The following facilities are exempt from the requirements of
this article but may be governed by other laws and other portions
of Village Code.
A.
Consumer-end antennas. Consumer-end antennas shall be exempt from
the provisions of this article if they meet the following requirements,
as applicable.
(1)
A satellite dish less than one meter (39.37 inches) in diameter and
that, if mounted on a mast, is mounted no higher than needed to receive
or transmit an acceptable quality signal and in no event higher than
12 feet above roofline.
(2)
An antenna designed to receive over-the-air broadcast signals, no
higher than needed to receive or transmit an acceptable quality signal
and in no event higher than 12 feet above roofline.
(3)
A broadband radio service antenna one meter or less in diameter or
diagonal measurement and that, if mounted on a mast, is mounted no
higher than needed to receive or transmit an acceptable quality signal
and in no event higher than 12 feet above roofline.
B.
Amateur radio antennas. Any federally licensed amateur radio operator
operating on the effective date of this article shall be exempt from
the provisions of this article. Any federally licensed amateur radio
operator that seeks to deploy new facilities may apply to the Planning
Board for an exemption from any provision of this article upon a showing
that strict conformance therewith would interfere with the operator's
ability to receive or transmit signals or would impose unreasonable
costs on the amateur radio operator. Such application must be accompanied
by:
(1)
Proof of a current federal license for an amateur radio operator;
(2)
Site plans drawn to scale and dimensions showing the proposed location
of the antenna;
(3)
Manufacturer's specifications of the antenna structure;
(4)
Details of footings and supports;
(5)
If applicable, details of attaching or affixing the antenna to the
roof; and
(6)
Elevations drawn to scale and dimensioned so as to fully describe
the proposed structure.
C.
Certain temporary facilities. The following temporary wireless facilities
that will be placed for less than 14 consecutive days, provided any
necessary building permit or other approval is obtained and the landowner's
written consent is provided to the Village:
D.
Legally existing wireless facilities. Any wireless facility already legally constructed and in operation as of this article's effective date shall remain subject to the provisions of the version of the Village Code in effect prior to this revision, unless and until a revised permit, substantial conformance, or other modification is approved on such facility, at which time the provisions of this article shall apply in full force going forward as to such facility. Notwithstanding the immediately prior sentence, the testing provisions in § 306-9A(16) hereof shall apply.
E.
Installation
or modification of an eligible facility within the meaning of 47 CFR
1.6100(b)(3). Any person seeking to install or modify an eligible
facility shall file a building permit application with the Building
Inspector.
[Added 6-27-2023 by L.L. No. 9-2023]
A.
The Village of Scarsdale Planning Board is responsible for administering
this article. As part of the administration of this article, the Village
of Scarsdale Planning Board may:
(1)
Interpret the provisions of this article;
(2)
Develop and implement standards governing the placement and modification
of wireless facilities consistent with the requirements of this article,
including regulations governing co-location and resolution of conflicting
applications for placement of wireless facilities;
(3)
Develop and implement acceptable designs and development standards
for wireless facilities outside of the public right-of-way;
(4)
Develop forms and procedures for submission of applications for placement
or modification of wireless facilities, and proposed changes to any
support structure consistent with this article;
(5)
Determine the amount of and collect, as a condition of the completeness
of any application, any fee established by this article;
(6)
Establish deadlines for submission of information related to an application,
and extend or shorten deadlines where appropriate and consistent with
state and federal laws and regulations;
(7)
Issue any notices of incompleteness, requests for information, or
conduct or commission such studies as may be required to determine
whether a permit should be issued;
(8)
Require, as part of, and as a condition of completeness of, any application,
notice to members of the public that may be affected by the placement
or modification of the wireless facility and proposed changes to any
support structure;
(9)
Determine whether to approve, approve subject to conditions, or deny
an application; and
(10)
Take such other steps as may be required to timely act upon
applications for placement of wireless facilities, including issuing
written decisions and entering into agreements to mutually extend
the time for action on an application.
A.
Any person or entity adversely affected by the decision of the Planning
Board pursuant to this Article may appeal such decision to the Village
Board of Trustees, which may decide the issues de novo, and whose
written decision will be the final decision of the Village.
B.
