[Added 12-7-2004 by L.L. No. 4-2004]
A.
The Village of Hempstead Board of Trustees finds herewith
that personal wireless services and personal wireless service facilities
(PWSFs) comprise a rapidly growing segment of the telecommunications
sector and have merit and value for the community as a whole.
B.
The U.S. Congress adopted Section 704 as part of the
Telecommunications Act that the President of the United States signed
into law on February 8, 1996, such section defining personal wireless
services and personal wireless service facilities and preserving local
zoning authority over decisions regarding the placement, construction,
and modification of personal wireless service facilities except for
five limitations, including that:
(1)
A local government shall not unreasonably discriminate
among providers of functionally equivalent services; and
(2)
A local government shall not prohibit or have the
effect of prohibiting the provision of personal wireless services;
and
(3)
A local government shall act on any request for authorization
to place, construct, or modify personal wireless service facilities
within a reasonable period of time after the request is filed; and
(4)
A local government shall put any decision to deny
a PWSF into writing and support such decision by substantial evidence
contained in a written record; and
(5)
A local government shall not regulate personal wireless
service facilities on the basis of the environmental effects of radio
frequency emission to the extent that such facilities comply with
the Federal Communications Commission Guidelines for Evaluating the
Environmental Effects of Radiofrequency Radiation (FCC Guidelines).
C.
The Village of Hempstead Board of Trustees is authorized,
directed, and empowered to enact ordinances that implement plans made
by the Village and to adopt regulations to provide standards that
provide for the health, safety, and welfare of the citizens of the
Village of Hempstead. The Village Board of Trustees has undertaken
a deliberative public process to establish policy, standards, and
procedures related to the location, siting and design of mounts and
antenna arrays for personal wireless services; and has prepared a
Wireless Master Plan for the regulation of personal wireless service
facilities, dated August 2004, which plan is the policy foundation
for this article; and has conducted workshops in the Village on deployment
of proposed personal wireless service facilities and has found that
alternatives to towers exist for the purpose of deploying personal
wireless service facilities.
D.
The purpose and intent of this article is to establish
standards for the location, siting and design of personal wireless
service facilities, and the goals of this article are to:
(1)
Allow for alternative types of personal wireless service
facilities in any location subject to standards;
(2)
Encourage the use of existing structures, including
but not limited to rooftops, utility poles and church steeples, for
deploying personal wireless service facilities;
(3)
Expedite the review process for those applications
choosing the least intrusive alternative of deploying personal wireless
service facilities;
(4)
Encourage users of monopoles and antennas to locate,
site and design them in a way that minimizes the adverse visual impact
of monopoles and antennas;
(5)
Enhance the ability of the providers of personal wireless
services to provide such services to the community quickly, effectively,
and efficiently; and
(6)
Promote personal wireless service facilities compatibility
with surrounding land uses, and protect the attractiveness, health,
safety, general welfare, and property values of the community.
E.
Therefore, the Board of Trustees of the Village of
Hempstead has prepared this amendment to those provisions of the Code
of the Village of Hempstead (hereinafter "Code") commonly known as
the "Building Construction Code"[1] and the "Zoning Ordinance" of the Village of Hempstead,
New York, to more clearly reflect the above facts.
This article may be cited as the "Personal Wireless
Service Facilities Article" of the Code.
Each PWSF must have at least two permits: one
building permit and one zoning permit, the latter of which shall be
issued by the Village of Hempstead in accordance with this article.
As used in this article, the following terms
shall have the meanings indicated:
The actual height of the PWSF from the ground to the highest
part of the mount or the antenna, whichever is higher.
A whip (omni-directional antenna), panel (direction antenna),
disc (parabolic antenna) or similar device used for transmission and/or
reception of radio frequency signals.
An antenna array is one or more whips, panels, discs, or
similar devices used for the transmission or reception of radio frequency
signals, which may include omni-directional antennas (whips), directional
antennas (panels), and parabolic antennas (discs). The antenna array
does not include the mount as defined herein.
A person or entity with an application before the Village
for a permit for a PWSF. The applicant must be a carrier, a landowner
where the facility will be located or the proposed owner of the facility.
A carrier must be either the applicant or the co-applicant on each
application. If the proposed PWSF is for two or more carriers, each
carrier must file its own application as either the applicant or co-applicant.
A way of painting and mounting a PWSF that requires minimal
changes to the host structure in order to accommodate the facility.
A company licensed by the Federal Communications Commission
(FCC) to provide personal wireless services. A tower company, a tower
management firm or a tower builder is not a carrier.
A mobile telephone service operating in the 800 MHz spectrum.
A person or entity that joins with an applicant in an application
before the Village for a permit for a PWSF. The co-applicant can only
be a carrier, a landowner where the facility will be located or the
proposed owner of the facility. A carrier must be either the applicant
or the co-applicant on each application. If the proposed PWSF is for
two or more carriers, each carrier must file its own application as
either the applicant or co-applicant.
The use of a common support structure or common site by two
or more PWSFs or by one carrier for more than one type of communications
technology.
Per Section 704 of the Telecommunications Act of 1996, any
of several technologies using radio signals at various frequencies
to send and receive voice, data and video. According to the FCC, these
services are "functionally equivalent services." Section 704 of the
Telecommunications Act prohibits unreasonable discrimination among
functionally equivalent services.
Those services which initiate, relay or terminate a local
exchange carrier's or competitive local exchange carrier's telephonic
message via a wireless connection.
To enclose a PWSF within a natural or man-made feature resulting
in the facility being either invisible or made part of the feature
enclosing it.
The appearance of PWSFs such as their materials, colors and
shape.
To design a PWSF to appear to be something other than a PWSF.
