial or complete. However, the burden of proving the need for the
requested relief, waiver or exemption is solely on the applicant to
prove. The applicant shall bear all costs of the Town in considering
the request and the relief, waiver or exemption. No such relief or
exemption shall be approved unless the applicant demonstrates by clear
and convincing evidence that, if granted the relief, waiver or exemption
will have no significant effect on the health, safety and welfare
of the Town, its residents and other service providers.
Where this chapter differs or conflicts with other laws, rules
and regulations, unless the right to do so is preempted or prohibited
by the Town, state or federal government, this chapter shall apply.
This chapter is enacted pursuant to applicable authority granted
by the state and federal government.
[Added 4-4-2019 by L.L.
No. 2-2019]
A. General design guidelines.
(1) All communications facilities shall comply with the United States
Department of Transportation Manual on Uniform Traffic Control Devices
(MUTCD), the National Electric Code (NEC), all Town of Lysander Codes,
and any other applicable local, state, and federal rules and regulations.
(2) Utility underground required. All service lines to the proposed communication
facility shall be underground if all other utilities in the immediate
area are also underground.
(3) Power and fiber optic supply.
(a)
Independent power source required. Communication facilities
subject to a ROW agreement may not use the same power source providing
power for the existing facilities original to the purposes of the
support structure, unless specifically authorized by the owner of
the support structure and approved by the Town Engineer. Independent
power sources must be contained within a separate conduit on the existing
support structure.
(b)
The applicant shall coordinate, establish, maintain and pay
for all power and communication connections with private utilities.
(4) Wiring, cables and conduit requirements.
(a)
All wiring and cables must be housed within the steel or other
metal support structure pole and extended vertically within a flexible
conduit. In nonsteel or solid support structures, all wiring and cables
must be appropriately protected in their entirety and covered with
a material that matches the nonsteel or solid support structures so
as not to be visible from public view.
(b)
Aboveground wires, cables, connections and conduits are prohibited,
except as specified in this Design Guideline Manual based on the wireless
support structure.
(c)
Spools and/or coils of excess fiber optic or coaxial cables
or any other wires shall not be stored on the pole except completely
within the approved enclosures or cabinets.
(5) Lighting. Lighting associated with communication facilities is prohibited.
Any internal lights associated with electronic equipment must be shielded
from public view.
(6) Signage. Signage is prohibited on all small cell facilities and wireless
support structures, including stickers, logos, and other nonessential
graphics and information unless required by the FCC.
(7) Work permits. All operators must require the appropriate work permit by the Town for any activity described in Chapter
A337 of the Code and for any activity for which consent is authorized under the same.
B. Existing wireless support structures.
(1) Collocation encouraged. The collocation of communication facilities
on existing poles, towers and support structures is strongly encouraged
as a means to minimize the extent of intrusion of redundant support
structures within the Town ROW or on private property.
(2) Structural integrity of existing support structures.
(a)
The Town shall not authorize any attachments to Town-owned infrastructure,
pole, tower or support structures that negatively impact the structural
integrity of said infrastructure, pole, tower or support structure.
(b)
The Town may condition approval of the collocation on replacement
or modification of the communication facility at the provider's
cost if the Town determines that replacement or modification is necessary
for compliance with the construction and/or safety standards of the
Town. A replacement or modification of the communication facility
shall conform to the applicable design guideline(s) and the Town's
applicable specifications for the type of structure being replaced.
The Town may retain ownership of a replacement wireless support structure.
(3) Maximum permitted height. For an existing communication facility,
the antenna and any associated shroud or concealment material are
permitted to be collocated at the top of the existing wireless support
structure and shall not increase the height of the existing wireless
support structure by more than five feet or a total of 35 feet.
(4) Right to reserve space on pole, tower or support structure. The Town
may reserve space for future public safety or transportation uses
in the right-of-way or on a pole, tower or support structure owned
by the Town in a documented and approved plan in place at the time
an application is filed.
(a)
A reservation of space shall not preclude placement of a pole
or collocation of a communication facility.
(b)
If replacement of the Town's pole or support structure
is necessary to accommodate the collocation of the communication facility
and the future use, the provider shall pay for the replacement of
the pole or support structure, and the replaced pole or support structure
must accommodate the future use.
C. New wireless pole, tower or support structures.
(1) Location.
(a)
Required setbacks.
[1]
The centerline of new pole, tower or support structures shall
be installed in alignment with existing street trees and other poles
along the same right-of-way when possible.
[2]
In no case shall a new pole, tower or support structure be located
less than what is required in the ROW agreement from any of the roadway/face
of curb, sidewalk, or shared use path as measured to the nearest part
of the support structure.
[3]
New poles, towers or support structures shall be located a minimum
of six feet from any permanent object, structure or existing lawful
encroachment into the right of way, or as determined in the ROW agreement.
(b)
Required spacing. Collocation is strongly encouraged. If not
feasible, a minimum of 300 linear feet between Poles, Towers, Support
Structures or communication facilities is required. To the extent
feasible, any new or replace Pole, Tower or Support Structure constructed
in the ROW shall be at the property line between two houses and not
in direct line of site from the front of a house.
