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.
For purposes of this chapter, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meaning given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
ACCESSORY FACILITY OR STRUCTURE
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets.
ADMINISTRATIVE PERMIT
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.
ANTENNA
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
APPLICANT
Any wireless service provider submitting an application for
a permit for wireless, telecommunications facilities.
APPLICATION
All necessary and appropriate documentation that an applicant
submits in order to receive a permit for wireless telecommunications
facilities.
CO-LOCATION
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.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen, and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be "commercially impracticable" and shall not render an act or
the terms of an agreement "commercially impracticable."
COMPLETED APPLICATION
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
DISTRIBUTED ANTENNA SYSTEM or DAS
A network of spatially separated antenna nodes, connected
to a common source via a transport medium, that provides wireless
service within a geographic area or structure.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated
and authorized successor agency.
HEIGHT
When referring to a tower or structure, the distance measured
from the 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.
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, 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.
NIER
Non-Ionizing Electromagnetic Radiation.
PERSON
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
REPAIRS AND MAINTENANCE
The replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or for any matters that involve the normal repair and maintenance
of a wireless facility without the addition, removal or change of
any of the physical or visually discernable components or aspects
of a wireless facility that will add to the visible appearance of
the facility as originally permitted.
SPECIAL USE PERMIT
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.
STATE
The State of New York.
STEALTH or STEALTH TECHNOLOGY
To minimize adverse aesthetic and visual impacts on the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
TELECOMMUNICATIONS
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
TEMPORARY
Temporary in relation to all aspects and components of this
chapter; something intended to or that does not exist for more than
90 days.
TOWER
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
WIRELESS TELECOMMUNICATIONS FACILITIES
Includes a "telecommunications site" and "personal wireless,
facility"; 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.
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.
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.
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.
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.
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.
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.