[Added 1-28-2002 by L.L. No. 1-2002,
effective 2-6-2002]
The Telecommunications Act of 1996 affirmed
the Village of Mamaroneck's authority concerning the placement, construction
and modification of wireless telecommunications facilities. The Board
of Trustees finds that wireless telecommunications facilities and
related equipment may pose unique impacts upon the public health,
safety and welfare and environment of the Village and its inhabitants
and may have other adverse impacts, visual and otherwise, upon the
community, its character and thus the quality of life in the Village.
The intent of this article is to ensure that the placement, construction
or modification of wireless telecommunications facilities and related
equipment is consistent with the Village's land use policies and Zoning
Code; to minimize the negative and adverse visual impact of wireless
telecommunications facilities; to assure a comprehensive review of
environmental impacts of such facilities; to protect the health, safety
and welfare of the Village of Mamaroneck; and to encourage shared
use of wireless telecommunications facilities.
For purposes of this Article XVII, 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.
A facility or structure serving or being used in conjunction
with a telecommunications facility and located on the same property
or lot as the telecommunications facility, including, but not limited
to, utility or transmission equipment storage sheds or cabinets.
The form approved by the appropriate Board, together with
all necessary and appropriate documentation that an applicant submits
in order to receive a special use permit for a telecommunications
facility.
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.
An antenna array that is applied or attached to a building
or structure with any accompanying pole or device that attaches the
antenna array to the building or structure and connection cables.
The Board of Trustees or the Planning Board of the Village of Mamaroneck, pursuant to Subsection B of § 342-116 of this article, which is the officially designated agency or body of the community to whom applications for a special use permit for a telecommunications facility must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or revoking special use permits for telecommunications facilities. The appropriate Board may, at its discretion, delegate or designate other official agencies and/or officials of the Village to accept, review, analyze, evaluate and make recommendations to the appropriate Board with respect to the granting or not granting, recertifying or not recertifying, or revoking special use permits for telecommunications facilities.
The location on a telecommunications tower which, in the
event of a failure of the tower, would result in the tower falling
or collapsing within the boundaries of the property on which the tower
is placed.
The use of the same structure or telecommunications tower
to carry two or more antennas for the provision of wireless services
by two or more persons or entities.
Shall have the meaning in this article and any special use
permit granted hereunder as is defined and applied under the United
States Uniform Commercial Code (UCC).
An application that the appropriate Board has found to contain
all information and/or data necessary to enable the appropriate Board
to evaluate the merits of the application and to make an informed
decision with respect to the effect and impact of the wireless telecommunications
facility on the Village in the context of the permitted land use for
the particular location requested.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
Any structure that is specifically designed for the purpose
of supporting a wireless telecommunications device. This definition
shall include monopoles and self-supporting and guyed towers.
When referring to a tower or structure, the distance measured
from the grade level existing prior to construction of a tower or,
if an existing structure, the grade level existing prior to application
to place a wireless telecommunications antenna 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.
See definition for "wireless telecommunications facility."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act.
See definition for "wireless telecommunications facility."
The official document or permit by which an applicant is
allowed to construct and use a wireless telecommunications facility
as granted or issued by the Village.
The transmission and reception of audio, video, data and
other information by wire, radio frequency, light and other electronic
or electromagnetic systems.
Any structure used in, associated with or necessary for the
provision of wireless services and as described in the definition
of "wireless telecommunications facility."
In relation to all aspects and components of this article,
fewer than 90 days.
The Village of Mamaroneck, New York.
A structure or location designed or intended to be used or
used to support antennas. It includes, without limit, antennas applied
to the facade of a building or roof-mounted antennas, freestanding
towers, guyed towers, monopoles and similar structures that employ
camouflage technology, and including, but not limited to, structures
such as a church steeple, water tower, flagpole, sign or other similar
structures intended to mitigate the visual impact of an antenna or
the functional equivalent of such. It is a facility or structure intended
for transmitting and/or receiving radio, television, cellular, paging
or personal telecommunications services 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 citizens bands, amateur radios and other similar
telecommunications.
A.
In order to ensure that the placement, construction
and modification of wireless telecommunications facilities conform
to the Village's purpose and intent of this article, the Board of
Trustees creates a special use permit for a wireless telecommunications
facility. It shall be a violation of this article to erect, construct,
replace or modify a wireless telecommunications facility within the
Village of Mamaroneck without first obtaining a special use permit
from the appropriate Board of the Village.
B.