(2) Maximum permitted height.
(a)
For a new wireless support structure in a Commercial or Industrial
Zone, the overall height of the wireless support structure and any
collocated antennas shall not be more than 40 feet in height above
established grade measured at the base of the wireless support structure.
(b)
The Town shall limit the maximum permissible height of wireless
support structures in residential zones to not more than 35 feet in
height above established grade measured at the base of the structure.
(3) Design requirements.
(a)
Shape and dimensions. All new poles, towers or support structures
shall be constructed of solid hot-dipped galvanized steel, be round
in shape with the pole shaft tempered in diameter from the base to
the top with a maximum of 12 inches at the base.
(b)
Transformer base. All new poles, towers or support structures
shall include a one-piece cast aluminum alloy transformer base in
a breakaway design, consistent with engineering standards subject
to the Town Engineer's review and approval.
(c)
Foundation/footer.
[1]
All new poles, towers or support structures must be supported
with a reinforced concrete foundation and footer designed, stamped,
sealed and signed by a professional engineer licensed and registered
in the State of New York, and subject to the Town Engineer's
review and approval.
[2]
Anchor bolts must be constructed from steel (high strength)
per ATSM A36, threaded (J-Type/L-Type), hot dip galvanized steel per
ODOT CM Item No. 711.02, and in a strength and diameter, stamped,
sealed and signed by a professional engineer licensed and registered
in the State of New York, and subject to the Town Engineer's
review and approval.
[3]
All anchor bolts must be concealed from public view with an
appropriate pole boot or cover, powder coated to match the pole, tower
or support structure.
(d)
Color. New poles, towers or support structures, including the
breakaway transformer base, shall have a powder coated finish in the
dark earth tone colors such as dark green, dark brown, gray, or black
consistent with the color of other poles, towers or support structures
in the immediate vicinity.
(4) Multiple requests for wireless support structures in violation of
spacing requirements. If multiple requests are received by the Town
to install two or more poles, towers or support structures that would
violate applicable spacing requirements outlined herein, or to collocate
two or more communication facilities on the same wireless pole, tower
or support structure the Town may resolve conflicting requests through
whatever reasonable and nondiscriminatory manner it deems appropriate.
(5) Town-directed alternate location for poles, towers or support structures.
The Town may propose an alternate location to any proposed location
of a new pole, tower or support structure, subject to the following:
(a)
That the alternate location is within 100 feet of the proposed
location or within a distance that is equivalent to the width of the
right-of-way in or on which the new location is proposed, whichever
is greater; and
(b)
The operator shall use the alternate location if it has the
right to do so on reasonable terms and conditions and the alternate
location does not impose technical limits or significant additional
costs.
(6) Waiver to Town-directed alternate pole, tower or support structure
location or undergrounding requirements.
(a)
Provider may seek a waiver from the Planning Board of the undergrounding
or alternative location requirements for the placement of a new pole,
tower or support structure to support communication facilities if
the provider is unable to achieve its service objective using a communication
facility under the following circumstances:
[1]
From a location in the right-of-way where the prohibition does
not apply;
[2]
In a utility easement the provider has the right to access;
or
[3]
In or on other suitable locations or structures made available
by the Town at reasonable rates, fees, and terms.
(b)
The Town shall process waivers in a reasonable and nondiscriminatory
manner that does not have the effect of prohibiting the provision
of wireless service.
D. Antennas.
(1) Location. All antennas to be installed on new or existing wireless
poles, towers or support structures shall be mounted to the top of
the pole, tower or support structure and aligned with the centerline
of the pole, tower or support structure, unless otherwise agreed to
by the Town based on the specific context and characteristics of the
communication facility.
(2) Size. Each antenna shall be located entirely within an enclosure
of not more than six cubic feet in volume or, in the case of an antenna
that has exposed elements, the antenna and all of its exposed elements
could fit within an enclosure of not more than 12 cubic feet in volume.
(3) Design.
(a)
Shape. Antennas shall be cylindrical in shape, or completely
housed within a cylindrical enclosure, radome or shroud.
(b)
Color. Exposed antennas and antenna enclosures shall match the
color specifications of the pole, tower or support structure.
E. Small wireless facilities installed on wireless support structures.
(1) Size. Exclusive of the antenna, all wireless equipment associated
with the communication facility shall not cumulatively exceed 28 cubic
feet in volume. The calculation of equipment volume shall not include
electric meters, concealment elements, telecommunications demarcation
boxes, grounding equipment, power transfer switches, cut-off switches,
and vertical cable runs for the connection of power and other services.
(2) Equipment enclosures required. All communication facilities mounted
to wireless poles, towers or support structures or located on the
ground shall be fully contained within enclosures or cabinets.
(3) Required clear height. All communication facilities mounted to a
wireless pole, tower or support structure shall provide a minimum
of 10 feet of clear space on the pole as measured from established
grade to the lowest point of any facility/equipment cabinets or concealment
apparatus mounted to the pole, tower or support structure.
