[HISTORY: Adopted by the Board of Trustees of the Village
of Atlantic Beach 10-21-2019 by L.L. No. 2-2019. Amendments noted where
applicable]
The Telecommunications Act of 1996 affirmed the authority of
municipalities, such as the Village of Atlantic Beach, concerning
the placement, construction and modification of wireless telecommunications
facilities. The Village finds that wireless telecommunications facilities
may pose significant concerns to the health, safety, public welfare,
character and environment of the Village and its inhabitants. The
Village also recognizes that facilitating the development of wireless
service technology can be an economic development asset to the Village
and of significant benefit to the Village and its residents. In order
to ensure that the placement, construction or modification of wireless
telecommunications facilities is consistent with the Village's
interests and policies, the Village is adopting a single, comprehensive,
Wireless, Telecommunications Facilities application and permit process.
A.
If any word, phrase, sentence, part, section, subsection, or other
portion of this chapter or any application thereof to any person or
circumstance is declared void, unconstitutional, or invalid for any
reason, then such word, phrase, sentence, part, section, subsection,
or other portion, or the proscribed application thereof, shall be
severable, and the remaining provisions of this chapter, and all applications
thereof, not having been declared void, unconstitutional, or invalid,
shall remain in full force and effect.
B.
Any special use permit or administrative permit issued under this
chapter shall be comprehensive and not severable. If part of a permit
is deemed or ruled to be invalid or unenforceable in any material
respect, by a competent authority, or is overturned by a competent
authority, the permit shall be void in total, upon determination by
the Building Inspector.
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.
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.
A building permit; the official document by which an Applicant
is allowed to modify or construct and use wireless telecommunications
facilities as granted or issued by the Village under this chapter
and other relevant portions of the Village Code, which may or may
not need to be preceded by the issuance of a special use permit by
the Village's Board of Zoning Appeals.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
Any wireless service provider submitting an application for
a permit for wireless, telecommunications facilities.
All necessary and appropriate documentation that an applicant
submits in order to receive a permit for wireless telecommunications
facilities.
The Board of Trustees of the Village of Atlantic Beach.
The use of an existing tower or structure used as an existing
wireless antennae site to support antennae 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 reasonably short time frame after the new tower is constructed.
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."
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
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.
A facility as defined in FCC 14-153, as amended.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
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.
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, changing the color or materials of any visually discernable
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 anything.
Non-Ionizing Electromagnetic Radiation.
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
See "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act.
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 discernable components or aspects
of a wireless facility that will add to the visible appearance of
the facility as originally permitted.
A permit for a wireless telecommunications facility, granted
after notice and hearing by the Village's Board of Zoning Appeals,
which may be required prior to issuance of an administrative permit.
The State of New York.
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.
See "wireless telecommunications facilities."
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
Temporary in relation to all aspects and components of this
chapter; something intended to or that does not exist for more than
90 days.
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
Includes a "telecommunications site" and "personal wireless,
facility"; 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 Village's
health, safety, public welfare, environmental features, the nature
and character of the community and neighborhood and other aspects
of the quality of life, the Village hereby adopts an overall policy
with respect to a special use permit or administrative permit for
wireless telecommunications facilities for the express purpose of
achieving the following goals:
A.
Requiring a special use permit or administrative permit for any new,
co-location or modification of a wireless telecommunications facility,
as appropriate and in accordance with law.
B.
Implementing an application process for person(s) seeking a special
use permit or administrative permit for wireless telecommunications
facilities.
C.
Establishing a policy for examining an application for and issuing
a special use permit or administrative 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.
A.
Except as otherwise provided by this chapter, no person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this chapter without having first obtained a special use permit or administrative permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special use permit or administrative permit shall be required under this chapter for those noncommercial exclusions noted in § 243-6.
B.
All legally permitted wireless telecommunications facilities, constructed
as permitted, existing on or before the effective date of this chapter
shall be allowed to continue as they presently exist; provided, however,
that any visible modification of an existing wireless telecommunications
facility will require the complete facility and any new installation
to comply with this chapter.
C.
Any repair and maintenance of a wireless facility does not require
an application for a special use permit or administrative permit under
this chapter.
The following are exempt from this chapter:
A.
Facilities used for government operations.
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.
A.
