[HISTORY: Adopted by the North Hempstead
Town Board 6-5-2001 by L.L. No.
6-2001; amended in its entirety 3-19-2019 by L.L. No. 8-2019.
Subsequent amendments noted where applicable.]
[Amended 11-19-2020 by L.L. No. 16-2020]
This chapter is enacted in order to assure access of our local
residents to telecommunications technologies while at the same time
maintaining the aesthetic qualities of our neighborhoods, scenic locales
and historic areas, managing the deployment and controlling the potential
proliferation of wireless telecommunications facilities, ensuring
meaningful input by the community into important land use decisions,
encouraging cooperation between telecommunications providers and resulting
in the fewest possible intrusions on traffic, streets and sidewalks.
This chapter is intended to minimize the aesthetic impacts of wireless
communications facilities by encouraging the exploration of alternatives
that use methods to disguise or camouflage the facilities, by minimizing
the height of the facilities, by encouraging co-location of facilities
and by locating facilities on existing structures whenever possible.
This chapter is not intended to prohibit or have the effect of prohibiting
the provision of personal wireless services, nor to discriminate among
providers of functionally equivalent services.
As used in this chapter, the following terms shall have the
meanings indicated:
Any wireless telecommunications facility which has not been
operational for six consecutive months.
A structure such as a storage shed or other type of enclosure
for equipment, equipment cabinets, support structures for equipment
or other appurtenances used in conjunction with the operation of a
wireless telecommunications facility as defined herein and located
on the same lot as, or in the general vicinity of, the wireless telecommunications
facility.
A system of electrical conductors that transmits or receives
radio frequency signals. Such signals shall include, but not be limited
to, those associated with cellular telephone, personal communication
services and microwave communications. For the purpose of this chapter
an antenna shall include any panels, boxes, dishes or other type of
enclosures which contain the actual transmitting or receiving devices.
A type of building permit issued by the Building Department in accordance with the requirements set forth in § 70-5 for the placement of wireless telecommunications facilities.
A person, firm, organization or company applying for either
an antenna location permit or a special permit under the provisions
of this section. An applicant must qualify as a wireless carrier/service
provider as defined herein.
A structure or equipment at a fixed location that enables FCC-licensed
or authorized wireless telecommunications between user equipment and
a communications network. The term does not encompass a tower as defined
herein or any equipment associated with a tower. "Base station" includes,
without limitation:
Equipment associated with wireless communications services such
as private, broadcast, and public safety services, as well as unlicensed
wireless services and fixed wireless services such as microwave backhaul.
Radio transceivers, antennas, coaxial or fiber-optic cable,
regular and backup power supplies, and comparable equipment, regardless
of technological configuration (including distributed antenna systems
and small cell networks).
Any structure other than a tower that, at the time the relevant
application is filed with the Town under this section, supports or
houses equipment defined as a "wireless telecommunications facility"
that has been reviewed and approved under the applicable zoning or
siting process, or under another state or local regulatory review
process.
The term does not include any structure that, at the time the
relevant application is filed with the Town under this chapter, does
not support or house equipment defined as a "wireless telecommunications
facility."
The Commissioner of the Building Department.
The Town of North Hempstead Department of Building Safety,
Inspection and Enforcement.
A method of disguising a wireless telecommunications facility
which makes it appear as part of the surroundings, either natural
or man-made.
A wireless telecommunications facility which is usually affixed
to a truck, trailer or other mobile base and is located temporarily
at a particular site.
The mounting or installation of wireless telecommunications
facilities on an eligible support structure for the purpose of transmitting
and/or receiving radio frequency signals for communications purposes.
A network of partially separated antenna nodes connected
to a tower, right-of-way structure or public utility structure via
a fiber system or other transport medium that provides wireless telecommunications
services within a limited geographic area or structure.
Any request for modification of an existing tower or existing
base station or an existing right-of-way structure that is not a substantial
change to the physical dimensions of such tower, base station or structure
and involves:
A request for the modification of an existing right-of-way structure
shall not be an eligible facility request unless the applicant has
obtained a right-of-way use agreement from the Town in compliance
with this chapter.
Any tower or base station as defined in this section, provided
that it is existing at the time the relevant application is filed
with Building Department under this chapter.
Computers, batteries, generators, transmission equipment
and cabinets, etc., which are utilized to power and/or operate a wireless
telecommunications facility.
The distance measured vertically from the average level of the curb of the lowest adjoining street or from the lowest point within a radius of 200 feet measured radially from the facility, whichever is lower, to the highest point on the building, structure, or freestanding wireless telecommunications facility as prescribed in Chapter 70 of the Code.
Any wireless telecommunications facility legally constructed,
erected and operated as of the date of adoption of this chapter, or
one erected under a special permit issued by the Town in accordance
with this chapter and for which any applicable permits have been acquired
from all appropriate government authorities.
A structure or use that does not conform to the regulations
of the district in which it is situated.
The Commissioner of the Planning Department.
The Town of North Hempstead Department of Planning and Environmental
Protection.
Any right-of-way owned or maintained by the Town of North
Hempstead.
Any company authorized (either by the New York State public
Service Commission, a municipality or other such authority) to provide
water, electric, gas or telephone services to the public.
Any structure erected for the purposes of providing a public
utility service, including, but not limited to, water towers, electric
transmission towers/poles and telephone poles, but not including a
right-of-way structure.
Any pole or other structure within the public right-of-way.
A wireless telecommunications facility that meets each of
the following conditions;
The structure on which wireless telecommunications facility
is mounted:
Each antenna (excluding associated antenna equipment) is no
more than three cubic feet in volume; and
All antenna equipment associated with the facility (excluding
antennas) are cumulatively no more than 28 cubic feet in volume; and
The facility does not require antenna structure registration
under applicable federal regulations; and
The facility does not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified in
47 CFR 1.1307(b).
One or more small cell facilities connected by a fiber to
a carrier switching system or other means of interconnection for provision
of wireless services within a limited geographic area or structure.
A permit for a use which is deemed allowable within a given
zoning district, but which is potentially incompatible with other
uses and is subject to special standards and conditions set forth
by the Town Board, consistent with § 274-b of the Town Law.
A method of installing/constructing wireless telecommunications
facilities which conceals, hides or camouflages their presence. Some
examples of stealth structures are man-made antenna supports which
resemble trees, flagpoles and light poles.
A modification to the physical dimensions of an eligible
support structure if it meets any of the following criteria:
The mounting of the proposed antenna on existing towers that
increases the existing height of the tower by more than 10%, or the
mounting of an additional antenna array with separation from the nearest
existing antenna exceeding 20 feet, whichever is greater;
The mounting of a proposed antenna would involve the installation
of more than the standard number of new equipment cabinets for the
technology involved, not to exceed four, or more than one new equipment
shelter;
The mounting of the proposed antenna would involve adding an
appurtenance to the body of existing towers, other than towers in
the public rights-of-way that would protrude from the edge of the
towers more than 20 feet, or more than the width of the tower structure
at the level of the appurtenance, whichever is greater;
The modification would involve excavation outside the current
existing tower or base station site, defined as the current boundaries
of the leased or owned property surrounding the existing tower or
base station and any access or utility easements currently related
to the site;
The modification defeats concealment elements of the support
structure; or
Any tower or base station as defined in this section which
does not exist, or is intended not to exist, for more than 180 days
and is located within the current boundaries of the leased or owned
property surrounding an existing permanent tower or base station.
