[HISTORY: Adopted by the Board of Trustees of the Village
of East Aurora 4-15-2019 by L.L. No. 3-2019[1]
A.
The purpose of this chapter is to establish uniform standards for
the siting, design, permitting, maintenance, and use of wireless telecommunication
facilities in the Village of East Aurora. While the Village recognizes
the importance of wireless communication facilities in providing high-quality
communication service to its residents and businesses, the Village
also recognizes that it has an obligation to protect public safety
and to minimize the adverse effects of such facilities.
B.
By enacting this chapter, the Village intends to:
(1)
Provide for the managed development of wireless telecommunication
facilities in a manner that enhances the benefits of wireless communication
and accommodates the needs of Village residents and wireless carriers
in accordance with federal, state and local laws and regulations;
(2)
Establish fair and efficient processes for review and approval of
applications;
(3)
Establish procedures for the design, siting, construction, installation,
maintenance and removal of wireless telecommunication facilities in
the Village;
(4)
Address and provide for new wireless technologies, including but
not limited to micro cell and distributed antenna systems (DAS) technologies;
(5)
Encourage the collocation of wireless communication facilities on
existing structures rather than the construction of a new support
structures;
(6)
Protect Village residents and businesses from potential adverse impacts
of wireless communication facilities, to the extent permitted under
law, and attempt to preserve the visual character of established communities
and the natural beauty of the landscape;
(7)
Minimize safety hazards and avoid potential damage to adjacent properties
through proper locational, engineering and operational requirements;
(8)
Minimize adverse visual and aesthetic impacts of wireless telecommunication
facilities to the maximum extent practicable through careful design,
siting, landscaping, screening and innovative camouflaging techniques;
(9)
Protect the physical appearance of the Village and preserve its scenic
and natural beauty;
(10)
Protect the public health, safety and welfare;
(11)
Protect property values of the community;
(12)
Minimize the impact of such facilities on residential properties;
(13)
Encourage the siting of wireless telecommunication services
facilities on properties and areas which are not used exclusively
for residential purposes; and
(14)
Protect, to the maximum extent practicable, aesthetic qualities,
the property values of the community, the health and safety of citizens
and a citizen's ability to receive communication signals without
interference from other communication providers, while not unreasonably
limiting competition among communication providers.
As used in this chapter, the following terms shall have the
meanings indicated:
Any equipment 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, power supplies,
generators, batteries, cables, equipment buildings, cabinets and storage
sheds, shelters, buildings and similar structures, and which, when
collocated on a structure, is mounted or installed at the same time
as an antenna.
An apparatus designed for the purpose of emitting radio frequency
(RF) radiation, to be operated or operating from a fixed location,
for the provision of personal wireless service (whether on its own
or with other types of services). For purposes of this definition,
the term "antenna" does not include an unintentional radiator, mobile
station, or device authorized under part 15 of Title 47 of the United
States Code.
A structure or equipment at a fixed location that enables
Commission-licensed or authorized wireless communications between
user equipment and a communications network.
The term includes, but is not limited to, equipment associated
with wireless communications services such as private, broadcast,
and public safety services, as well as unlicensed wireless services
and fixed wireless services such as microwave backhaul.
The term includes, but is not limited to, radio transceivers,
antennas, coaxial or fiber-optic cable, regular and backup power supplies,
and comparable equipment, regardless of technological configuration
[including distributed antenna systems (DAS) and micro cell networks].
Consistent with the Nationwide Programmatic Agreement (NPA)
for the Collocation of Wireless Antennas:
Network of spatially separated antenna sites connected to
a common source that provides wireless communication service within
a geographic area or structure.
The environmental assessment form (EAF) approved by the New
York State Department of Environmental Conservation.
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 structure, the distance measured from
the preexisting grade level to the highest point on the structure,
including the antenna and any other appurtenances.
Any wireless telecommunications facility that is not a small
wireless facility.
Micro cells are low-powered, wireless base stations that
function like cells in a mobile wireless network, typically covering
targeted indoor or localized outdoor areas ranging in size from homes
and offices to stadiums, shopping malls, hospitals, and metropolitan
outdoor spaces. A micro cell facility meets both the following qualifications:
(i) each antenna is located inside an enclosure of no more than six
cubic feet in volume or, in the case of an antenna that has exposed
element, the antenna and all of its exposed elements could fit within
an imaginary enclosure of no more than six cubic feet; and (ii) all
other wireless equipment associated with the facility is cumulatively
no more than 17 cubic feet in volume.
The improvement, upgrade or expansion of existing wireless
communication facilities, or the improvement, upgrade or expansion
of the wireless communications facilities located within an existing
equipment compound if the improvement, upgrade, expansion or replacement
does not substantially change the physical dimensions of the wireless
communication facilities.
A wireless communication support structure which consists
of a single pole designed and erected on the ground or on top of a
structure, to support wireless communication antenna and accessory
equipment.
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.
Any way over which the public possesses the right to travel,
which heretofore has been duly laid out, adopted and established by
law, whether publicly owned or not. The term "road" includes state,
county and Village highways and roads, streets, squares, places, courts,
boulevards, parkways and other ways, however designated, to which
the public has access.
The replacement of existing wireless communication antenna
on any existing support structure or on existing accessory equipment
for maintenance, repair or technological advancement with equipment
composed of the same wind loading and structural loading that is substantially
similar in size, weight, and height as the existing wireless communication
antenna and which does not substantially change the physical dimensions
of any existing support structure.
A wireless telecommunication facility, including but not
limited to DAS and micro cells, that meets each of the following conditions:
Each antenna (excluding associated antenna equipment) is no
more than three cubic feet in volume; and
All antenna equipment associated with the facility (excluding
antennas and backup power and related backup power equipment) are
cumulatively no more than 28 cubic feet in volume; and
The facility does not require antenna structure registration
under Part 17; and
The facility is not located on Tribal lands, as defined under
36 CFR 800.16(x); and
The facility does not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified in
Rule 1.1307(b).
Camouflaging methods applied to wireless communication facilities
which render them more visually appealing or which serve to blend
the proposed facility into the existing structure or visual backdrop
in such a manner as to render it minimally visible to the casual observer.
Such methods include, but are not limited to, architecturally screened
roof-mounted facilities, building-mounted antenna painted to match
the existing structure, and facilities constructed to resemble trees,
shrubs, light poles and the like.
A pole, tower, base station, or other building, whether or
not it has an existing antenna facility, that is used or to be used
for the provision of personal wireless service (whether on its own
or comingled with other types of services).
A modification substantially changes the physical dimensions
of an eligible support structure if it meets any of the following
criteria:
The mounting of a proposed antenna on existing towers, that
would increase the original height of the tower by more than 10%,
or by the height of one additional antenna array, with separation
from the nearest existing antenna not to exceed 20 feet, whichever
is greater; for other eligible support structures, it increases the
height of the structure by more than 10% or more than 10 feet, whichever
is greater;
The mounting of the proposed antenna would involve the installation
of more than the standard number of new equipment cabinets for the
technology involved, not to exceed four, or more than one new equipment
shelter;
The mounting of the proposed antenna would involve adding an
appurtenance to the body of an existing wireless telecommunication
support structure that would protrude from the edge of the original
support structure more than 20 feet, or more than the original width
of the support structure at the level of the appurtenance, whichever
is greater; for other eligible support structures, it involves adding
an appurtenance to the body of the structure that would protrude from
the edge of the structure by more than six feet, except that the mounting
of the proposed antenna may exceed the size limits herein if necessary
to shelter the antenna from inclement weather or to connect the antenna
to the support structure via cable;
The mounting of the proposed antenna would involve excavation
outside the current existing structure site, defined as the current
boundaries of the leased or owned property surrounding the existing
structure and any access or utility easements currently related to
the site;
The modification defeats concealment and/or stealth elements
of the support structure; or
The modification does not comply with prior conditions of the
approval for the existing structure and/or site; provided, however,
that this limitation does not apply to any modification that is noncompliant
only in a manner that would not exceed the thresholds identified above.