All applicants for a special use permit or administrative permit
for wireless telecommunications facilities or any modification of
such facility shall comply with the requirements set forth in this
chapter. The Board of Trustees declares that the Building Inspector
is the officially designated person to whom applications for a special
use permit or administrative permit for wireless telecommunications
facilities must be made, and, is authorized to review, analyze, evaluate
and make decisions with respect to granting or not granting or revoking
permits for wireless telecommunications facilities, and referring
applications for special use permits to the Board of Zoning Appeals.
B.
The Building Inspector may reject applications not meeting the requirements
stated herein or which are otherwise incomplete.
C.
No wireless telecommunications facilities shall be installed, constructed
or modified until the application is reviewed and approved by the
Village, a special use permit has been granted as necessary, and an
administrative permit is issued.
D.
Any and all representations made by the applicant to the Village
on the record during the application process, whether written or verbal,
shall be deemed a part of the application and may be relied upon in
good faith by the Village.
E.
An application for a special use permit or administrative permit
for wireless telecommunications facilities shall be signed on behalf
of the applicant by the person preparing the same and with knowledge
of the contents and representations made therein and attesting to
the truth and completeness of the information.
F.
The Applicant must provide documentation to verify it has the right
to proceed as proposed on the site. This would require an executed
copy of the lease with the landowner or landlord or a signed letter
acknowledging authorization. If the applicant owns the site, a copy
of the ownership record is required.
G.
The Applicant shall include a statement in writing:
(1)
That the applicant's proposed wireless telecommunications facilities
shall be maintained in a safe manner, and in compliance with all conditions
of the special use permit and administrative permit, without exception,
unless specifically granted relief by the Village, in writing, in
accordance with Village, county, state and federal laws, rules, and
regulations;
(2)
That the construction of the wireless telecommunications facilities
is legally permissible, including, but not limited to, the fact that
the applicant is authorized to do business in the state.
H.
Where a certification is called for in this chapter, such certification
shall bear the signature and seal of a registered professional licensed
in the State of New York.
I.
In addition to all other required information as stated in this chapter,
all applications for the construction or installation of new wireless
telecommunications facilities or modification of an existing facility
shall contain the information hereinafter set forth.
(1)
A descriptive statement of the objective(s) for the new facility
or modification including and expanding on a need such as coverage
and/or capacity;
(2)
Documentation that demonstrates and proves the need for the wireless
telecommunications facility to provide service primarily and essentially
within the Village. Such documentation shall include propagation studies
of the proposed site and all adjoining planned, proposed, in-service
or existing sites that demonstrate a significant gap in coverage and/or
if a capacity need, including an analysis of current and projected
usage;
(3)
The name, address and phone number of the person preparing the report;
(4)
The name, address, and phone number of the property owner and applicant,
and to include the legal name of the applicant. If the site is a tower
and the owner is different from the applicant, provide name and address
of the tower owner;
(5)
The postal address and tax map parcel number of the property;
(6)
The zoning district or designation in which the property is situated;
(7)
Size of the property, stated both in square feet and lot line dimensions,
and a survey showing the location of all lot lines;
(8)
The location of nearest residential structure;
(9)
The location, size and height of all existing and proposed structures
on the property which is the subject of the application;
(10)
The type, locations and dimensions of all proposed and existing
landscaping and fencing;
(11)
The azimuth, size and center-line height location of all proposed
and existing antennas on the supporting structure;
(12)
The number, type and model of the antenna(s) proposed with a
copy of the specification sheet;
(13)
The make, model, type and manufacturer of the tower and design
plan stating the tower's capacity to accommodate multiple users.
(14)
A site plan describing the proposed tower and antenna(s) and
all related fixtures, structures, appurtenances and apparatus, including
height above pre-existing grade, materials, color and lighting;
(15)
The frequency, modulation and class of service of radio or other
transmitting equipment;
(16)
The actual intended transmission power stated as the maximum
effective radiated power (ERP) in watts;
(17)
Signed documentation, such as the "Checklist to Determine Whether
a Facility is Categorically Excluded," to verify that the Wireless
Telecommunication Facility with the proposed installation will be
in full compliance with the current FCC RF emissions guidelines (NIER).
