[HISTORY: Adopted by the Board of Trustees of the Village of Sagaponack 8-13-2007
by L.L. No. 20-2007. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 245.
This chapter shall be known and may be cited as the "Wireless Telecommunications
Facilities Siting Law for the Incorporated Village of Sagaponack."
A.
On February 8, 1996, the United States Congress enacted
the Telecommunications Act of 1996 (hereinafter referred to as the "Act").
The purpose of the Act is to provide a more competitive environment for wired
and wireless communication services in the United States by deregulating the
telecommunications industry. The Act preserves the authority of local government
to regulate the placement, construction, and modification of wireless telecommunications
facilities.
B.
The purpose of this chapter is to establish predictable
and balanced regulations for the siting and screening of wireless telecommunications
facilities in order to accommodate the growth of such systems within the Incorporated
Village of Sagaponack (hereinafter referred to as the "Village") while protecting
the public against any adverse impacts on aesthetic resources, avoiding potential
damage to adjacent properties from tower failure through structural standards
and setback requirements, and reducing the number of telecommunications structures
needed to service the Village by maximizing the use of towers.
C.
This chapter is intended to regulate the placement, construction,
and modification of wireless telecommunications facilities in order to protect
the health, safety, and welfare of the public, while at the same time not
unreasonably interfering with the development of the competitive wireless
telecommunications marketplace in the Village. Specifically, this chapter
is intended to:
(1)
Establish a fair and efficient process for the review
and approval of applications;
(2)
Regulate the location of the wireless telecommunications
facilities in the Village;
(3)
Protect residential areas and land uses from potential
adverse impact of wireless telecommunications facilities;
(4)
Minimize negative and adverse visual impacts of wireless
telecommunications facilities through careful design, siting, landscaping,
and innovative camouflaging techniques in order to protect the natural features
and aesthetic character of the Village;
(5)
Promote and encourage shared use or collocation of freestanding
towers;
(6)
Promote and encourage, 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;
(7)
Promote and encourage utilization of technological designs
that will either eliminate or reduce the need for erection of new telecommunications
structures to support antennas and wireless telecommunications facilities;
(8)
Avoid potential damage to property caused by wireless
telecommunications facilities by ensuring that telecommunications structures
are soundly and carefully designed, constructed, modified, maintained, and
removed when no longer used or determined to be structurally unsound;
(9)
Ensure that wireless telecommunications facilities are
compatible with surrounding land uses; and
(10)
Assure an integrally comprehensive review of environmental
impacts of wireless telecommunications facilities.
D.
Jurisdiction.
(1)
The Communications Act of 1934, as amended by the Act,
grants the Federal Communications Commission (FCC) exclusive jurisdiction
over:
(2)
The Village's regulation of wireless telecommunications
facilities in the Village will not have the effect of prohibiting any person
from providing wireless telecommunications services which effect would be
in violation of the Act.
For purposes of this chapter, and where not inconsistent with the context
of a particular section, the defined terms, phrases, words, abbreviations
and their derivations shall have the 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.
An accessory building, facility, or structure serving or being used
in conjunction with a wireless telecommunications facility and located on
the same property or lot as the wireless telecommunications facility, including
but not limited to utility or transmission equipment storage sheds or cabinets
and/or base stations designed and used to shelter equipment and/or to support
personal wireless services. The term "accessory structure" does not include
offices, long-term storage of vehicles or other equipment storage, or broadcast
studios.
A device used to propagate and/or collect electromagnetic waves or
radio frequency signals.
All poles or devices that attach an antenna to a telecommunications
structure, including all connection cables.
Any person submitting an application to the Village for a special
use permit for wireless telecommunications facilities.
The process by which an applicant submits a request to the Village
Board for a special use permit for a wireless telecommunications facility.
The application shall include all necessary, appropriate, and written documentation,
verbal statements, and representations, in whatever form or forum, submitted
or made by an applicant to the Village Board concerning such request.
The construction of facilities to house or support a wireless telecommunications
facility so that the towers and/or antennas blend readily with the landscape,
neighborhood, and adjacent architectural features.