All appeals must be filed within two business days of the written
decision of the Planning Board, unless the Planning Board extends
the time therefor. An extension may not be granted where extension
would result in approval of the application by operation of law.
C.
Any appeal shall be conducted so that a timely written decision may
be issued in accordance with applicable law.
A.
Generally. Wireless facilities outside of the public right-of-way
shall meet the minimum requirements set forth in this article and
the Wireless Regulations that may be authorized by this article, in
addition to the requirements of any other applicable law.
B.
Regulations. The Wireless Regulations and decisions on applications
for placement of wireless facilities in the Village, outside of the
public right-of-way, shall, at a minimum, ensure that the requirements
of this section are satisfied, unless it is determined that applicant
has established that denial of an application would, within the meaning
of federal law, prohibit or effectively prohibit the provision of
personal wireless services, or otherwise violate applicable laws or
regulations. If that determination is made, the requirements of this
article may be waived, but only to the minimum extent required to
avoid the prohibition or violation.
C.
Minimum standards. Wireless facilities shall be installed and modified
in a manner that minimizes risks to public safety and otherwise maintains
the integrity and character of the areas in which the facilities are
located.
D.
Location preferences. All applicants should, to the extent feasible,
co-locate new facilities and substantial changes to existing facilities
with existing facilities. Co-locations should, to the extent feasible,
be proposed on structures in accordance with the following preferences.
(1)
Restricted site locations. All of the following locations will be deemed "restricted site locations" that require an exception pursuant to § 306-18D(6) of this article except to the extent that same would result in the prohibition or effective prohibition of service:
(2)
Location preferences. To better assist applicants and decisionmakers with understanding and responding to the community's aesthetic preferences and values, this subsection sets out listed preferences for locations to be used in connection with wireless facilities in an ordered hierarchy. Applications that involve lesser-preferred locations may be approved so long as the applicant demonstrates that: a) any more-preferred locations or structures within 500 feet from the proposed site would be technically infeasible; and b) if the proposed site or the most-preferred location within 500 feet from the proposed site is within a restricted site location, the applicant qualifies for an exception pursuant to § 306-18D(6) of this article.
(3)
The Village requires small cells outside of the public rights-of-way
to be installed in locations, ordered from most preferred to least
preferred, as follows:
(a)
Locations within business, retail, PUD and office zones on or
along arterials as shown on the Roadway Classification Map;
(b)
Locations within business, retail, PUD and office zones on or
along collector roads as shown on the Roadway Classification Map;
(c)
Locations within business, retail, PUD and office zones on or
along local streets as shown on the Roadway Classification Map;
(d)
Any location within 1,000 feet from an existing/proposed small
wireless facility;
(e)
Any location not less than 500 feet from any restricted site location [as defined in § 306-18D(1) above];
(f)
Locations within residential zones on or along arterials as
shown on the Roadway Classification Map;
(g)
Locations within residential zones on or along collector roads
as shown on the Roadway Classification Map;
(h)
Locations within residential zones on or along local/residential
streets as shown on the Roadway Classification Map.
(4)
To minimize visual clutter, the co-location of any facility within a location class identified in Subsection D(2) above is preferred over a new site within that same class. Such preference assumes that the co-location can be accomplished without negating any stealth requirements of the permit governing the site.
(5)
In the event that a proposed facility would be within 500 feet of a residence, the technically feasible location farthest from all residences will be deemed to be the most preferred alternative. In the event that a proposed facility would be located within a restricted site location [as defined in § 306-18D(1)], and the proposed facility qualifies for an exception pursuant to § 306-18D(6) of this article, the technology must be located in the feasible location of highest priority class while not simultaneously located in a lower priority class pursuant to this § 306-18D.
(6)
The Planning Board may grant an exception to the standards in this
article upon determining that denial of the application would result
in prohibition or effective prohibition of service, violate applicable
laws and regulations, or require a technically infeasible design or
installation of a wireless facility. Each exception is specific to
the facts and circumstances in connection with each application. An
exception granted in one instance shall not be deemed to create a
presumption or expectation that an exception will be granted in any
other instance. Exceptions shall not be approved to override any fire
safety or other public safety standard determined to be appropriate
by the Village.
