[HISTORY: Adopted by the Board of Trustees of the Village of Ossining as indicated in article histories. Amendments noted where applicable.]
[Adopted 2-19-1997 by L.L. No. 1-1997; amended in its entirety 9-16-1997 by L.L. No. 3-1997]
The Federal Telecommunications Act (the "Act") was signed into law in February of 1996. The Act preserves the authority of local governments over reasonable nondiscriminatory decisions regarding the placement, construction, and modification of telecommunication towers. The passage of the Act, the increased sale of airwaves rights and issuance of licenses by the FCC, the increased demand for wireless communication services, and new technology have lead to a significant increase in the demand for telecommunications towers within the state. The Village of Ossining expects to receive requests to locate such towers and accessory uses within the Village of Ossining and currently has no local laws regarding the construction, installation, operation or location of such towers and accessory uses within the Village.
The Village of Ossining has significant concerns over the location of telecommunications towers within the Village. The Village would like to insure that the installation of these towers proceeds in a fashion that minimizes any adverse impacts while maximizing services and benefits to the community. The Village wants to accommodate the need for telecommunications towers while regulating their location and number, minimize adverse visual effects through proper design, siting and screening, avoid potential physical damage to adjacent properties, and encourage joint use of tower structures.
This article is necessary in order to address the concerns of the Village of Ossining by prohibiting the filing of new applications for tower construction and thus defer official governmental action permitting the construction of towers to give the Board of Trustees time to research the issues and adopt a local law regulating telecommunications towers and accessory uses consistent with the comprehensive plan of the Village.
As used in this article, the following terms shall have the meanings indicated:
- ACCESSORY USE
- An accessory use serves the principal use, is subordinate in area, extent or purpose to the principal use, and is located on the same lot as the principal use. Examples of such uses include transmission equipment and storage sheds.
- TELECOMMUNICATIONS TOWER
- A structure, including one or more antennas, that is intended for transmitting and/or receiving radio, television, telephone, or microwave communications but excluding those used either for fire, police and other dispatch communications, or exclusively for private radio and television reception and private citizens bands, amateur radio and other similar private, residential communications.
Until March 27, 1998, no application for the construction or erection of a telecommunications tower or accessory use may be filed, accepted or processed. For the purpose of this article, an application for tower construction shall be deemed to mean any request for official action by the Board of Trustees or other boards which request and approval would in any way commence or continue the process whereby a telecommunications tower or accessory use may be constructed or erected.
[Amended 12-16-1997 by Ord. No. 4-1997]
The imposition of this article shall not affect the processing of applications for tower construction for which approval has been granted prior to the effective date of this article or for existing towers.
[Adopted 9-1-1998 by L.L. No. 1-1998]
The Telecommunications Act of 1996 affirmed the Village of Ossining's authority concerning the placement, construction and modification of wireless telecommunications facilities. The Village Board of the Village of Ossining finds that wireless telecommunications facilities may pose a unique hazard to the health, safety, public welfare and environment of the Village of Ossining and its inhabitants. The Village also recognizes that facilitating the development of wireless service technology can be an economic development asset to the Village and of significant benefit to the Village and its residents. In order to insure that the placement, construction or modification of wireless telecommunications facilities is consistent with the town's land use policies, the Village is adopting a single, comprehensive, wireless telecommunications facilities application and permit process. The intent of this article is to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the Village of Ossining.
This article may be known and cited as the "Wireless Telecommunications Facilities Siting and Special Use Permit Law for the Village of Ossining."
If any word, phrase, sentence, part, section, subsection, or other portion of this article 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 prescribed application thereof, shall be severable, and the remaining provisions of this article, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect.
Any special use permit issued under this article 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 election by the Village Board.
For purposes of this article, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include the plural number. The word "shall" is always mandatory, and not merely directory.
- ACCESSORY FACILITY OR STRUCTURE
- An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to utility or transmission equipment storage sheds or cabinets.
- A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency signals. Such waves shall include but not be limited to radio, television, cellular, paging, personal telecommunications services (PCS), and microwave telecommunications.
