[HISTORY: Adopted by the Common Council of the City of Hudson 12-19-2000
by L.L. No. 1-2001 (Ch. 109 of the 1973 Code); amended in its entirety 8-16-2005
by L.L. No. 15-2005. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 325.
The Telecommunications Act of 1996 affirmed the City of Hudson's
authority concerning the placement, construction and modification of wireless
telecommunications facilities. The City of Hudson finds that wireless telecommunications
facilities may pose significant concerns to the health, safety, public welfare,
character and environment of the City and its inhabitants. The City also recognizes
that facilitating the development of wireless service technology can be an
economic development asset to the City and of significant benefit to the City
and its residents. In order to insure that the placement, construction or
modification of wireless telecommunications facilities is consistent with
the City's land use policies, the City is adopting a single, comprehensive
wireless telecommunications facilities application and permit process. The
intent of this chapter is to minimize the impact of wireless telecommunications
facilities; establish a fair and efficient process for review and approval
of applications; assure an integrated, comprehensive review of the environmental
impacts of such facilities, and protect the health, safety and welfare of
the City of Hudson.
This chapter shall be known and cited as the "wireless telecommunications
facilities Siting Law for the City of Hudson, New York."
A.
If any word, phrase, sentence, part, section, subsection,
or other portion of this chapter or any application thereof to any person
or circumstance is declared void, unconstitutional, or invalid for any reason,
then such word, phrase, sentence, part, section, subsection, or other portion,
or the proscribed application thereof, shall be severable, and the remaining
provisions of this chapter, and all applications thereof, not having been
declared void, unconstitutional, or invalid, shall remain in full force and
effect.
B.
Any special use permit issued under this chapter shall
be comprehensive and not severable. If part of a permit is deemed or ruled
to be invalid or unenforceable in any material respect by a competent authority
or is overturned by a competent authority, the permit shall be void in total,
upon determination by the City.
For purposes of this chapter, and where not inconsistent with the context
of a particular section, the defined terms, phrases, words, abbreviations,
and their derivations shall have the meanings given in this section. When
not inconsistent with the context, words in the present tense include the
future tense, words used in the plural number include words in the singular
number, and words in the singular number include the plural number. The word
"shall" is always mandatory and not merely directory.
- ACCESSORY FACILITY or STRUCTURE
- An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities and located on the same property or lot as the wireless telecommunications facilities, including, but not limited to, utility or transmission equipment storage sheds or cabinets.
- ANTENNA
- A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals.
- APPLICANT
- Any wireless service provider submitting an application for a special use permit for wireless telecommunications facilities.
- APPLICATION
- All necessary and appropriate documentation that an applicant submits in order to receive a special use permit for wireless telecommunications facilities.
- COLLOCATION
- The use of an existing tower or structure to support antennas for the provision of wireless services.
- COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
- The inability to perform an act on terms that are reasonable in commerce, the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be commercially impracticable and shall not render an act or the terms of an agreement commercially impracticable.
- COMPLETED APPLICATION
- An application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.
- COUNCIL
- The City Council of the City of Hudson.
- FAA
- The Federal Aviation Administration or its duly designated and authorized successor agency.
- FCC
- The Federal Communications Commission or its duly designated and authorized successor agency.
- HEIGHT
- When referring to a tower or structure, the distance measured from the preexisting grade level to the highest point on the tower or structure, even if said highest point is an antenna or lightning protection device.
- MODIFICATION or MODIFY
- The addition, removal or change of any of the physical and visually discernible components or aspects of a wireless facility, such as antennas, cabling, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernible components, vehicular access, parking and/or an upgrade or changeout of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site as a collocation is a modification. A "modification" shall not include the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without adding, removing or changing anything.
- NIER
- Nonionizing electromagnetic radiation.
- PERSON
- Any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons having a joint common interest, or any other entity.
- PERSONAL WIRELESS FACILITY
- See the definition for "wireless telecommunications facilities."
- PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS
- Shall have the same meaning as defined and used in the 1996 Telecommunications Act.
- REPAIRS and MAINTENANCE
- The replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without the addition, removal or change of any of the physical or visually discernible components or aspects of a wireless facility that will add to the visible appearance of the facility as originally permitted.
- SPECIAL USE PERMIT
- The official document or permit by which an applicant is allowed to file for a building permit to construct and use wireless telecommunications facilities as granted or issued by the City.
- STATE
- The State of New York.
- STEALTH or STEALTH TECHNOLOGY
- To minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
- TELECOMMUNICATIONS
- The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
- TELECOMMUNICATIONS SITE
- See the definition for "wireless telecommunications facilities."
- TELECOMMUNICATIONS STRUCTURE
- A structure used in the provision of services described in the definition of "wireless telecommunications facilities."