Any special use permit for a wireless telecommunications
facility issued shall, to the greatest extent possible, conform to
the following goals:
(1)
Implementing an application process for a person seeking
a special use permit for a wireless telecommunications facility.
(2)
Establishing a policy for examining an application
for and issuing a special use permit for a wireless telecommunications
facility that is both fair and consistent.
(3)
Establishing reasonable time frames for granting or
not granting a special use permit for a wireless telecommunications
facility or recertifying or revoking the special use permit granted
under this article.
(4)
Promoting and encouraging, wherever possible, the
sharing and/or colocation of a wireless telecommunications facility
among service providers.
(5)
Promoting and encouraging, wherever possible, the
placement of a wireless telecommunications facility in such a manner
as to cause minimal disruption to the land, property, buildings and
other facilities adjacent to, surrounding and in generally the same
area as the requested location of such a wireless telecommunications
facility and to minimize adverse aesthetic impacts to the community.
A.
All applicants for a special use permit for a wireless
telecommunications facility or any modification of such facility shall
comply with the requirements set forth in this section.
B.
All applicants for a special use permit for a wireless telecommunications facility shall submit an application to the Building Department on forms prepared by the Village of Mamaroneck. An application for a wireless telecommunications facility on a freestanding tower, as defined in § 342-114 of this article, shall be directed by the Building Department to the Board of Trustees for review and approval. All other applications for wireless telecommunications facilities shall be submitted to the Planning Board for review and approval.
C.
An application for a special use permit for a wireless
telecommunications facility shall be made by the person or entity
which will own the wireless telecommunications facility and 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 from the applicant, shall also sign the application.
At the discretion of the appropriate 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.
D.
Applications not meeting the requirements stated herein,
or which are otherwise incomplete, shall be rejected by the appropriate
Board.
E.
The applicant shall include a statement, in writing:
(1)
That the applicant's proposed wireless telecommunications
facility will 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 appropriate Board, in writing,
as well as all applicable and permissible local codes, rules and regulations,
including any and all applicable county, state and federal laws, rules
and regulations.
(2)
That the construction of the wireless telecommunications
facility is legally permissible, including, but not limited to, the
fact that the applicant is authorized to do business in New York State.
F.
No wireless telecommunications facility or tower or
other structure shall be installed or constructed for the purpose
of providing wireless telecommunications service until a plan of the
site, including elevation, is reviewed and approved by the appropriate
Board, and, in situations involving freestanding towers, as a part
of the special permit approval required by this article, a site plan
shall be reviewed by the Planning Board, after referral by the Village
Board. The review by the Planning Board shall be conducted within
60 days of referral by the Village Board and a report submitted to
the Village Board with the Planning Board's recommendation within
that time period. In the event the Planning Board fails to report
to the Village Board as required, the Village Board shall proceed
with its review of the special permit application.
G.
All applications for the construction or installation
of a new wireless telecommunications facility shall be accompanied
by a report containing the information hereinafter set forth. The
report shall be signed by a licensed professional engineer registered
in New York State and shall contain the following information. Where
this section calls for certification, such certification shall be
by a qualified New York State licensed professional engineer, unless
otherwise noted. The application shall include, in addition to the
other requirements for the special use permit, the following information:
(1)
Documentation that demonstrates the need for the wireless
telecommunications facility to provide service primarily within the
Village.
(2)
Name and address of person preparing the report.
(3)
Name and address of the property owner, operator and
applicant, to include the legal form of the applicant.
(4)
Postal address and tax map designation of the property.
(5)
Zoning district in which the property is situated.
(6)
Size of the property, stated both in square feet and
lot line dimensions, and a diagram showing the location of all lot
lines.
(7)
Location of all residential structures within 750
feet in the case of a freestanding tower and within 250 feet in the
case of all other wireless telecommunications facility applications.
(8)
Location of all schools and habitable structures within
750 feet in the case of a freestanding tower and within 250 feet in
the case of all other wireless telecommunications facility applications.
(9)
Location of all structures on the property which is
the subject of the application.
(10)
Location, size and height of all proposed and
existing antennas and all appurtenant structures.
(11)
Type, size and location of all proposed and
existing landscaping.
(12)
The number, type and design of the wireless
telecommunications facility's antenna(s) proposed and the basis for
the calculations of the wireless telecommunications facility's capacity
to accommodate multiple users.
(13)
The make, model and manufacturer of the wireless
facility and antenna(s).
(14)
A description of the proposed wireless facility
and antenna(s) and all related fixtures, structures, appurtenances
and apparatus, including height above preexisting grade, materials,
color and lighting.