- Includes any individual, corporation, estate, trust partnership, joint-stock company, association of two or more persons, limited liability company, or entity submitting an application to the Village of Ossining for a special use permit for wireless telecommunications facilities.
- The form approved by the Board, together with all necessary and appropriate documentation that an applicant submits in order to receive a special use permit for wireless telecommunications facilities.
- The Village Board of the Village of Ossining.
- BREAK POINT
- The location on a telecommunication tower which, in the event of a failure of the telecommunication tower, would result in the telecommunication tower falling or collapsing within the boundaries of the property on which the telecommunication tower is placed.
- CAMOUFLAGED TOWER
- Any tower or supporting structure that, due to design, location, or appearance, partially or completely hides, obscures, conceals, or otherwise disguises the presence of the tower and one or more antennas or antenna arrays affixed thereto.
- COLLAPSE ZONE
- The area in which any portion of a telecommunication tower could or would fall, collapse or plunge to the ground or body of water. The collapse zone shall be no less than the lateral equivalent of the distance from the break point to the top of the structure plus 10 feet, such being not less than 1/2 the height of the structure.
- The use of the same telecommunications tower or structure to carry two or more antennas for the provision of wireless services by two or more persons or entities.
- COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
- The meaning in this article and any special use permit granted hereunder as is defined and applied under the New York Uniform Commercial Code (UCC).
- COMPLETED APPLICATION
- An application that contains all information and/or data necessary to enable the Board to evaluate the merits of the application, and to make an informed decision with respect to the effect and impact of wireless telecommunications facilities on the Village in the context of the permitted land use for the particular location requested.
- DIRECT-TO HOME SATELLITE SERVICES or DIRECT BROADCAST SERVICE or DBS
- Only programming transmitted or broadcast by satellite directly to subscribers' premises without the use of ground receiving equipment, except at the subscribers' premises or in the uplink process to the satellite.
- The Environmental Assessment Form approved by the New York Department of Environmental Conservation.
- State and/or Federal Environmental Protection Agency or its duly assigned successor agency.
- The Federal Aviation Administration, or its duly designated and authorized successor agency.
- The Federal Communications Commission, or its duly designated and authorized successor agency.
- FREESTANDING TOWER
- A tower that is not supported by guy wires and ground anchors or other means of attached or external support.
- When referring to a tower or structure, the distance measured from the pre-existing grade level to the highest point on the tower or structure, even if said highest point is an antenna.
- Nonionizing Electromagnetic Radiation.
- Any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons having a joint common interest, or governmental entity.
- PERSONAL WIRELESS FACILITY
- See definition for "wireless telecommunications facilities."
- PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS
- The same meaning as defined and used in the 1996 Telecommunications Act.
- SPECIAL USE PERMIT
- The official document or permit by which an applicant is allowed to construct and use wireless telecommunications facilities as granted or issued by the Village.
- The State of New York.
- TELECOMMUNICATION SITE
- See definition for wireless telecommunications facilities.
- The transmission and reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
- TELECOMMUNICATIONS STRUCTURE
- A structure used in the provision of services described in the definition of "wireless telecommunications facilities."
- In relation to all aspects and components of this article, something intended to, or that does, exist for fewer than 90 days.
- The Village of Ossining, New York.
- WIRELESS TELECOMMUNICATIONS FACILITIES or TELECOMMUNICATIONS TOWER or TELECOMMUNICATIONS SITE or PERSONAL WIRELESS FACILITY
- A structure or location or facility designed, or intended to be used, or used to support antennas. It includes without limit, freestanding towers, guyed towers, monopoles, and similar structures that employ camouflage technology, including but not limited to structures such as a church steeple, silo, water tower, sign or other similar structures intended to mitigate the visual impact of an antenna or the functional equivalent of such. It also includes a structure or facility intended to transmit and/or receive radio, television, cellular, paging, personal telecommunications services, wireless internet service or microwave telecommunications, but excluding those used exclusively for fire, police and other dispatch telecommunications, or exclusively for private radio and television reception and private citizen's bands, amateur radio and other similar telecommunications.