If not categorically excluded, a complete RF emissions study is required
to provide verification;
(18)
A signed statement that the proposed installation will not cause
physical or RF interference with other telecommunications devices;
(19)
A copy of the FCC license applicable for the intended use of
the wireless telecommunications facilities;
(20)
A copy of the geotechnical subsurface soils investigation, evaluation
report and foundation recommendation for a proposed or existing tower
site and, if existing tower or water tank site, a copy of the installed
foundation design.
J.
The applicant will provide a written copy of an analysis, completed
by a qualified individual or organization, to determine if the proposed
new tower or existing structure intended to support wireless facilities
is in compliance with Federal Aviation Administration Regulation Part
77 and if it requires lighting. This requirement shall also be for
any existing structure or building where the application increases
the height of the structure or building. If this analysis determines
that an FAA determination is required, then all filings with the FAA,
all responses from the FAA and any related correspondence shall be
provided with the application.
K.
Application for new tower.
(1)
In the case of a new tower, the applicant shall be required to submit
a written report demonstrating its meaningful efforts to secure shared
use of existing tower(s) or the use of alternative buildings or other
structures within the Village. Copies of written requests and responses
for shared use shall be provided to the Village in the application,
along with any letters of rejection stating the reason for rejection.
(2)
In order to better inform the public, in the case of a new telecommunication
tower, the applicant shall, prior to the public hearing on the application,
hold a "balloon test." The Applicant shall arrange to fly, or raise
upon a temporary mast, a minimum of a three-foot-in-diameter brightly
colored balloon at the maximum height of the proposed new tower. The
dates, (including a second date, in case of poor visibility on the
initial date) times and location of this balloon test shall be advertised
by the applicant seven and 14 days in advance of the first test date
in a newspaper with a general circulation in the Village. The Applicant
shall inform the Village, in writing, of the dates and times of the
test at least 14 days in advance. The balloon shall be flown for at
least four consecutive hours sometime between 7:00 a.m. and 4:00 p.m.
on the dates chosen. The primary date shall be on a weekend, but in
case of poor weather on the initial date the secondary date may be
on a weekday. A report with pictures from various locations of the
balloon shall be provided with the application.
(3)
The Applicant shall examine the feasibility of designing the proposed
tower to accommodate future demand for at least four additional commercial
applications (for example, future co-locations). The tower shall be
structurally designed to accommodate at least four additional antenna
arrays equal to those of the applicant, and located as close to the
applicant's antenna as possible without causing interference.
This requirement may be waived, provided that the applicant, in writing,
demonstrates that the provisions of future shared usage of the tower
is not technologically feasible, is commercially impracticable or
creates an unnecessary and unreasonable burden, based upon:
(a)
The foreseeable number of FCC licenses available for the area;
(b)
The kind of wireless telecommunications facilities site and
structure proposed;
(c)
The number of existing and potential licenses without wireless
telecommunications facilities spaces/sites;
(d)
Available space on existing and approved towers.
(4)
Upon completing construction and before the issuance of the certificate
of completion, to ensure the tower was constructed as permitted, the
applicant is to provide signed documentation of the tower condition
such as an ANSI report as per Annex E, Tower Maintenance and Inspection
Procedures, ANSI/TIA/EIA-222F or most recent version. The inspection
report must be performed every three years for a guyed tower and five
years for monopoles and self-supporting towers.
(5)
The owner of a proposed new tower, and his/her successors in interest,
shall negotiate in good faith for the shared use of the proposed tower
by other wireless service providers in the future, and shall:
(a)
Respond within 60 days to a request for information from a potential
shared-use applicant;
(b)
Negotiate in good faith concerning future requests for shared
use of the new tower by other telecommunications providers;
(c)
Allow shared use of the new tower if another telecommunications
provider agrees, in writing, to pay reasonable charges. The charges
may include, but are not limited to, a pro rata share of the cost
of site selection, planning, project administration, land costs, site
design, construction and maintenance financing, return on equity,
less depreciation, and all of the costs of adapting the tower or equipment
to accommodate a shared user without causing electromagnetic interference.
(d)
Failure to abide by the conditions outlined above may be grounds
for revocation of the permit.
L.
The Applicant shall provide certification with documentation (structural
analysis), including calculations that the telecommunication facility
tower and foundation and attachments, rooftop support structure, water
tank structure, and any other supporting structure as proposed to
be utilized, are designed and will be constructed to meet all Village,
county, state and federal structural requirements for loads, including
wind and ice loads. All new or modified towers or other vertical support
structures containing wireless antennas shall be designed to an EIA-TIA
222G Class III standard or any subsequently adopted more stringent
standard.