(15)
The frequency, modulation and class of service
of radio or other transmitting equipment.
(16)
Transmission and maximum effective radiated
power of the antenna(s).
(17)
Direction of maximum lobes and associated radiation
of the antenna(s).
(18)
The applicant's proposed wireless facility maintenance
and inspection procedures and related system of records.
(19)
Certification that NIER levels at the proposed
site are within the threshold levels adopted by the FCC.
(20)
Certification that the proposed antenna(s) will
not cause interference with existing telecommunications devices.
(21)
A copy of the FCC license applicable for the
use of the wireless telecommunications facility.
(22)
Certification that a topographic and geomorphologic
study and analysis has been conducted and, 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 tower on the proposed site.
(23)
Propagation studies of the proposed site and
all adjoining proposed or in-service or existing sites.
(24)
The 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 wireless telecommunications facility that it constructs.
H.
In the case of a new wireless telecommunications facility,
the applicant shall be required to submit a report demonstrating its
efforts to secure shared use of existing wireless telecommunications
facilities. Copies of written requests and responses for shared use
shall be provided to the appropriate Board.
I.
Certification that the wireless telecommunications
facility, accessory facilities and structures, and attachments are
designed and constructed (as built) to meet all county, state and
federal structural requirements for loads, including wind and ice
loads.
J.
After construction and prior to receiving a certificate
of compliance, certification that the wireless telecommunications
facility and related facilities are grounded and bonded so as to protect
persons and property and installed with appropriate surge protectors.
K.
The applicant shall submit a completed long-form EAF
and a completed visual EAF addendum. The appropriate 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 appropriate Board to address the scope of the required
visual assessment.
L.
A visual impact assessment which shall, at the appropriate
Board's request, include:
(1)
A "zone of visibility" map which shall be provided
in order to determine locations where the facility may be seen.
(2)
Pictorial representations of "before" and "after"
views from key viewpoints to be determined by the appropriate Board,
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 or
travelers. The appropriate Board will provide guidance concerning
the appropriate key sites at a preapplication meeting.
(3)
An assessment of the visual impact of the facility
base, guy wires and accessory structures from abutting and adjacent
properties and streets.
M.
The applicant shall, in a manner approved by the appropriate
Board, demonstrate and provide, in writing and/or by drawing, how
it shall effectively screen from view its proposed wireless telecommunications
facility base and all accessory facilities and structures, subject
to approval by the appropriate Board.
N.
All utilities serving any wireless telecommunications
facility site 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 appropriate Board may waive
or vary the requirements of underground installation of utilities
whenever, in the opinion of the appropriate Board, such waiver or
variance shall not be detrimental to the health, safety, general welfare
or environment, including the visual and scenic characteristics of
the area.
O.
All applicants for wireless telecommunications facilities
and accessory facilities and structures shall demonstrate that the
facility be sited so as to have the least possible adverse visual
effect on the environment and its character and on the residences
in the area of the wireless telecommunications facility site.
P.
Both the wireless telecommunications facility and
any and all accessory or associated facilities and structures shall
maximize the use of building materials, colors and textures designed
to blend with the structure to which it may be affixed and with the
natural surroundings.
Q.
An access road and parking to assure adequate emergency
and service access shall be provided, should such be deemed necessary
by the appropriate Board. 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 potential.
R.
A person who holds a special use permit for a wireless
telecommunications facility shall construct, operate, maintain, repair,
modify or restore the permitted wireless telecommunications facility
in strict compliance with all current technical, safety and safety-related
codes and regulations 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
(or substitute codes), 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. In the event of a conflict between or among
any of the preceding, the more stringent shall apply.
S.
A holder of a special use permit granted under this
article shall obtain, at its own expense, all permits and licenses
required by applicable law, rule or regulation 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.
T.
In the case of freestanding towers, the Board of Trustees
shall be the lead agency, pursuant to the State Environmental Quality
Review Act (SEQRA). In the case of all other wireless telecommunications
facilities, the Planning Board shall be the lead agency. The appropriate
Board shall conduct a review of the proposed project in combination
with its review of the application under this article.
U.
An applicant shall submit to the Director of Building,
Code Enforcement and Land Use Administration the number of completed
applications determined to be required at the preapplication meeting.
A copy of the notification of application shall be provided to the
legislative body of all adjacent municipalities and to the Westchester
County Planning Board. The responsibility of providing such notification
shall be borne by the applicant, who shall file an affidavit of compliance
with said lead agency.