(a)
An applicant may request an exception only at the time the applicant submits an application in conformance with § 306-20 hereof. The Planning Board may consider additional information provided by the applicant after submittal to supplement the initial exception request. Any request for an exception after the initial submittal shall be deemed to be a new application.
(b)
If the Planning Board finds that an exception should be granted,
the exception shall be narrowly tailored so that the exception deviates
from this article to the least extent necessary to avoid the prohibition,
violation, or technically infeasible design or installation.
Every wireless permit issued pursuant to this article shall
be subject to compliance with the Village's applicable Design and
Development Guidelines, as same may be amended from time to time by
resolution of the Board of Trustees.
A.
Unless the Wireless Regulations provide otherwise, an applicant shall
submit a paper copy and an electronic copy of any application, amendments,
or supplements to an application, or responses to requests for information
regarding an application, to: Village of Scarsdale Planning Board,
1001 Post Road, Scarsdale, NY 10583.
B.
Unless otherwise prohibited by law or deemed the commencement of
any applicable shot clock, an applicant is encouraged to schedule
a preapplication meeting with the Planning Board to discuss the proposed
wireless facility, the requirements of this article, and any potential
impacts of the proposed facility prior to filing an application for
a wireless permit.
C.
An applicant shall submit an application on the form approved by
the Planning Board, which may be updated from time to time, but in
any event shall require the submission of all required fees, documents,
information, and any other materials necessary to allow the Planning
Board to make required findings and ensure that the proposed wireless
facility will comply with applicable federal and state law and the
Village Code, and will not endanger the public health, safety, or
welfare.
D.
Application fees shall be required to be submitted with any application
for a wireless permit.
E.
Applications will be processed, and notices of incompleteness provided,
in conformity with state, local, and federal law. If such an application
is incomplete, the Planning Board shall notify the applicant in writing,
and specify the material omitted from the application.
A.
Findings required for approval.
(1)
The Planning Board shall approve an application if, on the basis
of the application and other materials or evidence provided in review
thereof, it finds the following:
[Amended 6-27-2023 by L.L. No. 9-2023]
(2)
For eligible facilities requests, the Village of Scarsdale Planning
Board shall approve an application if, on the basis of the application
and other materials or evidence provided in review thereof, it finds
the following:
(a)
The proposed wireless facility qualifies as an eligible facilities
request, satisfying each element specified in FCC regulations and
orders defining an eligible facilities request, as the same may be
hereafter amended;
(b)
The proposed development is located on a legally created lot;
(c)
The subject property is in compliance with all laws, regulations,
and rules pertaining to uses, subdivision, setbacks, and any other
applicable provisions of the Village Code, and all applicable zoning
violation enforcement and processing fees have been paid; and
(d)
The proposed development is in compliance with all Village-wide
permits, including, but not limited to, the National Pollutant Discharge
Elimination System (NPDES) permit.
B.
Decisions. Decisions on an application by the Planning Board shall
be in writing and include the reasons for the decision.
C.
The Planning Board is authorized, in its discretion, to select and
retain independent consultants with expertise in telecommunications
in connection with the review of any application under this article,
the cost of which consultant shall be paid by the applicant. Such
independent consultant review may be retained on any issue that involves
specialized or expert knowledge in connection with an application,
including, but not limited to, application completeness or accuracy,
structural engineering analysis, or compliance with FCC radio frequency
(RF) emissions standards.
A.
Generally. In addition to any supplemental conditions imposed by
the Planning Board, all wireless permits granted pursuant to this
article shall be subject to the following conditions, unless modified
by the approving authority.
(1)
Code compliance. The permittee shall at all times maintain compliance
with all applicable federal, state and local laws, regulations and
other rules, including, without limitation, those applying to the
installation or modification of a wireless facility outside of the
public right-of-way.
(2)
Permit duration. A wireless permit shall be valid for a period of
five years, unless pursuant to another provision of the Village Code
or these conditions, it expires sooner or is terminated. At the end
of five years from the date of issuance, such wireless permit shall
automatically expire, unless an extension or renewal has been granted.