The measurement of height above sea level; also "AMSL," or
above mean sea level.
Private land mobile radio with telephone services.
An enclosed structure at the base of the mount within which
are housed the equipment for the PWSF, such as batteries and electrical
equipment.
The area on the ground within a prescribed radius from the
base of a PWSF. The fall zone is the area within which there might
be a potential hazard from falling debris or collapsing material.
An independent federal agency charged with licensing and
regulating wireless communications at the national level.
Cellular, PCS, enhanced specialized mobile radio, specialized
mobile radio and paging. Section 704 of the Telecommunications Act
prohibits unreasonable discrimination among functionally equivalent
services.
A monopole or lattice tower that is anchored to the ground
or to another surface by diagonal cables. This article prohibits guyed
towers.
The distance measured from above ground level (AGL) to the
highest point of a PWSF, including the antenna array. For purposes
of measuring height, all antennas or other attachments mounted on
a structure shall be included in the measurements to determine overall
(i.e., combined) height.
A type of mount that is usually ground-mounted and self-supporting
with multiple legs and cross-bracing of structural steel. This article
prohibits lattice towers.
The area where a PWSF is located or proposed to be located.
The reduction or elimination of visual impacts by the use
of one or more methods:
The changing of any portion of a PWSF from its description
in a previously approved permit. This includes upgrading to different
technologies such as 2.5G or 3G. The FCC definitions for "modification"
are different from local government rules.
The shape of mount that is self-supporting with a single
shaft of wood, steel or concrete and antennas at the top and/or along
the shaft.
The structure or surface upon which antennas are mounted,
e.g.:
Facility for the provision of personal wireless services,
as defined by Section 704 of the Telecommunications Act of 1996. A
PWSF is any unstaffed facility for the transmission and/or reception
of personal wireless services, usually consisting of an antenna array,
transmission cables, equipment shelter and a mount.
Any personal wireless service defined in the Federal Telecommunications
Act which includes Federal Communications Commission (FCC) licensed
commercial wireless communications services, including cellular, personal
communications services (PCS), specialized mobile radio (SMR), enhanced
specialized mobile radio (ESMR) and paging, as well as unlicensed
wireless services and common carrier wireless exchange access services.
The emissions from PWSFs that can, in excessive amounts,
be harmful to humans. RF emissions are directly related to the power
density of the RF signal.
The actual beam or radio waves sent and received by a PWSF.
A signal is the deliberate product of a PWSF and an RF emission is
part of the signal.
A locked, impenetrable wall, fence or berm that completely
seals an area from unauthorized entry or trespass.
Alternatives to monopoles or guyed and lattice towers, such
as masts or poles; for example, two poles or three masts might be
an alternative to one monopole.
That portion of a subject property where a PWSF is to be
placed. Any acceptable location may have several potential sites within
it.
The method and form of placement of PWSFs on a specific area
of a subject property.
A form of dispatch or two-way communication used by companies
that rent space or time from an SMR carrier. Used primarily for data,
delivery vans, truckers or taxis within a small, definable geographic
area.
An authorization of a PWSF in accordance with this article
and as provided for in New York State Village Law § 7-725-b.
Rules or measures by which acceptability is determined. PWSFs
are measured by standards measuring visibility or safety. Wireless
planning tends to regulate PWSFs on three bases: submittal of the
application, performance of the PWSF and operation of the PWSF.
A term used as a modifier (e.g., tower builder) or when modified
(e.g., lattice tower). A monopole is not a tower. PWSFs are not towers.
Commercial mobile services that can operate on public domain
frequencies and therefore need no FCC license for their sites, including
Wi-Fi and Wi-Max.
For purposes of this article, any public, semipublic or quasipublic
vertical element in the Village, such as a distribution pole for electricity,
a cable pole, a traffic signal stanchion or a light pole. Ideally,
a utility pole would already exist and be owned by the Village of
Hempstead.
Any form of signaling by wireless, including personal wireless,
services that require a transmitter, a receiver and a path, sometimes
straight, sometimes indirect, between them.
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AGL - above ground level
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AMSL - above mean sea level
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EA - Environmental Assessment
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FCC - Federal Communication Commission
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PWSF - personal wireless service facility
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RF - radio frequency
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RFR - radio frequency radiation
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A.
Purpose and intent. The purpose and intent of this
article is to establish standards for the location, siting and design
of PWSFs, and the goals of this article are to:
(1)
Allow for alternative types of PWSFs in any location
subject to standards;
(2)
Encourage the use of existing structures, including
but not limited to, rooftops, utility poles and church steeples for
deploying PWSFs;
(3)
Expedite the review process for those applications
choosing the least intrusive alternative of deploying PWSFs;
(4)
Encourage users of monopoles and antennas to locate,
site and design them in a way that minimizes the adverse visual impact
of the monopoles and antennas;
(5)
Enhance the ability of the providers of personal wireless
services to provide such services to the community quickly, effectively,
and efficiently; and
(6)
Promote PWSFs' compatibility with surrounding land
uses, as well as protect the attractiveness, health, safety, general
welfare, and property values of the community.
B.
Land use. A PWSF should be considered a "use" whether
a structure itself, on a structure or affixed to street furniture
such as a utility pole.
C.
Special use permit required. All PWSFs shall require
a special use permit or an administrative PWSF permit and shall be
reviewed pursuant to the standards set forth in the provisions of
this article.
D.
Exclusion for amateur radio facilities. This article
shall not govern the installation of any amateur radio facility that
is owned and operated by a federally licensed amateur radio station
operator or is used exclusively for noncommercial receive-only antennas.
E.
Relationship to PWSFs not approved under this article.