[Added 12-15-2022 by L.L. No. 22-2022]
Any structure built for the sole or primary purpose of supporting
any FCC-licensed or authorized antenna(s) and their associated facilities,
including structures that are constructed for wireless communications
services, including, but not limited to, private, broadcast, and public
safety services, as well as unlicensed wireless services and fixed
wireless services such as microwave backhaul, and the associated site.
Street light poles, public utility and traffic light poles without
an attached approved wireless telecommunications facility or right-of-way
structures shall not be considered a tower.
Any company which is licensed by the FCC to operate wireless
telecommunications facilities.
Antenna(s) and associated equipment used to transmit and/or
receive audio, video, data and other information using radio frequency
energy and other electronic or electromagnetic systems. The antenna(s)
and equipment of each wireless carrier, including small cell and DAS
networks, shall be separately considered a wireless telecommunications
facility.
Any wireless telecommunications facility which is established,
installed, erected, constructed, reconstructed or significantly altered
subsequent to the date of adoption of this chapter must conform to
the provisions herein. The Building Department is authorized to review,
approve, approve with modifications or disapprove applications for
antenna location permits for wireless telecommunications facilities
as provided for herein. Those applications for a wireless telecommunications
facility that do not qualify for an antenna location permit will require
a special permit from the Town Board in accordance with this chapter.
The Town Board is authorized to review, approve, approve with modifications,
or disapprove all such applications for special permits for wireless
telecommunications facilities as provided for herein.
A.Â
Nothing in this chapter shall be construed to exempt an applicant from the site plan review requirements described in § 70-219 of the Town Code should any proposed work at a site meet the conditions described in Subsection A of that section; provided, however, that any application for a special permit in accordance with this chapter may be made simultaneously with an application for site plan review in accordance with § 70-219 of the Town Code.
B.Â
All incumbent wireless telecommunications facilities without a special permit shall be allowed to continue in their present usage as a noncompliant use and shall be treated as a noncompliant use provided that a certificate of existing use is obtained from the Building Department. Such certificate must be renewed in accordance with the provisions set forth in § 75-5C of this chapter. Routine maintenance shall be permitted on such existing wireless telecommunications facilities.
C.Â
All existing wireless telecommunications facilities which were constructed without obtaining the necessary permits and approvals and which do not qualify as incumbent wireless telecommunications facilities will be required to conform to the provisions of this chapter within one year following its adoption, or shall be considered in violation of this chapter and will be subject to the penalties specified in § 75-9 of this chapter.
Satellite dish antennas that are regulated separately by § 70-100.2J of the Town Code are exempt from the provisions of this chapter.
[Amended 11-19-2020 by L.L. No. 16-2020]
A.Â
Notwithstanding any other provisions in Chapter 75, an applicant seeking approval for deployment of wireless telecommunications facilities within the Town's right-of-way shall be required to first apply for a special permit as approved by the Town Board pursuant to § 75-6, a right-of-way use agreement as approved by the Town Board and an antenna location permit from the Building Department, together with all other ancillary permits associated therewith, such as street opening permits, electrical permits, and grading permits and the like. No antenna location permit shall be issued unless the Town Board approves the special permit and right-of-way use agreement. If approved, the special permit and right-of-way use agreement will authorize the issuance of antenna location permits, provided such construction, plans, drawings are compliant with all applicable construction-related laws, rules and regulations, and if all other required ancillary permits have been issued.
B.Â
No application
for the deployment of any wireless telecommunications facilities shall
be deemed complete until all required permit applications have been
applied for and determined by the Planning Department to be complete.
C.Â
All installations of wireless telecommunications facilities, whether or not the installation is a small cell facility, a small cell network or a DAS network, within the public right-of-way shall be subject to this § 75-4.1.
D.Â
No wireless telecommunications facility may be installed within the
public right-of-way unless all permits noted above shall have been
obtained and the applicant and the Town have executed a right-of-way
use agreement. All requests for Town Board issuance of a right-of-way
use agreement shall be subject to a public hearing.
E.Â
Any person or entity proposing to install wireless telecommunications
facilities within the public right-of-way shall apply to the Planning
Department to be granted a special permit and right-of-way use agreement
by the Town Board. The applicant shall also file completed applications
for antenna location permits and all other ancillary permits associated
therewith, such as street opening permits, electrical permits, and
grading permits and the like.
(1)Â
In addition to the applicable requirements of § 75-6, the application shall include:
(a)Â
The name, business address and telephone number of the applicant,
and the name of the applicant's authorized representative and the
representative's phone number and email address and the full names
and contact information for all related third parties on whose behalf
the applicant is acting, including contracting parties and co-locaters.
(b)Â
Drawings and before-and-after photo simulations showing the proposed design, appearance and installation of a wireless telecommunications facility within the public right-of-way, including pole-mounted antennas and equipment, aboveground cable installations, ground equipment and underground installations demonstrating compliance with § 75-7D of this chapter. The applicant shall also demonstrate that the proposed facilities comply with any applicable order issued by the Federal Communications Commission regulating deployment of 5G technology.
(c)Â
Elevations showing the height of all proposed antennas, equipment
and supporting structures (i.e., monopoles, towers, etc.) from ground
level. Dimensions of all antennas and equipment and the distances
of each from the top of any structures upon which they are located
shall also be shown.
(d)Â
A listing of those public rights-of-way within which the applicant
is applying to be permitted to install wireless telecommunications
facilities.
(e)Â
A full statement explaining in detail how each of the proposed facilities conform to the design requirements stated in § 75-7D below.
(f)Â
A statement indicating:
[1]Â
A location map to scale indicating the location of the proposed
facility or facilities;
[2]Â
The section, block and lot number(s) of the property on which
the proposed facility or facilities will be located;
[3]Â
Whether the applicant anticipates installing any new poles within
the public rights-of-way and if so, the approximate number and location
of the new poles;
[4]Â
Whether the applicant anticipates installing ground equipment
within the public right-of-way and, if so, the approximate number
and location of such equipment;
(g)Â
If applicable, a copy of an agreement between the applicant
and the owner of each proposed site which authorizes the use of the
site as a location for the proposed wireless telecommunications facility,
or, if the wireless telecommunications facility is to be located within
a public right-of-way or the right-of-way of another municipality,
an executed franchise agreement with the municipality owning or controlling
the right-of-way.
(h)Â
Certification by a radio frequency engineer that the proposed
small cell installation(s) addresses an existing and significant gap
in coverage in the service area, such certification to include a detailed
map of the "gap areas" and documentation of such gaps causing an inability
for a user to connect with the land-based national telephone network
or maintain a connection capable of supporting a reasonably uninterrupted
communication.
(i)Â
Documentation demonstrating potential alternative locations
for the location of the small cell installations in nonresidential
areas, including but not limited to changes to the proposed small
cell network.
(j)Â
A completed full environmental assessment form Part 1, together
with a visual assessment addendum and demonstrated compliance with
NEPA requirements as set forth by the FCC, unless exemption is claimed.