A person holding a wireless permit must either 1) remove the facility
within 30 days following the wireless permit's expiration (provided
that removal of a support structure owned by the Village, a utility,
or another entity authorized to maintain the support structure need
not be removed, but must be restored to its prior condition, except
as specifically permitted by the Village); or 2) at least 90 days
prior to expiration, submit an application to renew the wireless permit,
which application must, among all other requirements, demonstrate
that the impact of the wireless facility cannot be reduced. The wireless
facility must remain in place until it is acted upon by the Village
of Scarsdale Planning Board and all appeals from the Village of Scarsdale
Planning Board's decision are exhausted.
(3)
Timing of installation. The installation and construction authorized
by a wireless permit shall begin within one year after its approval,
or it will expire without further action by the Village. The installation
and construction authorized by a wireless permit shall conclude, including
any necessary post-installation repairs and/or restoration to the
Village or private property, within 90 days following the day construction
commenced.
(4)
Commencement of operations. The operation of the approved wireless
facility shall commence no later than 60 days after the completion
of installation, or the wireless permit will expire without further
action by the Village.
(5)
As-built drawings. The permittee shall submit an as-built drawing,
or four-sided photo array accompanied with a measurable index of the
facility, within 90 days after installation of the wireless facility.
As-builts shall be in an electronic format acceptable to the Village.
(6)
Inspections; emergencies. The Village of Scarsdale Planning Board
or its designee may enter onto the wireless facility area to inspect
the facility upon 24 hours' prior notice to the permittee. The permittee
shall cooperate with all inspections and may be present for any inspection
of its facility by the Village of Scarsdale Planning Board or its
designee. The Village of Scarsdale Planning Board reserves the right
to enter or direct its designee to enter the facility and support,
repair, disable, or remove any elements of the facility in emergencies
or when the facility threatens imminent harm to persons or property.
The Village of Scarsdale Planning Board or its designee shall make
an effort to contact the permittee prior to disabling or removing
any facility elements, but in any case shall notify the permittee
within 24 hours of doing so.
(7)
Contact. The permittee shall at all times maintain accurate contact
information for all parties responsible for the wireless facility,
which shall include a phone number, street mailing address and email
address for at least one natural person.
(8)
Insurance. The permittee shall furnish to the Village insurance,
evidenced by a certificate or certificates of insurance naming the
Village as additional insured, in a form satisfactory to the Village
Attorney, with the following limits: general bodily injury of not
less than $1,000,000 per each occurrence, and general property damage
of not less than $3,000,000 per each occurrence. Such insurance shall
insure the Village, its officers, employees and agents against any
liability for personal injury or property damage, or claims pertaining
to RF exposure, directly or indirectly resulting from or arising out
of the granting of any such wireless permit or any such construction
or the method and manner of doing any work permitted or required by
any such wireless permit or under this article or from the maintenance
and repair of said improvements during a one-year period following
completion of said improvement, or any negligent act or omission in
connection therewith on the part of the permittee, permittee's employees
or agents, provided that a public service corporation may, at its
option, file an undertaking, in a form satisfactory to the Village
Attorney, to indemnify and save harmless the Village, its officers,
employees and agents from any such liability, covering all construction
made by it. At a minimum, the following insurance requirements shall
be satisfied:
(a)
A permittee shall not commence construction or operation of
the facility without obtaining all insurance required under this section
and approval of such insurance by the Planning Board, or their designee;
nor shall a permittee allow any contractor or subcontractor to commence
work on its contract until all similar such insurance required of
the same has been obtained and approved by the Planning Board, or
their designee. The required insurance must be obtained and maintained
for the entire period the wireless facility is in existence. If the
permittee, its contractors or subcontractors do not have the required
insurance, the Village will order such entities to cease operation
of the facility until such insurance is obtained and approved by the
Planning Board, or their designee.
(b)
Certificates of insurance verifying such insurance shall be
filed with the Planning Board, or their designee, at the time of application.
For entities that are entering the market, the certificate(s) shall
be filed prior to the commencement of construction and once a year
thereafter, and as provided below in the event of a lapse of coverage.
Such certificate(s) should provide the name, address and phone number
of the insurance carrier; and identify an agent in case of inquiries.
(c)
The certificate(s) of insurance shall contain a provision that
coverages afforded under such policies shall not be canceled until
at least 30 days' prior written notice has been given to the Village.
All insurance policies shall be issued by companies authorized to
do business under the laws of the State of New York.