V.
If the applicant is proposing the construction of
a freestanding tower, the applicant shall examine the feasibility
of designing a tower to accommodate future demand for at least two
additional commercial applications, e.g., future colocations. The
scope of this examination shall be determined by the Board of Trustees.
The wireless telecommunications facility 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 wireless telecommunications facility
is not technologically feasible or is commercially impracticable and
creates an unnecessary and unreasonable burden, based upon:
(1)
The number of foreseeable FCC licenses available for
the area.
(2)
The kind of wireless telecommunications facility site
and structure proposed.
(3)
The number of existing and potential licenses without
wireless telecommunications facility spaces/sites.
(4)
Available space on existing and approved telecommunications
towers.
W.
Unless waived by the appropriate 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 or other high structure, the
applicant can seek to waive any application requirements that may
not be applicable. At the preapplication meeting, the waiver requests,
if appropriate, will be decided by the Village. Costs of the Village's
attorneys, engineers, planners and other consultants to prepare for
and attend the preapplication meeting will be borne by the applicant.
X.
The holder of a special use permit shall notify the
appropriate Village authority of any intended modification of a wireless
telecommunications facility and shall apply to the Village to modify,
relocate or rebuild a wireless telecommunications facility.
A.
Location priorities.
(1)
Notwithstanding any other provision of the Zoning
Code or any other local law, wireless telecommunications facilities
may be, subject to the provisions of this article, located in any
zoning district. Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities,
including towers or other tall structures, in accordance with the
following priorities, No. 1 being the highest priority and No. 7 being
the lowest priority:
[Amended 12-8-2003 by L.L. No. 7-2003,
effective 12-26-2003]
|
Priority Ranking
|
Location
| |
|---|---|---|
|
1
|
Colocation on a site with existing telecommunications
towers or structures containing existing telecommunications facilities
in nonresidential districts and on nonresidential buildings
| |
|
2
|
Existing nonresidential tall structures
| |
|
3
|
Industrial or commercial areas
| |
|
4
|
Other nonresidential areas
| |
|
5
|
Colocation on a site with existing telecommunications
towers or structures containing existing telecommunications facilities
in residential districts
| |
|
6
|
Existing residential structures over five stories
in height
| |
|
7
|
On other property in the Village
|
(2)
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.
(3)
An applicant may not bypass sites of higher priority
by stating that the site presented is the only site leased or selected.
An application shall address colocation as an option and, if such
option is not proposed, the applicant must explain why colocation
is commercially or otherwise impractical. Agreements between providers
limiting or prohibiting colocation shall not be a valid basis for
any claim of commercial impracticability or hardship.
(4)
Notwithstanding the above, the appropriate Board may
approve any site located within an area in the above list of priorities,
provided that the appropriate Board finds that the proposed site is
in the best interest of the health, safety and welfare of the Village
and its inhabitants.
B.
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.
C.
The applicant shall, in writing, identify and disclose
the number and locations of any additional sites that the applicant
has, 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.
D.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the
appropriate Board may disapprove an application for any of the following
reasons:
(1)
Conflict with safety and safety-related codes and
requirements.
(2)
Conflict with traffic needs or traffic laws, or definitive
plans for changes in traffic flow or traffic laws.
(3)
Conflict with the historic nature of a neighborhood
or historical district.
(4)
The location of a wireless telecommunications facility
will be in such proximity to residences or other noncommercial uses
so as to create an unacceptable impact upon any adjoining property
by virtue of visual or aesthetic impacts and/or by virtue of the impact
of the placement of such a facility upon adjoining property values.
(5)
The placement and location of a wireless telecommunications
facility 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.
(6)
Placement of a wireless telecommunications facility,
which, by virtue of its location, would be in conflict with the purpose
and intent of the Zoning Code, Local Waterfront Revitalization Plan
or Master Plan of the Village of Mamaroneck.
A.
Location of antennas on preexisting wireless telecommunications
facilities shall be considered and preferred. Shared use of existing
telecommunications towers or other existing structures shall be preferred
by the Village, as opposed to the proposed construction of new telecommunications
towers or facilities. Where such shared use is unavailable, the applicant
shall submit a comprehensive report which lists an inventory of existing
wireless telecommunications facilities and other appropriate structures
which could be used to support antennas within four miles of any proposed
new wireless telecommunications facility 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.
B.
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.
C.