M.
If proposal is for a co-location or modification on an existing tower,
the applicant is to provide signed documentation of the tower condition
such as an ANSI report as per Annex E, Tower Maintenance and Inspection
Procedures, ANSI/TIA/EIA-222F or most recent version. The inspection
report must be performed every three years for a guyed tower and five
years for monopoles and self-supporting towers.
N.
All proposed wireless telecommunications facilities shall contain
a demonstration that the facility will be sited so as to minimize
visual intrusion as much as possible, given the facts and circumstances
involved, and will thereby have the least adverse visual effect on
the environment and its character and on the residences in the area
of the wireless telecommunications facility.
O.
If a new tower, proposal for a new antenna attachment to an existing
structure, or modification adding to a visual impact, the applicant
shall furnish a visual impact assessment, which shall include:
(1)
If a new tower or increasing the height of an existing structure
is proposed, a computer-generated "zone of visibility map" at a minimum
of one-mile radius from the proposed structure, with and without foliage,
shall be provided to illustrate locations from which the proposed
installation may be seen.
(2)
Pictorial representations of "before and after" (photo simulations)
views from key viewpoints, both inside and outside of the Village
as may be appropriate, including but not limited to major roads; parks;
other public lands; historic districts; preserves and sites normally
open to the public; and from any other location where the site is
visible to a large number of visitors, travelers or residents. Guidance
will be provided concerning the appropriate key sites at the pre-application
meeting. Provide a map showing the locations of where the pictures
were taken and distance from the proposed structure.
(3)
A written description of the visual impact of the proposed facility
including, and as applicable, the tower base, guy wires, fencing and
accessory buildings from abutting and adjacent properties and streets
as relates to the need or appropriateness of screening.
P.
The Applicant shall demonstrate and provide, in writing and/or by
drawing, how it shall effectively screen from view the base and all
related equipment and structures of the proposed wireless telecommunications
facility.
Q.
The wireless telecommunications facility and any and all accessory
or associated facilities shall maximize the use of building materials,
colors and textures designed to blend with the structure to which
it may be affixed and/or to harmonize with the natural surroundings;
this shall include the utilization of stealth or concealment technology
as may be required by the Village.
R.
All utilities at a wireless telecommunications facilities site shall
be installed underground whenever possible and in compliance with
all applicable laws, rules and regulations applying within the Village,
including specifically, but not limited to, the National Electrical
Safety Code and the National Electrical Code where appropriate.
S.
At a telecommunications site, an access road, turn-around space and
parking shall be provided to assure adequate emergency and service
access. Maximum use of existing roads, whether public or private,
shall be made to the extent practicable. Road construction shall at
all times minimize ground disturbance and the cutting of vegetation.
Road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion.
T.
All wireless telecommunications facilities shall be constructed,
operated, maintained, repaired, provided for removal of, modified
or restored in strict compliance with all current applicable technical,
safety and safety-related codes adopted by the Village, county, state,
or United States, including but not limited to the most recent editions
of the ANSI Code, National Electrical Safety Code and the National
Electrical Code, as well as accepted and responsible workmanlike industry
practices and recommended practices of the National Association of
Tower Erectors. The codes referred to are codes that include, but
are not limited to, construction, building, electrical, fire, safety,
health, and land use codes. In the event of a conflict between or
among any of the preceding the more stringent shall apply.
U.
A holder of a special use permit or administrative permit granted
under this chapter shall obtain, at its own expense, all permits and
licenses required by applicable law, rule, regulation or code, and
must maintain the same, in full force and effect, for as long as required
by the Village or other governmental entity or agency having jurisdiction
over the applicant.
V.
There shall be a pre-application meeting. The purpose of the pre-application
meeting will be to address issues that will help to expedite the review
and permitting process. A pre-application meeting shall also include
a site visit if there has not been a prior site visit for the requested
site.
W.
An applicant shall submit to the Village the number of completed
applications determined to be needed at the pre-application meeting.
Written notification of the application shall be provided to the legislative
body of all adjacent municipalities as applicable and/or requested.
X.
The holder of a special use permit or administrative permit shall
notify the Village of any intended modification of a wireless telecommunications
facility and shall apply to the Village to modify, relocate or rebuild
a wireless telecommunications facility.