(d)
Where applicable, in the event that the insurance certificate(s)
provided indicates that the insurance will terminate or lapse during
the term of the lease agreement with the Village, then in that event
the permittee shall furnish a renewed certificate of insurance as
proof that equal and like coverage remains in effect for the balance
of the lease term, at least 30 days prior to the expiration of the
date of such insurance.
(e)
A permittee and its contractors or subcontractors engaged in
work on the provider's behalf shall maintain minimum insurance in
the amounts determined by the Planning Board, or their designee, to
cover liability, bodily injury, and property damage. The insurance
shall cover, but not be limited to, the following exposures: premises,
operations, and certain contracts. Such coverage shall be written
on an occurrence basis and shall also be required under any lease
agreement between the Village and the wireless service provider.
(9)
Indemnities. The permittee and, if applicable, the owner of the property
upon which the wireless facility is installed shall defend, indemnify
and hold harmless the Village, its agents, officers, officials, and
employees i) from any and all damages, liabilities, injuries, losses,
costs, and expenses, and from any and all claims, demands, lawsuits,
writs of mandamus, and other actions or proceedings brought against
the Village or its agents, officers, officials, or employees to challenge,
attack, seek to modify, set aside, void or annul the Village's approval
of the wireless permit, and ii) from any and all damages, liabilities,
injuries, losses, costs, and expenses, and any and all claims, demands,
lawsuits, or causes of action and other actions or proceedings of
any kind or form, whether for personal injury, including without limitation
claims pertaining to RF exposure, death or property damage, arising
out of or in connection with the activities or performance of the
permittee or, if applicable, the property owner or any of each one's
agents, employees, licensees, contractors, subcontractors, or independent
contractors. In the event the Village becomes aware of any such actions
or claims, the Village shall promptly notify the permittee and, if
applicable, the property owner and shall reasonably cooperate in the
defense. The Village shall have the right to approve, which approval
shall not be unreasonably withheld, the legal counsel providing the
Village's defense, and the property owner and/or permittee (as applicable)
shall reimburse Village for any costs and expenses directly and necessarily
incurred by the Village in the course of the defense.
(10)
Performance bond. Prior to issuance of a wireless permit, the
permittee shall file with the Village, and shall maintain in good
standing throughout the term of the approval, a performance bond or
other surety, a letter of credit, or another form of security, in
an amount to be set by the Village Engineer, for the removal of the
wireless facility in the event that the use is abandoned, or the wireless
permit expires, or is revoked, or is otherwise terminated. In addition,
the security shall be applied to all penalties incurred by the permittee
in this article. The security shall be in the amount sufficient to
pay the cost of physically removing the facility and all related facilities
and equipment on the site, based on the higher of two contractors'
quotes for removal that are provided by the permittee. The permittee
shall reimburse the Village for staff time associated with the processing
and tracking of the bond, based on the hourly rate adopted by the
Board of Trustees. Reimbursement shall be paid when the security is
posted and during each administrative review.
(11)
Adverse impacts on adjacent properties. Permittee shall undertake
all reasonable efforts to avoid undue adverse impacts to adjacent
properties and/or uses that may arise from the construction, operation,
maintenance, modification, and removal of the wireless facility. While
not the sole basis for denial, the Planning Board, or their designee,
may consider adverse impacts on the property values of any adjacent
properties when deciding on an application. The facility shall be
designed and constructed in accordance with all applicable national
building standards for such facilities and structures, including but
not limited to the standards developed by the Electronics Industry
Association, Institute of Electrical and Electronics Engineers, Telecommunications
Industry Association, American National Standards Institute and Electrical
Industry Association.
(12)
Noninterference. The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property. No structure, improvement, or property owned by the Village shall be moved to accommodate a permitted activity, unless the Village determines that such movement will not adversely affect the Village or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the Village's structure, improvement, or property. Prior to commencement of any work pursuant to a wireless permit, the permittee shall provide the Village with documentation establishing to the Village's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement, or property to be affected by the permittee's facilities. Nor shall any permittee remove, damage or otherwise trim any tree except in accordance with Chapter 281 hereof, Trees, Grass, Brush and Weeds, nor cause any building or structure to be altered or in any way compromised in violation of Chapter 182 hereof, Historic Preservation, nor violate Chapter 205 hereof, Noise.