In the event that an application to share the use
of an existing freestanding telecommunications tower does not increase
the height of the freestanding telecommunications tower, the appropriate
Board may waive such requirements of the application required by this
article as may be unnecessary to the review of the application.
D.
Such shared use shall consist only of the minimum
antenna array technologically required to provide service within the
Village unless it is demonstrated that a more extensive antenna array
is necessary to fill a service gap which cannot be filled without
erecting additional freestanding towers or telecommunications structures
within the Village. In no event shall an antenna be installed which
does not principally provide service in a manner which fills an existing
gap in service within the Village.
A.
The applicant must submit documentation demonstrating
that the total height of any wireless telecommunications facility
and/or antenna is necessary to provide service within the Village
or to otherwise fill a service gap which cannot be filled in any other
reasonable fashion.
B.
Wireless telecommunications facilities shall be no
higher than the minimum height necessary. Unless waived by the appropriate
Board upon good cause shown, the maximum height shall be 100 feet,
based on three colocated antenna arrays and ambient tree height of
70 feet.
C.
The maximum height of any wireless telecommunications
facility 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 in accordance with municipal,
county, state and/or federal laws and/or regulations.
A.
Wireless telecommunications facilities shall not be
artificially lighted or marked, except as required by law.
B.
Telecommunications towers and facilities 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 appropriate Board, and shall be maintained in accordance with
the requirements of this article.
C.
If lighting is required, the applicant shall provide
a detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations, 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 facility is located.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
which prevents unauthorized access. Specifically:
A.
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.
B.
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 telephone number(s). The sign shall be located so as
to be visible from the access point of the site. No other signage,
including advertising, shall be permitted on any wireless telecommunications
facilities, antennas, antenna supporting structures or antenna towers,
unless required by law. Signs shall be approved by the Board of Architectural
Review.
A.
All proposed telecommunications towers and associated
equipment 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 icefall or debris from a tower or tower failure and to
preserve light, air and privacy of any adjoining properties.
B.
Wireless telecommunications facilities shall be located
with a minimum setback from any property line a distance equal to
the height of the facility, plus 10 feet, 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 minimum setback requirements for the property on which it
is situated.
C.
Notwithstanding anything contained herein to the contrary,
if a wireless telecommunications facility is placed on an existing
building, the Board granting approval may vary the setbacks, provided
the Board requires that the wireless telecommunications facility be
set back to the maximum extent permitted under the circumstances.
A.
The appropriate Board may hire any consultant and/or
expert necessary to assist the Board in reviewing and evaluating the
application and any requests for recertification.
B.
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 appropriate Board in
connection with the review of any application. The initial deposit
shall be $7,500 for a facility application and $5,000 in the case
of colocation. 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 the balance of this account falls below $2,500, additional
funds must be submitted to the Village to bring the balance of the
account to $7,500, or in the case of colocation, $5,000, or upon request
from the applicant, a lesser amount to be set by the appropriate Board,
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.
C.
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 appropriate Board or its consultant/expert to complete the necessary review and analysis. Additional funds, as required, shall be paid by the applicant. The initial amount of the escrow deposit shall be established at a preapplication meeting with the Village.
A.
No person, corporation or other entity shall be permitted
to site, place, build, construct or modify, or prepare any site for
the placement or use of, a wireless telecommunications facility as
of the effective date of this article without having first obtained
a special use permit for a wireless telecommunications facility. 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 facility, such as those used exclusively for fire,
police and other dispatch telecommunications or exclusively for private
radio and television reception and private citizens bands, amateur
radio and other similar telecommunications.
B.
After the date of adoption of this article all construction,
including routine maintenance on an existing wireless telecommunications
facility, shall comply with the requirements of this article.
C.
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 facilities must comply with this article.
A.
Public hearing and public notification by applicant.
Before the Board of Trustees or Planning Board acts on any application,
it shall hold a public hearing thereon. To facilitate notification
of the public, a public notification list shall be prepared by the
applicant, using the most current Village of Mamaroneck tax maps and
tax assessment roll, showing the Tax Map sheet number, the section,
block and lot numbers, the owner's name and the owner's mailing address
for each property located wholly or partially within 750 feet of the
perimeter of the property that is the subject of the application in
the case of a freestanding tower and within 250 feet of the perimeter
of the property in the case of all other wireless telecommunications
facility applications. If a property on the public notification list
is also listed as a cooperative or an apartment on a list maintained
by the Village Assessor's office, the address of each of the dwelling
units in the building shall also be listed under the named occupant
and each occupant shall be considered a property owner for the purposes
of the list. When the public hearing is required by the appropriate
Board, the applicant shall deliver a copy of the public notice provided
by the Village Clerk to all of the property owners contained on the
public notification list, either personally or by first-class mail,
posted within Westchester County at a post office or official depository
of the Postal Services, and shall post a sign on the property in accordance
with the following requirements:
(1)
The delivery or mailing shall be limited solely to
the public notice provided to the applicant by the Village Clerk.