(1)
A PWSF for which a permit has been issued prior to
the effective date of this article shall be deemed a permitted use,
subject to the conditions of that permit. When an unpermitted PWSF
is identified by the Village of Hempstead to be attached to a mount
approved for another use or PWSF, the attached PWSF must apply for
a separate permit, even when sharing a legal mount, already in operation,
and duly licensed by the FCC. The issuance of permit renewals or other
new permits for such facilities shall be in accordance with the provisions
of this article. Unpermitted PWSFs will be considered out of compliance
with this article and subject to abatement.
(2)
Damaged or destroyed facilities may be rebuilt and
all such facilities may be replaced by facilities of the same type
and height at the same location, provided that guyed or lattice towers
may be changed to mounts of lesser visual intensity.
(3)
Placement of an attached array or a microcell on a
legally nonconforming structure shall not be considered an expansion
of the nonconforming structure. However, placement of any attached
array, microcell or any other portions of a PWSF on an existing structure,
whether legally nonconforming or in, as well as out of, compliance,
shall require a permit to be obtained for the PWSF under the terms
of this article.
(4)
Any carrier with at least one preexisting PWSF in
the Village of Hempstead that is out of compliance with the Village
of Hempstead building and zoning requirements prior to the adoption
of this article shall not be eligible for any new approvals of PWSFs
by the Village until the preexisting PWSF or PWSFs are brought into
compliance with this article.
(5)
No issuance of any permit under this article shall
occur for a request to collocate, attach, or share an existing PWSF
site, mount or facility, when such existing site, mount or facility
is found to have one or more PWSFs without permits and/or any structure,
mount or facility is found to lack one or more building, electrical
or any other permits required by the Village of Hempstead Building
Official and the laws the Building Official is authorized to implement
and enforce.
(6)
No application by a wireless carrier or other entity
shall be accepted by the Village of Hempstead if that wireless carrier
has a preexisting PWSF on, or the other entity owns, a mount, rooftop
or tower on which there is any unpermitted PWSF, until that PWSF is
brought into compliance with this article.
F.
Relationship to other chapters. This article shall
supersede conflicting requirements contained in the Village of Hempstead
Code regarding the regulation and permitting of PWSFs, antennas and
towers.
G.
Jurisdiction. This article shall apply only within
the Village limits of the Village of Hempstead.
A.
No application for a special use permit for a PWSF
shall be accepted by the Building Official or any other representative
of the Village of Hempstead if:
(1)
The applicant owns any other use, structure or facility
in the Village of Hempstead that has been shown by the Village Assessor
to be in arrears from the most recent property tax bill.
(2)
The owner of the property or the owner of the structure
to which the PWSF is proposed for attachment has been shown by the
Tax Assessor to be in arrears from the most recent property tax bill.
(3)
The applicant owns any other use, structure or facility
in the Village of Hempstead that has not received proper zoning and/or
building permits in accordance with this article.
(4)
The owner of the property or the owner of the structure
to which the PWSF is proposed for attachment has not received proper
zoning permits or building permits in accordance with this article
for any other property or structure of which one of more PWSFs is
lawfully or unlawfully attached.
B.
No such application shall be accepted by the Village
until outstanding property taxes or permit violations are satisfied.
PWSFs shall be eligible for a special use permit
in all land use districts on the Official Zoning Map of the Village
of Hempstead Zoning Ordinance, provided that such PWSFs comply with
the standards of this article and the permits under which PWSFs are
regulated. A Tier One PWSF may be eligible for approval anywhere on
Village of Hempstead property, including the right-of-way, provided
that use of the right-of-way will not be impeded per findings by the
Hempstead Director of Public Works.
The approval of PWSFs shall be subject to meeting
or exceeding the following standards.
A.
Location standards.
(3)
These location standards shall be considered directory
but not mandatory. Interpretation of opportunity sites and avoidance
areas shall be based on United States Government maps as well as aerial
photographs provided by the applicant.
(4)
PWSFs may also be permitted in areas that are not
opportunity sites subject to the following siting, design and safety
standards and permitted in avoidance areas subject to the following
siting, design and safety standards.
(5)
These standards apply regardless of radio frequency
(RF) engineering considerations.
B.
Siting standards. PWSFs should meet the following
siting standards. These standards are directory, not mandatory.
(1)
To the greatest extent possible, PWSFs should be concealed
within existing structures or where camouflaged conditions surround
them, or on inconspicuous mounts.
(2)
Placement within trees should be encouraged, but no
antennas should extend higher than the average tree height.
(3)
Placement on existing roofs or nonwireless structures
should be favored over ground-mounted PWSFs.
(4)
Roof-mounted PWSFs should not project more than 10
additional feet above the height of a legal building, but in no way
above the height limit of the zoning district within which the PWSF
is located.
(5)
No portion of a roof-mounted PWSF should be visible
from the street below within a one-block distance of the building
to which the roof is attached.
(6)
Side-mounted PWSFs should not project more than 20
inches from the face of the mounting structure.
(7)
These standards apply regardless of RF engineering
considerations.
C.
Design standards. PWSFs should meet the following
design standards. These standards are directory, not mandatory.
(1)
Color. All PWSFs should be painted or complementary
with natural tones (including trees and sky).
(2)
Size. The silhouette of the PWSF should be reduced
to the minimum visual impact.
(5)
Height should be kept to a minimum.
(a)
Heights of PWSFs should be no higher than the
height of the uppermost height of nearby structures (within 300 horizontal
feet, when measured along the ground, of the proposed PWSF), regardless
of prevailing height limits in the zoning district.