The use of the same telecommunications structure to carry two or
more antennas for the provision of wireless services by two or more persons
or entities.
A tower design intended to enhance compatibility with nearby uses
and property.
An application that contains all information and/or data necessary
to enable the Village 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 environmental assessment form approved by the New York State
Department of Environmental Conservation.
Any person licensed by the State of New York to practice engineering
services.
The Federal Aviation Administration or its duly designated and authorized
successor agency.
The Federal Communications Commission or its duly designated and
authorized successor agency.
A self-supporting monopole structure specifically designed for the
purpose of supporting and enclosing antennas used in connection with a wireless
telecommunications facility.
When referring to a freestanding tower, the distance measured from
the preexisting grade level to the highest point on the tower or structure,
even if said highest point is an antenna.
Any property included in the New York State Register of Historic
Places or the National Register of Historic Places.
Nonionizing electromagnetic radiation.
Any person with fee title or a long-term (exceeding 10 years) leasehold
to any parcel of land within the Village who desires to develop or construct,
build, modify or erect a tower upon such parcel of land.
Any natural person, firm, partnership, association, corporation,
company or other legal entity, private or public, whether for profit or not
for profit.
Commercial mobile services, unlicensed wireless services, and common
carrier wireless exchange access services as defined by 47 U.S.C. § 332.
The property, including all buildings and structures located thereon,
on which a wireless telecommunications facility is, or is proposed to be,
located.
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 Board.
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 as described in the definition of "wireless telecommunications
facility."
In relation to all aspects and components of this chapter, fewer
than 90 days.
Freestanding tower.
The duly elected Village Board of Trustees of the Village of Sagaponack.
A structure, facility or location designed or intended to be used
to transmit and/or receive radio, television, cellular, paging, 911 data,
or personal telecommunications services, commercial satellite services, or
microwave telecommunications signals. Not included are services used exclusively
for fire, police and other dispatch telecommunications or exclusively for
private radio and television reception and private citizen band, amateur radios
and other similar telecommunications. A wireless telecommunications facility
shall include, without limit, accessory structures and related equipment,
antennas applied to the facade of a building or roof-mounted antennas, antenna
attachments, freestanding towers, monopoles and similar structures, and all
other accessory structures and related equipment.
A.
Notwithstanding any other provision of the Code of Village
of Sagaponack (the "Code"), no person shall build, erect, construct or use
any wireless telecommunications facility upon any parcel of land within any
zoning district within the Village unless a special use permit shall have
been issued by the Village.
B.
Notwithstanding any other provision of the Code, no wireless
telecommunications facility shall hereafter be used, erected, changed, altered,
or modified for use except after obtaining a special use permit in conformity
with this chapter.
A.
The Village Board is hereby authorized to review, analyze,
evaluate and approve, approve with modifications, or disapprove applications
for special use permits pursuant to this chapter, including decisions with
respect to recertifying or not recertifying, or revoking such permits. The
Village Board shall have the authority to impose such reasonable conditions
and restrictions as are directly related to and incidental to the proposed
wireless telecommunications facility.
B.
The Village Board shall review, analyze, evaluate and
make decisions with respect to granting or revoking special use permits for
wireless telecommunications facilities. The Village Board may, at its discretion,
delegate or designate other official agencies of the Village to accept, review,
analyze, evaluate and make recommendations to the Village Board with respect
to the granting or not granting, recertifying or not recertifying, or revoking
of special use permits for wireless telecommunications facilities.
C.
A special use permit issued by the Village Board shall
be effective for a period of three years, which shall be renewable thereafter
upon reapplication by the applicant and the payment of the required fee.
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.
C.
An application for a special use permit for a wireless
telecommunications facility 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 Village Board, any false or misleading statement
in the application may subject the applicant to denial of the application.
D.
Applications not meeting the requirements stated herein,
or which are otherwise incomplete, may be rejected by the Village Board.
E.
The applicant shall include a statement, in writing,
that:
(1)
The applicant's proposed wireless telecommunications
facility shall be maintained in a safe manner and in compliance with all conditions
of the special use permit, without exception, unless specifically granted
relief by the Village 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)
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.