(13)
No right, title, or interest. The permission granted by a wireless
permit shall not in any event constitute an easement on or an encumbrance
against the private property or any Village property. No right, title,
or interest (including franchise interest) in the private property
or any Village property, or any part thereof, shall vest or accrue
in the permittee by reason of a wireless permit or the issuance of
any other permit or exercise of any privilege given thereby.
(14)
No possessory interest. No possessory interest is created by
a wireless permit. However, to the extent that a possessory interest
is deemed created by a governmental entity with taxation authority,
the permittee acknowledges that the Village has given to the permittee
notice as required by law. The use or occupancy of any public property
pursuant to a wireless permit may create a possessory interest which
may be subject to the payment of property taxes levied upon such interest.
The permittee shall be solely liable for, and shall pay and discharge
prior to delinquency, any and all possessory interest taxes or other
taxes, fees, and assessments levied against the permittee's right
to possession, occupancy, or use of any public property pursuant to
any right of possession, occupancy, or use created by this wireless
permit.
(15)
General maintenance. The site and the wireless facility, including,
but not limited to, all landscaping, fencing, and related transmission
equipment, must be maintained in a neat and clean manner and in accordance
with all approved plans. All graffiti on facilities must be removed
at the sole expense of the permittee within 48 hours after notification
from the Village.
(16)
RF exposure compliance. The permittee has a nondelegable duty
to ensure full compliance with FCC RF exposure standards pursuant
to FCC Regulations, Title 47, Part 1, § 1.1307. The Planning
Board, or their designee, will consult with an independent engineer
regarding the choice of a monitoring protocol to be used. This may
include the Cobbs Protocol, the FCC OET Bulletin 65, Edition 97-01,
August 1997, referenced in FCC Regulations, Title 47, Part 1, § 1.1307
as IEEE C95.3 1991, or any other protocol that the Planning Board
adopts as the technology changes. The same protocol will be used from
year to year until such time as new protocols are developed.
(a)
Pre-testing. After the granting of a wireless permit and before
the facility begins transmission, the applicant shall pay for an independent
consultant RF engineer, chosen and hired by the Village Engineer,
or their designee, to monitor the background levels of EMF radiation
around the proposed facility and at appropriate distances from it,
and/or at any repeater locations to be utilized for the applicant's
wireless facilities. The independent consultant shall use the specified
monitoring protocol. A report of the monitoring results shall be prepared
by the independent consultant and submitted to the Village Engineer,
or their designee.
(b)
Post-testing. Within 30 days after transmission begins, the
owner(s) of any wireless services located on the facility shall pay
for an independent consultant RF engineer, chosen and hired by the
Village Engineer, or their designee, to conduct an initial post-installation
test of the EMF radiation emitted from said site, and thereafter,
as follows:
[1]
There shall be routine annual monitoring of emissions by the
independent RF engineer using actual field measurements of radiation,
utilizing the monitoring protocol. This monitoring shall measure levels
of EMF radiation from the facility's primary antennas as well as from
repeaters (if any). A report of the monitoring results shall be prepared
by the RF engineer and submitted to the Planning Board, or their designee.
[2]
Any major modification of an existing facility, or the activation
of any additional permitted channels, shall require new monitoring.
(c)
Excessive emissions. Should the monitoring of a facility reveal
that the site exceeds the current FCC standards and guidelines, then
the owner(s) of all facilities utilizing the site shall be notified.
In accordance with FCC requirements, the owner(s) must immediately
reduce power or cease operation as necessary to protect persons having
access to the site, facility, or antennas. In addition, the owner(s)
shall submit to the Planning Board, or their designee, an analysis
of what caused the problem and a plan for the reduction of emissions
to a level that complies with the FCC standards within 10 business
days of noncompliance. Failure to accomplish this reduction of emissions
within 10 business days of initial notification of noncompliance shall
be a violation of this chapter subject to fines and such other remedies
as are otherwise available to the Village.
(17)
Testing. Testing of any equipment associated with a wireless
facility shall take place on weekdays only, and only between the hours
of 8:30 a.m. and 4:30 p.m., except that testing is prohibited on holidays
that fall on a weekday. In addition, testing is prohibited on weekend
days.
