A.
In 2013, pursuant to L.L. No. 47-2013, the Town Board of the Town of Hempstead enacted Chapter 142 of the Code of the Town of Hempstead to address the rapidly expanding need for infrastructure to provide wireless telecommunications services. In adopting its original wireless telecommunications code, the Town Board recognized both the significant benefits of wireless telecommunications and the concerns expressed by many residents over the proliferation of large infrastructure to provide these expanding services. As originally enacted, Chapter 142 sought to establish a fair, efficient and comprehensive process for the review and approval of applications for the construction and installation of wireless telecommunications facilities.
B.
Since the original enactment of Chapter 142, wireless telecommunications has undergone both a technological and regulatory revolution. The Telecommunications Act of 1996 (P.L. 104-104) codified the intention of the United States Congress to promote the deployment of wireless infrastructure. Subsequent regulatory rulings by the Federal Communications Commission have sought to further implement these goals, recognizing that it is the physical infrastructure that supports wireless communications and promotes the intentions of Congress. Demand for wireless capacity has grown exponentially since the original enactment of Chapter 142 in order to support growing adoption of wireless broadband.
C.
The Town's original wireless telecommunications code was adopted at a time when the majority of telecommunications infrastructure was deployed on enormous towers. As originally enacted, Chapter 142 sought to foster the development of wireless telecommunications while minimizing the impact of its infrastructure. The unique and priceless suburban character of the Town of Hempstead required a substantial level of regulatory oversight to promote the development of these vital services while ensuring that they were located and constructed in a manner which protected the special character of the Town and protected the interests of its residents. While macro facilities continue to be an important component of the infrastructure deployed to provide wireless communications, the Town Board acknowledges and concurs in the statement of the Federal Communications Commission that there are now a variety of complementary and alternative technologies which impose a far less obtrusive impact on the surround community.
D.
Wireless telecommunications facility applications include a variety
of application types that can be reviewed by the Department of Buildings
and the Board of Zoning Appeals. The Town Board has determined that
it is in the best interests of town residents to establish updated
standards for the location of wireless telecommunication facilities
and the provision of communication services consistent with applicable
federal and state laws, statutes, rules and regulations in order to:
(1)
Protect the health, safety and welfare of the residents of the Town.
(2)
Assure access of our residents to wireless telecommunications technologies
while at the same time protecting natural features, aesthetics, and
the residential character of neighborhoods and areas surrounding educational,
environmentally sensitive, historic and other unique or sensitive
facilities within the Town and protect the efficient and orderly development
of land uses from potential adverse impacts.
(3)
Promote and encourage the location of these devices in nonresidential
areas of the Town.
(4)
Minimize the total number of such devices constructed throughout
the Town within legal limits.
(5)
Promote and encourage joint use of such new and existing structures
and discourage the erection of such structures for single users.
(6)
Promote and encourage the location of such devices, to the extent
possible, in areas where adverse impacts on the surrounding neighborhoods
are minimized.
(7)
Promote and encourage the configuration of such devices in a manner
that minimizes adverse visual and aesthetic impacts through careful
design, siting, landscape screening, and innovative camouflaging techniques.
(8)
Promote the ability of service providers to supply such services
as effectively and efficiently as possible.
(9)
Prohibit potential damage to adjacent and/or nearby properties from
collapse or failure of such devices through adequate engineering and
siting requirements.
(10)
Verify that proposed wireless telecommunication facilities and
other facilities subject to this legislation comply with federally
established limits for RF (radiofrequency) exposure.
(11)
Require applicants to prepare RF propagation studies and produce
such other proof as is reasonably necessary to establish that the
proposed facility is necessary to remedy a gap in service, densification
of a wireless network, introducing new services, frequency bands,
or otherwise improving service capabilities at a specified location.
(12)
Ensure meaningful input by the community into important land
use decisions.
(13)
Minimize intrusions on pedestrian and vehicular travel and safety
on roads, streets and sidewalks.
E.
These regulations are not intended to prohibit or have the effect
of prohibiting the provision of adequate wireless telecommunications
services.
This chapter is enacted as a local law under the Municipal Home
Rule Law, and pursuant to all applicable authority granted by the
state and federal governments.