All applications for the construction or installation
of or the modification of an existing structure for use as a new wireless
telecommunications facility shall be accompanied by a facilities engineering
report containing the information hereinafter set forth. The report shall
be signed by a licensed professional engineer registered in New York State.
Where this section calls for certification, such certification shall be by
a qualified New York State licensed professional engineer acceptable to the
Village Board, 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)
The name, address, and telephone number of the person
preparing the report.
(3)
The name, address, and telephone number of the property
owner, lessee, operator and applicant, including the legal basis for the applicant's
authority.
(4)
The legal description, postal address, and tax map designation
of the property.
(5)
The zoning district in which the property is situated.
(6)
The size of the property stated both in square feet and
lot line dimensions.
(7)
A survey of the property indicating the dimensions of
the property, the location and height of all structures, the location, size
and height of all proposed and existing towers, antennas, and accessory structures,
and the type, size and location of all proposed and existing landscaping and
fencing.
(8)
The 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.
(9)
The location of all 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.
(10)
The names, addresses, and telephone numbers of all owners
of other freestanding towers and wireless telecommunications facilities located
within a ten-mile radius of the proposed wireless telecommunications facility,
including Village-owned property. The address and location of each such freestanding
tower or wireless telecommunications facility shall be indicated.
(11)
The number, type and design of the wireless telecommunications
facility's proposed antenna(s) and the basis for the calculations of the wireless
telecommunications facility's capacity to accommodate multiple users.
(12)
The make, model and manufacturer of the wireless telecommunications
facility and antenna(s).
(13)
A description of the proposed wireless telecommunications
facility and antenna(s) and all related fixtures, structures, appurtenances
and apparatus, including height above preexisting grade, materials, color
and lighting.
(14)
The frequency, modulation and class of service of radio
or other transmitting equipment.
(15)
The transmission and maximum effective radiated power
of the antenna(s).
(16)
The direction of maximum lobes and associated radiation
of the antenna(s).
(17)
A description of the design plan proposed by the applicant.
The applicant must identify its utilization of the most recent technological
design, including microcell design, as part of the design plan. The applicant
must demonstrate the need for a wireless telecommunications facility to accomplish
the provision of the applicant's telecommunications services.
(18)
The applicant's proposed wireless facility maintenance
and inspection procedures and related system of records.
(19)
Certification, including such documentation as the Village
Board shall require, that NIER levels at the proposed site are within the
threshold levels adopted by the FCC.
(20)
A certification that the construction and placement of
the wireless telecommunications facility and the proposed antenna(s) will
not interfere with public safety communications, the usual and customary transmission
or reception of radio, television, or other communications services enjoyed
by adjacent residential and nonresidential properties, or other existing telecommunications
devices.
(21)
A certification that the proposed wireless telecommunications
facility can be shared by the Village and any fire department, police department,
ambulance squad or any other municipal or similar agency for the purpose of
transmitting public safety communications.
(22)
A copy of the FCC license applicable for the use of the
wireless telecommunications facility.
(23)
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.
(24)
Propagation studies of the proposed site and all adjoining
proposed or in-service or existing sites.
(25)
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 wireless telecommunications facility
that it constructs.
(26)
Certification that the wireless telecommunications facility,
foundation and attachments are designed and will be constructed "as built"
to meet all local, county, state and federal structural requirements for loads,
including wind and ice loads. If the wireless telecommunications facility
is subsequently approved and constructed, similar "as-built" certification
indicating that the wireless telecommunications facility has been constructed
in accordance with all standards shall be furnished prior to the Village issuance
of a special use permit.
(27)
An affidavit attesting to the fact that the applicant
made diligent, but unsuccessful, efforts to obtain permission to install or
collocate the applicant's wireless telecommunications facility on freestanding
towers or other existing structures located within a ten-mile radius (or less
if need can be established) of the proposed wireless telecommunications facility.
Such an affidavit shall not be required if, at the time the completed action
is submitted, there is no freestanding tower located within the Village.