If exempt, the applicant must state the basis for such exemption and
provide proof, including all supporting documents, that each and every
exempt installation meets prescribed requirements.
(k)Â
A certificate of insurance naming the Town of North Hempstead
as an additional insured, in the types and amounts shown in the Town's
standard form right-of-way use agreement, and does not exclude coverage
for claims due to exposure to radio-frequency microwave radiation.
(l)Â
A copy of any Federal Communications Commission licenses and
approvals allowing the applicant to operate a wireless telecommunications
facility.
(m)Â
The application fee stated in the Town of North Hempstead Fee
Schedule.
(n)Â
Performance specifications and data that identify the maximum
and minimum amount or level of radio-frequency emissions that are
produced by the proposed equipment when it is in full operating mode,
and a monitoring plan for the applicant's equipment capable of tracking
and recording the daily amounts or levels of radio-frequency emissions
that are produced by the equipment in order to verify compliance with
applicable FCC regulations.
(2)Â
Upon receipt of an application, the Planning Commissioner shall notify
the councilmember or councilmembers representing the Town Council
district or districts in which the applied-for public rights-of-way
are located that an application has been filed. Upon review of the
application, the Planning Commissioner, or designee, shall determine
whether the application is complete or not sufficient to demonstrate
compliance with this chapter. If the application is not complete,
the Planning Commissioner shall so inform the applicant. The applicant
shall have 30 days after being informed that its application is incomplete
in order to provide the required additional documents and materials
to complete the application. If the required additional documents
and materials are not provided within 30 days of the Planning Commissioner's
notice, the application will be deemed abandoned and the applicant
will be required to reapply.
F.Â
If the Planning Commissioner deems the applicant's special permit
application complete, the Planning Commissioner shall request that
the Town Board set a date for a public hearing within 30 days to consider
the special permit application and right-of-way use agreement. The
Planning Commissioner shall inform the applicant of the date of the
hearing when the date is made known to the Planning Commissioner.
At least 10 days prior to the public hearing, the applicant shall
deliver, by certified mail, return receipt requested, and regular
mail, a notice to the owners (as shown on the property tax rolls maintained
by the Receiver of Taxes) of all properties within 350 feet of the
proposed location(s) within the public rights-of-way applied for in
the applicant's application. The notice shall be on the applicant's
letterhead and shall state that an application for a special permit
and right-of-way use agreement have been filed with the Planning Department,
a map showing the public rights-of-way applied for and the date, time
and location of the public hearing. The applicant shall, at least
five days before the date of the public hearing, submit to the Planning
Department an affidavit of mailing evidencing compliance with this
section.
G.Â
The Town Board may review any documentation or hear any testimony in favor of or in opposition to the application, and may adjourn the public hearing to any future date if deemed necessary by the Town Board. The applicant shall ensure that representatives of the applicant attend the public hearing to answer questions regarding the application either from representatives of the Town or members of the public. In the event that the application demonstrates compliance with applicable provisions of §§ 75-6 and 75-7D of this chapter and otherwise complies with the requirements for an application as stated in this section and otherwise complies with any other requirement stated in this chapter, the Town Board shall approve the special permit application and authorize the execution of a right-of-way use agreement.
H.Â
The granting of a special permit and issuance of a right-of-way use
agreement pursuant to this section shall not permit the applicant
to begin installation of wireless telecommunications facilities within
the public rights-of-way. Each individual installation shall also
require the issuance of an antenna location permit, as set forth in
75-4.1A, and all other required permits required to be issued by the
Town.
I.Â
Once a wireless telecommunications facility is installed within the
public right-of-way, the Building Commissioner may, at such times
as deemed necessary by the Building Commissioner, test any facility
for its compliance with the radiofrequency exposure limitations set
forth in 47 CFR 1.1307(b) and 1.1310.
(1)Â
In the event that such test finds that that the radiofrequency emissions
generated by a tested facility exceed those limitations set forth
in 47 CFR 1.1307(b) and 1.1310, the Building Commissioner shall:
(a)Â
In the case of a first test showing emissions in excess of those
permitted by 47 CFR 1.1307(b) and 1.1310 with regard to a specific
facility, order that the wireless telecommunications facility be modified
such that the facility is brought into compliance with 47 CFR 1.1307(b)
and 1.1310 and provide documentation showing such compliance; and
(b)Â
In the case of a subsequent test showing emissions in excess
of those permitted by 47 CFR 1.1307(b) and 1.1310, revoke the permit
for such wireless telecommunications facility and order that the wireless
telecommunication facility be removed at the owner's expense.
A.Â
Wireless telecommunications facility installations eligible for antenna
location permits. The Building Department is authorized to issue antenna
location permits for the following wireless telecommunications facilities,
provided that all of the requirements set forth herein are met.
(1)Â
Nonresidential zoning districts. Parking District (P), Transportation
District (T), Business AA District (B-AA), Business A District (B-A),
Business B District (B-B), Planned Industrial Park District (PIP),
Industrial A District (I-A), Industrial B (I-B), Modified Planned
Industrial Park District (MPIP):
(a)Â
Small cell facilities, small cell networks and DAS networks
upon an existing or new right-of-way structure within the public right-of-way,
provided that a special permit is granted by the Town Board and right-of-way
use agreement is executed by the Town and applicant.
[Amended 11-19-2020 by L.L. No. 16-2020]
(b)Â
An eligible facilities request, where such application does not result in a substantial change to the eligible support structure. If a substantial change is proposed, the application shall require a special permit pursuant to § 75-6 of this chapter.
(c)Â
New wireless telecommunications facilities on existing commercial or industrial buildings, provided that all applicable height, setback and design requirements as set forth in § 75-7 herein can be met. Any accessory structures, including, but not limited to, equipment, equipment cabinets, equipment sheds/shelters, etc., must also comply with the applicable standards set forth in § 75-7 herein.
(d)Â
Minor modifications to existing wireless telecommunications facilities, that do not result in substantial change as defined herein, if a substantial change is proposed, the application shall require a special permit pursuant to § 75-6 of this chapter.
(e)Â
Temporary support structures constructed for the temporary relocation of existing equipment to facilitate the repair and/or renovation of the existing permanent tower or base station. In addition to a permit for the temporary support structure, a separate antenna location permit shall be required for each wireless carrier/service provider relocating their equipment to the temporary support structure. The standards set forth in § 75-7 herein shall not apply to temporary support structures under this section or any equipment relocated to a temporary support structure.
[Added 12-15-2022 by L.L. No. 22-2022]
(2)Â
Residential Zoning Districts, Residence Open Space District (R-O-S),
Residence AAA District (R-AAA), Residence AA District (R-AA), Residence
A District (R-A), Residence B District (R-B), Residence C District
(R-C), Residence D District (R-D), Residence District Multiple (RM),
Residence District, Public Housing (RPH), Golden Age Residence District
(GAR), Senior Residence District (R-S):
(a)Â
Small cell facilities, small cell networks and DAS networks
upon an existing or new right-of-way structure within the public right-of-way,
provided that a special permit is granted by the Town Board and right-of-way
use agreement is executed by the Town and applicant.