- TEMPORARY
- In relation to all aspects and components of this chapter, something intended to or that does exist for fewer than 90 days.
- TOWER
- Any structure designed primarily to support an antenna for receiving and/or transmitting a wireless signal.
- WIRELESS TELECOMMUNICATIONS FACILITIES
- Means and includes a "telecommunications site" and "personal wireless facility." It means a structure, facility or location designed, intended to be used as, or used to support antennas or other transmitting or receiving devices. This includes, without limit, towers of all types and kinds and structures, including, but not limited to, buildings, church steeples, silos, water towers, signs or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related facilities and equipment, such as cabling, equipment shelters and other structures associated with the site. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, SMR, paging, 911, personal communications services (PCS), commercial satellite services, microwave services and any commercial wireless telecommunications service not licensed by the FCC.
In order to ensure that the placement, construction, and modification
of wireless telecommunications facilities protects the City's health,
safety, public welfare, environmental features, the nature and character of
the community and neighborhood and other aspects of the quality of life specifically
listed elsewhere in this chapter, the City hereby adopts an overall policy
with respect to a special use permit for wireless telecommunications facilities
for the express purpose of achieving the following goals:
A.
Requiring a special use permit for any new, collocation
or modification of a wireless telecommunications facility.
B.
Implementing an application process for a person(s) seeking
a special use permit for wireless telecommunications facilities.
C.
Establishing a policy for examining an application for
and issuing a special use permit for wireless telecommunications facilities
that is both fair and consistent.
D.
Promoting and encouraging, wherever possible, the sharing
and/or collocation of wireless telecommunications facilities among service
providers
E.
Promoting and encouraging, wherever possible, the placement,
height and quantity of wireless telecommunications facilities in such a manner,
including, but not limited to, the use of stealth technology, as to minimize
adverse aesthetic and visual impacts on the land, property, buildings, and
other facilities adjacent to, surrounding, and in generally the same area
as the requested location of such wireless telecommunications facilities,
which shall mean using the least visually and physically intrusive facility
that is not technologically or commercially impracticable under the facts
and circumstances.
F.
That in granting a special use permit, the City has found
that the facility shall be the most appropriate site as regards being the
least visually intrusive among those available in the City.
A.
No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this chapter without having first obtained a special use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those noncommercial exceptions noted in § 284-7.
B.
All wireless telecommunications facilities existing on
or before the effective date of this chapter shall be allowed to continue
as they presently exist; provided, however, that any visible modification
of an existing wireless telecommunications facility will require the complete
facility and any new installation to comply with this chapter.
C.
Any repair and maintenance of a wireless facility does
not require the application for a special use permit.
The following shall be exempt from this chapter:
A.
The City's fire, police, Department of Transportation
or other public service facilities owned and operated by the local government.
B.
Any facilities expressly exempt from the City's
siting, building and permitting authority.
C.
Over-the-air reception devices, including the reception
antennas for direct broadcast satellites (DBS), multichannel multipoint distribution
(wireless cable) providers (MMDS), television broadcast stations (TVBS) and
other customer-end antennas that receive and transmit fixed wireless signals
that are primarily used for reception.
D.
Facilities exclusively for private, noncommercial radio
and television reception and private citizens bands, licensed amateur radio
and other similar noncommercial telecommunications.
E.
Facilities exclusively for providing unlicensed spread
spectrum technologies [such as IEEE 802.11a, b, g (Wi-Fi) and Bluetooth] where
the facility does not require a new tower.
A.
All applicants for a special use permit for wireless
telecommunications facilities or any modification of such facility shall comply
with the requirements set forth in this chapter. The City Planning Commission
is the officially designated agency or body of the City to which applications
for a special use permit for wireless telecommunications facilities must be
made and which is authorized to review, analyze, evaluate and make decisions
with respect to granting or not granting or revoking special use permits for
wireless telecommunications facilities. The City may, at its discretion, delegate
or designate other official agencies or officials of the City to accept, review,
analyze, evaluate and make recommendations to the City Planning Commission
with respect to the granting or not granting or the revoking of special use
permits for wireless telecommunications facilities.
B.
The City may reject applications not meeting the requirements
stated herein or which are otherwise incomplete.
C.
No wireless telecommunications facilities shall be installed,
constructed or modified until the application is reviewed and approved by
the City and the special use permit has been issued.
D.
Any and all representations made by the applicant to
the City on the record during the application process, whether written or
verbal, shall be deemed a part of the application and may be relied upon in
good faith by the City.
E.
An application for a special use permit for wireless
telecommunications facilities shall be signed on behalf of the applicant by
the person preparing the same and with knowledge of the contents and representations
made therein and attesting to the truth and completeness of the information.
F.