Equipment that facilitates transmission for any Commission-licensed
or authorized wireless communication service, including, but not limited
to, radio transceivers, antennas, coaxial or fiber-optic cable, and
regular and backup power supply. The term includes equipment associated
with wireless communications services including, but not limited to,
private, broadcast, and public safety services, as well as unlicensed
wireless services and fixed wireless services such as microwave backhaul.
A pole or similar structure that is used in whole or in part
for the purpose of carrying electric distribution lines or cables
or wires for telecommunications, cable or electric service, or for
lighting, traffic control, signage, or a similar function regardless
of ownership, including Village-owned poles or poles owned by other
utility companies. Any utility pole in excess of 50 feet shall be
deemed a tower.
A structure, facility or location designed or intended to
be used as, or used to support, antennas, along with any antennas
located on such structure and any accessory equipment. It includes,
without limit, freestanding towers, guyed towers, monopoles, DAS,
micro cell or small wireless facilities on utility poles in the public
right-of-way or property of the Village or within the Village and
similar structures that employ stealth technology, including but not
limited to structures such as a multistory building, church steeple,
silo, water tower, sign or other similar structures intended to mitigate
the visual impact of an antenna or the functional equivalent of such.
It includes any structure, antennas and accessory equipment intended
for transmitting and/or receiving radio, television, cellular, paging,
911, personal telecommunications services, commercial satellite services,
microwave telecommunications or other cellular communication technologies,
but excluding those used exclusively for the Village's fire,
police and other dispatch telecommunications, or exclusively for private
radio and television reception and private citizen's bands, amateur
radio and other similar telecommunications.
A wireless telecommunications infrastructure provider or
a wireless telecommunications services provider.
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 telecommunication facilities
without having first obtained either a special permit for a large
wireless facility or a small wireless facility permit for the a small
wireless facility.
B.
Notwithstanding anything to the contrary in this chapter, any application
for a wireless telecommunication facility that does not substantially
change the dimensions of a wireless telecommunication facility, shall
not require a special permit or a small wireless facility permit.
In the event that a modification to, or replacement of, an existing
wireless telecommunications facility does not substantially change
such existing wireless telecommunication facility, all that shall
be required is a building permit from the Village Building Official.
C.
A repair and/or maintenance of an existing wireless telecommunications
facility shall not require a special permit or small wireless facility
permit.
D.
In addition to the requirements set forth for the issuance of a small wireless facility permit or special permit for a wireless telecommunication facility to be located in a public right-of-way as set forth in this chapter, any telecommunications provider seeking to place a wireless telecommunications facility in the public right-of-way shall also comply with the procedures and requirements set forth in Ch. 223 of the Village Code relating to conducting construction activities within the public right-of-way. To the extent any provisions in Ch. 223 are inconsistent with the provisions set forth in this chapter, the provisions in this chapter shall control.
E.
Notwithstanding the provisions set forth in this § 270-3, in the event an application seeks to place a wireless telecommunication facility on property owned or controlled by the Village, other than within a Village-owned public right-of-way, such application shall be exempt from the requirements of this chapter and shall remain within the sole and absolute discretion of the Village Board, which may impose such conditions on any such use as it deems appropriate. Nothing herein shall be deemed to create any right or entitlement to use Village property for such wireless telecommunication facility.
F.
In the event any conflict exists between federal or state laws or
regulations and any provision of this chapter, the provisions of the
most recently adopted federal or state laws or regulations shall be
applied and control.
A.
All small wireless facilities shall require a small wireless facility
permit to be issued by the Village Board. Further, for all steps in
the approval process for issuance of a small-cell wireless facility
permit, the Village Board may require an applicant to additionally
appear before the Village Planning Commission, which Commission, at
the direction of the Village Board, shall review the application and
make a recommendation to the Village Board in favor of or against
approval of the application.
B.
The Village Board shall be empowered to condition the issuance of
a building permit upon implementation of stealth technologies or other
measures which mitigate visual effect.
C.
All applications for small wireless facilities permits shall comply
with all applicable provisions of this chapter. However, notwithstanding
anything to the contrary, where appropriate, the Village Board shall
have the authority to waive any requirements set forth in this chapter
relating to an application for, or approval of, a small wireless facility
permit, provided that it would further the purposes of this chapter.
A.
Upon receipt of an application for a small wireless facility permit,
the Village Board shall review said application and plans in accordance
with the standards and requirements set forth in in this chapter.
B.
The Village Board may attach such conditions and safeguards to any
small wireless facilities permit and site development plan as are,
in its opinion, necessary to ensure initial and continued conformance
to all applicable standards and requirements.
C.
No application shall be accepted and no small wireless facilities
permit shall be issued for a property where the Building Official
has found, or there exists, a violation of the Village Code and where
such violation has not been corrected.
E.
An application for a small wireless facilities permit 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. The landowner, if
different than the applicant, shall also sign the application. At
the discretion of the Village Board, any false or misleading statement
in the application may subject the applicant to denial of the application
without further consideration or opportunity for correction.
F.
The applicant must provide documentation to verify it has a legal
interest in the site, if not within the public right-of-way. Said
documentation may be in the form of a deed, contract or sale or lease
for the property, depending on whether the applicant is the property
owner, contract-vendee or lessee.
G.
The applicant shall include a statement, in writing, that:
(1)
The applicant's proposed small wireless facility shall be maintained
in a safe manner and in compliance with all conditions of the small
wireless facility permit, without exception, as well as all applicable
and permissible federal, state and local laws, statutes, codes, rules
and regulations; and
(2)
The construction of the small wireless facility is legally permissible,
including, but not limited to, the fact that the applicant is authorized
to do business in the New York State.
H.
If proposing a new structure for the purpose of supporting a small
wireless facility, the application shall be accompanied by a map which
shows the applicant's existing and proposed area of coverage.
Such map should locate all existing wireless telecommunication facility
sites within the Village and within 1/2 mile of the proposed small
wireless facility.
I.
In addition to all other required information as stated in this chapter,
all applications for the construction or installation of new small
wireless facility or modification of an existing small wireless facility
shall contain the following information:
(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 requirements;
(2)
Documentation that demonstrates and proves the need for the small
wireless facility to provide service primarily and essentially within
the Village. Such documentation shall include, but not be limited
to: (i) information relating to all other wireless telecommunication
facilities or antennas associated with such wireless telecommunication
facilities that are to be deployed in the Village in conjunction with
the proposed small wireless facility; (ii) 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, operator
and applicant;
(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)
The size of the property stated both in square feet and lot line
dimensions, and a survey prepared by a licensed professional surveyor
showing the location of all lot lines, if the proposed small wireless
facility is located outside the public right-of-way;
(8)
The location of the 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, if the proposed small wireless facility is
located outside the public right-of-way;
(11)
The number, type and model of the antenna(s) proposed, with
a copy of the specification sheet;
(12)
The make, model, type and manufacturer of the utility pole,
monopole or other structure on which any antenna or accessory equipment
for a small wireless facility is to be located and a design plan stating
the structure's capacity to accommodate multiple users;
(13)
A site plan describing any new proposed structure and antenna(s)
and all related fixtures, accessory equipment, appurtenances and apparatus,
including but not limited to height above preexisting grade, materials,
color and lighting;
(14)
The frequency, modulation and class of service of radio or other
transmitting equipment;
(15)
The actual intended transmission power stated as the maximum
effective radiated power (ERP) in watts of the antenna(s);
(16)
Direction of maximum lobes and associated radiation of the antenna(s);
(17)
Applicant's proposed maintenance and inspection procedures
and related system of records;
(18)
Documentation justifying to the total height of any proposed
antenna and structure and the basis therefor. Such justification shall
be to provide service within the Village, to the extent practicable,
unless good cause is shown;
(19)
Certification that NIER levels at the proposed site will be
and remain within the current threshold levels adopted by the FCC;
(20)
A signed statement that the proposed installation will not cause
physical or RF interference with other telecommunications devices;
(21)
A copy of the FCC license applicable for the intended use of
the wireless telecommunication facilities;
(22)
Certification that a topographic and geomorphologic study and
analysis has been conducted, and that, taking into account the subsurface
and substrate, and the proposed drainage plan, the site is adequate
to assure the stability of the proposed wireless telecommunications
facilities on the proposed site, though the certifying engineer need
not be approved by the Village; and
(23)
Information relating to the expected useful life of the proposed
small wireless facility.