[Amended 11-19-2020 by L.L. No. 16-2020]
(b)Â
An eligible facilities request of wireless telecommunications facilities, where such application does not result in a substantial change. If a substantial change is proposed, the application shall require a special permit pursuant to § 75-6 of this chapter.
(c)Â
Temporary support structures constructed for the temporary relocation of existing equipment to facilitate the repair and/or renovation of the existing permanent tower or base station. In addition to a permit for the temporary support structure, a separate antenna location permit shall be required for each wireless carrier/service provider relocating their equipment to the temporary support structure. The standards set forth in § 75-7 herein shall not apply to temporary support structures under this section or any equipment relocated to a temporary support structure.
[Added 12-15-2022 by L.L. No. 22-2022]
B.Â
Term and fees for antenna location permits. The fee for an antenna
location permit shall be in the amount indicated in the Town of North
Hempstead Fee Schedule, and the permit expires and must be renewed
every three years, except in the case of an antenna location permit
for a temporary support structure constructed for the temporary relocation
of existing equipment, which fee shall be listed in the Town of North
Hempstead Fee Schedule for temporary structures and which permit shall
expire after 180 days and may be renewed for up to a maximum of three
180-day extensions.
[Amended 12-15-2022 by L.L. No. 22-2022]
C.Â
Renewal of antenna location permits. At the expiration of its term, as set forth in Subsection B above, an application for renewal of the antenna location permit shall be filed with the Building Commissioner together with the fee stated in the Town of North Hempstead Fee Schedule and current certification by a licensed professional engineer or other qualified person that the wireless telecommunications facility is within the nonionizing electromagnetic radiation levels adopted by the FCC. The permit may be renewed upon a finding that the wireless facility and all associated equipment and support structures are structurally sound and comply with the provisions of the law.
[Amended 12-15-2022 by L.L. No. 22-2022]
D.Â
Antenna location permit application requirements. The Building Commissioner
is authorized to design appropriate application forms, if necessary,
to assist in the completion and evaluation of an application packet.
The following materials shall be submitted in triplicate to the Building
Commissioner, who shall certify that an application packet is complete
before an antenna location permit is issued:
(1)Â
Completed antenna location permit application form.
(2)Â
Name, address and telephone number of the applicant.
(3)Â
Name, address and telephone number of the owner of the property on
which the wireless telecommunications facility will be located.
(4)Â
Section, block and lot number(s) of the property on which the proposed
facility will be located.
(5)Â
A copy of an agreement between the applicant and the owner of the
site which authorizes the use of the site as a location for the proposed
wireless telecommunications facility, or, if the wireless telecommunications
facility is to be located within a public right-of-way or the right-of-way
of another municipality, an executed franchise agreement with the
municipality owning or controlling the right-of-way.
(6)Â
A location map to scale indicating the location of the proposed facility.
(7)Â
A site plan or plans to scale specifying the location of the proposed
facility on the property. All setbacks of the facility from front,
rear and side yards shall be shown. (If the facility is located upon
an existing structure, the setbacks of the existing structure from
front, rear and side yards shall be shown and the location of the
facility on the existing structure, including all dimensions, shall
be shown).
(8)Â
Elevations showing the height of all proposed antennas, equipment
and supporting structures (i.e., monopoles, towers, etc.) from ground
level. Dimensions of all antennas and equipment and the distances
of each from the top of any structures upon which they are located
shall also be shown.
(9)Â
Construction/engineering drawings to be reviewed by the Building
Commissioner to determine whether the proposed facility meets with
all applicable building, fire and safety codes and showing that the
facility includes appropriate deicing equipment.
(10)Â
A completed full environmental assessment form Part 1, together with
a visual assessment addendum.
(11)Â
A cash deposit or bond from a surety company that is both an admitted
carrier in the State of New York and has a Best's Rating of B- or
better, or a Best's rating of four or better.
(a)Â
The cash deposit or bond must be in an amount equal to 200%
of the estimated cost of removing any wireless telecommunications
facility, if it is abandoned, and of restoring the site, except that
this requirement may be waived for a cells on wheels.
(b)Â
In the event that a penalty is assessed pursuant to the provisions
of this chapter, the Building Commissioner or the Town Comptroller
may deduct the amount of such penalty from the cash deposit.
(c)Â
The applicant must maintain the required cash deposit or bond
at all times.
(12)Â
A certificate of insurance naming the Town of North Hempstead as
an additional insured.
(13)Â
A copy of any Federal Communications Commission licenses and approvals
allowing the applicant to operate a wireless telecommunications facility.
(14)Â
Certification by a licensed professional engineer or other qualified
person that the proposed facility will not cause interference with
existing communication devices and that electromagnetic radiation
levels at the proposed site are within any threshold levels that have
been adopted by the Federal Communications Commission.[1]
[1]
Editor's Note: Former Subsection D(15), regarding a listing
of addresses to which the applicant would be required to submit a
notice of application, which immediately followed, was repealed 11-19-2020 by L.L. No.
16-2020.
E.Â
Review of applications for antenna location permits. Upon receipt
of a complete application for an antenna location permit, the Building
Commissioner or his or her designee shall review such application
to determine whether the application so qualifies for an antenna location
permit as defined in this chapter. If determined to be eligible for
an antenna location permit, such application shall be approved or
denied within the following time frames, unless such time periods
are lawfully extended:
[Amended 11-19-2020 by L.L. No. 16-2020[2]]
(1)Â
Installation of a small cell facility on an existing right-of-way
structure: 60 days.
(2)Â
Installation of any other wireless telecommunications facility on
an existing support structure: 90 days.
(3)Â
Installation of a small cell facility on a new right-of-way structure:
90 days, unless it has been determined that the application creates
a substantial change or otherwise does not meet the criteria of an
eligible facilities request, in which case other applicable provisions
of this chapter apply, and further provided that the above time periods
may be tolled if the Building Commissioner or his or her designee
finds that the application is incomplete or if the Building Commissioner
or his or her designee finds that additional information is needed
to evaluate the application within 10 days of its submission. Once
an eligible facilities request application has been approved, the
Building Inspector shall issue the antenna location permit and a building
permit.
[2]
Editor's Note: This local law also repealed former Subsection
E, regarding notice to property owners.
[Amended 11-19-2020 by L.L. No. 16-2020]
A.Â
Wireless telecommunications facility installations eligible for a special permit. Subject to the provisions of this section, the Town Board is authorized to review and approve, or approve with modifications, applications for special permits for all wireless telecommunications facility installations pursuant to § 75-4.1 and those not eligible for an antenna location permit as provided for in § 75-5 above.
B.Â
Priority list. Except as provided in § 75-4.1, the following is a list of priorities [in order of preference, with Subsection B(1) being the most preferred] for the placement of wireless telecommunications facilities which do not qualify for an antenna location permit as provided for in § 75-5 above:
(1)Â
New wireless telecommunications facilities (including cells on wheels)
in the Industrial A (I-A), Industrial B (I-B), Planned Industrial
Park (PIP), Modified Planned Industrial Park (MPIP) and Transportation
(T) Zoning Districts which:
(a)Â
Are designed or located so that the visual impact of the facility
is minimized either by:
[1]Â
Utilizing some type of stealth technology to camouflage their
appearance as wireless telecommunications facilities; or
[2]Â
By being located on a portion of the site where they are not
visible from any residential area, public roadway, public property,
site of historical significance or scenic area; and
(b)Â
Are located more than 200 feet from the nearest property line
of a residential site or the nearest boundary line of a residential
zoning district (whichever is closer); and
(c)Â
Are located more than 200 feet from the nearest property line
or boundary of any park, scenic area, site of historical significance;
and
(d)Â
Are located more than 200 feet from the nearest property line
of a school.