(2)
In the case of personal delivery, the public notice
shall be delivered to all of the property owners and/or their spouse
contained on the public notification list at least 14 days prior to
the date of the public hearing.
(3)
In the case of delivery by mail, the public notice
shall be mailed to all of the property owners contained on the public
notification list, by first-class mail, posted within Westchester
County at a post office or official depository of the Postal Service,
at least 19 days prior to the date of the public hearing.
(4)
Within two business days after the personal delivery
or mailing of the public notice, the applicant shall file an affidavit
with the Village Clerk stating that the public notification list was
prepared in accordance with required procedures, that the list includes
all properties located wholly or partially within 750 feet (in the
case of a freestanding tower) or within 250 feet (in the case of all
other wireless telecommunications facility applications) of the perimeter
of the property that is the subject of the application, and all municipalities
within 500 feet of the perimeter of the subject property and that
the public notice was personally delivered or mailed to all of the
property owners and municipalities on the list and the date on which
the public notice was delivered or mailed, which affidavit shall contain
a copy of the list and the public notice.
(5)
In the event that a mailed public notice is returned
by the Postal Service because it could not be delivered, the envelope
indicating the reason for the return shall be filed with the Village
Clerk no later than the day before the day of the public hearing.
(6)
At least one week preceding the date of the public
hearing, at least one sign, a minimum of two feet by three feet in
size and carrying a legend prescribed by the appropriate Board announcing
the public hearing, shall be posted on the property. The height of
the lettering on the sign shall be no less than two inches, except
that the words "Public Notice" appearing at the top of the sign shall
have lettering no less than five inches high. The sign shall be in
full public view from the street and not more than 30 feet therefrom.
No later than the day before the day of the public hearing, applicant
shall file an affidavit with the Village Clerk stating that the sign
was posted on the property in accordance with these requirements.
The sign shall be removed from the property within two days after
the close of the public hearing.
A.
The appropriate Board will undertake a review of an
application pursuant to this article in a timely fashion and shall
act within a reasonable period of time given the relative complexity
of the application and the circumstances, with due regard for the
public's interest and need to be involved and the applicant's desire
for a timely resolution.
B.
Except for necessary building permits, and subsequent
certificates of compliance, no additional permits or approvals from
the Village, other than the special use permit granted under this
article, shall be required for telecommunications facilities and telecommunications
structures covered by this article.
C.
After the public hearing and after formally considering
the application, the appropriate Board may approve and issue, approve
with conditions, or deny, a special use permit. Its decision shall
be in writing and shall be based on the record. The burden of proof
for the grant of the permit shall always be upon the applicant.
D.
If the appropriate Board approves the special use
permit for a wireless telecommunications facility, 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.
E.
If the appropriate Board denies the special use permit
for a wireless telecommunications facility, then the applicant shall
be notified of such denial in writing within 10 calendar days of the
Board's action.
F.
The decision on the application shall also be filed
in the office of the Village Clerk within ten days after it is rendered.
G.
Upon receipt of the special use permit, the applicant
shall thereafter apply for and obtain a building permit from the Building
Department.
Any person aggrieved by the granting or denial
of an application for a wireless telecommunications facility may take
an appeal therefrom to the Supreme Court of the State of New York
within 30 days from the date of filing of the decision of the Board
on the application.
A.
At least six months prior to the fifth anniversary
of the effective date of the special permit and every five years thereafter,
the holder of a special use permit for such facility shall submit
a written request for recertification. In the written request for
recertification, the holder of such special use permit shall note
the following:
(1)
The name of the holder of the special use permit for
the wireless telecommunications facility.
(2)
If applicable, the number or title of the special
use permit.
(3)
The date of the original granting of the special use
permit.
(4)
Whether the wireless telecommunications facility has
been moved, relocated, rebuilt, repaired or otherwise modified since
the issuance of the special use permit.
(5)
If the wireless telecommunications facility has been
moved, relocated, rebuilt, repaired or otherwise modified, then whether
the appropriate Board approved such action, the terms and conditions
of such approval and a certification that the holder of the special
permit is in compliance with all terms and conditions of the approval.