J.
The applicant shall furnish written certification that the small
wireless facility and attachments are designed and will be constructed
to meet all local, county, state and federal structural requirements
for loads, including wind, snow and ice loads. If the wireless facility
is subsequently approved and constructed, as-built certification indicating
that the facility has been constructed in accordance with all standards
shall be furnished to the Village prior to issuance of any certificate
of occupancy or compliance.
K.
All proposed small wireless 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 with
the proposed site and facility, will employ stealth technologies as
directed by the Village Board, where appropriate, and will thereby
have the least adverse visual effect on the environment, the character
of the community, surrounding properties and on the residences in
the area of the wireless telecommunication facility.
A.
Design. All small wireless facilities shall be designed, constructed,
operated, maintained, repaired, modified and removed in strict compliance
with all current applicable technical, safety and safety-related codes,
including but not limited to the most recent editions of the American
National Standards Institute (ANSI) Code, National Electrical Safety
Code, and National Electrical Code. All small wireless facilities
shall at all times be kept and maintained in good condition, order
and repair by qualified maintenance and construction personnel, so
that the same shall not endanger the life of any person or result
in a negative physical impact on any properly in the Village.
B.
Snow, wind and ice. All small wireless facilities structures shall
be designed to withstand the effects of wind gusts and accumulation
of snow and ice to the standard designed by the American National
Standards Institute as prepared by the engineering departments of
the Electronics Industry Association, and Telecommunications Industry
Association (ANSI/EIA/TIA-222, as amended).
C.
Aviation safety. Small wireless facilities shall comply with all
federal and state laws and regulations concerning aviation safety.
D.
Public safety communications. Small wireless facilities shall not
interfere with public safety communications or the reception of broadband,
television, radio or other communication services enjoyed by occupants
of nearby properties.
E.
Radio frequency emissions. A small wireless facility shall not, by
itself or in conjunction with other WCFs, generate radio frequency
emissions in excess of the standards and regulations of the FCC, including,
but not limited to, the FCC Office of Engineering Technology Bulletin
65 entitled "Evaluating Compliance with FCC Guidelines for Human Exposure
to Radio Frequency Electromagnetic Fields," as amended. When a small
wireless facility is complete, as-built readings will be taken and
submitted to the Village.
F.
Maintenance. To the extent permitted by law, the following maintenance
requirements shall apply:
(1)
Small wireless facilities shall be fully automated and unattended
on a daily basis and shall be visited only for maintenance or emergency
repair.
(2)
Such maintenance shall be performed to ensure the upkeep of the facility
in order to promote the safety and security of the Village's
residents.
(3)
All maintenance activities shall utilize nothing less than the best
available technology for preventing failures and accidents.
(4)
The owner or operator of a small wireless facility shall maintain
standby power generators or batteries capable of powering the small
wireless facility for at least 12 hours without additional public
utility power and indefinitely with a continuous or replenished fuel
supply, where appropriate. Such standby power shall activate automatically
upon the failure of public utility power to the site. Notwithstanding
the foregoing, the Village Board may waive the requirement for back-up
power, where appropriate, including but not limited to when a small
wireless facility is not located in a densely populated area or on
a major thoroughfare.
A.
For small wireless facility permit applications, the Village Board
may, at its discretion, require a public hearing.
B.
In any district, the Village Board may grant a small wireless facility
permit for the construction of the wireless telecommunication facility.
C.
All decisions of the Village Board involving applications for small
wireless facility permits shall be in writing and supported by substantial
evidence contained in a written record.
D.
Timeframes for approval.
(1)
Within 60 days of receipt of a complete application for the collocation
of a small wireless facility on a preexisting utility pole, monopole
or other existing wireless telecommunication facility support structure,
the Village Board shall make a final decision on whether to approve
the application and shall notify the applicant in writing of such
decision.
(2)
Within 90 days of receipt of a complete application for a small wireless
facility on a new utility pole, monopole or other new wireless telecommunication
facility support structure, the Village Board shall make a final decision
on whether to approve the application and shall notify the applicant
in writing of such decision.
(3)
Within 10 days of receipt of an incomplete application for a small
wireless facility permit, the Village shall notify the applicant in
writing of any supplemental information required to complete the application.
Upon receipt of an applicant's supplemental information in response
to the initial notification of incompleteness by the Village, the
applicable shot clock will reset to zero and the Village shall have
the full 60 or 90 days permitted by law to act on the completed application.
(4)
For any subsequent determinations of incompleteness beyond the initial,
the Village shall notify the applicant of any required supplemental
information within 10 days of receipt of the supplemental submission
and such notice shall toll the applicable shot clock until the applicant
submits the required supplemental information.
E.
All time periods set forth in this chapter reference calendar days.
A.
Applications for small wireless facilities shall locate, site and erect said facility in accordance with the following priorities, with Subsection A(1) being the highest priority and Subsection A(7) being the lowest priority.
(1)
Collocation on existing utility poles, monopoles or other wireless
telecommunication facility support structures on lands owned or controlled
by the Village, not including the public rights-of-way;
(2)
Collocation on a site with existing wireless telecommunication facilities
or other wireless telecommunication facility structures in the Village;
(3)
On other lands owned or controlled by the Village including but not
limited to the Village public right-of-way;
(4)
On lands owned or controlled by other municipal corporations within
the Village, to the extent permitted by such other municipal corporations;
(5)
On nonresidential zoned properties;
(6)
On residential zoned properties; and
(7)
No small wireless facilities shall be permitted in the East Aurora
Historic District, unless the applicant demonstrates to the Village
Board's satisfaction that the selected site is necessary to provide
adequate service and no feasible alternative site exists. Such applications
with facilities proposed to be sited in the Historic District shall
be submitted for review before the East Aurora Village Historic Preservation
Commission. After review, said Commission shall submit to the Village
Board its recommendation, for or against the application, and the
Village Board shall make the final determination if such application
shall be approved with facilities located within the East Aurora Village
Historic Preservation District.
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 special 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 collocation as an option. If such option is not proposed,
the applicant must explain to the reasonable satisfaction of the Village
Board why collocation is impracticable.
D.
Notwithstanding the above, the Village Board may approve any site
located within the Village, provided that the Village Board finds
that the proposed site will further the purposes of this chapter,
is in the best interest of the safety, public welfare, character and
environment of the Village and will not have a deleterious effect
on the nature and character of the community and surrounding properties.
Small wireless facilities shall be no higher than the minimum
height necessary. The proposed height, which may be in excess of maximum
height permitted for other structures in the applicable zone, shall
address any additional height necessary to accommodate collocation
by additional antenna arrays, but under no circumstances is the height
to be in excess of what is permitted for small wireless facilities.
All wireless telecommunication support structures for small
wireless facilities located outside the public right-of-way shall
be set back from the property line of the lot on which it is located
a distance equal to not less than the total height of the facility,
including support structure, measured from the highest point of such
support structure to the finished grade elevation of the ground on
which it is situated, plus 10% of such total height. The Village Board
may reduce such setback requirements based upon consideration of lot
size, topographic conditions, adjoining land uses, landscaping, other
forms of screening and/or structural characteristics of the proposed
support structure.
A.
All small wireless telecommunication facilities shall be sited so
as to have the least adverse visual effect on the environment and
its character, on existing vegetation and on the residents in the
area of the wireless telecommunications facilities sites. If lighting
is required, the applicant shall provide a detailed plan for sufficient
lighting of as unobtrusive and inoffensive an effect as is permissible
under federal, state and local laws, statutes, codes, rules or regulations.
B.
Both the small wireless telecommunication facility and any and all
accessory equipment shall maximize 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.
C.
Small wireless telecommunication facilities shall not be artificially
lighted or marked, except as required by law.