(b)
In the event there are no nearby buildings (within
300 horizontal feet, when measured on the ground, of the proposed
site of the PWSF), the following should apply:
[1]
All ground-mounted PWSFs (including the security
barrier) should be surrounded by nearby dense tree growth for a radius
of 20 horizontal feet (when trunk center lines are measured on the
ground) from the PWSF in any direction. These trees can be existing
on the subject property or installed to meet the twenty-foot requirement
as part of the proposed PWSF, or they can be a combination of both.
[2]
Ground-mounted PWSFs should not project more
than the average tree height.
(6)
These standards apply regardless of RF engineering
considerations.
D.
Safety standards. PWSFs should meet the following
safety standards. These standards are directory, not mandatory.
A.
Fall zone.
(1)
Except for Tier One utility poles, no habitable structure
or outdoor area where people congregate should be within a fall zone
of a radius two times the height of the PWSF or its mount.
(2)
Except for Tier One utility poles, no adjoining property
line may be within the fall zone of a radius equal to the height of
the PWSF or its mount.
B.
Setback.
(1)
All PWSFs, except for Tier One utility poles, including
mounts and equipment shelters or cabinets, shall comply with the most
stringent (e.g., 25 feet) setback requirements of the applicable zoning
district as set forth in the Village of Hempstead Zoning Ordinance.
(2)
The antenna array for a PWSF attached to any structure
is exempt from the setback requirements of this article and from the
setback for the zoning district in which they are located, provided
that no such antenna array shall extend more than five feet horizontally
from the attachment structure at the point of attachment.
(3)
On parcels with a principal building housing a primary
use, all components of the PWSF shall be located behind the main building
line.
An applicant shall submit the following information
as part of an application for a PWSF.
A.
Application information:
(1)
Name, address and telephone number of applicant and
all co-applicants as well as any agents for the applicant or co-applicants.
(2)
A carrier must either be an applicant or a co-applicant
and no more than one carrier is allowed in one application. If the
proposed PWSF is for two or more carriers, each carrier must file
its own application as either the applicant or co-applicant.
(3)
A collocation can only be applied for with separate
applications from each carrier proposed for collocation. Each application
for the collocation must show a mount with a designed position for
the other carriers that are applying for collocation.
(4)
A copy of the lease with the property owner and/or
the structure owner of the proposed PWSF must be submitted, whichever
or both that apply.
(5)
Original signatures for the applicant and all co-applicants
applying for the PWSF must be submitted. If an agent will represent
the applicant or co-applicant, original signature authorizing the
agent to represent the applicant and/or co-applicant must be submitted.
Photoreproductions of signatures are not acceptable.
B.
Location information:
(1)
Identify the subject property by including the name
of the nearest road or roads, and street address, if any.
(2)
Tax parcel number of subject property.
(3)
Zoning district designation for the subject parcel
and for all parcels within 1,000 feet of the property lines of the
subject parcel.
(4)
A line map, to scale, showing the subject property
and all properties within 1,000 feet and the location of all buildings,
including accessory structures, on all properties shown.
(5)
A Village-wide map showing the other existing PWSFs
in the Village and outside the Village within one mile of its corporate
limits.
(6)
The specific locations for this carrier of all existing
and future PWSFs in the Village on a Village-wide map.
C.
Siting information:
(1)
All site plans required in this section shall be processed
consistent with New York State Village Law, § 7-725-a (Site
plan review) et seq.
(2)
A one-inch-equals-forty-feet vicinity plan showing
the following:
(a)
Property lines for the subject property.
(b)
Property lines of all properties adjacent to
the subject property.
(c)
Tree cover on the subject property and all properties
adjacent to the subject property, by species and average height, as
measured by or available from a verifiable source.
(d)
Outline of all existing buildings, including
purpose (e.g., residential buildings, garages, accessory structures,
etc.) on subject property and all properties adjacent to the subject
property.
(e)
Proposed location of antenna, mount and equipment
shelter(s).
(f)
Location of all roads, public and private, on
the subject property and on all properties adjacent to the subject
property, including driveways proposed to serve the PWSF.
(g)
Distances, at grade, from the proposed PWSF
to each building on the vicinity plan.
(h)
Contours at each foot AMSL (above mean sea level).
(3)
Sight lines and photographs as described below:
(a)
Sight line representation. A sight line representation
shall be drawn from the closest facade of each residential building
(viewpoint) included on the vicinity plan to the highest point (visible
point) of the PWSF. Each sight line shall be depicted in profile,
drawn at one inch equals 40 feet. The profiles shall show all intervening
trees and buildings. In the event there is only one (or more) residential
building on the vicinity plan, there shall be at least two sight lines
from the closest habitable structures, if any.
(b)
Existing (before condition) photographs. Each
sight line shall be illustrated by one four-inch-by-six-inch color
photograph of what can currently be seen from the residential building.
(c)
Proposed (after condition) photosimulation.
Each of the existing condition photographs shall have the proposed
PWSF superimposed on it to show what will be seen from residential
buildings if the proposed PWSF is built. All photosimulations shall
be positioned to show maximum exposure of any proposed roadway, such
roadway to be represented in its proposed, graded appearance.
(4)
A one-inch-equals-twenty-feet site plan showing the
following:
(a)
The entire subject property, including property
lines and roads (public and private) adjacent to the subject property.
(b)
All existing buildings, including accessory
structures.
(c)
All existing vegetation, by mass or individually
by diameter (four feet from the ground) of each stand-alone tree or
shrub. Tree masses or individual stand-alone trees shall be identified
by specie(s).
(d)
Proposed security barrier for a ground mount,
indicating type and extent as well as point of controlled entry.
(e)
All proposed changes to the existing property,
including grading, vegetation removal and temporary or permanent roads
and driveways.
(f)
Representations, dimensioned and to scale, of
the proposed mount, antennas, equipment shelters, cable runs, parking
areas and any other construction or development attendant to the PWSF.