The applicant must provide documentation to verify it
has the right to proceed as proposed on the site. This would require an executed
copy of the lease with the landowner or landlord or a signed letter acknowledging
authorization. If the applicant owns the site, a copy of the ownership record
is required.
G.
The applicant shall include a statement in writing that:
(1)
The applicant's proposed wireless telecommunications
facilities shall be maintained in a safe manner and in compliance with all
conditions of the special use permit, without exception, unless specifically
granted relief by the City in writing, as well as all applicable and permissible
local codes, ordinances, and regulations, including any and all applicable
City, state and federal laws, rules, and regulations.
(2)
The construction of the wireless telecommunications facilities
is legally permissible, including, but not limited to, the fact that the applicant
is authorized to do business in the state.
H.
Where a certification is called for in this chapter,
such certification shall bear the signature and seal of a professional engineer
licensed in the state.
I.
In addition to all other required information as stated
in this chapter, all applications for the construction or installation of
new wireless telecommunications facilities or the modification of an existing
facility shall contain the information hereinafter set forth.
(1)
A descriptive statement of the objective(s) for the new
facility or modification, including and expanding on a need such as coverage
and/or capacity requirements;
(2)
Documentation that demonstrates and proves the need for
the wireless telecommunications facility to provide service primarily and
essentially within the City; 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, include an analysis of current and projected usage;
(3)
The name, address and phone number of the person preparing
the report;
(4)
The name, address, and phone number of the property owner
and applicant and to include the legal name of the applicant; if the site
is a tower and the owner is different from the applicant, provide the name
and address of the tower owner;
(5)
The postal address and tax map parcel number of the property;
(6)
The zoning district or designation in which the property
is situated;
(7)
The size of the property stated both in square feet and
lot line dimensions, and a survey showing the location of all lot lines;
(8)
The location of the nearest residential structure;
(9)
The location, size and height of all existing and proposed
structures on the property that is the subject of the application;
(10)
The type, locations and dimensions of all proposed and
existing landscaping and fencing;
(11)
The azimuth, size and center-line height location of
all proposed and existing antennas on the supporting structure;
(12)
The number, type and model of the antenna(s) proposed,
with a copy of the specification sheet;
(13)
The make, model, type and manufacturer of the tower and
a design plan stating the tower's capacity to accommodate multiple users;
(14)
A site plan describing the proposed tower and antenna(s)
and all related fixtures, structures, appurtenances and apparatus, including
the height above preexisting grade, materials, color and lighting;
(15)
The frequency, modulation and class of service of radio
or other transmitting equipment;
(16)
The actual intended transmission power stated as the
maximum effective radiated power (ERP) in watts;
(17)
Signed documentation, such as the Checklist to Determine
Whether a Facility Is Categorically Excluded, to verify that the wireless
telecommunication facility with the proposed installation will be in full
compliance with the current FCC RF emissions guidelines (NIER); if not categorically
excluded, a complete RF emissions study is required to provide verification;
(18)
A signed statement that the proposed installation will
not cause physical or RF interference with other telecommunications devices;
(19)
A copy of the FCC license applicable for the intended
use of the wireless telecommunications facilities;
(20)
A copy of the geotechnical subsurface soils investigation,
evaluation report and foundation recommendation for a proposed or existing
tower site and, if an existing tower or water tank site, a copy of the installed
foundation design.
J.
The applicant will provide a written copy of an analysis,
completed by a qualified individual or organization, to determine if the proposed
new tower or existing structure intended to support wireless facilities is
in compliance with Federal Aviation Administration Regulation Part 77 and
if it requires lighting. This requirement shall also be for any existing structure
or building where the application increases the height of the structure or
building. If this analysis determines that an FAA determination is required,
then all filings with the FAA, all responses from the FAA and any related
correspondence shall be provided with the application.
K.
Application for a new tower.
(1)
In the case of a new tower, the applicant shall be required
to submit a written report demonstrating its meaningful efforts to secure
shared use of existing tower(s) or the use of alternative buildings or other
structures within the City. Copies of written requests and responses for shared
use shall be provided to the City in the application, along with any letters
of rejection stating the reason for rejection.
(2)
In order to better inform the public, in the case of
a new telecommunication tower, the applicant shall, prior to the public hearing
on the application, hold a "balloon test." The applicant shall arrange to
fly, or raise upon a temporary mast, a brightly colored balloon a minimum
of three feet in diameter at the maximum height of the proposed new tower.
The dates (including a second date, in case of poor visibility on the initial
date), times and location of this balloon test shall be advertised by the
applicant seven and 14 days in advance of the first test date in a newspaper
with a general circulation in the City. The applicant shall inform the City,
in writing, of the dates and times of the test at least 14 days in advance.