In order to ensure that the placement, construction, and modification of wireless telecommunications facilities protects the town's health, safety, public welfare, environmental features and other aspects of the quality of life specifically listed elsewhere in this article, the Board adopts an overall policy with respect to a special use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:
Implementing an application process for person(s) seeking a special use permit for wireless telecommunications facilities.
Establishing a policy for examining an application for and issuing a special use permit for wireless telecommunications facilities that is both fair and consistent.
Establishing reasonable time frames for granting or not granting a special use permit for wireless telecommunications facilities, or recertifying or not recertifying, or revoking the special use permit granted under this article.
Promoting and encouraging, wherever possible, the sharing and/or collocation of wireless telecommunications facilities among service providers.
Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner as to minimize adverse aesthetic impacts to 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.
All applicants for a special use permit for wireless telecommunications facilities shall, in addition to the other requirements in this article, comply with the requirements set forth in this section. The Board is the officially designated agency or body of the community to whom applications for a special use permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking special use permits for wireless telecommunications facilities. The Board may at its discretion delegate or designate other official agencies of the Village to accept, review, analyze, evaluate and make recommendations to the Board with respect to the granting or not granting, recertifying or not recertifying or revoking special use permits for wireless telecommunications facilities.
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. The landowner, if different than the applicant, shall also sign the application. At the discretion of the Board, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.
Applications not meeting the requirements stated herein or which are otherwise incomplete, may be rejected by the Board.
The applicant shall include a statement, in writing that:
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 Board, in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable county, state and federal laws, rules and regulations.
The construction of the wireless telecommunications facilities are legally permissible, including but not limited to the fact that the applicant is authorized to do business in New York State.
No wireless telecommunications facilities shall be installed or constructed until the site plan is reviewed and approved by the Board. All applications for the construction or installation of new wireless telecommunications facilities shall be accompanied by a report containing the information hereinafter set forth. The report shall be signed by a licensed professional engineer registered in the state. Where this section calls for certification, such certification shall be by a qualified New York State licensed professional engineer acceptable to the Village, unless otherwise noted.
Name, address and phone number of the person preparing the report.
Name, address, and phone number of the property owner, operator, and applicant, to include the legal form of the applicant.
Postal address and tax map parcel number of the property.
Zoning District or designation in which the property is situated.
Size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines.
Location of nearest residential structure.
Location of nearest habitable structure.
Location, size and height of all structures on the property which is the subject of the application.
Location, size and height of all proposed and existing antennas and all appurtenant structures.
Type, size and location of all proposed and existing landscaping.
The number, type and design of the telecommunications tower(s) antenna(s) proposed and the basis for the calculations of the telecommunications tower's capacity to accommodate multiple users.
A brief description of the service to be provided and the technology to be employed.
The make, model and manufacturer of the tower and antenna(s).
A description of the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above pre-existing grade, materials, color and lighting.
The frequency, modulation and class of service of radio or other transmitting equipment.
Transmission and maximum effective radiated power of the antenna(s).
Direction of maximum lobes and associated radiation of the antenna(s).
Applicant's proposed tower maintenance and inspection procedures and related system of records.
Certification that NIER levels at the proposed site are within the threshold levels adopted by the FCC, though the certifying engineer need not be approved by the Board.
Certification that the proposed antenna(s) will not cause interference with existing telecommunications devices, though the certifying engineer need not be approved by the Board.
A copy of the FCC license applicable for the use of wireless telecommunications facilities.
Certification that a topographic and geomorphologic study and analysis has been conducted, and that taking into account the subsurface and substrata, and the proposed drainage plan, that the site is adequate to assure the stability of the proposed wireless telecommunications facilities on the proposed site, though the certifying engineer need not be approved by the Board.
Propagation studies of the proposed site and all adjoining proposed or in-service or existing sites.
Applicant shall disclose in writing any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any new telecommunication tower that it constructs.
In the case of a new telecommunication tower, the applicant shall be required to submit a written report demonstrating its efforts to secure shared use of existing telecommunications tower(s). Copies of written requests and responses for shared use shall be provided to the Board.
The applicant shall furnish written certification that the telecommunication tower and attachments both are designed and constructed ("as built") to meet all local, county, state and federal structural requirements for loads, including wind and ice loads.