(5)
Siting elevations or views at-grade from the north,
south, east and west for a fifty-foot radius around the proposed PWSF,
plus from all existing public and private roads that serve the subject
property. Elevations shall be at a scale of either 1/4 inch equals
one foot or 1/8 inch equals one foot and shall show the following:
(a)
Antennas, mounts and equipment shelter(s), with
total elevation dimensions and AGL of the highest point.
(b)
Security barrier. If the security barrier will
block views of the PWSF, the barrier drawing shall be cut away to
show the view behind the barrier.
(c)
Any and all structures on the subject property.
(d)
Existing trees and shrubs at current height
and proposed trees and shrubs at proposed height at time of installation,
with approximate elevations dimensioned.
(e)
Grade changes, or cuts and fills, to be shown
as original grade and new grade line, with two-foot contours AMSL.
D.
Design information:
(1)
Equipment brochures for the proposed PWSF such as
manufacturer's specifications or trade journal reprints. These shall
be provided for the antennas, mounts, equipment shelters, cables as
well as cable runs, and security barrier, if any.
(2)
Materials of the proposed PWSF specified by generic
type and specific treatment (e.g., anodized aluminum, stained wood,
painted fiberglass, etc.). These shall be provided for the antennas,
mounts, equipment shelters, cables as well as cable runs, and security
barrier, if any.
(3)
Colors of the proposed PWSF represented by a color
board showing actual colors proposed. Colors shall be provided for
the antennas, mounts, equipment shelters, cables as well as cable
runs, and security barrier, if any.
(4)
Dimensions of the PWSF specified for all three directions:
height, width and breadth. These shall be provided for the antennas,
mounts, equipment shelters and security barrier, if any.
(5)
Appearance shown by at least two photographic photosimulations
of the PWSF within the subject property. The photosimulations shall
show the antennas, mounts, equipment shelters, cables as well as cable
runs, and security barrier, if any, for the total height, width and
breadth.
(6)
Landscape plan including existing trees and shrubs
and those proposed to be added, identified by size of specimen at
installation and species.
F.
G.
Fees. The Village shall have the right to properly
plan for and evaluate applications for PWSFs and to charge reasonable
fees for such services to the applicant. Such fees may include, but
shall not be limited to, the following:
[Amended 10-4-2005 by L.L. No. 5-2005]
(1)
Application fee. The application fee shall be $4,000
for Tier One applications, $5,000 for Tier Two applications, and $5,000
for Tier Three applications.
(2)
Special fee. The Village shall have the right to retain
independent consultants and experts that it deems necessary to review
and evaluate applications for individual PWSFs. The special fee shall
be applied to those applications that the Village determines require
special review or evaluation.
(3)
General fee. The Village has retained independent
consultants and experts on wireless planning and may retain future
independent consultants and experts to assist the Zoning Officer with
proper planning for PWSFs. The general fee shall include, but shall
not be limited to, the prorated share for each applicant of such costs
for the independent consultants and experts and for the Zoning Officer.
The general fee shall be prorated among all applications on an equal
basis.
Each application for a PWSF should also contain
at least two alternatives that differ from the PWSF proposed in the
application.
A.
Differences. The alternatives need not be totally
different from the proposed PWSF; however, the alternatives should
contain measurable differences, such as:
(1)
Height. An alternative can be identical to the proposed
PWSF except to be for a shorter height.
(2)
Number. An alternative could be for two or more PWSFs
that are shorter than the proposed PWSF.
(3)
Location. An alternative could be located on a different
property from the proposed PWSF.
(4)
Siting. An alternative could be in a different place
on the same property as the proposed PWSF.
(5)
Design. An alternative could be of the same height,
location and siting as the proposed PWSF, but be designed to appear
differently.
B.
Submittal requirements for alternatives. The materials
submitted for each alternative should show only the differences between
each of the alternatives and the proposed PWSF.
D.
Comparison of proposed PWSF and alternatives. The
Special Board shall compare the proposed PWSF to the alternatives
on the basis of the following:
(1)
Change in community scale, as exhibited in relative
height, mass or proportion of the PWSF within its proposed surroundings.
(2)
New visible elements proposed on a contrasting background.
(3)
Different colors and textures proposed against a contrasting
background.
(4)
Use of materials that are foreign to the existing
built environment.
(5)
Conservation of opportunities to maintain community
scale, not compromising buffering areas and low-lying buildings so
as to start a trend away from the existing community scale.
(6)
Amount and diversity of landscaping and/or natural
vegetation.
(7)
Preservation of view corridors, vistas, and viewsheds.
(8)
Continuation of existing colors, textures and materials.
E.
Ranking of proposed PWSF and alternatives. The Zoning Officer shall rank the proposed PWSF and each alternative based on the criteria listed in Subsection D above. The ranking of the proposed PWSF and each alternative shall be submitted to the Special Board along with each application for review by the Special Board. The Special Board shall consider the alternatives along with the proposed PWSF.
A.
Building Department. The Village of Hempstead Zoning
Officer shall receive all PWSF applications and assign each application
to one of the following three "tiers":
(1)
Tier One. This tier is limited to applications that:
(a)
Place PWSFs on new utility poles to be dedicated
to the Village of Hempstead when the carrier specifies a utility pole
that meets the Village of Hempstead specifications.
(b)
Meet all location standards, design standards
and safety standards in this article. In the event any of the standards
in this article are in conflict for a particular application, one
or the other conflicting standard shall be met.
(2)
Tier Two. This tier is limited to applications that:
(a)
Attach a PWSF to an existing structure or existing utility pole (as described in this article in § 139-173).