(18)
Safety. The wireless facility shall be safe and in accordance
with applicable Village Code, and the surrounding properties will
not be negatively affected by the facility, falling ice or debris.
All wireless facilities shall be fitted with anticlimbing devices,
in compliance with industry standards.
(19)
Modifications. No changes shall be made to the approved plans
without review and approval in accordance with this article.
(20)
Agreement with Village. If not already completed, the permittee
shall enter into the appropriate agreement with the Village, as determined
by the Village of Scarsdale Planning Board, prior to constructing,
attaching, or operating a wireless facility on Village-owned infrastructure
outside of the public rights-of-way. A wireless permit is not a substitute
for such agreement.
(21)
Abandonment. If a wireless facility is not operated for a continuous
period of six months, the wireless permit and any other permit or
approval therefor shall be deemed abandoned and terminated automatically,
unless before the end of the six-month period, i) the Village of Scarsdale
Planning Board has determined that the facility has resumed operations,
or ii) the Village has received an application to transfer the wireless
permit to another wireless service provider. When a wireless service
provider has filed with the FCC a notice of intent to cease operations,
the operator shall provide the Village of Scarsdale Planning Board
with a copy of such notice within 30 days. No later than 90 days from
the date the wireless facility is determined to have ceased operation,
or the permittee has notified the Village of Scarsdale Planning Board
of its intent to vacate the site, the permittee shall remove all equipment
and improvements associated with the use and shall restore the site
to its original condition to the satisfaction of the Village of Scarsdale
Planning Board. The permittee shall provide written verification of
the removal of the wireless facilities within 30 days of the date
the removal is completed. If the wireless facility is not removed
within 30 days after the wireless permit has been discontinued pursuant
to this subsection, the site shall be deemed to be a nuisance, and
the Village may cause the facility to be removed at the permittee's
expense or by calling any bond or other financial assurance to pay
for removal. If there are two or more users of a single wireless facility
or support structure, then this provision shall apply to the specific
elements or parts thereof that were abandoned but will not be effective
for the entirety thereof until all users cease use thereof.
(22)
Required co-location. Where the wireless facility is capable
of accommodating a co-located facility upon the same site in a manner
consistent with the wireless permit conditions for the existing facility,
the owner and operator of the existing facility shall allow co-location
of third-party facilities, provided it is technically feasible, and
the parties can mutually agree upon reasonable terms and conditions.
(23)
Notification. Once an application for a wireless facility is
submitted, a public notice shall be sent by certified mail, return
receipt requested, by the applicant to all owners of real property,
including the owner of the site if any part of which is located within
200 feet of the proposed wireless facility location. The notices will
be distributed through the United States Mail using the recipient
list prepared by the Village. The notice shall set forth the nature
and substance of the application and the time and place of the hearing.
Such notice shall be served by mail not less than 10 days prior to
the date of the hearing thereon. In addition to the mailed public
notice, a notice shall be placed on the utility pole, the traffic
signal control pole, the streetlight, or other proposed facility location,
as feasible at eye level, but in no event more than five feet off
the ground. To the greatest extent practicable, this notice shall
be posted for the entire duration that the application is pending
a decision.
[Amended 6-27-2023 by L.L. No. 9-2023]
(24)
Annual report. In January of each year, the permittee shall
pay the registration fee established from time to time by the resolution
of the Board of Trustees and shall provide the Village of Scarsdale
Planning Board with the following information:
(a)
The name and address of the owner of the facility and telephone
number of the appropriate contact person in case of emergency.
(b)
The name and address of the property owner on which the facility
is located.
(c)
The location of the facility by geographic coordinates, indicating
the latitude and longitude.
(d)
Output frequency of the transmitter.
(e)
The type of modulation, digital format and class of service.
(f)
Antenna(s) gain.
(g)
The certified and effective radiated power of the antenna(s).
(h)
The number of transmitters, channels, and antennas.
(i)
A copy of the owner's or operator's FCC authorization.
(j)
Height of antenna(s).
(k)
Power input to the antenna(s).
(l)
Distance to the nearest base station.
(m)
A certification signed by two officers of the applicant that
the facility is continuing to comply with this article and all applicable
governmental regulations.