(28)
Written technical evidence from an engineer that the
proposed wireless telecommunications facility cannot be installed or collocated
on a freestanding tower located within a ten-mile radius (or less if need
can be established) of the proposed wireless telecommunications facility.
(29)
Certification that the proposed site of the wireless
telecommunications facility does not pose a risk of explosion, fire, or other
danger to life or property due to its proximity to volatile, flammable, explosive,
or hazardous materials such as LP gas, propane, gasoline, natural gas, or
corrosive or other dangerous chemicals.
G.
In the case of a new wireless telecommunications facility,
the applicant shall be required to submit a written report demonstrating its
efforts to secure municipal use or shared use of existing wireless telecommunications
facilities. Copies of written requests and responses for shared use shall
be provided to the Village Board.
H.
After construction and prior to receiving a special use
permit, the applicant shall furnish written 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.
I.
The applicant shall submit a completed long-form EAF
and a completed visual EAF addendum. Based on the results of the visual EAF
addendum, the Village Board may require submission of a more detailed visual
analysis. Applicants are encouraged to seek preapplication meetings with the
Village Board to address the scope of the required visual assessment.
J.
A visual impact assessment which shall 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 both inside and outside of the Village to be determined
by the Village Board, including but not limited to major roads, county and
local parks, other public lands, historic districts, preserves and historic
sites normally open to the public, and from any other location where the wireless
telecommunications facility is visible to a large number of visitors, travelers,
or residents. The Village may provide guidance concerning the appropriate
key sites at a preapplication meeting.
(3)
An assessment of the visual impact of the facility base
and accessory structures from abutting and adjacent properties and streets.
(4)
Color photo simulations showing the proposed site of
the wireless telecommunications facility with a photo-realistic representation
of the proposed wireless telecommunications facility as it would appear viewed
from the closest residential property and from adjacent roadways.
K.
The applicant shall, in a manner approved by the Village
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 related facilities and structures.
L.
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 Village Board may waive or vary the requirements of underground
installation of utilities whenever, in the opinion of the Village 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.
M.
A demonstration that the wireless telecommunications
facility will be sited so as to have the least adverse visual effect on the
environment and its character, on existing vegetation, and the residences
in the area of the wireless telecommunications facility site.
N.
Both the wireless telecommunications facility and any
and all accessory or associated facilities shall maximize the use of building
materials, colors and textures designed to blend with the structure to which
it may be affixed and with the natural surroundings.
O.
Access and parking for vehicles shall be provided to
assure adequate emergency and service access. Maximum use of existing roads,
whether public or private, shall be made to the extent practicable. Road construction
shall at all times minimize ground disturbance and vegetation cutting. Road
grades shall closely follow natural contours to assure minimal visual disturbance
and reduce soil erosion potential.
P.
The applicant shall submit 10 copies of the completed
application and such additional copies as may be determined at the preapplication
meeting. A copy of the application shall be provided to the legislative body
of all adjacent municipalities and to the Suffolk County Planning Commission.
The responsibility of providing such notification shall be borne by the applicant,
who shall file an affidavit of compliance with the Village.
Q.
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 four additional commercial applications,
e.g., future collocations. The scope of this examination shall be determined
by the Village Board. The wireless telecommunications facility shall be structurally
designed to accommodate at least four additional antenna arrays equal to those
of the applicant and located as close to the applicant's antenna as possible
without causing interference. This requirement may be waived, provided that
the applicant, in writing, demonstrates that the provision of future shared
usage of the wireless telecommunications facility is not technologically feasible
or is commercially impracticable and creates an unnecessary and unreasonable
burden, based upon:
(1)
The number of FCC licenses foreseeably 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 towers.
R.
Unless waived by the Village 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, 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 Board. Costs of the Village's
planning, engineering and environmental consultants to prepare for and attend
the preapplication meeting shall be borne by the applicant.
S.
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.
T.
Any and all representations made by the applicant to
the Village Board, on the record, during the application process, whether
written or verbal, shall be deemed a part of the application and may be relied
upon in good faith by the Village Board.
A.
Location priorities.