(b)
Meet all location standards, design standards
and safety standards in this article. In the event any of the standards
in this article are in conflict for a particular application, one
or the other conflicting standard shall be met.
(3)
Tier Three. All applications that do not qualify as
either Tier One or Tier Two status shall be considered Tier Three
applications.
Applicants and the PWSF Zoning Officer shall
use the following procedures when submitting and processing PWSF applications,
although the PWSF Zoning Officer may waive some steps if they are
redundant.
A.
Preapplication conference. Applicants shall meet with
the PWSF Zoning Officer prior to submitting an application for a PWSF.
At the preapplication conference:
B.
Application form. The applicant shall submit the Village's
application form and all required items and information as specified
in this article to the PWSF Zoning Officer when applying for PWSFs.
C.
Letter of completion.
(1)
Within 30 days of receipt of an application for a
PWSF, the PWSF Zoning Officer shall determine if the application form
has been completed and if all required items and information have
been submitted.
(2)
If the PWSF Zoning Officer determines that the application
form is not complete and/or if all required items and information
have not been submitted, the PWSF Zoning Officer shall send the applicant
a letter of incompletion. The letter of incompletion shall list those
items that are incomplete or missing and provide the applicant 60
days to complete the application.
(3)
If the applicant does not complete the application
form and all required items and information after 60 days, the PWSF
Zoning Officer shall send the applicant a letter asking the applicant
to withdraw the application within 30 days.
(4)
If the applicant neither completes the application
and all required items and information nor withdraws the application
within 90 days, the PWSF Zoning Officer shall notify the applicant
that the application is incomplete and cannot be considered by the
Village.
(5)
When the application form is complete and all required
items and information have been submitted, the PWSF Zoning Officer
should send the applicant a letter of completion.
E.
Tier One review.
(1)
The PWSF Zoning Officer shall notify or cause to be
notified all property owners within 300 feet of the proposed site.
Notice shall be given by first-class mail, to the address shown on
the roll of the Village of Hempstead Assessor's office. The property
owners shall be informed that an application has been filed and that
they have the right to inspect the application and comment thereon.
Additionally, they shall be informed that comments should be directed
toward the standards contained in this article. The applicants shall
have the right to respond to any comments received. The PWSF Zoning
Officer may reassign the application to a Tier Two or Three review,
if comments are received justifying such reassignment.
(2)
The PWSF Zoning Officer shall forward all Tier One applications to the Director of Public Works for review for an administrative PWSF permit. The Director of Public Works may, in advance of performing such reviews, waive any requirements of § 139-180 of this article.
(3)
The Director of Public Works shall have 90 days to
review the completed application. Following review, the Director of
Public Works shall either approve or deny the application. Such approval
or denial shall be in writing and supported by substantial evidence
contained in the written record. If there is no approval of a Tier
One application by the Director of Public Works within 90 days, the
application is deemed approved.
(4)
Either party, applicant or opposition, may appeal
a Director of Public Works decision to the Board of Trustees.
(5)
If the Director of Public Works determines that the
application meets the requirements for a Tier One application in this
article, the Building Department shall issue two permits to the applicant:
(a) an administrative PWSF permit, which is a prerequisite for; (b)
a building permit.
F.
Tier Two review.
(1)
The PWSF Zoning Officer shall review Tier Two applications
for a special use permit.
(2)
(3)
The staff report shall be transmitted to the PWSF
Board for a public hearing before the PWSF Board.
(4)
The PWSF Board shall conduct a public hearing and
take any testimony or additional evidence provided by either the applicant
or other persons.
(a)
Following the close of the hearing, the PWSF
Board shall approve the application, deny the application or approve
with conditions.
(b)
Any conditions attached to the approval shall
be designed to mitigate any adverse impacts of the proposed PWSF.
Such decision shall be in writing and supported by findings of fact
based on competent and substantial evidence contained in a written
record.
(5)
If the application is approved, the Village of Hempstead
shall issue two permits to the applicant: (a) The PWSF Board shall
issue a special use permit, which is a prerequisite for (b) the Building
Department to issue a building permit, provided all sections of the
Building and Construction Code are met.[1]
(6)
If the application is denied, the applicant must be
informed by written letter with a description of all reasons for the
denial.
G.
Tier Three review.
(1)
The PWSF Zoning Officer shall review Tier Three applications
for a special use permit.
(3)
The staff report shall be transmitted to the PWSF
Board for a public hearing before the PWSF Board.
(4)
The PWSF Board shall thereafter conduct a public hearing
and take any testimony or additional evidence provided by either the
applicant or other persons.
(a)
Following the close of the hearing, the PWSF
Board shall approve the application, deny the application or approve
with conditions.
(b)
Any conditions attached to the approval shall
be designed to mitigate any adverse impacts of the proposed PWSF.
Such decision shall be in writing and supported by findings of fact
based on competent and substantial evidence contained in a written
record.
(5)
If the application is approved, the Village of Hempstead
shall issue two permits to the applicant: (a) The PWSF Board shall
issue a special use permit, which is a prerequisite for (b) the Building
Department to issue a building permit, provided all sections of the
Building and Construction Code are met.[2]
(6)
If the application is denied, the applicant must be
informed by written letter with a description of all reasons for the
denial.
A.
Tier One applications. Tier One applications do not
need staff reports.
B.
Tier Two and Tier Three applications. The PWSF Zoning
Officer shall prepare staff reports for Tier Two and Tier Three applications.
The staff report shall contain the following:
(6)
Description of narrative attachments.
(7)
Recommendation of either approval or denial, in writing,
and supported by substantial evidence contained in the written record.
The recommendation may contain proposed conditions intended to mitigate
any adverse impacts of the proposed PWSF.
The Village of Hempstead shall require the review
and approval of all modifications to PWSFs.