The applicant shall furnish written certification that the telecommunication tower is designed with a break point that would result in the telecommunication tower falling or collapsing within the boundaries of the property on which the telecommunication tower is placed.
After construction and prior to receiving a certificate of compliance, the applicant shall furnish written certification that the wireless telecommunications facilities are grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.
The applicant shall submit a completed long form EAF and a completed visual EAF addendum. The Board may require submission of a more detailed visual analysis based on the results of the visual EAF addendum. Applicants are encouraged to seek preapplication meetings with the Village Board to address the scope of the required visual assessment.
If requested by the Board, the applicant shall furnish a visual impact assessment which shall include:
A Zone of Visibility Map, which shall be provided in order to determine locations where the tower may be seen.
Pictorial representations of "before and after" views from key viewpoints both inside and outside of the Village, 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. The Board, acting in consultation with its consultants or experts, will provide guidance concerning the appropriate key sites at a preapplication meeting.
An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets.
Any and all representations made by the applicant to the Board, 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 Board.
The applicant shall, in a manner approved by the Board, effectively screen from view its proposed wireless telecommunications facilities base and all related facilities and structures.
All utilities from wireless telecommunications facilities sites shall be installed underground and in compliance with all laws, rules and regulations of the Village, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate. The Board may waive or vary the requirements of undergrounding installation of utilities whenever, in the opinion of the Board, such variance or waiver shall not be detrimental to the health, safety, general welfare and environment, including the visual and scenic characteristics of the area.
All wireless telecommunications facilities shall be sited so as to have the minimal adverse visual effect on the environment and its character, and the residences in the area of the wireless telecommunications facilities sites.
Accessory facilities shall maximize use of building materials, colors and textures designed to harmonize with the natural surroundings.
At a telecommunications site, an access road 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 vegetation-cutting. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.
A person who holds a special use permit for wireless telecommunications facilities shall construct, operate, maintain, repair, provide for removal of, modify or restore the permitted wireless telecommunications facilities in strict compliance with all current technical, safety and safety-related codes adopted by the Village, county, state, or United States, including but not limited to the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsibly 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.
A holder of a special use permit granted under this article shall obtain, at its own expense, all permits and licenses required by applicable rule, regulation or law, and must maintain the same, in full force and effect, for as long as required by the Village or other governmental entity or agency having jurisdiction over the applicant.
With respect to this application process, the Board will normally seek to have lead agency status, pursuant to SEQRA. The Board shall conduct an environmental review of the proposed project in combination with its review of the application under this article.
An applicant shall submit no fewer than eight copies of the entire completed application to the Board and a copy of the application to the legislative body of any adjacent municipality and to the County Planning Agency.
The applicant shall examine the feasibility of designing a proposed telecommunications tower to accommodate future demand for at least two additional commercial applications, for example, future collocations. The scope of this examination shall be determined by the Board. The telecommunications tower shall be structurally designed to accommodate at least two 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 provisions of future shared usage of the telecommunications tower is not technologically feasible, or is commercially impracticable and creates an unnecessary and unreasonable burden, based upon:
The number of FCC licenses foreseeably available for the area;
The kind of wireless telecommunications facilities site and structure proposed;
The number of existing and potential licenses without wireless telecommunications facilities spaces/sites;
Available space on existing and approved telecommunications towers.
The applicant shall submit to the Board a letter of intent committing the owner of the proposed new tower, and his/her successors in interest, to negotiate in good faith for shared use of the proposed tower by other telecommunications providers in the future. This letter shall be filed with the Board. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the special use permit. The letter shall commit the new tower owner and his/her successors in interest to:
Respond within 60 days to a request for information from a potential shared-use applicant.
Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers.
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, 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.
Unless waived by the Board, there shall be a preapplication meeting. The purpose of the preapplication meeting will be to address issues which will help to expedite the review and permitting process. Where the application is for the shared use of an existing telecommunications tower(s) or other high structure, the applicant should seek to waive any section or subsection of this article that may not be required. At the preapplication meeting, (this may include a site visit if required) the waiver requests, if appropriate, will be decided by the Board and its consultants. Costs of the town's consultants to prepare for and attend the preapplication meeting will be borne by the applicant.