The balloon shall be flown for at least four consecutive hours sometime between
7:00 a.m. and 4:00 p.m. on the dates chosen. The primary date shall be on
a weekend, but in case of poor weather on the initial date, the secondary
date may be on a weekday. A report with pictures from various locations of
the balloon shall be provided with the application.
(3)
The applicant shall examine the feasibility of designing
the proposed tower to accommodate future demand for at least four additional
commercial applications, for example, future collocations. The tower shall
be structurally designed to accommodate at least four additional antenna arrays
equal to those of the applicant, and located as close to the applicant's
antenna as possible without causing interference. This requirement may be
waived, provided that the applicant, in writing, demonstrates that the provision
of future shared usage of the tower is not technologically feasible, is commercially
impracticable or creates an unnecessary and unreasonable burden, based upon:
(a)
The foreseeable number of FCC licenses available for
the area;
(b)
The kind of wireless telecommunications facilities site
and structure proposed;
(c)
The number of existing and potential licenses without
wireless telecommunications facilities spaces/sites;
(d)
Available space on existing and approved towers.
(4)
Negotiations for shared use.
(a)
The owner of a proposed new tower, and his/her successors
in interest, shall negotiate in good faith for the shared use of the proposed
tower by other wireless service providers in the future and shall:
[1]
Respond within 60 days to a request for information from
a potential shared-use applicant;
[2]
Negotiate in good faith concerning future requests for
shared use of the new tower by other telecommunications providers;
[3]
Allow shared use of the new tower if another telecommunications
provider agrees in writing to pay reasonable charges. The charges may include,
but are not limited to, a pro rata share of the cost of site selection, planning,
project administration, land costs, site design, construction and maintenance
financing and return on equity, less depreciation and all of the costs of
adapting the tower or equipment to accommodate a shared user without causing
electromagnetic interference.
(b)
Failure to abide by the conditions outlined above may
be grounds for revocation of the special use permit.
L.
The applicant shall provide certification with documentation
(structural analysis), including calculations that the telecommunication facility
tower and foundation and attachments, rooftop support structure, water tank
structure, and any other supporting structure as proposed to be utilized are
designed and will be constructed to meet all local, City, state and federal
structural requirements for loads, including wind and ice loads.
M.
If the proposal is for a collocation or modification
on an existing tower, the applicant is to provide signed documentation of
the tower condition such as an ANSI report as per Annex E, Tower Maintenance
and Inspection Procedures, ANSI/TIA/EIA-222F or most recent version. The inspection
report must be performed every three years for a guyed tower and five years
for monopoles and self-supporting towers.
N.
All proposed wireless telecommunications facilities shall
contain a demonstration that the facility be sited so as to be the least visually
intrusive reasonably possible, given the facts and circumstances involved,
and thereby have the least adverse visual effect on the environment and its
character, on existing vegetation, and on the residences in the area of the
Wireless Telecommunications Facility.
O.
If a new tower, a proposal for a new antenna attachment
to an existing structure, or a modification adding to a visual impact, the
applicant shall furnish a visual impact assessment, which shall include:
(1)
If a new tower or increasing the height of an existing
structure is proposed, a computer-generated Zone of Visibility Map at a minimum
of a one-mile radius from the proposed structure, with and without foliage,
shall be provided to illustrate locations from which the proposed installation
may be seen.
(2)
Pictorial representations of before and after views (photo
simulations) from key viewpoints both inside and outside of the City as may
be appropriate, including, but not limited to, state highways and other major
roads; state and local parks; other public lands; historic districts; preserves
and historic sites normally open to the public and from any other location
where the site is visible to a large number of visitors, travelers or residents.
Guidance will be provided concerning the appropriate key sites at the preapplication
meeting; provide a map showing the locations of where the pictures were taken
and the distance from the proposed structure.
(3)
A written description of the visual impact of the proposed
facility, including, as applicable, the tower base, guy wires, fencing and
accessory buildings from abutting and adjacent properties and streets as relates
to the need or appropriateness of screening.
P.
The applicant shall demonstrate and provide in writing
and/or by drawing how it shall effectively screen from view the base and all
related equipment and structures of the proposed wireless telecommunications
facility.
Q.
The wireless telecommunications facility and any and
all accessory or associated facilities shall maximize the use of building
materials, colors and textures designed to blend with the structure to which
it may be affixed and/or to harmonize with the natural surroundings; this
shall include the utilization of stealth or concealment technology as may
be required by the City.
R.
All utilities at a wireless telecommunications facilities
site shall be installed underground and in compliance with all laws, ordinances,
rules and regulations of the City, including specifically, but not limited
to, the National Electrical Safety Code and the National Electrical Code where
appropriate.
S.