A.
Types of modification. A modification of a PWSF is
any of the following:
(1)
Change of ownership of the PWSF or of the subject
property.
(3)
Addition or replacement of any equipment in the PWSF,
excluding only direct, identical substitutions. Any substitution that
is indirect, e.g., an identical piece of equipment in a new location,
is a modification.
(4)
Change in design of the PWSF.
(5)
Addition to any PWSF for the purposes of collocation,
provided that the previously approved collocation identified the future
positions or nature (e.g., network sharing) of the requested modification.
(6)
Addition to any PWSF for purposes of collocation.
When the PWSF has not been approved as a collocation with future positions,
the applicant must apply for a new PWSF.
A.
Tall mounts discouraged. Tall mounts are discouraged
in the Village of Hempstead, and proliferation of short mounts is
considered preferable to collocation.
B.
Collocation discouraged. Collocations are discouraged
for all PWSF applications.
C.
Worst-case review. The Village of Hempstead shall
review applications for collocations on the basis of all positions
on the mount, i.e., the cumulative, worst-case condition.
D.
Collocations previously approved. Applications for
collocations on mounts previously approved for collocation, in the
position applied for, require review of only the equipment to be added
above and on the ground, including new contents of the previously
existing equipment shelter or previously approved equipment cabinet.
E.
Collocations not previously approved. Applications
for collocations on mounts not previously approved for collocation,
in the position applied for, require review of the existing mount
as well as collocation under the requirements of this article.
F.
Public sites. The Village of Hempstead shall work
with carriers to facilitate the siting of a proposed PWSF on Village-owned
right-of-way or property, by identifying existing structures, the
appropriate contact persons, and the appropriate leasing procedures.
A.
Registry. Each carrier shall file the following information
with the Village on an annual basis, beginning with the date of approval:
(1)
Owner/lessee/intermediary/agent and carrier(s) at
the site.
(2)
Location by latitude and longitude, addresses and
parcel numbers.
(3)
Height, AGL.
(4)
Collocation status and capability (including if a
former collocation has been removed).
(5)
Last date at which site was modified and the nature
of the modification.
(6)
A list of toxic/hazardous materials at the PWSF (including
in the equipment shelter).
(7)
Instructions for emergency personnel on the approach
action to be taken in case of an emergency involving any toxic/hazardous
substances.
(8)
The name and telephone number of a representative
of the carrier to be contacted in the event of any emergency at the
PWSF site. The contact representative is to be available on a twenty-four-hours
a day, seven-days-a-week basis.
(9)
A site monitoring schedule indicating how often the
site is inspected and monitored by the carrier.
(10)
A ground maintenance schedule indicating how
often the grounds are maintained and the name and telephone number
of a representative of the carrier to be contacted in the event the
grounds require service before the next scheduled maintenance.
B.
Inspection. The owner or operator of PWSF shall provide for and conduct an inspection of mounts at least once every five years in conjunction with the review of the special use permit or administrative PWSF permit and building permit required in §§ 139-172 and 139-175C. A report shall be provided to the Village of Hempstead Building Department verifying structural integrity and tenants on the mounts as a part of the requirements provided for in §§ 139-178D(1) and 139-185A(6) of this article.
C.
Abandonment and removal. Any PWSF that is not operated
for a continuous period of 18 months shall be considered abandoned,
and the owner of such PWSF shall remove same within 90 days of notice
to the Village of Hempstead Building Department that the PWSF is abandoned.
If such PWSF is not removed within said 90 days, the Village of Hempstead
may have the PWSF removed at the PWSF owner's expense.
D.
Hazardous materials. PWSF shall be registered as a
hazardous facility if petroleum products are used to fuel power supplies
or any toxins are contained in equipment cabinets or shelters or alternative
power sources.
A.
Federal environmental assessment requirements for
Tiers One, Two and Three.
(1)
The National Environmental Policy Act (NEPA) applies
to all applications for PWSFs. NEPA is administered by the FCC via
procedures adopted as Subpart 1, Section 1.1301 et seq. (47 CFR Ch.
I). The FCC requires that an environmental assessment (EA) be filed
with the FCC prior to beginning operations for any PWSF proposed in
or involving any of the following:
(2)
At the time of application filing, an EA that meets
FCC requirements shall be submitted to the Village of Hempstead for
each PWSF site that requires such an EA to be submitted to the FCC.
B.
Radio frequency radiation emissions requirements.
(1)
FCC Guidelines. Each application for a PWSF shall
be accompanied by a statement by a professional engineer certifying
that, as proposed, the PWSF complies with the FCC Guidelines for Evaluating
the Environmental Effects of Radiofrequency Radiation (FCC Guidelines)
concerning radio frequency radiation and emissions.
(2)
No contravention of FCC Guidelines. A PWSF that meets
the FCC guidelines shall not be conditioned or denied on the basis
of radio frequency impacts.
(3)
Radio frequency radiation (RFR) report for Tier Two
and Tier Three. The PWSF Board may require applicants for a Tier Two
or Tier Three PWSF to submit a report containing the following information
on the existing and maximum future projected measurements of RFR from
the proposed PWSF, for the following situations:
(a)
Existing, or ambient: the measurement of existing
RFR.
(b)
Existing plus proposed wireless facility: maximum
estimate of RFR from the proposed personal wireless facility plus
the existing RFR environment.
(c)
Existing plus proposed wireless facilities plus
cumulative: maximum estimate of RFR from the proposed wireless facility
plus the maximum estimate of RFR from the total addition of collocated
wireless facilities plus the existing RFR environment.
(d)
Certification, signed by a professional engineer,
stating that the RFR measurements are accurate and meet the requirements
for radio frequency radiation reports in this article.