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 (4) being the lowest priority.
On existing telecommunications towers or other tall structures.
Collocation on a site with existing wireless telecommunications facilities or structures.
On municipally-owned properties.
On other property in the Village.
If the proposed property site is not the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a 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.
An applicant may not bypass sites of higher priority by stating the site presented is the only site leased or selected. An application shall address collocation as an option, and, if such option is not proposed, the applicant must explain why collocation is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting collocation, shall not be a valid basis for any claim of commercial impracticability or hardship.
Notwithstanding the above, the Board may approve any site located within an area in the above list of priorities, provided that the Board finds that the proposed site is in the best interest of the health, safety and welfare of the Village and its inhabitants.
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 the site selected is not the highest priority, then a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.
The applicant shall, in writing, identify and disclose the number and locations of any additional sites that the applicant has been, is, or will be considering, reviewing or planning for wireless telecommunications facilities in the Village, and all municipalities adjoining the Village, for a two-year period following the date of the application.
Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Board may disapprove an application for any of the following reasons.
Conflict with safety and safety-related codes and requirements;
Conflict with traffic needs or traffic laws, or definitive plans for changes in traffic flow or traffic laws;
Conflict with the historic nature of a neighborhood or historical district;
The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;
The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the probability of such, to residents, the public, employees and agents of the Village, or employees of the service provider or other service providers; or
Conflicts with the provisions of this article.
Shared use of existing wireless telecommunications facilities shall be preferred by the Village, as opposed to the proposed construction of a new telecommunications tower. Where such shared use is unavailable, location of antennas on other preexisting structures shall be considered and preferred. The applicant shall submit a comprehensive report inventorying existing towers and other appropriate structures within four miles of any proposed new tower site, unless the applicant can show that some other distance is more reasonable, and outlining opportunities for shared use of existing facilities and the use of other preexisting structures as a preferred alternative to new construction.
An applicant intending to share use of an existing telecommunications tower or other tall structure shall be required to document the intent of the existing owner to share use. In the event that an application to share the use of an existing telecommunications tower does not increase the height of the telecommunications tower, the Board shall waive such requirements of the application required by this article as may be for good cause shown.
Such shared use shall consist only of the minimum antenna array technologically required to provide service within the Village, to the extent practicable, unless good cause is shown.
The applicant must submit documentation justifying to the Board the total height of any telecommunications tower and/or antenna and the basis therefor. Such justification shall be to provide service within the Village, to the extent practicable, unless good cause is shown.
Telecommunications towers shall be no higher than the minimum height necessary. Unless waived by the Board upon good cause shown, the presumed maximum height shall be 140 feet, based on three collocated antenna arrays and ambient tree height of 80 feet.
The maximum height of any telecommunications tower and attached antennas constructed after the effective date of this article shall not exceed that which shall permit operation without artificial lighting of any kind or nature, in accordance with municipal, county, state, and/or any federal law and/or regulation.
Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.
Telecommunications towers shall be of a galvanized finish, or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings as approved by the Board, and shall be maintained in accordance with the requirements of this article.
If lighting is required, applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under state and federal regulations, and an artist's rendering or other visual representation showing the effect of light emanating from the site on neighboring habitable structures within 1,500 feet of all property lines of the parcel on which the wireless telecommunications facilities are located.
All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner which prevents unauthorized access. Specifically as follows:
All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or run into; and
Transmitters and telecommunications control points must be installed such 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 to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities. The sign shall 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 located so as to be visible from the access point of the site. The sign shall not be lighted unless the Board shall have allowed such lighting or unless such lighting is required by applicable provisions of law. The sign shall be approved by the Board before installation.
No other signage, including advertising, shall be permitted on any facilities, antennas, antenna supporting structures or antenna towers, unless required by law.
All proposed wireless telecommunications facilities shall be set back from abutting parcels, recorded rights-of-way and road and street lines a distance sufficient to substantially contain on-site all ice-fall or debris from a tower or tower failure, and to preserve the privacy and sanctity of any adjoining properties.
