The Telecommunications Act of 1996 affirmed the authority of
the Board of Trustees of the Incorporated Village of Lloyd Harbor
concerning the placement, construction, and modification of wireless
telecommunications facilities. The Board of Trustees recognizes that
wireless telecommunications facilities may pose significant concerns
to the safety, public welfare, character and environment of the Village
and its residents. The Board of Trustees also recognizes that facilitating
the development of wireless service technology can be of significant
benefit to residents of the Village. In order to ensure that the placement,
construction, or modification of wireless telecommunications facilities
is consistent with the Village's land use policies, the Board of Trustees
is adopting a single, comprehensive, wireless telecommunications facilities
application and permitting process. The intent of this article is
to minimize impact of wireless telecommunications facilities, establish
a fair and efficient process for review and approval of applications,
assure an integrated and comprehensive review of environmental impacts
of such facilities, and protect the safety and welfare of the Village
and its residents.
This article is enacted pursuant to Municipal Home Rule and
applicable authority granted expressly or otherwise by state and federal
law.
This article shall be known and cited as the "Wireless Telecommunications
Facilities Siting Law for the Village of Lloyd Harbor."
For purposes of this article, and where not otherwise rendered
inconsistent as a result of any particular section, the defined terms,
phrases, words, abbreviations, and their derivations shall have the
meaning given in this section.
ACCESSORY FACILITY or ACCESSORY 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.
ADMINISTRATIVE APPROVALS
Granting, denying, or revoking of a special use permit under this article, by the Village Clerk, after notification to the Board, where the proposed facility meets the requirements of this article and that does not require a public hearing as defined by §
205-45.17.
ANTENNA
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
APPLICANT
Any person 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, together with applicable fee(s).
BOARD
The Board of Trustees of the Incorporated Village of Lloyd
Harbor.
CO-LOCATION
The use of an existing tower or structure used as an existing
cell antenna site to support antenna(s) for the provision of wireless
services pursuant to a building permit or special use permit from
the Village. A replacement tower 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 reasonably 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 render 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 required 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 is designed to provide
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 pre-existing grade level to the highest point on the tower
or structure, even if said highest point is an antenna or lightening
protection device.
INFORMATION SERVICES
The offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available
information via telecommunications, and includes electronic publishing,
but does not include any use of any such capability for the management,
control, or operation of a telecommunications system or the management
of a telecommunications service, and shall include mobile broadband
access or other broadband services not included in 47 U.S.C. § 332(c).
MODIFICATION or MODIFY
The addition, removal, or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changes to the color or materials of any visually discernable
components, vehicular access, parking, and/or any upgrade or changeout
of equipment for better or more modern equipment. The term shall additionally
include the adding of 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 component of a wireless facility where the component being
replaced is identical to the component being replaced or the normal
repair and maintenance of a wireless facility without any addition,
removal, or changes to the component.
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 component of a wireless facility where
the replacement is identical to the component being replaced or any
normal repair or maintenance of a wireless facility without any additions,
removal, or changes of any of the physical or visually discernable
components or aspects of a wireless facility that will add to the
visible appearance of the facility as originally permitted.
SHALL
Expresses an instruction or command; a mandatory requirement.
SPECIAL USE PERMIT
The permission issued by the authority of the Board, pursuant to this Article
IXA, by which an applicant is allowed to file for a building permit, to construct and use wireless telecommunications facilities as granted or issued by any board or department of the Village.
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 present.
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
article, 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.
VILLAGE
The Incorporated Village of Lloyd Harbor, New York.
WIRELESS SERVICES
Any wireless services using licensed or unlicensed spectrum,
whether at a fixed location or mobile, provided to the public.
WIRELESS TELECOMMUNICATIONS FACILITIES OR TELECOMMUNICATIONS
SITE OR PERSONAL WIRELESS FACILITY OR INFORMATION SERVICES SITE
A structure, facility or location, which is designed or intended
to be used as or to support antennas, transmitting devices, or receiving
devices. Towers of any kind shall be included in this definition,
including buildings, steeples, silos, water towers, signs, or other
similar structures which can be used as a support structure for antennas
or any functional equivalent thereof. This definition shall further
include all related facilities and equipment, such as cabling, equipment
shelters, and other structures associated with any site. The terms
shall include any 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 Village's 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 article, the Board 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. Implementing an application process for person(s) seeking a special
use permit for wireless telecommunications facilities;
B. Establishing a policy for examining an application for and issuing
a special use permit for wireless telecommunications facilities that
is both fair and consistent;
C. Promoting and encouraging, wherever possible, the sharing and/or
co-location of wireless telecommunications facilities among service
providers;
D. 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.
E. Promoting and encouraging proper permitting for all new, co-location,
or modification of a wireless telecommunications facility; and
F. Promoting and encouraging the most appropriate site, with regards
to being the least visually intrusive among those available in the
Village, for placement of a wireless telecommunications facility.
The following shall be exempt from this article:
A. The Village Police Department, Highway Department, or other public
service facilities owned and operated by the local government.
B. Any facilities expressly exempt from the Village'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 useable for less than 200
feet.
F. Applications for special use permits for other than wireless telecommunications facilities, which shall be governed by the provisions of Article
IX.
All wireless telecommunications facilities and antennas shall
be located, fenced, and otherwise secured in a manner that prevents
unauthorized access. Such security measures shall be as follows:
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 as to prevent the structure
from being scaled or struck; and
B. Transmitters and telecommunications control points shall be installed
in such a manner as to allow only authorized personnel to access said
structures.
Wireless telecommunications facilities shall 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,
which is no larger than four square feet. A sign containing the name(s)
of the owner(s) and operator(s) of the antenna(s), shelter, and cabinet,
as well as emergency phone number(s), measuring no large than four
square feet, shall also be located on the applicant's equipment shelter
or cabinet and be visible from the access point of the site. Signage
on tower sites shall also contain an FCC registration, whenever applicable.
Signage shall not be lighted, unless otherwise required by law. No
other signage, including advertising, shall be permitted, without
permission of the Board.
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 Board; and
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 article after prior written notice to
the holder of the special use permit.
The fee for a special use permit required by this chapter shall
be at the level fixed, from time to time, by resolution of the Board.
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 Village
a bond, or other form of security acceptable to the Village 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 Village to assure the faithful performance
of the terms and conditions of this article and conditions of any
special use permit issued pursuant to this article. 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, regulations, and other requirements, the Village 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 article or of the special use permit, then the Village 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 §
205-45.25, and if a violation is not corrected to the satisfaction of the Village, within a reasonable period of time, the special use permit shall be subject to revocation.
Any applicant desiring relief, waiver, or exemption from any
aspect or requirement of this article 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
applicant's existing tower and/or facility. Such relief may be temporary,
permanent, partial, or complete. The applicant bears the burden of
proving the reasonable need for any such requested relief, waiver,
or exemption. No such relief, waiver, 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 safety and welfare of the Village, its residents, and
other service providers. The applicant shall bear all costs of the
Village in considering the request, waiver, exemption, or other relief.
In its interpretation and application, the provisions of this
article shall be held to be minimum requirements, adopted for the
promotion of the public safety and welfare. Whenever the requirements
of this article are at variance with the requirements of any other
lawfully adopted rules, regulations, or ordinances, this article shall
govern, unless otherwise preempted by law.
Words used in this article in the singular, where the context
so permits, shall be deemed to include the plural and vice versa.
The definitions of words in the singular in this article shall apply
to such words when used in the plural where the context so permits
and vice versa.