At a telecommunications site, an access road, turnaround
space and parking shall be provided to assure adequate emergency and service
access. Maximum use of existing roads, whether public or private, shall be
made to the extent practicable. Road construction shall at all times minimize
ground disturbance and the cutting of vegetation. Road grades shall closely
follow natural contours to assure minimal visual disturbance and reduce soil
erosion.
T.
All wireless telecommunications facilities shall be constructed,
operated, maintained, repaired, provided for removal of, modified or restored
in strict compliance with all current applicable technical, safety and safety-related
codes adopted by the City, state, or United States, including, but not limited
to, the most recent editions of the ANSI Code, the National Electrical Safety
Code and the National Electrical Code, as well as accepted and responsible
workmanlike industry practices and recommended practices of the National Association
of Tower Erectors. The codes referred to are codes that include, but are not
limited to, construction, building, electrical, fire, safety, health, and
land use codes. In the event of a conflict between or among any of the preceding,
the more stringent shall apply.
U.
A holder of a special use permit granted under this chapter
shall obtain, at its own expense, all permits and licenses required by applicable
law, rule, regulation or code and must maintain the same, in full force and
effect, for as long as required by the City or other governmental entity or
agency having jurisdiction over the applicant.
V.
There shall be a preapplication meeting. The purpose
of the preapplication meeting will be to address issues that will help to
expedite the review and permitting process. A preapplication meeting shall
also include a site visit if there has not been a prior site visit for the
requested site. Costs of the City's consultants to prepare for and attend
the preapplication meeting will be borne by the applicant.
W.
An applicant shall submit to the City the number of completed
applications determined to be needed at the preapplication meeting. Written
notification of the application shall be provided to the legislative bodies
of all adjacent municipalities as applicable and/or requested.
X.
The holder of a special use permit shall notify the City
of any intended modification of a wireless telecommunication facility and
shall apply to the City to modify, relocate or rebuild a wireless telecommunications
facility.
Y.
With respect to this application process, the Planning
Commission will normally seek to have lead agency status pursuant to SEQRA.
The Planning Commission shall conduct an environmental review of the proposed
project pursuant to SEQRA, in combination with its review of the application
pursuant to this chapter.
A.
Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities in
accordance with the following priorities, (1) being the highest priority and
(5) being the lowest priority.
B.
If the proposed site is not proposed for the highest
priority listed above, then a detailed technical and narrative 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, technologically,
the reason or reasons why such a permit should be granted for the proposed
site and the hardship that would be incurred by the applicant if the permit
were not granted for the proposed site.
C.
An applicant may not bypass sites of higher priority
by stating the site proposed is the only site leased or selected. An application
shall address collocation as an option. If such option is not proposed, the
applicant must explain to the reasonable satisfaction of the City why collocation
is a hardship, such being that it is commercially or technologically impracticable.
Agreements between providers limiting or prohibiting collocation shall not
be a valid basis for any claim of commercial impracticability or hardship.
D.
Notwithstanding the above, the City may approve any she
located within an area in the above list of priorities, provided that the
City finds that the proposed site is in the best interest of the health, safety
and welfare of the City and its inhabitants and will not have a deleterious
effect on the nature and character of the community and neighborhood.
E.
The applicant shall submit a written report demonstrating
the applicant's review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If appropriate, based on
selecting a site of lower priority, a detailed written explanation as to why
sites of a higher priority were not selected shall be included with the application.
F.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the City may
disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with the historic nature or character of a neighborhood
or historical district;
(3)
The use or construction of wireless telecommunications
facilities which is contrary to an already-stated purpose of a specific zoning
or land use designation;
(4)
The placement and location of wireless telecommunications
facilities which would create an unacceptable risk, or the reasonable probability
of such, to residents, the public, employees and agents of the City or to
employees of the service provider or other service providers;
(5)
Conflicts with the provisions of this chapter.
A.
The City, as opposed to the construction of a new tower,
shall prefer locating on existing towers or others structures without increasing
the height. The applicant shall submit a comprehensive report inventorying
existing towers and all other suitable structures within two miles of the
location of any proposed new tower, unless the applicant can show that some
other distance is more appropriate technologically and demonstrate conclusively
why an existing tower or other suitable structure cannot be used.
B.
An applicant intending to locate on an existing tower
or other suitable structure shall be required to document the intent of the
existing owner to permit its use by the applicant.
C.
Such shared use shall consist only of the minimum antenna
array technologically required to provide service primarily and essentially
within the City, to the extent practicable, unless good cause is shown.
A.