D.
Electrical and land-based telephone lines extended to serve the wireless
telecommunication services facility sites shall be installed underground.
E.
Stealth technologies shall be required to be employed in an effort
to blend into the surrounding environment and minimize aesthetic impact.
F.
Landscaping shall be provided, if appropriate.
A.
All small wireless telecommunication facilities and antennas shall
be located, fenced or otherwise secured in a manner that prevents
unauthorized access. Specifically:
(1)
All antennas and other supporting structures shall be made inaccessible
to individuals and constructed or shielded in such a manner that they
cannot be climbed or collided with; and
(2)
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.
A.
At the five-year anniversary date after the effective date for the
small wireless facility permit and for all subsequent fifth anniversaries
of the effective date of the original permit for small wireless telecommunications
facilities, the holder of the small wireless facility permit shall
submit a signed written document with the following information to
the Village Building Department, confirming the compliance of the
small wireless facilities with the small wireless facility permit.
Such submission shall include the following:
(1)
The name of the holder of the small wireless facilities permit for
the wireless telecommunications facilities.
(2)
The date of the original granting of the small wireless facilities
permit.
(3)
Whether the small wireless facility has been modified since the issuance
of the small wireless facilities permit and, if so, in what manner.
(4)
Any requests for waivers or relief of any kind whatsoever from the
requirements of this chapter and any requirements for small wireless
facilities permit.
(5)
Certification that the small wireless facilities are in compliance
with the original small wireless facilities permit and in compliance
with all applicable codes, laws, rules, regulations, federal certification
requirements including, but not limited to, this chapter.
(6)
Certification that the wireless telecommunications facility support
structure, attachments and accessory equipment have been designed
and constructed (as built) and continues to meet all local, county,
state and federal structural requirements for loads, including wind,
snow and ice loads. Such certification shall be by a qualified New
York State licensed professional engineer.
B.
If the holder of a small wireless facility permit does not submit the certifications in Subsection A of this chapter within the time frame noted in Subsection A of this section, then such small wireless facilities permit shall terminate and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special permit, or subsequent fifth anniversaries, unless the holder of the small wireless facilities permit adequately demonstrates to the Village Board that extenuating circumstances prevented a timely submission of such written certification. If the Village Building Official agrees that there were extenuating circumstances, then the holder of the expired small wireless facilities permit may submit a late recertification request or application for a new small wireless facilities permit.
At the time that a person submits an application for a small
wireless facility permit, such person shall pay a nonrefundable application
fee in an amount as determined by the Village Board and as set forth
in the Village Fee Schedule, in addition to any other fee required
by law.
The applicant and the owner of record of any proposed small wireless facilities property site shall comply with any requirements set forth in Ch. 223 of the Village Code regarding the posting of security to place a small wireless facility in the public right-of-way.
In order to verify that the holder of a small wireless facilities
permit and any and all lessees, renters, and/or licensees of small
wireless facilities place and construct such facilities, including
supporting structures, accessory equipment and antennas, in accordance
with all applicable technical, safety, fire, building, and zoning
laws, statutes, codes, rules, regulations and other applicable requirements,
the Village may inspect at any time, upon providing reasonable notice,
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, structures, antennas,
accessory equipment and electromagnetic output.
A.
An applicant for a small wireless facility permit shall secure and
at all times maintain public liability insurance for personal injuries,
death and property damage, and umbrella insurance coverage, for the
duration of the small wireless facilities permit in amounts as set
forth below:
B.
For a small wireless telecommunication facility on Village property,
the commercial general liability insurance policy shall specifically
include the Village, the Village Board, other elected officials, and
the Village's officers, board members, employees, committee members,
attorneys, agents and consultants as additional insureds.
C.
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the state 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.
Prior to the issuance of a permit for a small wireless facility,
the applicant shall deliver to the Village a copy of each of the policies
or certificates representing the insurance in the required amounts.
Any approval for small wireless facilities that is proposed
for Village property or in a public right-of-way pursuant to this
chapter shall contain a provision with respect to indemnification.
Such provision shall require the applicant, to the extent permitted
by law, to at all times defend, indemnify, protect, save, hold harmless,
and exempt the Village and its elected officials, officers, board
members, 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, product 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.
The holder of any small wireless facilities permit shall annually
certify to the Village Board, or its authorized designee, that NIER
levels at the site where a small wireless facility is located are
within the threshold levels adopted by the FCC. In addition, the Village,
at its own cost and expense, shall be permitted to conduct its own
certification test of the NIER levels at the site where any small
wireless facility is located, with or without notice to the wireless
telecommunication provider. Once operational, but prior to providing
service to customers, as-built readings will be provided to the Village.
A.
If any small wireless facilities are constructed, repaired, rebuilt,
placed, moved, relocated, modified or maintained in a way that is
inconsistent or not in compliance with the provisions of this chapter
or of the small wireless facility permit conditions and requirements,
or it is determined conclusively that the applicant made materially
false or misleading statements during the application process, then
the Village Board or the Building Official, or their designee, shall
notify the holder of the small wireless facilities permit in writing
of such violation. Such notice shall specify the nature of the violation
or noncompliance, and state that the violations must be corrected
within seven days of the date of the postmark of the notice, or of
the date of personal service of the notice, whichever is earlier.
Notwithstanding anything to the contrary in this subsection or any
other section of this chapter, if the violation or noncompliance causes,
creates or presents an imminent danger or threat to the health or
safety of lives or property, the Village Board or Building Official
may, at their sole discretion, order the violations remedied within
24 hours.
B.
If within the period set forth in Subsection A above the small wireless facilities are not brought into compliance with the provisions of this chapter, or of the permit, or substantial steps are not taken in order to bring the affected small wireless facilities into compliance, then the Village Board or the Building Official may revoke such small wireless facilities permit and require removal of such small wireless facilities pursuant to § 270-21 below.
A.
Under the following circumstances, the Village may determine that
the safety, public welfare, character and environment of the Village
warrant and require the removal of small wireless facilities, under
the following circumstances:
(1)
The small wireless facility has been abandoned (i.e., not used as
wireless telecommunication 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)
A permitted small wireless facility falls into such a state of disrepair
it creates a safety hazard;
(3)
The small wireless facilities have been located, constructed, or
modified without first obtaining, or in a manner not authorized by,
the required small wireless facilities permit, or any other necessary
authorization; or
B.
If the Village Board makes a determination as noted in Subsection A of this chapter, then it shall notify the holder of the small wireless facilities permit and the owner of the property in writing that said small wireless facilities are to be removed.
C.
The holder of the small wireless facilities permit or the owner of
the property shall be required to dismantle and remove such small
wireless facilities, and all accessory equipment and associated structures,
from the site and return the site to its original condition and certify
through soils or other testing that no contamination has been created
by the facility, such restoration being completed, limited only by
physical or commercial impracticability, within 90 days of receipt
of written notice from the Village to remove such small wireless facilities.
However, if the owner of the property upon which the small wireless
facilities are located wishes to retain any access roadway to the
small wireless facilities, the owner may do so with the approval of
the Village.
D.
If the small wireless facilities are not removed or substantial progress
has not been made to remove the small wireless facilities within 90
days after the small wireless facilities permit holder has received
such written notice of removal, then the Village Board may order officials
or representatives of the Village to remove the small wireless facilities
at the sole expense of the property owner and/or permit holder.
E.
If the Village removes or causes to be removed the small wireless
facilities, and the owner of the wireless telecommunication facilities
does not claim and remove them to a lawful location within 10 days,
then the Village may take steps to declare the small wireless facilities
abandoned and dispose of or sell them and their components and retain
the proceeds therefrom. The Village may also cause the costs associated
with the removal and disposal of the small wireless facilities to
be assessed on the property in the same manner as a tax or assessment.
A.
Noncommercial usage exemption. Village residents utilizing satellite
dishes, citizen and band radios, and antenna for the purpose of maintaining
television, phone, and/or internet connections at their residences
shall be exempt from the regulations relating to small wireless facilities
enumerated in this chapter.
B.