(4)
The PWSF Board may require as part of conditions of
approval for Tier Two or Tier Three applications that a radio frequency
radiation report as described in this section be submitted every five
years and every time a modification or a collocation is proposed for
the PWSF.
C.
Noise requirements.
(1)
In emergency situations requiring the use of a backup
generator, where the noise standards may be exceeded on a temporary
basis until such emergency has passed, the application shall be allowed
to operate for no longer than a twenty-four-hour period.
(2)
In all instances except emergency situations, the
applicable noise standard shall be 50 dBA at the property line.
(3)
Noise filing requirements. The PWSF Board may require
applicants for a Tier Two or Tier Three PWSF to submit a report containing
the following information on the existing and maximum future projected
measurements of noise from the proposed PWSFs, measured in decibels
Ldn (logarithmic scale, accounting for greater sensitivity at night),
for the following situations:
(a)
Existing, or ambient: the measurements of existing
noise.
(b)
Existing plus proposed PWSF: maximum estimate
of noise from the proposed PWSF plus the existing noise environment.
(c)
Existing plus proposed wireless facilities plus
cumulative: maximum estimate of noise from the proposed wireless facility
plus the maximum estimate of noise from the total addition of collocated
wireless facilities plus the existing noise environment.
(4)
The PWSF Board may require as part of conditions of
approval for Tier Two or Tier Three applications that a noise report
as described in this section be submitted every five years and every
time a modification or a collocation is proposed for the PWSF.
A.
Lighting. A PWSF shall not be artificially lighted,
except for:
(1)
Security and safety lighting of equipment buildings
if such lighting is appropriately down-shielded to keep light within
the boundaries of the site; and
(2)
Such lighting of the PWSF as may be required by the
Federal Communications Commission, Federal Aviation Administration
(FAA) or other applicable authority installed in a manner to minimize
impacts on adjacent residences. Only red lighting shall be utilized
unless otherwise recommended by FAA guidelines.
B.
Security barriers. A security barrier shall be required around the perimeter of ground mounts including equipment shelters and/or cabinets. The security barrier shall be maintained by the operator of the PWSF or mount for the life of the installation. No security barrier is needed around roof-mounted or side-mounted PWSFs, but distances from windows and balconies should conform to Subsection C(2) below.
C.
Security barriers for certain populations. The security
barriers around all PWSFs shall be reviewed by the PWSF Board and
found to be acceptable for:
(1)
Controlled population: those persons who are trained
in procedures for working near or around radio frequency radiation.
(2)
General population: all other persons, some of whom
have no concept of what radio frequency radiation is or how it can
cause harm. Members of the general population should not be allowed
nearer than 10 meters to the nearest part below an antenna.
No signage shall be permitted on any PWSF other
than that required for public safety purposes or by the FCC or FAA,
except that each PWSF shall have a weather-proof plaque mounted at
eye level identifying the carrier, frequency and date of approval
of zoning permit.
A.
Natural vegetation. Existing natural vegetation shall
be undisturbed to the greatest extent practicable.
B.
Landscaping. Landscaping of disturbed ground areas
of the PWSF site and security barriers shall be required as follows:
(1)
At least one row of evergreen shrubs capable of forming
a continuous hedge at least five feet in height within two years of
planting shall be spaced not more than five feet apart within 15 feet
of the site boundary; and
(2)
At least one row of evergreen trees or shrubs, at least four feet in height when planted and spaced not more than 15 feet apart, located interior to the perimeter of the shrubs required in Subsection B(1) above; and
(3)
Existing vegetation, topography, walls and fences
combined with shrubs, or other features may be substituted for the
required buffers if the Board of Trustees finds they:
(4)
Landscaping materials shall consist of xeric or drought-resistant
native species and shall be maintained by the operator of the PWSF
for the life of the installation.
C.
Tier One PWSFs require no lighting or landscaping.
A.
Parking. Areas sufficient for the temporary off-street
parking of at least two vehicles shall be provided for mounts. The
type and configuration of parking may be approved by the PWSF Board.
B.
Private access. A copy shall be provided to the Village
of Hempstead Building Department of any road maintenance agreement
for any site accessed by private easement.
C.
Tier One PWSFs. No parking areas are required.
Special use permits issued under the terms of
this article shall be reviewed by the Village of Hempstead Building
Department every five years from the date of issuance for compliance
with this article and any special terms or conditions of approval.
Such permits are subject to suspension or revocation at any time if
it is determined that the terms of the permit and any conditions contained
therein, or any rules or regulations adopted by the state or federal
government concerning the use of such facilities, are being violated.
Public hearings required by this article shall
be noticed and conducted pursuant to the New York State Village Law,
the Public Officers Law, Section 7, and the requirements of the Hempstead
Zoning Ordinance, pertaining to meetings of the Hempstead Board of
Zoning Appeals.
Any application approved pursuant to this article
shall result in a written approval letter. The approval letter shall
state the terms of the approval, including any conditions of approval,
and shall authorize the applicant to apply for a building permit for
the approved facilities.
An applicant shall apply for a building permit
within 60 days of receiving an administrative PWSF permit or a special
use permit for its PWSF. The building permit is to be based on drawings
identical to:
A.
Those submitted for approval under this article, or
reflecting conditions of approval granted under this article.
B.
The actual construction of the approved PWSF.
C.
The construction shall be governed by the New York
State Building Code, if applicable, or be certified by a professional
engineer licensed by the State of New York, that the design meets
or exceeds the design standards for the use for which it is intended.
Should any portion of this article be found
by a court of competent jurisdiction to be illegal or unconstitutional,
then such portion shall be severed and the remaining portions of this
article shall be unaffected thereby.