The applicant shall submit documentation justifying the
technological need for the total height of any tower, facility and/or antenna
requested and the basis therefor. Documentation in the form of RF propagation
studies must include all backup data used in the production of the propagation
studies. The propagation studies shall show the coverage at the requested
height and also at a minimum of 10 feet lower, the combination of which should
show the lowest, least-intrusive height needed. Such documentation will be
analyzed in the context of the justification of the height needed to provide
service primarily and essentially within the City, to the extent practicable,
unless good cause is otherwise shown.
B.
In no instance shall a tower constructed after the effective
date of this chapter, including allowing for all attachments, exceed that
height which shall permit operation without required artificial lighting of
any kind in accordance with municipal, City, state, and/or any federal statute,
law, local law, City ordinance, code, rule or regulation.
A.
wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.
Towers shall be galvanized and/or painted with a rust-preventive
paint of an appropriate color to harmonize with the surroundings and shall
be maintained in accordance with the requirements of this chapter.
C.
If lighting is required, the applicant shall provide
a detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations. Specifically,
this shall mean eliminating or minimizing the visual effects at or near ground
level.
All wireless telecommunications facilities and antennas shall be located,
fenced or otherwise secured in a manner that prevents unauthorized access.
Specifically:
A.
All antennas, towers and other supporting structures,
including guy anchor points and wires, shall be made inaccessible to individuals
and constructed or shielded in such a manner that they cannot be climbed or
collided with; and
B.
Transmitters and telecommunications control points shall
be installed in such a manner that they are readily accessible only to persons
authorized to operate or service them.
Wireless telecommunications facilities shall contain a sign no larger
than four square feet in order to provide adequate notification to persons
in the immediate area of the presence of RF radiation or to control exposure
to RF radiation within a given area. A sign of the same size is also to be
installed to contain the name(s) of the owner(s) and operator(s) of the antenna(s),
as well as emergency phone number(s). The sign shall be on the equipment shelter
or cabinet of the applicant and be visible from the access point of the site
and must identify the equipment owner of the shelter or cabinet. On tower
sites, an FCC registration sign as applicable is also to be present. The signs
shall not be lighted, unless applicable law, rule or regulation requires lighting.
No other signage, including advertising, shall be permitted.
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded rights-of-way
and road and street lines by the greater of the following distances: a distance
equal to the height of the proposed tower or wireless telecommunications facility
structure, plus 10% of the height of the tower or structure, or the existing
setback requirement of the underlying zoning district, whichever is greater.
Any accessory structure shall be located so as to comply with the applicable
minimum setback requirements for the property on which it is situated.
A.
The City may hire any consultant and/or expert necessary
to assist the City in reviewing and evaluating the application, including
the construction and modification of the site, once permitted, and any site
inspections.
B.
An applicant shall deposit with the City funds sufficient
to reimburse the City for all reasonable costs of consultant and expert evaluation
and consultation to the City in connection with the review of any application,
including the construction and modification of the site, once permitted. The
initial deposit shall be $8,500. The placement of the $8,500 with the City
shall precede the preapplication meeting. The City will maintain a separate
escrow account for all such funds. The City's consultants/experts shall
invoice the City for its services in reviewing the application, including
the construction and modification of the site, once permitted. If at any time
during the process this escrow account has a balance less than $2,500, the
applicant shall immediately, upon notification by the City, replenish said
escrow account so that it has a balance of at least $5,000. Such additional
escrow funds shall be deposited with the City before any further action or
consideration is taken on the application. In the event that the amount held
in escrow by the City is more than the amount of the actual invoicing at the
conclusion of the project, the remaining balance shall be promptly refunded
to the applicant.
C.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
A.
Prior to the approval of any application for a special
use permit for wireless telecommunications facilities, a public hearing shall
be held by the City, notice of which shall be published in the official newspaper
of the City no less than 10 calendar days prior to the scheduled date of the
public hearing. In order that the City may notify nearby landowners, the application
shall contain the names and address of all landowners whose property is located
within 500 feet of any property line of the lot or parcel on which the new
wireless telecommunications facilities are proposed to be located.
B.
There shall be no public hearing required for an application
to collocate on an existing tower or other structure or a modification at
an existing site, as long as there is no proposed increase in the height of
the tower or structure, including attachments thereto.
A.
The City will undertake a review of an application pursuant
to this chapter in a timely fashion, consistent with its responsibilities,
and shall act within a reasonable period of time given the relative complexity
of the application and the circumstances, with due regard for the public's
interest and need to be involved and the applicant's desire for a timely
resolution.
B.
The City may refer any application or part thereof to
any advisory or other committee for a nonbinding recommendation.
C.
After the public hearing and after formally considering
the application, the City may approve, approve with conditions, or deny a
special use permit. Its decision shall be in writing and shall be supported
by substantial evidence contained in a written record. The burden of proof
for the grant of the permit shall always be upon the applicant.
D.