Prohibited on certain structures. No small wireless facility shall
be located on single-family detached residences, single-family attached
residences, twin-homes, duplexes, or any residential accessory structure.
A.
In addition to the applicable small wireless facilities permit provisions
listed in this chapter, all small wireless facilities located in the
public right-of-way shall be required to comply with the following
regulations:
(1)
Location. Small wireless facilities in the public right-of-way shall
be collocated on existing wireless telecommunications facilities,
whenever possible. If collocation is not technologically feasible,
the applicant shall locate its small wireless facility on existing
utility poles or other structures that do not already act as wireless
telecommunication facility support structures.
(2)
Design requirements:
(a)
All equipment shall be the smallest and least visibly intrusive
equipment feasible.
(b)
Antenna and accessory equipment shall be treated to match the
supporting structure and may be required to be painted, or otherwise
coated, to be visually compatible with the support structure upon
which they are mounted.
(3)
Equipment location. Small wireless facilities and any accessory equipment
in the public right-of-way shall be located so as not to cause any
physical or visual obstruction to pedestrian or vehicular traffic,
or to otherwise create safety hazards to pedestrians and/or motorists
or to otherwise inconvenience public use of the public right-of-way
as determined by the Village. In addition:
(a)
In no case shall ground-mounted accessory equipment, walls,
or landscaping be located within 18 inches of the face of the curb,
or within four feet of the edge of the cartway, or within an easement
extending onto a privately owned lot;
(b)
To the extent feasible, accessory equipment shall be placed
underground. Ground-mounted accessory equipment that cannot be placed
underground shall be screened from surrounding views, to the fullest
extent possible, through the use of landscaping or other decorative
features to the satisfaction of the Village. Ground- mounted accessory
equipment shall be screened, when possible, by utilizing existing
structures. If screening by utilizing existing structures is not possible,
ground-mounted accessory equipment shall be made architecturally and
aesthetically compatible with the surrounding area through the use
of coatings, landscaping, and/or screening walls, enclosures or other
stealth technology to the satisfaction of the Village.
(c)
Required electrical meter cabinets shall be screened to blend
in with the surrounding area to the satisfaction of the Village.
(d)
Any graffiti on any small wireless facility support structure
or any accessory equipment shall be removed within 15 days upon notification
by the Village at the sole expense of the owner.
(e)
Any proposed underground vault related to small wireless facilities
shall be reviewed and approved by the Village.
(f)
Accessory equipment attached to the small wireless facility
support structure shall have such vertical clearance as the Village
Board may determine.
(4)
Relocation or removal of small wireless facilities in the public right-of-way. In addition to the removal provisions set forth in § 270-21 above, within 90 days following written notice from the Village, or such longer period as the Village determines is reasonably necessary, or such shorter period in the case of an emergency, an owner of a small wireless facility and any accessory equipment in the public right-of-way shall, at its own expense, temporarily or permanently remove, relocate, or change the position of any small wireless facility or accessory equipment when the Village, consistent with its police powers and any applicable Public Service Commission regulations, shall have determined that such removal, relocation, change or alteration is reasonably necessary under the following circumstances:
(a)
To construct, repair, maintain or install any Village or other
public improvement located in the public right-of-way;
(b)
To prevent the interference with the operations of the Village
or other governmental entity, in the public right-of-way;
(c)
Abandonment of a street or road or the release of a utility
easement; or
(d)
An emergency as determined by the Village Board.
In addition to permit fees for a small wireless facility permit,
every small wireless facility located in the public right-of-way is
subject to the Village's right to fix annually a fair and reasonable
fee to be paid for use and occupancy of the public right-of-way. Such
compensation for use of the public right-of-way shall be directly
related to the Village's actual public right-of-way management
costs including, but not limited to, the costs of the administration
and performance of all reviewing, inspecting, permitting, supervising
and other public right-of-way management activities by the Village.
The owner of each small wireless facility permit shall pay an annual
fee to the Village to compensate the Village for the Village's
costs incurred in connection with the activities described above as
determined by the Village Board and as set forth in the Village Fee
Schedule.
A.
Except as otherwise provided by this chapter, no large wireless facilities
shall be installed, constructed or substantially changed until a special
permit application is reviewed and approved by the Village Board and
a special permit has been issued. Further, for all steps in the approval
process for issuance of a special permit for a large wireless facility,
the Village Board may require an applicant to additionally appear
before the Village Planning Commission, which Commission, at the direction
of the Village Board, shall review the application and make a recommendation
to the Village Board, in favor of, or against, approval of the application.
B.
Upon receipt of an application for a large wireless facility, the
Village Board shall review said application and plans in accordance
with the standards and requirements set forth, in in this chapter.
However, notwithstanding anything to the contrary, where appropriate,
the Village Board shall have the authority to waive any requirements
set forth in this chapter relating to the application for, or approval
of, a special use permit for a large wireless facility, provided that
it would further the purposes of this chapter.
C.
The Village Board may attach such conditions and safeguards to any
permit and site development plan as are, in its opinion, necessary
to ensure initial and continued conformance to all applicable standards
and requirements.
D.
No application shall be accepted and no permit shall be issued for
a large wireless facility on a property where the Building Official
has found, or there exists, a violation of the Village Code and where
such violation has not been corrected.
F.
An application for a special permit for a large wireless facility
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.
The landowner, if different than the applicant, shall also sign the
application. At the discretion of the Village Board, any false or
misleading statement in the application may subject the applicant
to denial of the application without further consideration or opportunity
for correction.
G.
The applicant must provide documentation to verify it has a legal
interest in the site where the large wireless facility is to be located.
Said documentation may be in the form of a deed, contract or sale
or lease for the property, depending on whether the applicant is the
property owner, contract-vendee or lessee.
H.
The applicant shall include a statement, in writing, that:
(1)
The applicant's proposed large wireless facility shall be maintained
in a safe manner and in compliance with all conditions of the special
permit, without exception, as well as all applicable and permissible
federal, state and local laws, statutes, codes, rules and regulations;
and
(2)
The construction of a large wireless facility is legally permissible,
including, but not limited to, the fact that the applicant is authorized
to do business in the New York State.
I.
The application shall be accompanied by a map in graphical form and
in AutoCAD® or compatible drawing exchange
file format, which shows the applicant's existing and proposed
area of coverage. Such map should locate all existing facility sites
within the Village and within one mile of the Village in bordering
communities.
J.
In addition to all other required information as stated in this chapter,
all applications for the construction or installation of new large
wireless facilities, or any substantial change to an existing large
wireless facility, shall contain the following information:
(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 requirements;
(2)
Documentation that demonstrates and proves the need for the large
wireless 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, operator
and applicant;
(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)
The size of the property stated both in square feet and lot line
dimensions, and a survey prepared by a licensed professional surveyor
showing the location of all lot lines;
(8)
The location of the 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, if the proposed facility is located outside
the public rights-of-way;
(11)
The number, type and model of the antenna(s) proposed, with
a copy of the specification sheet;
(12)
The make, model, type and manufacturer of the support structure
and a design plan stating the support structure's capacity to
accommodate multiple users;
(13)
A site plan describing the proposed support structure and antenna(s)
and all related accessory equipment, fixtures, structures, appurtenances
and apparatus, including height above preexisting grade, materials,
color and lighting;
(14)
The frequency, modulation and class of service of radio or other
transmitting equipment;
(15)
The actual intended transmission power stated as the maximum
effective radiated power (ERP) in watts of the antenna(s);
(16)
Direction of maximum lobes and associated radiation of the antenna(s);
(17)
Applicant's proposed support structure and accessory equipment
maintenance and inspection procedures and related system of records;
(18)
Documentation justifying to the total height of any wireless
telecommunications facility support structure and the basis therefor.