(3)Â
New wireless telecommunications facilities (including cells on wheels)
in the Industrial A (I-A), Industrial B(I-B), Planned Industrial Park
(PIP) and Modified Planned Industrial Park (MPIP) Zoning Districts
which:
(6)Â
All other wireless telecommunications facilities and structures.
C.Â
Special permit application fees. The application fee for such a special
permit shall be in the amount indicated in the Town of North Hempstead
Fee Schedule.
D.Â
Special permit application requirements, including pursuant to § 75-4.1. The Building Commissioner and the Planning Commissioner are authorized to design appropriate application forms, if necessary, to assist in the completion and evaluation of an application packet. These application requirements shall apply to all special permit applications. The following materials shall be submitted to the Building Commissioner, or if pursuant to § 75-4.1 to the Planning Commissioner, who shall certify that an application packet is complete before forwarding it to the Town Board for review:
(3)Â
A definition of the area of service to be served by any proposed
wireless telecommunications facility and information showing how any
proposed wireless telecommunications facility would provide needed
coverage or capacity.
(4)Â
A description of the technological requirements for the proposed
site (i.e., height requirements, coverage requirements, etc.).
(5)Â
Total anticipated capacity of any proposed freestanding wireless
telecommunications facility such as a monopole or tower.
(6)Â
A list and description of all existing telecommunications facilities
within the described service area (search ring), including the name
of the owners of each site and the names of all wireless carriers
operating facilities at the site.
(7)Â
A "Zone of Visibility Map" or photo simulations in order to determine
locations where the wireless telecommunications facility and supporting
structure(s) may be seen, including "before" and "after" views, from
key viewpoints. These key viewpoints will include, but not be limited
to, any historic site or historic district or any staffed Town of
North Hempstead park facility, within one mile of a proposed wireless
telecommunications facility (to be measured from the outer limits
of the structure supporting the proposed facility, i.e., towers, buildings,
etc.).
(8)Â
Where excavation or disturbance of land is required as part of the
installation of any wireless telecommunications facility, a utilities
inventory showing locations of all affected water lines, sewage lines
or power lines must be provided by the applicant.
(9)Â
A landscape plan demonstrating how the proposed facility will be
screened.
E.Â
Review of alternatives.
(1)Â
Every applicant for a special permit must establish:
(a)Â
That no existing site (i.e., a co-located site which would qualify for an antenna location permit), a site listed higher on the priority list (§ 75-6B herein) or a site located within the Northern State Parkway or Long Island Expressway transportation corridor would satisfy the needs of the applicant for either technological, legal, economic or other reasons; or
(b)Â
That the owner(s) of an existing site(s) would not allow for
the co-location of a wireless telecommunications facility by the applicant.
The applicant must prove that a reasonable effort was made to negotiate
with the owners of such facilities, such proof to include, but not
be limited to, copies of all letters, proposals, documents, etc.,
which were sent to or received by the owner(s) of an existing wireless
telecommunications facility (or structures containing existing facilities)
regarding permission to co-locate on such facilities; or
(c)Â
In the case of deployment of new support structures or poles
within the Town's rights-of-way, that establishes:
[1]Â
The proposed small wireless facility cannot be located on an
existing utility pole, light pole, electrical transmission tower or
on a site outside of the public rights-of-way such as a public park,
public property, parking lot pole or in or on a nonresidential use
in a residential zone, whether by roof or panel mount or separate
structure; and
[2]Â
The proposed small wireless facility is properly concealed,
to the extent practicable;
[3]Â
The location of the small wireless facility is physically possible,
does not obstruct vehicular or pedestrian traffic or the clear zone,
complies with ADA and Town construction and sidewalk clearance standards
and state and federal regulations in order to provide a clear and
safe passage within the rights-of-way, does not interfere with utility
or safety fixtures (e.g., fire hydrants, traffic control devices),
and does not adversely affect the public welfare, health or safety.
[4]Â
The design should seek to minimize the visual obtrusiveness
of small wireless installations. For small wireless facilities, the
proposed utility pole or structure should have similar designs to
existing neighboring poles in the public rights-of-way, including,
to the extent technically feasible, similar height, and if neighboring
poles are decorative, they shall mimic the design of the decorative
poles. Other concealment methods include, but are not limited to,
integrating the installation with architectural features or building
design components, utilization of coverings or concealment devices
of similar material, color and texture, or the appearance thereof,
as the surface against which the installation will be seen or on which
it will be installed, landscape design, or other camouflage strategies
appropriate for the type of installation. Applicants are required
to utilize designs in which all wire lines and conduit are installed
internally in the structure. If evaluating concealment strategies
for ground-mounted equipment, the applicant is encouraged to use concealment
techniques such as benches, kiosks, trash cans, planters, and other
items which may be considered public amenities.
(2)Â
In order to establish the facts listed in Subsection E(1) above, the applicant shall present an evaluation of at least three alternatives comparing the characteristics of each of the sites with the requirements of the proposed facility and demonstrating why the alternative sites, including sites within the Town's right-of-way, would result in a significant gap in coverage and that the applicant's solution is the least intrusive means to filling this gap. Reasons supporting such a determination could include, but not be limited to, the following:
(a)Â
Existing structures and/or towers are not of sufficient height
to meet the applicant's engineering requirements within the geographic
service area described.
(b)Â
Existing structures and/or towers do not have sufficient structural
strength to support the applicant's antennas and equipment.
(c)Â
The applicant's proposed antenna or antennas would cause electromagnetic
interference with the antenna or antennas of the existing wireless
telecommunications facilities.
(d)Â
The cost or contractual provisions required by the owner of
an existing wireless telecommunications facility site, or to adapt
an existing wireless telecommunications facility site for sharing,
would exceed the cost of erecting a new site.
(e)Â
For
deployment of small wireless facilities in the Town's right-of-way,
detailed documentation establishing potential alternate configurations
of the proposed antenna and pole locations, including but not limited
to different pole heights and reduced number of antennas and poles,
the intent being to reduce or otherwise limit the number of antennas
and new or replacement poles while ensuring the adequacy of cellular
coverage.
F.Â
Review of special permit applications by the Town Board.
(1)Â
The
Town Board may issue a special permit, provided that it shall have
determined that all of the applicable requirements in this chapter
have been satisfied and that the applicant has sufficiently established
that denial of the application would prohibit, effectively prohibit,
materially limit or materially inhibit the deployment of wireless
telecommunications facilities.
(2)Â
In addition,
required findings by the Town Board for issuance of a special permit
for deployment of small cell facilities on existing facilities, new
poles and other associated facilities within the Town's right-of-way,
the applicant shall have demonstrated that:
(a)Â
The proposed project meets the definition of a small cell facility,
as may be amended from time to time.