If the City approves the special use permit for wireless
telecommunications facilities, then the applicant shall be notified of such
approval in writing within 10 calendar days of the City's action, and
the special use permit shall be issued within 30 days after such approval.
Except for necessary building permits and subsequent certificates of compliance,
once a special use permit has been granted hereunder, no additional permits
or approvals from the City, such as site plan or zoning approvals, shall be
required by the City for the wireless telecommunications facilities covered
by the special use permit.
E.
If the City denies the special use permit for wireless
telecommunications facilities, then the applicant shall be notified of such
denial in writing within 10 calendar days of the City's action.
The extent and parameters of a special use permit for wireless telecommunications
facilities shall be as follows:
A.
Such special use permit shall not be assigned, transferred
or conveyed without the express prior written notification to the City.
B.
Such special use permit may, following a hearing upon
due prior notice to the applicant, be revoked, canceled, or terminated for
a violation of the conditions and provisions of the special use permit or
for a material violation of this chapter after prior written notice to the
holder of the special use permit.
At the time that a person submits an application for a special use permit
for a new tower, such person shall pay a non-refundable application fee of
$5,000 to the City. If the application is for a special use permit for collocating
on an existing tower or other suitable structure, where no increase in height
of the tower or structure is required, the nonrefundable fee shall be $2,500.
The applicant and the owner of record of any proposed wireless telecommunications
facilities property site shall, at their cost and expense, be jointly required
to execute and file with the City a bond, or other form of security acceptable
to the City as to type of security and the form and manner of execution, in
an amount of at least $75,000 for a tower facility and $25,000 for a collocation
on an existing tower or other structure and with such sureties as are deemed
sufficient by the City to assure the faithful performance of the terms and
conditions of this chapter and conditions of any special use permit issued
pursuant to this chapter. The full amount of the bond or security shall remain
in full force and effect throughout the term of the special use permit and/or
until any necessary site restoration is completed to restore the site to a
condition comparable to that, which existed prior to the issuance of the original
special use permit.
In order to verify that the holder of a special use permit for wireless
telecommunications facilities, and any and all lessees, renters, and/or licensees
of wireless telecommunications facilities, place and construct such facilities,
including towers and antennas, in accordance with all applicable technical,
safety, fire, building, and zoning codes, laws, ordinances and regulations
and other applicable requirements, the City may inspect all facets of said
permit holder's, renter's, lessee's or licensee's placement,
construction, modification and maintenance of such facilities, including,
but not limited to, towers, antennas and buildings or other structures constructed
or located on the permitted site.
A.
A holder of a special use permit for wireless telecommunications
facilities shall secure and at all times maintain public liability insurance
for personal injuries, death and property damage and umbrella insurance coverage
for the duration of the special use permit in amounts as set forth below
B.
For a wireless telecommunications facility on City property,
the commercial general liability insurance policy shall specifically include
the City and its officers, councils, 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 City 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 City at least 15 days before the expiration of the insurance
that such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunication
facility is initiated, but in no case later than 15 days after the grant of
the special use permit, the holder of the special use permit shall deliver
to the City a copy of each of the policies or certificates representing the
insurance in the required amounts.
A.
Any application for wireless telecommunications facilities
that is proposed for City property, pursuant to this chapter, shall contain
a provision with respect to indemnification. Such provision shall require
the applicant, to the extent permitted by the law, to at all times defend,
indemnify, protect, save, hold harmless, and exempt the City and its officers,
councils, employees, committee members, attorneys, agents, and consultants
from any and all penalties, damages, costs, or charges arising out of any
and all claims, suits, demands, causes of action, or award of damages, whether
compensatory or punitive, or expenses arising therefrom, either at law or
in equity, which might arise out of, or are caused by, the placement, construction,
erection, modification, location, products performance, use, operation, maintenance,
repair, installation, replacement, removal, or restoration of said facility,
excepting, however, any portion of such claims, suits, demands, causes of
action or award of damages as may be attributable to the negligent or intentional
acts or omissions of the City 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 City.
A.
In the event of a violation of this chapter or any special
use permit issued pursuant to this chapter, the City may impose and collect,
and the holder of the special use permit for wireless telecommunications facilities
shall pay to the City, fines or penalties as set forth below.
B.
Violations of this chapter will be punishable in accordance with the provisions of Chapter 325, Zoning, of the Code of the City of Hudson.
C.
Notwithstanding anything in this chapter, any party in
violation of this chapter may not use the payment of fines, liquidated damages
or other penalties to evade or avoid compliance with this chapter or any section
of this chapter. An attempt to do so shall subject the party to termination
and revocation of any special use permit and all fines and penalties described
above. Without limiting other remedies available to the City, the City may
also seek injunctive relief to prevent the continued violation of this chapter.