Such justification shall be to provide service within the Village,
to the extent practicable, unless good cause is shown;
(19)
Certification that NIER levels at the proposed site will be
and remain within the current threshold levels adopted by the FCC;
(20)
A signed statement that the proposed installation will not cause
physical or RF interference with other telecommunications devices;
(21)
A copy of the FCC license applicable for the intended use of
the wireless telecommunication facilities;
(22)
Certification that a topographic and geomorphologic study and
analysis has been conducted, and that, taking into account the subsurface
and substrate, and the proposed drainage plan, the site is adequate
to assure the stability of the proposed wireless telecommunications
facilities on the proposed site;
(23)
Identify the proposed location of emergency power supply and
the decibel level emitted during testing and operation;
(24)
Information relating to the expected useful life of the proposed
large wireless facility;
(25)
Construction details for the proposed tower, supporting structure,
and base, including specifications for the maximum height of the tower
or structure the proposed base could support; and
(26)
Information relating to intended future collocations on the
large wireless facility that may result in a further increase in the
size or height of the proposed large wireless facility.
K.
In the case of a new wireless telecommunication facility support
structure for a large wireless facility, the applicant shall be required
to submit a written report demonstrating its meaningful efforts to
secure shared use of existing wireless telecommunication support structure(s)
or the use of alternative existing buildings or other structures within
a one-half-mile radius of the site proposed. Copies of written requests
and responses for shared use shall be provided to the Village Board
with the application, along with any letters of rejection stating
the reason for rejection. Acceptable reasons for rejection include:
(1)
The proposed antenna and accessory equipment would exceed the structural
capacity of the existing building or other structure, and its reinforcement
cannot be accomplished at a reasonable cost.
(2)
The proposed antenna and accessory equipment would cause radio frequency
interference with other existing equipment for that existing building
or other structure and the interference cannot be prevented at a reasonable
cost.
(3)
Such existing buildings or other structures do not have adequate
location, space, access, or height to accommodate the proposed equipment
or to allow it to perform its intended function.
(4)
A commercially reasonable agreement could not be reached with the
owner of such building or other structure.
L.
The applicant shall furnish written certification that the wireless
telecommunications facility, structure, foundation, attachments and
accessory equipment are designed and will be constructed to meet all
local, county, state and federal structural requirements for loads,
including wind, snow and ice loads. If the large wireless facility
is subsequently approved and constructed, as-built certification indicating
that the large wireless facility has been constructed in accordance
with all standards shall be furnished to the Village prior to issuance
of any certificate of occupancy or compliance.
M.
The applicant shall submit a completed long-form EAF. Based on circumstances
of each application for a large wireless facility, the Village Board
may require submission of a detailed visual analysis.
N.
All proposed large wireless 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 with
the proposed site and facility, will employ stealth technologies where
appropriate, and will thereby have the least adverse visual effect
on the environment, the character of the community, surrounding properties
and on the residences in the area of the large wireless facility.
O.
The applicant shall, in writing, identify and disclose the number
and locations of any additional sites that the applicant has been,
is or will be considering, reviewing or planning for wireless telecommunications
facilities in the Village, and all municipalities adjoining the Village,
for a two-year period following the date of the application.
Large wireless facilities are permitted in all zones subject
to the restrictions and conditions prescribed below:
A.
Construction and design. All large wireless facilities shall be designed,
constructed, operated, maintained, repaired, modified and removed
in strict compliance with all current applicable technical, safety
and safety-related codes, including but not limited to the most recent
editions of the American National Standards Institute (ANSI) Code,
National Electrical Safety Code, and National Electrical Code. Any
large wireless facilities shall at all times be kept and maintained
in good condition, order and repair by qualified maintenance and construction
personnel, so that the same shall not endanger the life of any person
or any property.
B.
Wind, snow and ice. All large wireless facilities structures shall
be designed to withstand the effects of wind gusts and snow and ice
loads to the standard designed by the American National Standards
Institute as prepared by the engineering departments of the Electronics
Industry Association, and Telecommunications Industry Association
(ANSI/EIA/TIA-222, as amended).
C.
Aviation safety. Large wireless facilities shall comply with all
federal and state laws and regulations concerning aviation safety.
D.
Public safety communications. Large wireless facilities shall not
interfere with public safety communications or the reception of broadband,
television, radio or other communication services enjoyed by occupants
of nearby properties.
E.
Radio frequency emissions. A large wireless facility shall not, by
itself or in conjunction with other WCFs, generate radio frequency
emissions in excess of the standards and regulations of the FCC, including,
but not limited to, the FCC Office of Engineering Technology Bulletin
65, entitled "Evaluating Compliance with FCC Guidelines for Human
Exposure to Radio Frequency Electromagnetic Fields," as amended. When
a large wireless facility is complete, as-built readings will be taken
and submitted to the Village.
F.
Maintenance. To the extent permitted by law, the following maintenance
requirements shall apply:
(1)
Large wireless facilities shall be fully automated and unattended
on a daily basis and shall be visited only for maintenance or emergency
repair.
(2)
Such maintenance shall be performed to ensure the upkeep of the facility
in order to promote the safety and security of the Village's
residents and all other persons and property.
(3)
All maintenance activities shall utilize nothing less than the best
available technology for preventing failures and accidents.
(4)
The owner or operator of a large wireless facility shall maintain
standby power generators capable of powering the wireless telecommunications
facility for at least 24 hours without additional public utility power,
and indefinitely with a continuous or replenished fuel supply. Such
standby power shall activate automatically upon the failure of public
utility power to the site. Notwithstanding the foregoing, the Village
Board may require standby power longer than 24 hours where circumstances
indicate sufficient space exists to accommodate longer periods of
back-up power.
A.
For any special permit application, the Village Board shall hold
a public hearing on due notice within 60 days after submission of
a formal completed application, including such technical information
from the applicant as may be required by the Village Board for a special
permit under the provisions of this chapter.
B.
Notice of the public hearing shall be by publication in the official
newspaper of the Village at least 10 days in advance of the hearing.
The hearing notice shall indicate that the application may be examined
and further information is available from the Village Board office
during regular business hours. Copies of the publication order shall
be mailed by the applicant to the owners of property within 1,000
feet of the property which is the subject of the application, and
an affidavit of service thereof shall be filed with the Village Board
due on or before the date of the hearing.
C.
In any district, the Village Board may grant a special permit for
the construction of the large wireless facilities for a period of
five years.
D.
All decisions of the Village Board involving applications for large
wireless facilities shall be in writing and supported by substantial
evidence contained in a written record.
E.
Timeframes for approval.
(1)
Within 30 days of receipt of any application for a large wireless
facility, the Village shall notify the applicant in writing of any
supplemental information required to complete the application. Such
notification shall toll the applicable shot clock until the applicant
submits the required supplemental information.
(2)
Within 90 days of receipt of an application for a collocated large
wireless facility or 150 days of receipt of an application for a new
large wireless facility with accompanying support structure, including
such technical information from the applicant as may be required by
the Village Board for a special permit under the provisions of this
chapter, the Village shall make a final decision on whether to approve
the application and shall notify the applicant in writing of such
decision.
F.
All time periods set forth in this chapter reference calendar days.
A.
Applications for special permits for large wireless facilities shall locate, site and erect said wireless telecommunication facilities in accordance with the following priorities, with Subsection A(1) being the highest priority and Subsection A(6) being the lowest priority.
(1)
Collocation on existing wireless telecommunication facilities on
lands owned or controlled by the Village, not including the public
right-of-way;
(2)
Collocation on a site with existing wireless telecommunication facilities
or other tall structures in the Village;
(3)
On other lands owned or controlled by the Village including but not
limited to the Village public right-of-way;
(4)
On lands owned or controlled by other municipal corporations within
the Village, to the extent permitted by such other municipal corporation;
(5)
On nonresidential zoned properties;
(6)
On residential zoned properties; and
(7)
No large wireless facilities shall be permitted in the East Aurora
Historic District, unless the applicant demonstrates to the Village
Board's satisfaction that the selected site is necessary to provide
adequate service and no feasible alternative site exists. Such applications
with facilities proposed to be sited in the Historic District shall
be submitted for review before the East Aurora Village Historic Preservation
Commission. After review, said Commission shall submit to the Village
Board its recommendation, for or against the application, and the
Village Board shall make the final determination if such application
shall be approved with facilities located within the East Aurora Village
Historic Preservation District.