The following terms shall have the meanings indicated. When
not inconsistent with the context, words in the present tense include
the future tense, words used in the plural number include words in
the singular number and words in the singular number include the plural
number. The word "shall" is always mandatory and not merely directory.
A system of electrical conductors designed for the purpose
of emitting or receiving electromagnetic waves or radio frequency
or other wireless signals from a fixed location.
An antenna array (or array antenna) is a set of multiple
connected antennas which work together as a single antenna, to transmit
or receive radio waves.
The person or entity submitting an application for a wireless
telecommunications facility.
All necessary and appropriate information and data submitted
by an applicant that is necessary to receive approval for wireless
telecommunications facilities from the Board or Department having
jurisdiction.
The Board of Zoning Appeals as applicable.
The use of an existing telecommunications wireless facility
or location by more than one Telecommunications provider, which includes
sharing an antenna, tower, or mounting location, and which may include
modifications to the existing facility for the purpose of mounting
or installing new antennas. Consistent with the Code of Federal Regulations,
the term collocation shall also be defined to include the mounting,
installation or modification of an antenna on a preexisting structure
[47 C.F.R. § 1.6002(g)].
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be "commercially impracticable" and shall not render an act or
the terms of an agreement "commercially impracticable."
The Town's Commissioner of Buildings or his/her designee.
An individual or entity consisting of qualified professionals
retained by the Town at the applicant's reasonable expense necessary
to verify that the proposed wireless telecommunication facility subject
to this chapter complies with the applicable limits for RF exposure,
and where necessary to advise the Town on any technical aspect of
the application including conducting a physical inspection of the
site or facility.
An escrow account established pursuant to this chapter funded
by an applicant and used to pay the reasonable and necessary fees
of a consultant.
The establishment by the applicant of sufficient wireless
telecommunications capacity to not only provide basic area coverage
but to also meet all reasonably foreseeable demand for communications
and data in the service area.
A network of spatially separated antenna nodes connected
to a common source via a transport medium that provides wireless service
within a geographic area or structure.
Any request for the modification of an existing tower or
base station that does not substantially change the physical dimensions
of such tower or base station as defined in Section 6409(a) of the
Middle Class Tax Relief and Job Creation Act of 2012 ("The Spectrum
Act") or hereafter amended, involving:
The Federal Aviation Administration of the United States
or successor agency.
The Federal Communications Commission of the United States
or successor agency.
A gap in service exists where a remote user of services is
unable to either connect with the land-based national telephone network,
or to maintain a connection capable of supporting a reasonably uninterrupted
communication. When a coverage gap exists customers cannot receive
and send signals, and when customers pass through a coverage gap their
calls are disconnected.
The distance measured from the lowest point to the highest
point on the tower or other structure, including the highest point
of the mount, antenna, or any lightning protection device attached
to the tower or structure. Changes in height should be measured from
the original support structures in cases where deployments are or
will be separated horizontally, such as on the rooftops of buildings;
in circumstances involving eligible facilities requests, changes in
height should be measured from the dimensions of the tower or base
station, inclusive of originally approved appurtenances and any modifications
that were approved prior to the passage of the Spectrum Act.
A written agreement between the Town and an applicant which
authorizes the applicant to erect, install, attach, deploy, operate,
maintain, alter or modify any wireless telecommunications facility
on municipal property, a municipal facility or, in the public right-of-way
and which governs the terms and conditions of the use.
The addition, removal, replacement, or change of any of the
physical and visually discernable components or aspects of a wireless
telecommunication facility, such as antennas, cabling, equipment shelters,
equipment cabinets, generators, utility feeds, tower height and mounting
heights, or changing the color or materials of any visually discernable
components. Adding a new wireless carrier or service provider to a
wireless telecommunications facility as a collocation is a modification.
Town-owned streetlamps, light poles, lighting fixtures, electroliers,
flagpoles, and other similar town-owned structures, excluding such
facilities in the public rights-of-way.
Town-owned buildings, and the space in, upon, above, under,
along, across, and over real property that is under the sole ownership,
jurisdiction, possession and control of the Town, except property
licensed to the Town, any property where the Town holds an easement
or other beneficial interest, public rights-of-ways, and underwater
lands.