Y.
With respect to this application process, the Village will normally
seek to have lead agency status pursuant to SEQRA. The Village shall
conduct an environmental review of the proposed project pursuant to
SEQRA in combination with its review of the application, as required
by law.
A.
Applicants for wireless telecommunications facilities shall locate,
site and erect said wireless telecommunications facilities in accordance
with the following priorities, one being the highest priority and
six being the lowest priority.
(1)
On existing towers or other structures on Village-owned properties,
including the right-of-way.
(2)
On existing towers or other structures on other property in the Village.
(3)
A new tower on Village-owned properties, including the right-of-way.
(4)
A new tower on properties in areas zoned for industrial use.
(5)
A new tower on properties in areas zoned for other nonresidential
use.
(6)
A new tower on properties in areas zoned for residential use.
B.
If the proposed site is not proposed for the highest priority listed
above, then a detailed explanation must be provided as to why a site
of a higher priority was not selected. The person seeking such an
exception must satisfactorily demonstrate the reason or reasons why
such a permit should be granted for the proposed site, and the hardship
that would be incurred by the applicant if the permit were not granted
for the proposed site.
C.
An applicant may not bypass sites of higher priority by stating the
site proposed is the only site leased or selected. An application
shall address co-location as an option. If such option is not proposed,
the applicant must explain to the reasonable satisfaction of the Village
why co-location is commercially or otherwise impracticable. Agreements
between providers limiting or prohibiting co-location shall not be
a valid basis for any claim of commercial impracticability or hardship.
D.
Notwithstanding the above, the Village may approve any site located
within an area in the above list of priorities, provided that the
Village finds that the proposed site is in the best interest of the
health, safety and welfare of the Village and its inhabitants and
will not have a deleterious effect on the nature and character of
the community and neighborhood.
E.
The Applicant shall submit a written report demonstrating the applicant's
review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If appropriate, based
on selecting a site of lower priority, a detailed written explanation
as to why sites of a higher priority were not selected shall be included
with the application.
F.
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Village may
disapprove an application for any of the following nonexclusive reasons:
(1)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with the historic nature or character of a neighborhood
or historical area;
(3)
The use or construction of wireless telecommunications facilities
which is contrary to an already-stated purpose of a specific zoning
or land use designation;
(4)
The placement and location of wireless telecommunications facilities
which would create an unacceptable risk, or the reasonable probability
of such, to residents, the public, employees and agents of the Village,
or employees of the service provider or other service providers;
(5)
Conflicts with the provisions of this chapter.
A.
The Village, as opposed to the construction of a new tower, shall
prefer locating on existing towers or others structures, and without
increasing the height (if possible). The Applicant shall submit a
comprehensive report inventorying existing towers and other suitable
structures within two miles of the location of any proposed new tower,
unless the applicant can show that some other distance is more reasonable
and demonstrate conclusively why an existing tower or other suitable
structure cannot be used.
B.
An Applicant intending to locate on an existing tower or other suitable
structure shall be required to document the intent of the existing
owner to permit its use by the applicant.
C.
Such shared use shall consist only of the minimum antenna array technologically
required to provide service primarily and essentially within the Village,
to the extent practicable, unless good cause is shown.
A.
The Applicant shall submit documentation justifying the total height
of any tower, facility and/or antenna requested and the basis therefor.
Documentation in the form of propagation studies must include all
backup data used to perform at requested height and a minimum of 10
feet lower height to allow verification of this height need. Such
documentation will be analyzed in the context of the justification
of the height needed to provide service primarily and essentially
within the Village, to the extent practicable, unless good cause is
shown.
B.
No tower constructed after the effective date of this chapter, including
allowing for all attachments, shall exceed that height which shall
permit operation without required artificial lighting of any kind
in accordance with Village, county, state, and/or federal statute,
law, code, rule or regulation.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.
Towers shall be galvanized and/or painted with a rust-preventive
paint of an appropriate color to harmonize with the surroundings and
shall be maintained in accordance with the requirements of this chapter.
C.
If lighting is required, applicant shall provide a plan for sufficient
lighting of as unobtrusive and inoffensive an effect as is permissible
under state and federal regulations.
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 sign, 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.
A.
The Village may hire any consultant and/or expert necessary to assist
the Village in reviewing and evaluating the application, including
the construction and modification of the site, once permitted, and
any site inspections.