(4) Maximum horizontal offset from support structure. The communication
facility's equipment cabinets or enclosures shall not extend
more than 10 inches beyond the pole, tower or support structure of
centerline in all directions.
(5) Design.
(a)
Cabinet or enclosure shape.
[1]
Communication facility equipment cabinets or enclosures shall
be rectangular in shape, with the vertical dimensions being greater
than the horizontal.
[2]
Generally, the cabinet or enclosure shall be no wider than the
maximum diameter of the support structure.
(b)
Installation method.
[1]
All pole-mounted equipment cabinets or enclosures must be installed
as flush to the pole as possible.
[2]
Any installation brackets connecting the cabinets or enclosure
to the pole shall not extend more than two inches from the pole, and
shall include metal flaps (or wings) to fully conceal the gap between
the cabinet and pole.
(c)
Cabinet or enclosure material. (To be discussed.)
(d)
Color. Cabinets or enclosures shall match the color specification
of the pole, tower and/or support structure.
F. Ground-mounted small cell facilities.
(1) Location.
(a)
Required setbacks.
[1]
In no case shall ground-mounted small cell facilities be located
no less than required in the ROW Agreement from the road-way/face
of curb, sidewalk, or shared use path as measured to the nearest part
of the cabinet or enclosure.
[2]
Ground-mounted communication facilities and associated required
screening or shrouding shall be located a minimum of six feet from
any permanent object or existing lawful encroachment into the right-of-way.
(2) Size. All communication facility equipment associated with the facility
shall not cumulatively exceed 28 cubic feet in volume. The calculation
of equipment volume shall not include electric meters, concealment
elements, telecommunications demarcation boxes, grounding equipment,
power transfer switches, cut-off switches, and vertical cable runs
for the connection of power and other services.
(3) Maximum permitted height. The maximum height for ground-mounted communication
facilities shall not exceed 2.5 feet as measured from established
grade at the base of the facility.
(4) Equipment enclosures required. All ground-mounted communication facilities
shall be fully contained within enclosures or cabinets.
(5) Design requirements.
(a)
Screening required. Evergreen plant material shall be used for
screening and shall be planted and maintained to ensure that the equipment
will be screened to its full height two years of planting without
obstructing the view of motor traffic or pedestrians.
(b)
Concrete pad or slab. In accordance with state and local standards
approved by the Director of Planning and Development or Code Enforcement
Director.
(c)
Breakaway design. All objects placed within the ROW shall feature
breakaway design.
(d)
Color. Ground-mounted communication facility cabinets and enclosures
shall be dark green or black powder coated finish.
G. Construction and safety requirements.
(1) Approval of the collocation or replacement or modification of the
pole, tower or support structure is conditioned upon the operator's
assumption of costs of the Town determines that replacement or modification
is necessary for compliance with its written construction or safety
standards.
(2) Prevention of failures and accidents. Any person who owns a communication
facility sited in the right-of-way shall at all times employ ordinary
and reasonable care and install and maintain in use nothing less than
the best available technology for preventing failures and accidents
which are likely to cause damage, injury, or nuisance to the public.
(3) Compliance with fire safety and FCC regulations. Communication facilities,
wires, cables, fixtures, and other equipment shall be installed and
maintained in substantial compliance with the requirements of the
National Electric Code, all FCC, state, and local regulations, and
in such manner that will not interfere with the use of other property.
H. Surety bond or equivalent financial tool for cost of removal. All
owners must procure and provide to the Town a renewable bond, or must
provide proof of an equivalent financial mechanism, to ensure compliance
with all provisions of this section. The renewable bond or equivalent
financial method must specifically cover the cost of removal of unused
or abandoned small cell facilities or damage to Town property caused
by an operator or its agent of each communication facility which the
owner installs in the right-of-way in case the Town has to remove
or pay for removal of the wireless facility. Two acceptable alternatives
to a bond include a funds set-aside and a letter of credit.
I. Indemnify and hold Town harmless. Any provider who owns or operates
a communication facility or pole, tower or support structure in the
public way shall indemnify, protect, defend, and hold the Town and
its elected officials, officers, employees, agents, and volunteers
harmless against any and all claims, lawsuits, judgments, costs, liens,
losses, expenses, fees to include reasonable attorney fees and costs
of defense, proceedings, actions, demands, causes of action, liability
and suits of any kind and nature, including personal or bodily injury
or death, property damage or other harm for which recovery of damages
is sought, to the extent that it is caused by the negligence of the
operator who owns or operates small cell facilities and wireless service
in the public way, any agent, officer, director, representative, employee,
affiliate, or subcontractor of the operator, or their respective officers,
agents, employees, directors, or representatives while installing,
repairing, or maintaining facilities in a public way. Said provider
shall also hold the Town and/or its agent(s) harmless in the event
any action by the Town and/or its agent(s) negligently or recklessly
disrupts, destroys, and incapacitates small cell facility or wireless
support structure in the public way created under these Design Guidelines
and Standards.