Any structure, facility or equipment for which any permit
required by applicable law has been previously issued and has not
been revoked and which structure, facility or equipment has not been
modified in violation of the issued permit.
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other business entity.
These terms shall have the same meaning as defined and used
in the 1996 Telecommunications Act or successor law.
The space in, upon, above, under, along, across and over
the public streets, roads, highways, lanes, courts, ways, alleys,
sidewalks, and similar places, that are under the jurisdiction and
exclusive control of the Town together with public utility easements
and public service easements. The term shall not include county, state,
or federal rights-of-way or places owned by the Town jointly with
another person, entity or agency.
A written description of the issues and elements of any application
to be reviewed by the Town's consultant and setting forth the
work to be performed by the consultant in order to conduct such review
and analysis. All such work must be reasonable and necessary. A copy
of the scope of work shall be provided to the applicant before the
consultant commences work.
The area within 100 feet of historic landmarks as listed on the federal or state registry of historic places or as designated pursuant to Chapter 76 of the Code of the Town of Hempstead.
For the purpose of determining whether an excavation or deployment
is within or outside of a proposed site and is therefore a substantial
change, the term site shall include towers other than towers in the
public rights-of-way, the current boundaries of the leased or owned
property surrounding the tower and any access or utility easements
currently related to the site, and, for other eligible support structures,
further restricted to that area in proximity to the structure and
to other transmission equipment already deployed on the ground. The
current boundaries of a site are the boundaries that existed as of
the date that the original support structure or a modification to
that structure was last reviewed and approved by the Town if the approval
of the modification occurred prior to the Spectrum Act (Eff. February
22, 2012) or otherwise outside of the Section 6409 (a) process.
Any wireless telecommunications facility which meets the
following criteria as set forth in 47 C.F.R. § 1.6002(l)(1)
— (6) or as it may be amended after the effective date of this
chapter, where:
The facilities:
Are mounted on structures 50 feet or less in height including
their antennas as defined in § 1.1320(d); or
Are mounted on structures no more than 10% taller than other
adjacent structures; or
Do not extend existing structures on which they are located
to a height of more than 50 feet or by more than 10 percent, whichever
is greater;
Each antenna associated with the deployment, excluding associated
antenna equipment [as defined in the definition of antenna in § 1.1320(d)],
is no more than three cubic feet in volume;
All other wireless equipment associated with the structure,
including the wireless equipment associated with the antenna and any
preexisting associated equipment on the structure, is no more than
28 cubic feet in volume;
The facilities do not require antenna structure registration under § 142-17 of this chapter;
The facilities are not located on Tribal lands, as defined under
36 CFR 800.16(x); and
The facilities do not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified in
§ 1.1307(b).
The official document or permit granted by the Board pursuant
to which an applicant is authorized to obtain a building permit from
the Department of Buildings to construct a new wireless telecommunications
facility.
The minimization of potential adverse aesthetic and visual
impacts from the installation of wireless telecommunications facilities
as directed in this chapter.
A modification substantially changes the physical dimensions
of an eligible support structure if it meets any of the following
criteria:
For towers other than towers in the public rights-of-way, it
increases the 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;
For towers other than towers in the public rights-of-way, it
involves adding an appurtenance to the body of the tower that would
protrude from the edge of the tower more than 20 feet, or more than
the width of the tower 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;
For any eligible support structure, it involves installation
of more than the standard number of new equipment cabinets for the
technology involved, but not to exceed four cabinets; or, for towers
in the public rights-of-way and base stations, it involves installation
of any new equipment cabinets on the ground if there are no preexisting
ground cabinets associated with the structure, or else involves installation
of ground cabinets that are more than 10% larger in height or overall
volume than any other ground cabinets associated with the structure.
A generator shall be considered the equivalent of two new equipment
boxes;
It entails any excavation or deployment outside of the current
site, except that, for towers other than towers in the public rights-of-way,
it entails any excavation or deployment of transmission equipment
outside of the current site by more than 30 feet in any direction.