B.
An applicant shall deposit with the Village escrow funds sufficient
to reimburse the Village for all costs of the Village's consultant
in providing expert evaluation and consultation to any agency of the
Village in connection with the review of any application, including,
where applicable, the lease negotiation, the pre-approval evaluation,
and the construction and modification of the site, once permitted.
The initial deposit shall be $8,500. The placement of the $8,500 with
the Village shall precede the pre-application meeting. The Village
will maintain a separate escrow account for all such funds. The Village's
consultants/experts shall invoice the Village for its services related
to the application. If at any time during the process this escrow
account has a balance less than $2,500, the applicant shall immediately,
upon notification by the Village, replenish said escrow account so
that it has a balance of at least $5,000. Such additional escrow funds
shall be deposited with the Village before any further action or consideration
is taken on the application. In the event that the amount held in
escrow by the Village is more than the amount of the actual invoicing
at the conclusion of the project, the remaining balance shall, upon
request of the applicant, be promptly refunded to the applicant. If
notified by the Village that additional escrow is required, the applicant
may request copies of consultants' and/or experts' invoices.
If the applicant finds errors in those invoices, applicant may ask
the Village to audit those specific items for reasonableness, and
may request relief therefrom if not deemed reasonable by the Village.
C.
Notwithstanding the above, there shall be a fee cap of $17,000 as
to the total consultant fees to be charged to applicant in a case.
The foregoing does not prohibit the Village from imposing additional
reasonable and cost-based fees for costs incurred should an applicant
amend or change its application, and the fee cap shall not apply as
to any fees which the Village determines to be attributable to the
dilatory or otherwise bad faith actions of the applicant in providing
a complete application or in proceeding with a public hearing.
D.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope (lease negotiations and/or review) and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
A.
Prior to the approval of any application for a special use permit
for wireless telecommunications facilities, a public hearing shall
be held by the Village's Board of Zoning Appeals, notice of which
shall be published in the newspaper of general circulation in the
Village no less than 10 calendar days prior to the scheduled date
of the public hearing. The Village will provide the form of notice.
In order that nearby landowners are notified, the application shall
contain the names and address of all landowners whose property is
located within 300 feet of any property line of the lot or parcel
on which the new wireless telecommunications facilities are proposed
to be located, and an affidavit of service shall be submitted to the
Village indicating that applicant has timely mailed the notice of
the hearing to such persons not less than 15 days prior to the date
of hearing. Adjacent owners receive notice by certified mail, return
receipt requested, and all others receive notice by first-class mail.
All mail is to be sent on applicant's official letterhead and
marked "URGENT, NOTICE OF HEARING" on the front thereof.
B.
There shall be no special use permit required for an application
to co-locate on an existing tower or other structure or for a modification
at an existing site, as long as there is no proposed increase in the
height of the tower or structure, including attachments thereto, and
as long as there is no violation of the setback requirements. In addition,
for an eligible facility request, no public hearing shall be required.
Rather, an administrative permit shall be granted by the Building
Inspector, based on a proper showing of compliance with all other
requirements.
C.
If a special use permit is required, the Board of Zoning Appeals shall schedule the public hearing referred to in Subsection A of this section once the Building Inspector finds the application is complete. The Board, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary. The Board's decision shall be supported by substantial evidence contained in a written record. The burden of proof for the granting of the special use permit shall always be upon the applicant.
D.
In passing on the application, the Board shall consider the merits
of applicant's need for the proposed wireless telecommunications
facility in reasonably providing its wireless services. If it is found
that clear and substantial need exists, then it shall consider whether
the proposed placement will have the least negative impact on surrounding
area character and property values compared to any other available
areas which would also fill the need, and if it finds that the proposed
placement would create the least such negative impact, then it shall
consider whether the facility is stealthed to the greatest reasonable
degree. If the Board is satisfied as to all of these factors, it may
grant the special use permit with such mitigating conditions it may
deem appropriate; otherwise, the Board may deny the application.
A.
The Village will undertake a review of an application pursuant to
this chapter in a timely fashion, consistent with its responsibilities,
and shall act within a reasonable period of time given the requirement
(or not) for a special use permit and the relative complexity of the
application and the circumstances, with due regard for the public's
interest and need to be involved, and the applicant's desire
for a timely resolution.