(1)
Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities in
accordance with the following priorities, No. 1 being the highest priority
and No. 5 being the lowest priority:
|
Priority
Ranking
|
Location
| |
|---|---|---|
|
1
|
Collocation on an existing freestanding tower
| |
|
2
|
On an existing tall structure that could be used for a wireless telecommunications
facility
| |
|
3
|
On municipal or public property
| |
|
4
|
On a lot that consists of 20 or more acres
| |
|
5
|
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 a special use 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 collocation as an option, and, if such option is
not proposed, the applicant must explain why collocation is commercially or
otherwise impracticable. Agreements between providers limiting or prohibiting
collocation shall not be a valid basis for any claim of commercial impracticability
or hardship.
(4)
Notwithstanding the above, the Village Board may approve
any site located within an area in the above list of priorities, provided
that the Village 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 Village
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 use or construction of a wireless telecommunications
facility which is contrary to an already stated purpose of a specific zoning
or land use designation.
(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)
Conflicts with the provisions of this chapter.
E.
The minimum distance between wireless telecommunications
facilities shall be five miles.
F.
No wireless telecommunications facility shall be located
within 500 feet of a historic place.
A.
Location of antennas on preexisting structures shall
be considered and preferred. Shared use of existing towers shall be preferred
by the Village, as opposed to the proposed construction of any new structure.
Where such shared use is unavailable, the applicant shall submit a comprehensive
report which lists an inventory of existing towers and wireless telecommunications
facilities within 10 miles of any proposed new tower site, unless the applicant
can show that some other distance is more reasonable, and outlining opportunities
for shared use of existing facilities and the use of other preexisting structures
as a preferred alternative to new construction. Such a comprehensive report
is not required if, at the time the completed application is submitted, there
is no freestanding tower located within the Village.
B.
An applicant intending to share use of an existing tower
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 tower does not increase the height of the tower, the Village Board
shall waive such requirements of the application required by this chapter
as may be for good cause shown.
D.
Such shared use shall consist only of the minimum antenna
array technologically required to provide service within the Village unless
good cause is shown.
E.
An application for a wireless telecommunications facility
shall not be approved unless the Village Board finds that the antenna planned
for the proposed wireless telecommunications facility cannot be accommodated
on an existing or approved tower or wireless telecommunications facility within
a ten-mile radius of the proposed wireless telecommunications facility due
to one or more of the following reasons:
(1)
Inability to provide service.
(2)
The antenna would exceed the structural capacity of the
existing or approved tower as documented by a qualified professional engineer,
and the existing or approved tower or wireless telecommunications facility
cannot be reinforced, modified, or replaced to accommodate the planned or
equivalent antenna at a reasonable cost.
(3)
The antenna would cause interference materially impacting
the usability of other existing or planned antenna at the tower or wireless
telecommunications facility as documented by a qualified professional engineer
and interference cannot be prevented at a reasonable cost.
(4)
Existing or approved towers and wireless telecommunications
facilities within the ten-mile radius cannot accommodate the antenna at a
height necessary to function reasonably as documented by a qualified professional
engineer.
(5)
Other demonstrable reasons that make it unacceptable
to locate the antenna upon an existing or approved tower or wireless telecommunications
facility.
F.
Any proposed tower shall be designed, structurally, electrically,
and in all respects, to accommodate both the applicant's antennas and comparable
antennas for at least five additional users if the tower is over 80 feet in
height or for at least two additional users if the tower is over 60 feet in
height. Towers must be designed to allow for future rearrangement of antennas
upon the tower and to accept antennas mounted at varying heights.
G.
The applicant shall submit to the Village Board a letter
of intent committing the applicant and the owner of the property, and their
respective successors in interest, to negotiate in good faith for shared use
of the proposed tower by other personal wireless service providers in the
future. The issuance of a special use permit (assuming the wireless telecommunications
facility is approved according to this section) shall commit the new tower
owner, the operator of the wireless telecommunications facility, and their
respective successors in interest, to:
(1)
Respond in a timely, comprehensive manner to a request
for information from a potential shared-use applicant.
(2)
Negotiate in good faith concerning future requests for
shared use of the new tower by other personal wireless service providers.