(6)
Any requests for waivers or relief of any kind whatsoever
from the requirements of this article and any requirements for a special
use permit.
(7)
That the wireless telecommunications facility is in
compliance with the special use permit and in compliance with all
applicable codes, laws, rules and regulations.
B.
If, after such review, the appropriate Board determines
that the permitted wireless telecommunications facility is in compliance
with the special use permit and all applicable codes, laws, rules
and regulations, then the Board shall issue a recertification special
use permit for the wireless telecommunications facility, which may
include any new provisions or conditions that are mutually agreed
upon or required by codes, laws, rules or regulations.
C.
If the appropriate 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 facility shall receive an extension of the special use permit, for up to six months, in order for the Board to complete its review.
D.
If the holder of a special use permit for a wireless telecommunications facility does not submit a request for recertification of such special use permit within the time frame noted in Subsection A of this section, or if the appropriate Board finds that the wireless telecommunications facility has been moved, relocated, rebuilt or otherwise modified without approval of such having been granted by the Board under this article, 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 appropriate Board that extenuating circumstances prevented a timely recertification request. If the appropriate Board agrees that there were legitimate extenuating circumstances, then the holder of the special use permit may submit a late recertification request.
The extent and parameters of a special use permit
for a wireless telecommunications facility shall be as follows:
A.
Such special use permit shall be nonexclusive.
B.
Such special use permit shall not be assignable or
transferable without the express written consent of the appropriate
Board, and such consent shall not be unreasonably withheld.
C.
Such special use permit may be revoked, cancelled
or terminated for a violation of the conditions and provisions of
the special use permit for a wireless telecommunications facility
or for a material violation of this article.
The applicant and the owner of record of any
property on which there is a proposal to site a wireless telecommunications
facility shall be jointly required to execute and file with the Village
a bond, or other form of security acceptable to the Village, in an
amount deemed sufficient by the appropriate Board to assure the faithful
performance of the terms and conditions of this article and the 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 wireless
telecommunications facility is removed 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 appropriate Board to revoke
the special use permit after prior written notice to, and an opportunity
to be heard by, the holder of the permit.
A.
In order to verify that the holder of a special use
permit for a wireless telecommunications facility and any and all
lessees, renters and/or licensees of a wireless telecommunications
facility place and construct such facilities, including towers and
antennas, in accordance with all applicable technical, safety, fire,
building and zoning codes, laws, rules 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.
B.
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.
C.
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. In the event
the appeal is successful, the funds held in escrow shall be returned
to the permit holder.
The holder of the special use permit shall,
annually, cause an engineer with at least five years of experience
in the field to certify 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 in advance by the Village but must submit
evidence of experience along with the required certification.
A.
A holder of a special use permit for a wireless telecommunications
facility shall secure, and at all times maintain, public liability
insurance, property damage insurance and umbrella insurance coverage
for the duration of the special use permit in the following amounts:
B.
The commercial general liability insurance policy
shall specifically include the Village and its officials, employees
and agents as additional insureds.
C.
The insurance policies shall be issued by an agent
or representative of an insurance company licensed to do business
in New York State.
D.
The insurance policies shall contain an endorsement
obligating the insurance company to furnish the Village with at least
30 days' written notice in advance of the cancellation of the insurance.
E.
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.
F.
Before construction of a permitted wireless telecommunications
facility is initiated, 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 shall 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 and its officers, agents, servants and employees from
any and all penalties, damages or charges arising out of any and all
claims, suits, demands, causes of action or awards of damage, 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, product performance,
operation, maintenance, repair, installation, replacement, removal
or restoration of a wireless telecommunications facility within the
Village. With respect to the penalties, damages or charges referenced
herein, reasonable fees of attorneys, consultants and expert witnesses
are included in those costs that are recoverable by the Village.
A.
Civil sanctions. Any person who violates any of the
provisions of this article shall be liable for a civil penalty of
not more than $3,000 for every such violation. Each consecutive day
of violation will be considered a separate offense. Such civil penalty
may be released or compromised by the appropriate Board. In addition,
the appropriate Board shall have power, following a hearing, to direct
the violator to comply with the provisions of this article.
B.
Criminal sanctions. Any person, firm or corporation
who willfully violates any of the provisions of this article or permits
promulgated thereunder, excluding provisions set forth in the rules
and regulations promulgated thereunder, upon conviction thereof of
the first offense shall be guilty of a violation punishable by a fine
of not less than $500 and not more than $1,000 and, for a second offense
and each subsequent offense, shall be guilty of a violation punishable
by a fine of not less than $1,000 nor more than $2,000, or a term
of imprisonment of not more than 15 days, or both. Each consecutive
day of violation will be considered a separate offense.