(b)Â
The small cell facilities are necessary in order to provide
adequate service to the public, having considered reasonable alternatives
to the location or locations of the small cell facilities network.
(c)Â
The proposed project complies with all applicable requirements prescribed in § 75-4.1, unless the application of such requirements to the proposed small cell facilities would result in an effective prohibition of service.
(d)Â
The small cell facilities will be in harmony with the general
purpose of this chapter.
(e)Â
The small cell facilities will be compatible with existing uses
adjacent to and near the property to the greatest extent possible,
including consistency with the design elements.
(f)Â
The small cell facilities will not create a hazard to health,
safety or general welfare and there will be no nuisance or serious
hazard to vehicles or pedestrians.
(g)Â
The applicant has demonstrated that the proposed project will
comply with all applicable health and safety regulations, which include,
without limitation, the Americans with Disabilities Act and all FCC
regulations relating to RF emissions.
(3)Â
In granting a special permit, the Town Board may impose additional
conditions necessary to buffer or otherwise minimize adverse effects
of the proposed tower or antenna on surrounding properties. The Town
Board may also reduce or waive conditions described in this chapter,
but only upon finding that the goals and stated intent of this chapter
are better served and that doing so will have no detrimental effect
on adjacent properties or on the public health, safety and welfare.
(4)Â
All property owners within 200 feet or three times the height of any proposed tower or other wireless telecommunications facility, whichever is greater, shall receive notice by registered mail of any hearing scheduled by the Town Board regarding a special permit. This notice shall be sent in the same manner as described in § 70-225 of the Town Code. The cost of this notice shall be borne by the applicant.
(5)Â
The Town Board is authorized to hire any consultants and/or experts
necessary to assist in reviewing and evaluating the application. The
applicant shall reimburse the Town of North Hempstead for all costs
and expenses incurred for such evaluation and consultation. Notice
of the hiring of a consultant/expert shall be given to the applicant
prior thereto. Failure to reimburse the Town of North Hempstead within
a reasonable period of time may constitute sufficient grounds for
the disapproval or revocation of a special permit.
G.Â
Standard
conditions of approval for special permits. In addition to any other
conditions of approval permitted under federal and state law and this
code that the Town Board deems appropriate or required under this
code, all small cell wireless facility permits under this subsection
shall include the following conditions of approval:
(1)Â
As-built plans. The applicant shall submit to the Planning Director
an as-built set of plans and photographs depicting the entire small
cell wireless facilities, including all transmission equipment and
all utilities, within 90 days after the completion of construction.
(2)Â
Indemnification. To the fullest extent permitted by law, the applicant
and any successors and assigns, shall defend, indemnify and hold harmless
the Town, its elected and appointed officials, employees, and agents
from and against any liability, claims, suits, actions, arbitration
proceedings, regulatory proceedings, losses, expenses or costs of
any kind, whether actual, alleged or threatened, including, but not
limited to, actual attorney fees, litigation expenses and court costs
of any kind, without restriction or limitation, incurred in relation
to, as a consequence of, arising out of or in any way attributable
to, actually, allegedly or impliedly, in whole or in part, the small
wireless facility permit and the issuance of any permit or entitlement
in connection therewith. The applicant shall pay such obligations
as they are incurred by the Town, its employees, agents and officials,
and in the event of any claim or lawsuit, shall submit a deposit in
such amount as the Town reasonably determines necessary to protect
the Town from exposure to fees, costs or liability with respect to
such claim or lawsuit.
(3)Â
Compliance with applicable laws. The applicant shall comply with
all applicable provisions of this code, any permit issued under this
code, and all other applicable federal, state, and local laws. Any
failure by the Town to enforce compliance with any applicable laws
shall not relieve any applicant of its obligations under this code,
any permit issued under this code, or all other applicable laws and
regulations.
(4)Â
Compliance with approved plans. The proposed project shall be built
in compliance with the approved plans on file.
H.Â
Term and renewal of special permits. The special permit has an initial
term of three years. At the expiration of its three-year term, an
application for renewal of the special permit may be filed with the
Commissioner of Building and Safety Inspection and Enforcement, together
with a fee in the amount indicated in the Town of North Hempstead
Fee Schedule and current certification by a licensed professional
engineer or other qualified person that the wireless telecommunications
facility is within the nonionizing electromagnetic radiation levels
adopted by the FCC. The permit may be renewed upon a finding that
the wireless facility is structurally sound and complies with the
provisions of the law and has not been changed or otherwise modified
since the issuance of the special permit, unless authorized in the
special permit.
Other than as stated in Subsection D, The following requirements
must be met for all proposed wireless telecommunications facilities:
A.Â
Height.
(1)Â
No antenna or any other transmitting or receiving device used in
conjunction with a wireless telecommunications facility may extend
more than 20 feet above the top of the structure upon which it is
placed. This height shall be measured from the bottom of the antenna
assembly (including any masts, supports, etc., used to affix an antenna
to a building or other structure) to the top.
(2)Â
The height of any proposed freestanding wireless telecommunications
facility shall be the minimum necessary in order to meet the service
needs of the wireless carrier (applicant), unless the support structure,
i.e., monopole, tower, etc., is being constructed in order to allow
co-location by other wireless carriers. In such cases, the height
of the facility shall be the minimum necessary in order to meet the
needs of the applicant together with the anticipated needs of the
additional carriers being accommodated for at the site. However, the
antennas and/or transmitting/receiving devices belonging to an applicant
for a proposed freestanding wireless telecommunications facility must
be located at the highest available position on the support structure.
Co-location and/or the ability to co-locate may be provided for at
lower heights on the support structure.
(3)Â
The height of any accessory structure used in conjunction with the
operation of a wireless telecommunications facility, including but
not limited to equipment sheds and shelters, shall not exceed 12 feet.
Equipment located on the roof of a building shall not exceed the maximum
height of the highest point of the building (including, but not limited
to, penthouses, parapets, staircase enclosures, etc.).
B.Â
Setbacks and placement.
(1)Â
Where possible, antennas placed on buildings shall be flush mounted
to the facade of the building or to existing structures on the roof
of the building (i.e., penthouses, staircase enclosures, etc.) in
order to minimize their obtrusiveness and to reduce visual impacts.
In no case shall this requirement supersede any building and safety
code requirements or any other requirements set forth herein.
(2)Â
All freestanding wireless telecommunications facilities shall be set back from any public roadways a distance equal to the height of the tower, except as provided in § 75-4.1.
[Amended 11-19-2020 by L.L. No. 16-2020]
(3)Â
Except as provided in § 75-4.1, all freestanding wireless telecommunications facilities and accessory structures (including equipment sheds, shelters, etc.) must satisfy the setback requirements in any zoning district (except that in industrial zoning districts a freestanding wireless telecommunications facility may encroach into the rear yard setback if it can be demonstrated that by doing so, the visibility of the structure will be reduced).
[Amended 11-19-2020 by L.L. No. 16-2020]
(4)Â
Except as provided in § 75-4.1, all freestanding wireless telecommunications facilities and accessory structures must be located a minimum of 200 feet from the nearest property line of a residential site or the nearest boundary line of a residential zoning district (whichever is closer).