Wireless telecommunications facilities shall be located with a minimum setback from any property line a distance equal to the height of the wireless telecommunications facility or the existing setback requirement of the underlying zoning district, whichever is greater. Further, any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.
The Board may hire any consultant and/or expert deemed necessary by the Board to assist the Board in reviewing and evaluating the application and any requests for recertification.
An applicant shall deposit with the Village funds sufficient to reimburse the Village for all reasonable costs of consultant and expert evaluation and consultation to the Board in connection with the review of any application. The initial deposit shall be as set from time to time by resolution of the Village Board of Trustees. These funds shall accompany the filing of an application and the Village will maintain a separate escrow account for all such funds. The Village's consultants/experts shall bill or invoice the Village no less frequently than monthly for its services in reviewing the application and performing its duties. If at any time during the review process this escrow account has a balance less than the minimum balance set from time to time by resolution of the Village Board of Trustees, the applicant shall immediately, upon notification by the Village, replenish said escrow account so that it has a balance of at least the minimum balance as set from time to time by resolution of the Village Board of Trustees. Such additional escrow funds must be deposited with the Village before any further action or consideration is taken on the application. In the event that the amount held in escrow by the Village is more than the amount of the actual billing or invoicing, the difference shall be promptly refunded to the applicant.
[Amended 8-3-1999 by L.L. No. 2-1999]
The total amount of the funds 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 by the Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as required and requested by the Village, shall be paid by the applicant.
No person shall be permitted to site, place, build, construct or modify, or prepare any site for the placement or use of, wireless telecommunications facilities, or place any wireless telecommunications facilities, as of the effective date of this article 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 exceptions noted in the definition of wireless telecommunications facilities.
New construction, including routine maintenance on existing wireless telecommunications facilities, shall comply with the requirements of this article.
All wireless telecommunications facilities existing on or before the effective date of this article shall be allowed to continue as they presently exist; provided however, that any modification to existing wireless telecommunications facilities must comply with this article.
Prior to the approval of any application for a special use permit for wireless telecommunications facilities, a public hearing shall be held by the Board, notice of which shall be published in the official newspaper of the Village no less than 10 calendar days prior to the scheduled date of the public hearing. In order that the Village may notify nearby landowners, the applicant, at least three weeks prior to the date of said public hearing, shall be required to provide names and address of all landowners whose property is located within 1,500 feet of any property line of the lot on which the proposed new wireless telecommunications facilities are proposed to be located.
The Board will undertake a review of an application pursuant to this article in a timely fashion, consistent with its responsibilities with SEQRA, 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.
The Board may refer any application or part thereof to any advisory or other committee for a nonbinding recommendation.
Except for necessary building permits, and subsequent certificates of compliance, no additional permits or approvals from the Village shall be required for wireless telecommunications facilities covered by this article.
After the public hearing and after formally considering the application, the Board may approve and issue, 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.
If the Board 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 Board's action, and the special use permit shall be issued within 30 days after such approval.
If the Board 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 Board's action.
The town's decision on an application for a special use permit for wireless telecommunications facilities shall be supported by substantial evidence contained in a written record.
At any time between 12 months and six months prior to the five-year anniversary date after the effect date of the permit and all subsequent fifth anniversaries of the effective date of the original special use permit for wireless telecommunications facilities, the holder of a special use permit for such wireless telecommunication facilities shall submit a signed written request to the Board for recertification. In the written request for recertification, the holder of such special use permit shall note the following:
The name of the holder of the special use permit for the wireless telecommunications facilities;
If applicable, the number or title of the special use permit;
The date of the original granting of the special use permit;
Whether the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise modified since the issuance of the special use permit;
If the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise modified, then whether the Board approved such action, and under what terms and conditions, and whether those terms and conditions were met;
Any requests for waivers or relief of any kind whatsoever from the requirements of this article and any requirements for a special use permit;
That the wireless telecommunications facilities are in compliance with the special use permit and compliance with all applicable codes, laws, rules and regulations; and
Recertification that the telecommunication tower and attachments both are designed and constructed ("as built") and continue to meet all local, county, state and federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a qualified New York State licensed professional engineer acceptable to the Village, the cost of which shall be borne by the applicant.