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 special 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 collocation as an option. If such option is not proposed,
the applicant must explain to the reasonable satisfaction of the Village
Board why collocation is commercially impracticable.
D.
Notwithstanding the above, the Village may approve any site located
within the Village, provided that the Village finds that the proposed
site is in the best interest of the safety, public welfare, character
and environment of the Village and will not have a deleterious effect
on the nature and character of the community and surrounding properties.
Wireless telecommunication facility support structures shall
be no higher than the minimum height necessary. The proposed height,
which may be in excess of maximum height permitted for other structures
in the applicable zone, shall address any additional height necessary
to accommodate collocation by additional antenna arrays, but under
no circumstances is the height to be in excess of 150 feet.
All large wireless facilities, including any support structures
and accessory equipment, located outside the public right-of-way shall
be set back from the property line of the lot on which it is located
a distance equal to not less than the total height of the facility,
including support structure, measured from the highest point of such
support structure to the finished grade elevation of the ground on
which it is situated, plus 10% of such total height. The Village Board
may reduce such setback requirements based upon consideration of lot
size, topographic conditions, adjoining land uses, landscaping, other
forms of screening and/or structural characteristics of the proposed
support structure.
A.
All large wireless facilities shall be sited so as to have the least
adverse visual effect on the environment and its character, on existing
vegetation and on the residents in the area of the wireless telecommunications
facilities sites. If lighting is required, the applicant shall provide
a detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under federal, state and local laws, statutes,
codes, rules or regulations.
B.
Both the large wireless facility and any and all accessory equipment
shall maximize 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.
C.
Large wireless facilities shall not be artificially lighted or marked,
except as required by law.
D.
Wireless telecommunication facility support structures for large
wireless facilities shall be galvanized and/or painted with a rust-preventive
paint of an appropriate color as specified by the Village Board, to
harmonize with the surroundings and shall be maintained in accordance
with the requirements of this chapter.
E.
Electrical and land-based telephone lines extended to serve the large
wireless facility sites shall be installed underground.
F.
Stealth technologies shall be required to be employed in an effort
to blend into the surrounding environment and minimize aesthetic impact.
G.
Landscaping shall be provided, if appropriate.
A.
All large wireless facilities and antennas shall be located, fenced
or otherwise secured in a manner that prevents unauthorized access.
Specifically:
(1)
All antennas, supporting structures, including guy anchor points
and wires and accessory equipment, shall be made inaccessible to individuals
and constructed or shielded in such a manner that they cannot be climbed
or collided with; and
(2)
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.
In accordance with the procedures set forth in by the Village
Board, and to the extent permissible under federal law, for large
wireless facility applications, the applicant shall be required to
provide funds to an escrow account held by the Village to allow the
Village Board to retain such technical experts and other consultants
as may be necessary to review the proposal, including, but not limited
to, the review of financial and technical aspects of the proposal
and of the financial, legal and technical practicability of alternatives
which may be available to the applicant.
A.
At any time between 12 months and six months prior to the five-year
anniversary date after the effective date for the special permit for
large wireless facilities and all subsequent fifth anniversaries of
the effective date of the original special use permit for large wireless
facilities, the holder of a special permit for such large wireless
facilities shall submit a signed written request to the Village Board
for recertification. In the written request for recertification, the
holder of such special permit shall note the following:
(1)
The name of the holder of the special permit for the wireless telecommunications
facilities.
(2)
The date of the original granting of the special permit.
(3)
Whether the large wireless facility has been modified since the issuance
of the special permit and, if so, in what manner.
(4)
Any requests for waivers or relief of any kind whatsoever from the
requirements of this chapter and any requirements for a special permit.
(5)
Certification that the large wireless facilities are in compliance
with the special permit and in compliance with all applicable codes,
laws, rules, regulations and federal certification requirements.
(6)
Certification that the wireless telecommunications support structure,
base station and accessory equipment are designed and constructed
(as built) and continue to meet all local, county, state and federal
structural requirements for loads, including wind, snow and ice loads.
Such recertification shall be by a qualified New York State licensed
professional engineer.
B.
If, after such review, the Village Board determines the permitted
large wireless facility is in compliance with the special permit and
all applicable statutes, laws, local laws, ordinances, codes, rules
and regulations, then the Village Board shall recertify the special
permit for the large wireless facility, which may include any new
provisions or conditions that are mutually agreed upon or required
by applicable statutes, laws, local laws, ordinances, codes, rules
and regulations. If, after such review, the Village Board determines
that the permitted large wireless facility is not in compliance with
the special permit and all applicable statutes, local laws, ordinances,
codes, rules and regulations, then the Village Board may refuse to
issue a recertification of the special permit for the large wireless
facility, and, in such event, such large wireless facility shall not
be used after the date that the applicant receives written notice
of such decision by the Village Board, unless and until any deficiencies
determined by the Village Board are cured. Any such decision shall
be in writing and supported by substantial evidence contained in a
written record.
C.
If the applicant has submitted all of the information requested by the Village Board and required by this chapter, and if the Village Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special permit, or subsequent fifth anniversaries, then the applicant for the permitted large wireless facility shall receive an extension of the special permit for up to six months in order for the Village Board to complete its review.
D.
If the holder of a special permit for a large wireless facility does not submit a request for recertification of such special permit within the timeframe noted in Subsection A of this section, then such special permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special permit, or subsequent fifth anniversaries, unless the holder of the special permit adequately demonstrates to the Village Board that extenuating circumstances prevented a timely recertification request. If the Village Board agrees that there were extenuating circumstances, then the holder of the special permit may submit a late recertification request or application for a new special permit.
At the time that an application for a special permit is submitted
for a large wireless facility, or to renew any such application, a
nonrefundable application fee shall be paid in an amount as determined
by the Village Board and as set forth in the Village Fee Schedule,
in addition to any other fee required by law.
The applicant and the owner of record of any proposed large
wireless facilities property site shall, at their 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 large wireless facility on a new wireless telecommunication
support structure and $25,000 for a collocation on an existing wireless
telecommunication facility support structure or other existing structure;
and with such sureties as are deemed sufficient by the Village Board
to assure the faithful performance of the terms and conditions of
this chapter and conditions of any special 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 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 permit.
In order to verify that the holder of a special permit for a
large wireless facility and any and all lessees, renters, and/or licensees
of large wireless facilities place and construct such facilities,
including wireless telecommunication support structure, accessory
equipment and antennas, in accordance with all applicable technical,
safety, fire, building, and zoning laws, statutes, codes, rules, regulations
and other applicable requirements, the Village may inspect at any
time, upon providing reasonable notice, 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, wireless telecommunication support structures,
antennas, accessory equipment, electromagnetic output and buildings.
A.
An applicant for a special permit for a large wireless facility shall
secure and at all times maintain public liability insurance for personal
injuries, death and property damage, and umbrella insurance coverage,
for the duration of the special permit in amounts as set forth below:
(1)
For collocation on any existing large wireless facility or other
wireless telecommunication facility support structure, including existing
utility poles or monopoles, the required insurance policies shall
be in the following amounts:
(2)
For all other large wireless facilities, the required insurance policies
shall be in the following amounts:
B.
For a large wireless facility on Village property, the commercial
general liability insurance policy shall specifically include the
Village, the Village Board, other elected officials, and the Village's
officers, board members, employees, committee members, attorneys,
agents and consultants as additional insureds.
C.
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the state 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.
Prior to the issuance of a special permit for a large wireless facility,
the applicant shall deliver to the Village a copy of each of the policies
or certificates representing the insurance in the required amounts.
Any special permit for a large wireless facility that is proposed
for Village property or in the public right-of-way, pursuant to this
chapter, shall contain a provision with respect to indemnification.