[Amended 11-19-2020 by L.L. No. 16-2020]
(5)Â
Except as provided in § 75-4.1, all freestanding wireless telecommunications facilities must be located a minimum of 200 feet from the nearest property line or boundary of any park, scenic area, environmentally sensitive site/area or site of historical significance (with the exception of antennas and equipment which are entirely concealed within an existing historical structure and which do not affect the integrity of the structure or otherwise compromise its historical significance).
[Amended 11-19-2020 by L.L. No. 16-2020]
C.Â
Design, screening and camouflaging.
(1)Â
If an antenna is installed on a structure other than a tower, the
antenna and supporting electrical equipment, mechanical equipment
and visible accessory structures must be of a neutral color and similar
material that is identical to, or closely compatible with, the color
and material of the supporting structure so as to make the antenna
and other equipment as visually unobtrusive as possible.
(2)Â
Where feasible, concealment of antennas within existing structures
should be used to reduce visual impacts.
(3)Â
Where feasible, the use of stealth technology or stealth structures
shall be utilized to minimize the visual impacts of freestanding wireless
telecommunications facilities.
(4)Â
All new freestanding wireless telecommunications facilities must
be designed to allow co-location by one or more additional wireless
carriers unless this requirement would result in construction of a
freestanding wireless facility to a height greater than that required
by the applicant.
(5)Â
All accessory structures, such as equipment, equipment cabinets,
etc., used in conjunction with a wireless telecommunications facility
which is located on a building, must be located either on the roof
of the building or within the building.
(6)Â
All equipment, equipment cabinets, etc., used in conjunction with
the operation of either a new freestanding wireless facility, a co-located
wireless telecommunications facility on an existing freestanding structure
or a wireless telecommunications facility on a public utility structure
shall be enclosed in an equipment shed or shelter.
(7)Â
Existing on-site vegetation shall be preserved or improved, and disturbance
of the existing topography shall be minimized, unless such disturbance
would result in less visual impact of the site to the surrounding
area.
(8)Â
Landscaping must be used to screen all new freestanding wireless telecommunications facilities and a landscape plan must be submitted with any applications to erect freestanding wireless telecommunications facilities in accordance with § 75-6D(9) herein.
(9)Â
All new freestanding wireless telecommunications facilities and associated
accessory structures shall be enclosed by fencing not less than six
feet in height and shall also be equipped with appropriate anticlimbing
devices. Fencing shall be of chain link, wood or other approved alternative.
(10)Â
Wireless telecommunications facilities shall not be artificially
lighted, unless required by the Federal Aviation Administration or
other applicable authority.
(11)Â
No signage or other identifying markings of a commercial nature shall
be permitted upon any tower or alternative tower structure.
D.Â
Design elements for wireless telecommunications facilities within
public rights-of-way. The public right-of-way in the Town is a uniquely
valuable public resource, closely linked with the Town's natural beauty,
including the beach and coastline, and a significant number of residential
communities. The reasonably regulated and orderly deployment of wireless
telecommunications facilities in the public right-of-way is desirable,
and unregulated or disorderly deployment represents an ever-increasing
and threat to the health, welfare and safety of the community. The
Town recognizes its responsibilities under the Federal Telecommunications
Act of 1996 and state law and believes that it is acting consistent
with the current state of the law in ensuring that irreversible development
activity does not occur that would harm the public health, safety,
or welfare. The Town does not intend that this subsection prohibit
or have the effect of prohibiting telecommunications service or materially
limit or materially inhibit the deployment of wireless telecommunications
facilities; rather, but includes appropriate regulations to ensure
that the installation, augmentation and relocation of wireless telecommunications
facilities in the public rights-of-way are conducted in such a manner
as to lawfully balance the legal rights of applicants under the Federal
Telecommunications Act and the New York Transportation Corporations
Law while, at the same time, protect to the full extent feasible against
the safety and land use concerns described herein.
[Amended 11-19-2020 by L.L. No. 16-2020]
(1)Â
Basic requirements.
(a)Â
Wireless telecommunications facilities located in the public right-of-way are subject to the design and development standards set forth in this Subsection D in addition to all design and development standards that apply to all wireless telecommunications facilities.
(b)Â
Right-of-way authority. A right-of-way use agreement must be
obtained for installation of a wireless telecommunications facility
within the public right-of-way. Only applicants authorized to enter
the public right-of-way pursuant to such an agreement shall be eligible
for a permit to install or modify a wireless telecommunications facility
in the public right-of-way.
(c)Â
All wireless telecommunications facilities shall be constructed
in compliance with the Americans with Disabilities Act.
(d)Â
Any electricity required for the wireless telecommunications
facility shall be supplied through a separate meter. All charges for
electricity shall be the sole responsibility of the facility installer
or owner.
(e)Â
The requirements of this Subsection D may be varied at the request of the Town, with the consent of the applicant applying to install a wireless telecommunications facility, in order to best implement the purposes of this chapter.
(f)Â
Where feasible, the use of stealth technology or stealth structures
shall be utilized to minimize the visual impacts of freestanding wireless
telecommunications facilities.
(g)Â
Wireless telecommunications facilities shall not be artificially
lighted, unless required by the Federal Aviation Administration or
other applicable authority.
(h)Â
No signage or other identifying markings of a commercial nature
shall be permitted upon any tower or alternative tower structure.
(i)Â
No lighting shall be placed on wireless telecommunications facilities
located in the right-of-way.
(j)Â
All proposed installations on existing utility poles, streetlights,
traffic signals, electric, gas, and other utility structures, and
other similar facilities located within the public right-of-way shall
use the design techniques set forth in this section to minimize visual
impacts to the public right-of-way. Antennas and pole-mounted equipment
shall be screened, concealed or disguised with shrouding matching
the appearance of the existing structure or be integrated into the
structure of the proposed facility so as to be hidden from view. Screening/concealing
equipment shall be of minimal functional size necessary to achieve
concealment objectives under this subsection. Cabling and conduit
shall be hidden from view by integrating such cabling or conduit into
existing equipment where technically feasible, and visible spooling
of cable shall be prohibited.
(k)Â
All cables or wiring associated with a facility shall be concealed
within a sleeve between the bottom of the antenna and the mounting
bracket.
(l)Â
All pole-mounted equipment and antennas shall be painted to
match the color of the pole or other type of support structure to
which it is attached.
(m)Â
All small cell wireless facilities shall include signage that
accurately identifies the facility's owner/operator, the site name
or identification number, and a phone number to the owner/operator's
network operations center. No other signage except that required by
law or recommended by FCC, OSHA or other federal government agency
for compliance with radio-frequency emissions regulations shall be
allowed on any small cell wireless facility.
(n)Â
All nonantenna equipment, including equipment which is susceptible
to being installed in an equipment cabinet, shall be installed underground
unless the installation of such equipment underground is not technically
feasible. This undergrounding requirement shall not apply to cabling
and conduit necessary to mount the antenna of a small wireless facility
on a new or existing pole, nor apply to nonantenna equipment concealed
from public view by being structurally integrated into the construction
of a new or existing pole for any utility.