If, after such review, the Board determines that the permitted wireless telecommunications facilities are in compliance with the special use permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the Board shall issue a recertification special use permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon, or required by applicable statutes, laws, local laws, ordinances, codes, rules and regulations. If, after such review, the Board determines that the permitted wireless telecommunications facilities are not in compliance with the special use permit and all applicable statutes, local laws, ordinances, codes, rules and regulations, then the Board may refuse to issue a recertification special use permit for the wireless telecommunications facilities, and in such event, such wireless telecommunications facilities shall not be used after the date that the applicant receives written notice of such decision by the Board. Any such decision shall be in writing and supported by substantial evidence contained in a written record.
If the Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months, in order for the Board to complete its review.
If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the timeframe noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
The extent and parameters of a special use permit for wireless telecommunications facilities shall be as follows:
Such special use permit shall be nonexclusive.
Such special use permit shall not be assigned, transferred or conveyed without the express prior written consent of the Board, and such consent shall not be unreasonably withheld or delayed.
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 for wireless telecommunications facilities, or for a material violation of this article after prior written notice to the applicant and the holder of the special use permit.
At the time that a person submits an application for a special use permit for a new telecommunications tower, such person shall pay an application fee to the Village as set from time to time by resolution of the Village Board of Trustees. If the application is for a special use permit for collocating on an existence telecommunications tower or other structure, where no increase in height of the tower or structure is required, the fee shall be lower, as set from time to time by resolution of the Village Board of Trustees.
[Amended 8-3-1999 by L.L. No. 2-1999]
No application fee is required in order recertify a special use permit for wireless telecommunications facilities, unless there has been a modification of the wireless telecommunications facilities since the date of the issuance of the existing special use permit. In the case of any modification, the fees provided in Subsection A shall apply.
[Amended 8-3-1999 by L.L. No. 2-1999]
The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall at its cost and expense, be jointly required to execute and file with the Village a bond, or other form of security acceptable to the Village as to type of security and the form and manner of execution, in an amount as set from time to time by resolution of the Village Board of Trustees and with such sureties as are deemed sufficient by the Board to assure the faithful performance of the terms and conditions of this article and conditions of any special use permit issued pursuant to this article. 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 the removal of the wireless telecommunications facilities, and any necessary site restoration is completed. The failure to pay any annual premium for the renewal of any such security shall be a violation of the provisions of the special use permit and shall entitle the Board to revoke the special use permit after prior written notice to the applicant and holder of the permit and after a hearing upon due prior notice to the applicant and holder of the 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 Village may inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification and maintenance of such facilities, including but not limited to towers, antennas and buildings or other structures constructed or located on the permitted site.
The Village shall pay for costs associated with such an inspection, except for those circumstances occasioned by said holder's, lessee's or licensee's refusal to provide necessary information, or necessary access to such facilities, including towers, antennas and appurtenant or associated facilities, or refusal to otherwise cooperate with the Village with respect to an inspection, or if violations of this article are found to exist, in which case the holder, lessee or licensee shall reimburse the Village for the cost of the inspection.
Payment of such costs shall be made to the Village within 30 days from the date of the invoice or other demand for reimbursement. In the event that the finding(s) of violation is/are appealed in accordance with the procedures set forth in this article, said reimbursement payment must still be paid to the Village and the reimbursement shall be placed in an escrow account established by the Village specifically for this purpose, pending the final decision on appeal.
The holder of the special use permit shall, annually, certify in writing to the Village that NIER levels at the site are within the threshold levels adopted by the FCC. (The certifying engineer need not be approved by the Village.)
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:
The commercial general liability insurance policy shall specifically include the Village and its officers, boards, employees, committee members, attorneys, agents and consultants additional named insureds.
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.
The insurance policies shall contain an endorsement obligating the insurance company to furnish the Village with at least 30 days' prior written notice in advance of the cancellation of the insurance.
Renewal or replacement policies or certificates shall be delivered to the Village at least 15 days before the expiration of the insurance which such policies are to renew or replace.
Before construction of a permitted wireless telecommunications facilities 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 Village a copy of each of the policies or certificates representing the insurance in the required amounts.