Such provision shall require the applicant, to the extent permitted
by law, to at all times defend, indemnify, protect, save, hold harmless,
and exempt the Village and its elected officials, officers, board
members, 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, product 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 addition to the applicable special permit provisions and requirements
listed in this chapter, all large wireless facilities located in the
public right-of-way shall be required to comply with the following
regulations:
(1)
Location. Large wireless facilities in the public right-or-way shall
be collocated on existing wireless telecommunications facility whenever
possible. If collocation is not technologically feasible, the applicant
shall locate its large wireless facility on existing utility poles,
monopoles or other structures that do not already act as wireless
telecommunication facility support structures.
(a)
Design requirements:
[1]
All accessory equipment shall be the smallest and least visibly
intrusive equipment feasible.
[2]
Antenna and accessory equipment shall be treated to match the
supporting structure and may be required to be painted, or otherwise
coated, to be visually compatible with the support structure upon
which they are mounted.
(2)
Equipment location. Large wireless facilities, which include wireless
telecommunication support structures and accessory equipment in the
public right-of-way, shall be located so as not to cause any physical
or visual obstruction to pedestrian or vehicular traffic, or to otherwise
create safety hazards to pedestrians and/or motorists or to otherwise
inconvenience public use of the right-of-way as determined by the
Village. In addition:
(a)
In no case shall ground-mounted accessory equipment, walls,
or landscaping be located within 18 inches of the face of the curb,
within four feet of the edge of the cartway, or within an easement
extending onto a privately owned lot.
(b)
To the extent feasible, accessory equipment shall be placed
underground. Ground-mounted accessory equipment that cannot be placed
underground shall be screened from surrounding views, to the fullest
extent possible, through the use of landscaping or other decorative
features to the satisfaction of the Village. Ground-mounted accessory
equipment shall be screened, when possible, by utilizing existing
structures. If screening by utilizing existing structures is not possible,
ground-mounted accessory equipment shall be made architecturally and
aesthetically compatible with the surrounding area through the use
of coatings, landscaping, and/or screening walls, enclosures or other
stealth technology to the satisfaction of the Village.
(c)
Required electrical meter cabinets shall be screened to blend
in with the surrounding area to the satisfaction of the Village.
(d)
Any graffiti on any large wireless facility support structure,
base station or any accessory equipment shall be removed within 15
days upon notification by the Village at the sole expense of the owner.
(e)
Any proposed underground vault related to large wireless facilities
shall be reviewed and approved by the Village.
(f)
Accessory equipment attached to a large wireless facility support
structure shall have such vertical clearance as the Village Board
may determine.
(3)
Relocation or removal of large wireless facilities in the public right-of-way. In addition to the removal provisions set forth in § 270-44 above, within 90 days following written notice from the Village, or such longer period as the Village determines is reasonably necessary, or such shorter period in the case of an emergency, an owner of a large wireless facility and any accessory equipment in the right-of-way shall, at its own expense, temporarily or permanently remove, relocate, or change the position of any large wireless facility or accessory equipment when the Village, consistent with its police powers and any applicable Public Service Commission regulations, shall have determined that such removal, relocation, change or alteration is reasonably necessary under the following circumstances:
(a)
To construct, repair, maintain or install any Village or other
public improvement located in the right-of-way;
(b)
To prevent the interference with the operations of the Village
or other governmental entity, in the right-of-way;
(c)
Abandonment of a street or road or the release of a utility
easement; or
(d)
An emergency as determined by the Village Board.
In addition to permit fees for a large wireless facility permit, every large wireless facility located in the Village public right-of-way is subject to the Village's public right to fix annually a fair and reasonable fee to be paid for use and occupancy of the public right-of-way and for any applicable permitting fees set forth in Ch. 223 of the Village Code. Such compensation for use of the public right-of-way shall be directly related to the Village's actual public right-of-way management costs including, but not limited to, the costs of the administration and performance of all reviewing, inspecting, permitting, supervising and other public right-of-way management activities by the Village. The owner of each large wireless facility permit shall pay an annual fee to the Village to compensate the Village for the Village's costs incurred in connection with the activities described above as determined by the Village Board and as set forth in the Village Fee Schedule.
The holder of any special permit shall, annually, certify to
the Village Board or its authorized designee, that NIER levels at
the site where the large wireless facilities are located are within
the threshold levels adopted by the FCC. In addition, the Village,
at its own cost and expense, shall be permitted to conduct its own
certification test of the NIER levels at the site where any large
wireless facility is located, with or without notice to the wireless
telecommunication provider. Once operational, but prior to providing
service to customers, as-built readings will be provided to the Village.
A.
If large wireless facilities are constructed, repaired, rebuilt,
placed, moved, relocated, modified or maintained in a way that is
inconsistent or not in compliance with the provisions of this chapter
or any special permit requirement, or it is determined conclusively
that the applicant made materially false or misleading statements
during the application process, then the Village Board or the Building
Official shall notify the holder of the special permit, in writing,
of such violation. Such notice shall specify the nature of the violation
or noncompliance, and the violations must be corrected within seven
days of the date of the postmark of the notice, or of the date of
personal service of the notice, whichever is earlier. Notwithstanding
anything to the contrary in this subsection or any other section of
this chapter, if the violation causes, creates or presents an imminent
danger or threat to the health or safety of lives or property, the
Village Board may, at its sole discretion, order the violation remedied
within 24 hours.
B.
If within the period set forth in Subsection A above the large wireless facilities are not brought into compliance with the provisions of this chapter, or of the special permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Village Board or the Building Official may revoke such special permit for a large wireless telecommunications facility and may require the removal of such large wireless facility.
A.
Under the following circumstances, the Village may determine that
the safety, public welfare, character and environment of the Village
warrant and require the removal of a large wireless facilities:
(1)
Large wireless facilities with a special permit have been abandoned
(i.e., not used as wireless telecommunication 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 large wireless facilities fall into such a state of disrepair
that they create a safety hazard;
(3)
Large wireless facilities have been located, constructed, or modified
without first obtaining, or in a manner not authorized by, the required
special permit, or any other necessary authorization; or
B.
If the Village Board makes such a determination as noted in Subsection A of this section, then it shall notify the holder of the special permit and the owner of the property that the large wireless facilities are to be removed.
C.
The holder of the special permit or the owner of the property shall
dismantle and remove such large wireless facilities, and all accessory
equipment, antennas, support structures and other associated structures
and facilities, from the site and return the site to its original
condition and certify through soils or other testing that no contamination
has been created by the facility, such restoration being completed,
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 large wireless telecommunication
facilities are located wishes to retain any access roadway to the
large wireless facilities, the owner may do so with the approval of
the Village.
D.
If the large wireless facilities are not removed or substantial progress
has not been made to remove the large wireless facilities within 90
days after the special permit holder has received notice, then the
Village Board may order officials or representatives of the Village
to remove the large wireless facilities at the sole expense of the
property owner and/or special permit holder.
E.
If the Village removes or causes to be removed the large wireless
facilities, and the owner of the large wireless facilities does not
claim and remove any equipment or materials to a lawful location within
10 days, then the Village may take steps to declare the large wireless
facilities abandoned and sell them and their components and retain
the proceeds therefrom. The Village may also cause the costs associated
with the removal and disposal of the large wireless facilities to
be assessed on the property in the same manner as a tax or assessment.
In addition to any other remedies in this chapter, a violation
of any provision of this chapter with respect to either large wireless
facilities or small wireless facilities are hereby declared to be
an offense, punishable by a fine not exceeding $350 or imprisonment
for a period not to exceed six months, or both, for conviction of
a first offense; for conviction of a second offense, both of which
were committed within a period of five years, punishable by a fine
not less than $350 nor more than $700 or imprisonment for a period
not to exceed six months, or both; and, upon conviction for a third
or subsequent offense, all of which were committed within a period
of five years, punishable by a fine not less than $700 nor more than
$1,000 or imprisonment for a period not to exceed six months, or both.
Each continued violation shall constitute a separate additional violation.
A.
The holder of a special permit or small wireless facility permit
issued pursuant to this chapter 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 amended
and/or are modified during the duration of a special permit for large
wireless facilities and a small wireless facility permit for small
wireless facilities, then the holder of such a special permit or small
wireless facility permit shall conform the permitted wireless telecommunication
facilities to the applicable amended 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.