(o)Â
All vents, exhausts and similar features for undergrounded equipment
shall be flush to grade to the maximum extent feasible.
(p)Â
In no case shall a small wireless facility block any public
sidewalk or functionally impede an accessible path of travel.
(q)Â
All disturbed or damaged pavement and/or landscaping within
or adjacent to the public right-of-way shall be replaced, and areas
of bare or disturbed soils must be revegetated upon completion of
an installation.
(r)Â
Landscaping shall be required to provide screening to minimize
visual impacts where site conditions allow for installation of new
landscaping. Landscaping shall not be required where installation
shall be entirely on existing paved surfaces. New landscaping shall
be drought-tolerant and designed and installed to be natural in appearance.
(s)Â
No wireless facility shall create unnecessary noise in excess
of the decibel limits in the Town's Noise Ordinance[1] that negatively impacts on nearby residential properties.
For projects proposed adjacent to residential uses when generators,
air-conditioning units, or other noise-generating devices are utilized,
a noise report shall be provided.
(2)Â
Antennas and equipment.
(a)Â
Utility poles. The maximum height of any antenna mounted to
a right-of-way structure that is a utility pole shall not exceed 24
inches above the height of the right-of-way structure, nor shall any
portion of the antenna or equipment mounted on such a pole be less
than 12 feet above any drivable road surface.
(b)Â
Streetlight poles. The maximum height of any antenna mounted
to a right-of-way structure that is a streetlight pole shall not exceed
seven feet above the existing height of the streetlight pole within
a business or industrial zoning district and shall not exceed 24 inches
above the existing height of the streetlight pole in any other zoning
district. Any portion of the antenna or equipment mounted on such
a pole shall be no less than 12 feet above any drivable road surface.
Notwithstanding the above, any pole that contains a streetlight and
other connected utilities shall be deemed a utility pole.
(c)Â
Antennas and other equipment shall be shaded in a color consistent
with the shading of other structures or vegetation in the vicinity
of the installation such that the installation is integrated into
the surrounding environment.
(d)Â
With the exception of electric meters, which shall be pole mounted,
and other pole-mounted equipment, all accessory equipment shall be
located underground to the extent feasible. When aboveground is the
only feasible location for a particular type of accessory equipment
and when such accessory equipment cannot be pole mounted, such accessory
equipment shall be enclosed within a structure, and shall not exceed
a height of five feet and a total footprint of 15 square feet, and
shall be screened and camouflaged to the fullest extent possible,
including the use of landscaping or alternate screening.
(e)Â
Pole-mounted equipment shall not exceed six cubic feet in dimension.
The total square footage for all equipment associated with the small
cell facility (excluding the antenna) shall be no more than 28 cubic
feet in volume.
(3)Â
Poles.
(a)Â
Wireless telecommunications facilities within the public rights-of-way
may only be attached to existing right-of-way structures. Only pole-mounted
wireless telecommunications facilities shall be permitted in the public
right-of-way. Mounting to other structures shall be prohibited.
(c)Â
Requirements for new poles.
[1]Â
All poles shall be designed to be the minimum functional height
and width required to support the proposed antenna installation and
meet FCC requirements. Poles and antennas and similar structures shall
be no greater in diameter or other cross-sectional dimensions than
is necessary for the proper functioning of the facility.
[2]Â
Notwithstanding the above, no new pole shall be greater in height
and width than the highest and widest of the existing poles within
1,500 feet of the new pole.
[3]Â
No new pole may be located greater than 12 inches from the boundary
of the paved portion of the public right-of-way, whether or not the
boundary is formed by a curb.
[4]Â
No new pole may be located within 90 feet of an existing pole.
[5]Â
No new pole may be constructed in a location that would cause
the public right-of-way to no longer be accessible in compliance with
the Americans with Disabilities Act.
[6]Â
No new pole shall be installed adjacent to the frontage of any
property within a residential district, except:
[7]Â
If the new pole replaces an existing pole, the pole shall match
the appearance of the original pole to the extent feasible, unless
another design better accomplishes the objectives of this section
in the reasonable judgment of the Town Board.
(4)Â
Location.
(a)Â
Each component part of a wireless telecommunications facility
shall be located so as not to cause any physical or visual obstruction
to pedestrian or vehicular traffic, inconvenience to the public's
use of the right-of-way, or safety hazards to pedestrians and motorists.
(b)Â
No ground-mounted equipment cabinet shall be installed adjacent
to the frontage of any residential property within a residential district.
For purposes of this subsection, the term "frontage" shall mean the
area adjacent to the front property line of a residential property
that faces the main entrance of a residential structure on the residential
property.
(c)Â
A wireless telecommunications facility shall not be located
within any portion of the public right-of-way interfering with access
to fire hydrants, fire stations, fire escapes, water valves, underground
vaults, valve housing structures, or any other public health and safety
facility.
(d)Â
Each wireless telecommunications facility must be separated
by at least 1,500 feet, unless the applicant establishes that such
requirement would prohibit, effectively prohibit, or materially limit
or materially inhibit the deployment of wireless telecommunications
facilities.
(e)Â
No wireless telecommunications facility shall be located within
350 feet of a boundary line of a lot containing a school.
(f)Â
All cables, including, but not limited to, electrical and utility
cables, between the pole and any accessory equipment shall be placed
underground, if feasible.
(g)Â
New small cell facilities shall not be located in the historic
district unless the applicant demonstrates to the Town Board's satisfaction
that the selected site is necessary to provide adequate service.
A.Â
If it has been determined that a wireless telecommunications facility
is abandoned or has become unsafe or that there have been recurring,
repeated or continuing violations of any of the provisions of this
chapter, the Commissioner of Building and Safety Inspection and Enforcement
may revoke an antenna location permit or the Town Board may revoke
a special permit.
B.Â
Upon written notice to the former holder of the revoked permit, the
wireless communications facility shall be removed.
A.Â
Any person who attempts to erect, erects or substantially modifies
a wireless telecommunications facility without having first obtained
the necessary permits or permissions described in this chapter shall
be deemed in violation of this chapter. Any responsible party or other
persons convicted by a court of competent jurisdiction of violating
any provision of this chapter shall be punished by a fine not to exceed
$10,000 or by imprisonment not to exceed 30 days, or both. The court
shall have the power and authority to place any person guilty of violation
of this chapter on probation and to suspend or modify any fine or
sentence. As a condition of such suspension, the court may require
payment of restitution or impose other punishment allowed by law.
B.Â
If any structure is erected, constructed, reconstructed, altered,
repaired, converted or maintained in violation of this chapter or
without obtaining any required permits or permissions, or if any building,
structure or land is used in violation of this chapter, the Town Attorney,
in addition to any other remedies, may institute proceedings to prevent
such unlawful violation or to correct or abate such violations. Each
and every day such violation continues may be deemed a separate offense.
A.Â
If any section, subsection, sentence, clause, phrase or portion of
this chapter is for any reason held invalid or unconstitutional by
any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision and such holding shall
not affect the validity of the remaining portions hereof.
B.Â
This chapter supersedes all ordinances and local laws or parts thereof
adopted prior hereto which are in conflict herewith, to the extent
of such conflict.