The site boundary from which the 30 feet is measured excludes any
access or utility easements currently related to the site;
It would defeat the concealment elements of the eligible support
structure; or
It does not comply with conditions associated with the siting
approval of the construction or modification of the eligible support
structure or base station equipment, provided however that this limitation
does not apply to any modification that is non-compliant only in a
manner that would not exceed the thresholds identified in 47 C.F.R.
§ 1.40001(b)(7)(i) through (iv).
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
Any structure built for the sole or primary purpose of supporting
any FCC authorized antennas and their associated facilities, including
structures that are constructed for wireless telecommunications services
including, but not limited to, private, broadcast, and public safety
services, as well as unlicensed wireless telecommunications facilities
and fixed services, and the associated site. A tower shall include
the structure and any support systems appurtenant thereto. Any pole,
mast, mount, or other structure, and all attached equipment, including
antennas, exceeding 50 feet in height above ground level shall be
considered a tower.
The Town of Hempstead, Town of Hempstead Town Board, and
any subdivision thereof, including Town-operated special improvement
districts and agencies.
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.
Includes antennas, towers, and any structure, equipment,
installation, facility, device, wires, cables or appurtenance designed,
installed or intended to be used to support antennas or other transmitting
or receiving devices used for the purpose of transmitting, receiving,
distributing, providing or accommodating data, cellular, radio, television,
specialized mobile radio (SMR), enhanced specialized mobile radio
(ESMR), paging, 911, personal telecommunication services (PCS), commercial
satellite services, microwave, mobile and any commercial wireless
telecommunication service not licensed by the FCC, including without
limit mounts, towers of all types, structures, buildings, church steeples,
or anything that is used to support antennas or its functional equivalent;
and distributed antenna systems (DAS) including all accessory facilities,
installations, and equipment such as utility poles, transmission cables,
wires, mounts, cabling, equipment shelters and other appurtenances.
Unless otherwise provided, this chapter shall not apply to the
following:
A.
All antennas which are accessory to permitted residential uses and
are mounted on the residential dwelling without a tower, including
but not limited to the reception antennas for direct broadcast satellites
(DBS), television broadcast stations (TVBS) and other customer-end
antennas that receive and transmit fixed wireless signals that are
primarily used for reception.
B.
Such uses that are licensed to operate by the Federal Communications Commission, pursuant to 47 CFR 97, or successor law, such as amateur radio operations, private citizen's bands, and other similar noncommercial telecommunications, subject to the provisions of Article IX of Chapter 198 (Height, Area and Bulk Regulations).
C.
Uses which are preempted or exempt from local regulation by federal
or state law or regulation including uses on state or county property
or rights-of-way except that the Town shall retain jurisdiction to
review and issue any permit of general applicability, including any
building permit relating to the construction of a wireless telecommunications
facility.
D.
Repairs and maintenance to existing equipment shall not require any
permits from the Town unless otherwise determined by the Commissioner
or his designee.
E.
No license agreement shall be required of any entity that already
holds a cable franchise issued by the Town for cable service as defined
in 47 U.S.C.A. § 522(6), or telephone franchise, except
that proposed installations of cabinets, boxes, equipment or other
structures on the ground or partially below the surface of the ground
along the public rights-of-way shall be subject to review by the Department
of Buildings to determine the suitability of the proposed location
for the proposed installation, highway work permits, building permits,
and certificates of occupancy. The provisions of this section shall
apply to both wired and wireless equipment.
F.
Facilities used exclusively for providing unlicensed spread spectrum
technology, i.e., Bluetooth or WiFi, where the facility does not require
a new tower, where the service is not to be used for commercial purposes,
where there is no fee or charge for the use of the service, and where
the service is intended to be usable for less than 200 feet.
A.
Variances from the requirements of this chapter shall be considered
by the Board subject to the notice and hearing requirements set forth
in Articles XXVI and XXVII of the Code of the Town of Hempstead. Any
variances that may be necessary shall be identified in the application
for the installation of the wireless telecommunications facility.
B.
Nothing set forth in this chapter shall be deemed to relieve any
applicant for the construction of a wireless telecommunications facility
from compliance with the requirements of the Town's Building
Zone Ordinance.