B.
The Village may refer any application or part thereof to a consultant,
or to any advisory, other committee or commission for a non-binding
recommendation.
C.
If the Board of Appeals approves the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such approval in writing within 10 calendar days of the Board's
action, and the special use permit shall be issued within 30 days
after such approval. Thereupon, an administrative permit will be issued
by the Building Inspector authorizing the project, and a certificate
of completion will thereafter be issued after all due inspection indicates
compliance of the finished project with this chapter and the Building
Code. No additional permits or approvals from the Village, such as
site plan or zoning approvals, shall be required by the Village for
the wireless telecommunications facilities covered by the special
use permit or administrative permit.
The extent and parameters of a special use permit or administrative
permit for wireless telecommunications facilities shall be as follows:
A.
Such special use permit or administrative permit shall not be assigned,
transferred or conveyed without the express prior written notification
to the Village.
B.
Such special use permit or administrative permit may, following a
hearing upon due prior notice to the applicant, be revoked, canceled,
or terminated for a violation of its stated conditions and provisions,
or for a material violation of this chapter after prior written notice
to the holder.
At the time that a person submits an application for a special
use permit, such person shall pay a nonrefundable application fee
of $5,000 to the Village. If the application is for an administrative
permit, 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 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 chapter and conditions of any
special use permit or administrative 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 or
administrative 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
or administrative permit.
In order to verify that the holder of a special use permit or
administrative 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,
and building codes and regulations, and other applicable requirements
including this chapter, 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.
A.
A holder of a special use permit or administrative permit for wireless
telecommunications facilities shall secure and at all times maintain
public liability insurance for personal injuries, death and property
damage, and umbrella insurance coverage, for the entire time the facility
is in existence, in amounts as set forth below:
B.
For a wireless telecommunications facility on village property, the
commercial general liability insurance policy shall specifically include
the Village and its elected officers, employees, committee members,
attorneys, agents and consultants as additional insured.
C.
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the State of New
York and with a Best's rating of at least A.
D.
The insurance policies shall contain an endorsement obligating the
insurance company to furnish the Village with at least 30 days'
prior written notice in advance of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall be delivered
to the Village at least 15 days before the expiration of the insurance
that such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications facilities
is initiated, but in no case later than 15 days after the granting
of the special use permit or administrative permit, the holder thereof
shall deliver to the Village a copy of each of the policies or certificates
representing the insurance in the required amounts.
Any application for wireless telecommunication facilities that
is proposed for Village property, pursuant to this chapter, shall
contain a provision with respect to indemnification. Such provision
shall require the applicant, to the extent permitted by the law, to
at all times defend, indemnify, protect, save, hold harmless, and
exempt the Village, and its elected officers, employees, committee
members, attorneys, agents, and consultants from any and all penalties,
damages, costs, or charges arising out of any and all claims, suits,
demands, causes of action, or award of damages, whether compensatory
or punitive, or expenses arising therefrom, either at law or in equity,
which might arise out of, or are caused by, the placement, construction,
erection, modification, location, products performance, use, operation,
maintenance, repair, installation, replacement, removal, or restoration
of said facility; excepting, however, any portion of such claims,
suits, demands, causes of action or award of damages as may be attributable
to the negligent or intentional acts or omissions of the Village,
or its servants or agents. With respect to the penalties, damages
or charges referenced herein, reasonable attorneys' fees, consultants'
fees, and expert witness fees are included in those costs that are
recoverable by the Village.
A.
In the event of a violation of this chapter or any special use permit
or administrative permit issued pursuant to this chapter, the Village
may impose and collect fines or penalties as set forth below against
any responsible party or parties, as set forth via prosecution and
penalties provided in § 252-124 of this Code, or may seek
injunctive relief in any court of competent jurisdiction.
A.
Under the following circumstances, the Village may determine that
the health, safety, and welfare interests of the Village warrant and
require the removal of wireless telecommunications facilities.
(1)
Wireless telecommunications facilities with a permit that have been
abandoned (i.e., not used as wireless telecommunications facilities)
for a period exceeding 90 consecutive days or a total of 180 days
in any 365-day period, except for periods caused by force majeure
or acts of God, in which case, repair or removal shall commence within
90 days;
(2)
Permitted wireless telecommunications facilities fall into such a
state of disrepair that it creates a health or safety hazard;
(3)
Wireless telecommunications facilities have been located, constructed,
or modified without first obtaining approval, or in a manner not authorized
by this chapter.