Any special use permit issued pursuant to this article may be required to contain a provision with respect to indemnification. Such provision shall require the holder of the special use permit, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the Village, officials of the Village, its officers, agents, servants, and employees, from any and all penalties, damage, 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 construction, erection, modification, location, products performance, operation, maintenance, repair, installation, replacement, removal, or restoration of wireless telecommunications facilities within the Village. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included in those costs that are recoverable by the Village.
In the event of a violation of this article or any special use permit issued pursuant to this article, the Board may impose and collect, and the holder of the special use permit for wireless telecommunications facilities shall pay to the Village, fines or penalties as set forth below.
A violation of this article is hereby declared to be an offense, punishable by a fine not exceeding $350, or imprisonment for a period not to exceed six months, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, such violation shall be punishable by a fine not less than $350 nor more than $700, or imprisonment for a period not to exceed six months, or both; and, upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this article, or of such ordinance or regulation, shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation after notification shall constitute a separate additional violation.
Notwithstanding anything in this article, the holder of the special use permit for wireless telecommunications facilities may not use the payment of fines, penalties or liquidated damages, to evade or avoid compliance with this article or any section of this article. An attempt to do so shall subject the holder of the special use permit to termination and revocation of the special use permit. The Village may also seek injunctive relief to prevent the continued violation of this article, without limiting other remedies available to the Village.
If wireless telecommunications facilities are repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this article or of the special use permit, then the Board shall notify the holder of the special use permit in writing of such violation. Such notice shall specify the nature of the violation or noncompliance and that the violations must be corrected within seven days of the date of the postmark of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this subsection or any other section of this article, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the Board may, at its sole discretion, order the violation remedied within 24 hours.
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this article, or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Board may revoke such special use permit for wireless telecommunications facilities, and shall notify the holder of the special use permit within 48 hours of such action.
Under the following circumstances, the Board may determine that the health, safety, and welfare interests of the Village warrant and require the removal of wireless telecommunications:
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 three-hundred-sixty-five-day period, except for periods caused by force majeure or acts of God, in which case, repair or removal shall commence within 90 days.
Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard.
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.
If the Board makes such a determination as noted in Subsection A of this section, then the Board 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 Board may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
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 Board. 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 Board.
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 Board may order officials or representatives of the Village to remove the wireless telecommunications facilities at the sole expense of the owner or special use permit holder.
If the Village removes, or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications facilities does not claim the property and remove it from the site to a lawful location within 10 days, then the Village may take steps to declare the wireless telecommunications facilities abandoned, and sell it and its components.
Notwithstanding anything in this section to the contrary, the Board may approve a temporary use permit or 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 Board, and an agreement to such plan shall be executed by the holder of the special use permit and the Village. If such a plan is not developed, approved and executed within the ninety-day time period, then the Village may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.
Any applicant desiring relief or exemption from any aspect or requirement of this article may request such from the Board at a preapplication meeting, provided that the relief or exemption is contained in the original 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, at the sole discretion of the Board. However, the burden of proving the need for the requested relief or exemption, is solely on the applicant to prove to the satisfaction of the Board. The applicant shall bear all costs of the Board or the Village in considering the request and the relief shall not be transferable to a new or different holder of the permit or owner of the tower or facilities without the specific written permission of the Board. Such permission shall not be unreasonably withheld or delayed. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief or exemption will have no significant affect on the health, safety and welfare of the Village, its residents and other service providers.
The Board may at any time conduct a review and examination of this entire law.
If after such a periodic review and examination of this article, the Board determines that one or more provisions of this article should be amended, repealed, revised, clarified, or deleted, then the Board 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 Village, the Board may repeal this entire law at any time.
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.
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.
Where this article differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the county, state or federal government, the more restrictive or protective of the Village and the public shall apply.
This article shall be effective immediately upon passage, pursuant to applicable legal and procedural requirements.
This article is enacted pursuant to the Municipal Home Rule Law. This article shall supersede the provisions of Village Law to the extent it is inconsistent with the same, and to the extent permitted by the New York State Constitution, the Municipal Home Rule Law, or any other applicable statute.