If a wireless telecommunications facility is 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 special use permit, then the City shall notify the holder of the special use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in § 284-25, and if a violation is not corrected to the satisfaction of the City in a reasonable period of time, the special use permit shall be subject to revocation.
A.
Under the following circumstances, the City may determine
that the health, safety, and welfare interests of the City warrant and require
the removal of wireless telecommunications facilities:
(1)
wireless telecommunications facilities with a permit
have been abandoned (i.e. not used as wireless telecommunications facilities)
for a period exceeding 90 consecutive days or a total of 180 days in any period
of 365 days, except for periods caused by force majeure or acts of God, in
which case, repair or removal shall commence within 90 days;
(2)
Permitted wireless telecommunications facilities fall
into such a state of disrepair that they creates a health or safety hazard;
(3)
wireless telecommunications facilities have been located,
constructed, or modified without first obtaining, or in a manner not authorized
by, the required special use permit, or any other necessary authorization
and the Special Permit may be revoked.
B.
If the City makes such a determination as noted in Subsection A of this section, then the City shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed, the City may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the special use permit, or its successors
or assigns, shall dismantle and remove such wireless telecommunications facilities,
and all associated structures and facilities, from the site and restore the
site to as close to its original condition as is possible, such restoration
being limited only by physical or commercial impracticability, within 90 days
of receipt of written notice from the City. However, if the owner of the property
upon which the wireless telecommunications facilities are located wishes to
retain any access roadway to the wireless telecommunications facilities, the
owner may do so with the approval of the City.
D.
If wireless telecommunications facilities are not removed
or substantial progress has not been made to remove the wireless telecommunications
facilities within 90 days after the permit holder has received notice, then
the City may order officials or representatives of the City to remove the
wireless telecommunications facilities at the sole expense of the owner or
special use permit holder.
E.
If the City removes, or causes to be removed, wireless
telecommunications facilities and the owner of the wireless telecommunications
facilities does not claim and remove them from the site to a lawful location
within 10 days, then the City may take steps to declare the wireless telecommunications
facilities abandoned and sell them and their components.
F.
Notwithstanding anything in this section to the contrary,
the City may approve a temporary use permit/agreement for the wireless telecommunications
facilities for no more 90 days, during which time a suitable plan for removal,
conversion, or relocation of the affected wireless telecommunications facilities
shall be developed by the holder of the special use permit, subject to the
approval of the City, and an agreement to such plan shall be executed by the
holder of the special use permit and the City. If such a plan is not developed,
approved and executed within the ninety-day time period, then the City may
take possession of and dispose of the affected wireless telecommunications
facilities in the manner provided in this section.
Any applicant desiring relief, waiver or exemption from any aspect or
requirement of this chapter may request such at the preapplication meeting,
provided that the relief or exemption is contained in the submitted application
for either a special use permit or, in the case of an existing or previously
granted special use permit, a request for modification of its tower and/or
facilities. Such relief may be temporary or permanent, partial or complete.
However, the burden of proving the need for the requested relief, waiver or
exemption is solely on the applicant. The applicant shall bear all costs of
the City in considering the request and the relief, waiver or exemption. No
such relief or exemption shall be approved unless the applicant demonstrates
by clear and convincing evidence that, if granted, the relief, waiver or exemption
will have no significant effect on the health, safety and welfare of the City,
its residents and other service providers.
A.
The City may at any time conduct a review and examination
of this entire local law,
B.
If, after such a periodic review and examination of this
chapter, the City determines that one or more provisions of this chapter should
be amended, repealed, revised, clarified, or deleted, then the City may take
whatever measures are necessary in accordance with applicable law in order
to accomplish the same. It is noted that where warranted and in the best interests
of the City, the City may repeal this entire local law at any time.
A.
To the extent that the holder of a special use permit
for wireless telecommunications facilities has not received relief or is otherwise
exempt from appropriate state and/or federal agency rules or regulations,
then the holder of such a special use permit shall adhere to, and comply with,
all applicable rules, regulations, standards, and provisions of any state
or federal agency, including, but not limited to, the FAA and the FCC. Specifically
included in this requirement are any rules and regulations regarding height,
lighting, security, electrical and RF emission standards.
B.
To the extent that applicable rules, regulations, standards,
and provisions of any state or federal agency, including, but not limited
to, the FAA and the FCC, and specifically including, any rules and regulations
regarding height, lighting, and security, are changed and/or are modified
during the duration of a special use permit for wireless telecommunications
facilities, then the holder of such a special use permit shall conform the
permitted wireless telecommunications facilities to the applicable changed
and/or modified rule, regulation, standard, or provision within a maximum
of 24 months of the effective date of the applicable changed and/or modified
rule, regulation, standard, or provision or sooner as may be required by the
issuing entity.