B.
If the Village makes such a determination as noted in Subsection A of this section, then the Village shall notify the holder of the special use permit or administrative permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed; the Village may approve an interim temporary use agreement/permit such as to enable the sale of the wireless telecommunications facilities.
C.
The holder, or its successors or assigns, shall dismantle and remove
such wireless telecommunications facilities; and all associated structures
and facilities, from the site and restore the site to as close to
its original condition as is possible, such restoration being limited
only by physical or commercial impracticability, within 90 days of
receipt of written notice from the Village. However, if the owner
of the property upon which the wireless telecommunications facilities
are located wishes to retain any access roadway to the wireless telecommunications
facilities, the owner may do so with the approval of the Village.
D.
If wireless telecommunications facilities are not removed or substantial
progress has not been made to remove the wireless telecommunications
facilities within 90 days after the permit holder has received notice,
then the Village may order officials or representatives of the Village
to remove the wireless telecommunications facilities at the sole expense
of the owner or holder.
E.
If the Village removes, or causes to be removed, wireless telecommunications
facilities, and the owner of the Wireless. Telecommunications Facilities
does not claim and remove them from the site to a lawful location
within 10 days, then the Village may take steps to declare the wireless
telecommunications facilities abandoned, and sell them and their components.
F.
Notwithstanding anything in this section to the contrary, the Village
may approve a temporary use permit/agreement for the wireless telecommunications
facilities for no more than 90 days, during which time a suitable
plan for removal, conversion, or relocation of the affected wireless
telecommunications facilities shall be developed by the permit holder,
subject to the approval of the Village, and an agreement to such plan
shall be executed by the holder and the Village. If such a plan is
not developed, approved and executed within the ninety-day time period,
then the Village may take possession of and dispose of the affected
wireless telecommunications facilities in the manner provided in this
section.
G.
If a facility shall at any time become an imminent and substantial
safety threat to persons or property in the vicinity, the Village
may immediately and in consult with the police take all necessary
actions to eliminate the threat, and use best efforts to notify the
property owner and permit holder as soon as possible to engage them
in the process.
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.
Such relief, including setback requirements and the need for a special
use permit, may be granted by the Building Inspector for good cause
shown, and in favor of the public interest (including ensuring compliance
with all applicable and then-controlling federal or state laws and
regulations). The burden of proving the need for the requested relief,
waiver or exemption is solely on the applicant.
A.
The Village may at any time conduct a review and examination of this
entire chapter.
B.
If, after such a periodic review and examination of this chapter,
the Village determines that one or more provisions of this chapter
should be amended, repealed, revised, clarified, or deleted, then
the Village may take whatever measures are necessary in accordance
with applicable law in order to accomplish the same. It is noted that
where warranted, and in the best interests of the Village, the Village
may grant waivers or repeal this entire chapter at any time.
A.
To the extent that the holder of a special use permit or administrative
permit for wireless telecommunications facilities has not received
relief, or is otherwise exempt, from appropriate state and/or federal
agency rules or regulations, then the holder shall adhere to, and
comply with, all applicable rules, regulations, standards, and provisions
of any state or federal agency, including, but not limited to, the
FAA and the FCC. Specifically included in this requirement are any
rules and regulations regarding height, lighting, security, electrical
and RF emission standards.
B.
To the extent that applicable rules, regulations, standards, and
provisions of any state or federal agency, including but not limited
to, the FAA and the FCC, and specifically including any rules and
regulations regarding height, lighting, and security are changed and/or
are modified during the duration of a special use permit or administrative
permit for wireless telecommunications facilities, then the holder
shall conform the permitted wireless telecommunications facilities
to the applicable changed and/or modified rule, regulation, standard,
or provision within a maximum of 24 months of the effective date of
the applicable changed and/or modified rule, regulation, standard,
or provision, or sooner, as may be required by the issuing entity.
Where this chapter differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the Village, state or federal government, this chapter shall apply. This chapter supersedes § 250-117 of this Code. This chapter does not supersede Chapter 74 of the Village Code, but any conflicts are resolved by applying the provisions of this chapter.
This chapter shall be effective immediately upon adoption and
in accordance with law.