C.
Notwithstanding anything in this article, the holder
of the special use permit for a wireless telecommunications facility
may not use the payment of fines, liquidated damages or other penalties,
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.
D.
The provisions for civil and criminal penalties contained
herein shall not be exclusive, and the Village may seek such other
relief as may be available, including injunctive relief to prevent
the threatened or continued violation of this article.
A.
If a wireless telecommunications facility is repaired,
rebuilt, placed, moved, relocated, modified or maintained in a way
that is inconsistent or not in compliance with the provisions of this
article or of the special use permit, then the Building Department
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
Building Department may, at its sole discretion, order the violation
remedied within 24 hours.
B.
If, within the period set forth in Subsection A above, the wireless telecommunications facility is 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 facility into compliance, then the appropriate Board may revoke such special use permit for a wireless telecommunications facility and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the appropriate
Board may determine that the health, safety and welfare interests
of the Village warrant and require the removal of a wireless telecommunications
facility:
(1)
A wireless telecommunications facility with a permit
has been abandoned (i.e., not used as a wireless telecommunications
facility) 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.
(2)
A permitted wireless telecommunications facility falls
into such a state of disrepair that it creates a health or safety
hazard.
(3)
A wireless telecommunications facility has been located,
constructed or modified without first obtaining the required special
use permit, or any other necessary authorization.
(4)
A wireless telecommunications facility, which does
not meet the current FCC standards, shall be removed within six months
of the implementation of such new standards, unless the facility is
made compliant.
B.
If the appropriate 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 facility within 48 hours that said wireless telecommunications facility is to be removed. The appropriate Board may approve an interim temporary use permit, such as to enable the sale of the wireless telecommunications facility.
C.
Upon a determination by the appropriate Board that
a wireless telecommunications facility should be removed, the holder
of the special use permit or the owner of the site shall dismantle
and remove such wireless telecommunications facility 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 appropriate Board.
D.
If a wireless telecommunications facility is not removed
or substantial progress has not been made to remove the wireless telecommunications
facility within 90 days after the permit holder or owner of the site
has received notice, then the Village may remove the wireless telecommunications
facility at the sole expense of the owner and/or permit holder.
E.
If the Village removes or causes to be removed a wireless
telecommunications facility and the owner of the wireless telecommunications
facility does not claim the property and remove the facility from
the site to a lawful location within 10 days, then the Village may
take steps to declare the facility abandoned and sell it and its components.
F.
Notwithstanding anything in this section to the contrary,
the appropriate Board may approve a temporary use permit for the wireless
telecommunications facility for no more than 90 days, during which
time a suitable plan for removal, conversion or relocation of the
affected wireless telecommunications facility shall be developed by
the holder of the permit, subject to the approval of the Board, and
an agreement to such plan shall be executed by the holder of the 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 facility
in the manner provided in this section.
A.
Any applicant can request a waiver of application
requirements that are inapplicable to its permit application. Such
request shall be in writing. Requests should be discussed at the preapplication
meeting. The applicant shall have the burden of supporting such requests.
Determinations as to applicability of application requirements shall
be made by the appropriate Board.
B.
In determining permit conditions, the appropriate
Board can waive inapplicable permit requirements, consistent with
the policy goals and priorities of this article. The applicant shall
have the burden of supporting such requests. Determinations as to
applicability of permit condition requirements shall be made by the
appropriate Board.
A.
To the extent that the holder of a special use permit
for a wireless telecommunications facility has not received relief
or is not 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 arid provisions of any state or federal agency, including
but not limited to the FAA and the FCC. Specifically included in this
requirement are any rules and regulations regarding height, lighting,
security, electrical and RF emission standards.
B.
To the extent that applicable rules, regulations,
standards and provisions of any state or federal agency, including
but not limited to the FAA and the FCC, and specifically including
any rules and regulations regarding height, lighting and security,
are changed and/or are modified during the duration of a special use
permit for a wireless telecommunications facility, then the holder
of such a special use permit shall conform the wireless telecommunications
facility 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 such rule, regulation,
standard or provision.
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.
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 proscribed 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.
This article is enacted by local law pursuant
to the Municipal Home Rule Law. This article shall supersede the provisions
of Village law or other statute to the extent that 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.