(25)
FCC license. The applicant shall submit a copy of its current
Federal Communications Commission license.
(26)
Records. The permittee must maintain complete and accurate copies
of all permits and other regulatory approvals issued in connection
with the wireless facility, which includes without limitation this
approval, the approved plans and photo simulations incorporated into
this approval, all conditions associated with this approval and any
ministerial permits or approvals issued in connection with this approval.
In the event that the permittee does not maintain such records as
required in this condition or fails to produce true and complete copies
of such records within a reasonable time after a written request from
the Village, any ambiguities or uncertainties that would be resolved
through an inspection of the missing records will be construed against
the permittee.
(27)
Attorney's fees. In the event the Village determines that it
is necessary to take legal action to enforce any of these conditions,
or to revoke a wireless permit, and such legal action is taken, the
permittee shall be required to pay any and all costs of such legal
action, including reasonable attorney's fees, incurred by the Village,
even if the matter is not prosecuted to a final judgment or is amicably
resolved, unless the Village should otherwise agree with the permittee
to waive said fees or any part thereof. The foregoing shall not apply
if the permittee prevails in the enforcement proceeding.[1]
[1]
Editor's Note: Former Subsection B, Eligible facilities request,
which immediately followed, was repealed 6-27-2023 by L.L. No. 9-2023.
A.
The Village may use any combination of the following enforcement
actions, remedies, and penalties to stop, abate, and enjoin a violation
of this article:
(1)
Citation noting violation. The Planning Board or a Village of Scarsdale
Code Enforcement Officer may issue a citation to the person pursuing
the activity or activities in violation of this article, requiring
appearance before the Municipal Court.
(2)
Stop-work order. The Planning Board, or a Village of Scarsdale Code
Enforcement Officer, may issue and serve upon a person pursuing the
activities in violation of this article a stop-work order requiring
that the person stop all activities in violation of this article.
(3)
Permit suspension or revocation. Any wireless permit, or other form
of authorization required under this article, may be suspended or
revoked if the permittee fails to abate any violation within 10 days
after a written notice has been sent by the Planning Board, or a Village
of Scarsdale Code Enforcement Officer, after they determine that:
(4)
Fine. A violation of this article is hereby punishable by a fine
not exceeding $10,000 per day per occurrence or imprisonment of the
permittee's local executive responsible for the permit for a period
not to exceed 15 days. Each day's continued violation shall constitute
a separate offense. Installation of wireless facilities without a
wireless permit shall result in all fines assessed being doubled.
B.
Written notice of suspension or revocation shall be mailed or served
upon the property owner, agent, applicant, or other person to whom
the wireless permit was issued or such notice may be posted in a prominent
location at the place of violation. No work or construction shall
proceed after service of the notice. Each permittee is responsible
for notifying the Village of any change in the name, address and telephone
number of the person to whom notice may be sent under this article.
C.
Civil remedies. In addition to all other remedies and penalties outlined
in this article, the Village of Scarsdale Planning Board may initiate
an action or proceeding for injunction or mandamus or other appropriate
action or proceeding to prevent, abate, or correct a violation of
this article.
The Village, as a matter of policy, will negotiate agreements
for use of municipal infrastructure. The placement of wireless facilities
on those structures shall be subject to such agreement. The agreement
shall specify the compensation to the Village for use of the structures.
The person seeking such agreement shall additionally reimburse the
Village for all costs the Village incurs in connection with its review,
including vendor review of, and action upon, the applicant's request
for such an agreement. The location of any Village-owned infrastructure
utilized for the placement of wireless facilities at the time of the
effective date of this chapter shall be deemed grandfathered for the
purposes of this article.
The Village of Scarsdale Planning Board, or its designee, is
directed to execute all documents and to perform all other necessary
acts to implement and enforce this article.
If any section, subsection, provision, sentence, clause, phrase
or word of this article is for any reason held to be illegal or otherwise
invalid by any court of competent jurisdiction, such invalidity shall
be severable, and shall not affect or impair any remaining section,
subsection, provision, sentence, clause, phrase or word included within
this article, it being the intent of the Village that the remainder
of the article shall be and shall remain in full force and effect,
valid, and enforceable.