(3)
Allow shared use of the new tower if another personal
wireless service provider agrees in writing to pay charges.
(4)
Make no more than a reasonable charge for shared use,
based on generally accepted accounting principles. The charge may include,
but is not limited to, a pro rata share of the cost of site selection, planning,
project administration, land costs, site design, construction and maintenance
financing, return on equity, and depreciation, and all of the costs of adapting
the tower or equipment to accommodate a shared user without causing electromagnetic
interference.
H.
If the application is granted, the applicant shall submit
to the Village a covenant and restriction, in recordable form, containing
the above restrictions and representations. The declaration of covenants and
restrictions shall be in recordable form to be reviewed and approved as to
form by the Village Attorney and as to content by the Village Board. The covenants
and restrictions shall run with the land and be binding upon the applicant,
its successors and/or assigns.
A.
The applicant must submit documentation justifying to
the Village Board the total height of any wireless telecommunications facility
and/or antenna and the basis therefor. Such justification shall be to provide
service within the Village, to the extent practicable, unless good cause is
shown.
B.
Wireless telecommunications facilities shall be no higher
than the minimum height necessary. Unless waived by the Village Board upon
good cause shown, the maximum height shall be 100 feet.
C.
The maximum height of any wireless telecommunications
facility shall not exceed that which shall permit operation without artificial
lighting of any kind, except emergency lighting for safety purposes, in accordance
with municipal, county, state and/or federal laws and/or regulations.
A.
The use of guyed towers is prohibited. Freestanding towers
must be self-supporting without the use of wires, cables, beams or other means.
The design should utilize a monopole configuration. Permanent platforms or
structures exclusive of antennas that serve to increase off-site visibility
are prohibited.
B.
No new tower shall be built, constructed, or erected
in the Village unless the tower is capable of supporting another person's
operating wireless telecommunications facility comparable in weight, size,
and surface area to the wireless telecommunications facility installed by
the applicant on the tower within six months of the completion of the tower
construction.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.
Towers, accessory structures, antennas, and antenna attachments
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
Village Board, and shall be maintained in accordance with the requirements
of this chapter.
C.
If lighting is required, the applicant shall provide
a detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations and an artist's
rendering or other visual representation showing the effect of light emanating
from the site on neighboring habitable structures within 1,000 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 accessory structures 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 shall 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, or antenna towers, unless required by law. Signs, including their
location, shall be approved by the Village Board.
A.
All proposed towers, antennas, and associated equipment
shall be set back from abutting parcels, recorded rights-of-way and road and
street lines a distance equal to or greater than three times the existing
principal structure setback requirements of the underlying zoning district,
a distance sufficient to substantially contain on site all icefall or debris
from a tower or tower failure, or from an antenna or antenna attachment failure,
and to preserve the privacy and use of any adjoining properties.
B.
Accessory structures shall be located so as to comply
with the minimum setback requirements for the property on which they are situated.
C.
Setback requirements for towers shall be measured from
the base of the tower to the property line of the parcel of land on which
it is located.
D.
Setback requirements may be modified when such modification
will permit placement of a tower or antenna in a location which will reduce
the visual impact.
E.
The setback of a tower or antenna may be reduced in the
sole discretion of the Village Board to allow the integration of a tower or
antenna into an existing or proposed structure, such as a light pole, power
line, or similar structure.
Antennas, antenna attachments, towers and accessory structures shall
be designed by use of camouflaging and compatible design to facilitate their
blending into the surrounding environment through the use of color and camouflaging
architectural treatment, except in instances where the color is indicated
by federal or state authorities such as the FAA. Every antenna, antenna attachment,
tower and accessory structure shall be of neutral colors that are harmonious
with, and that blend with, the natural features, buildings and structures
surrounding such towers, antenna, antenna attachments and structures; provided,
however, that directional or panel antennas and omnidirectional or whip antennas
located on an existing structure shall be of colors that match, and cause
the antenna to blend with, the exterior of the building. Accessory structures
will be designed to be architecturally compatible with principal structures
on the site.
All landscaping and buffer areas on a parcel of land containing towers
or wireless telecommunications facilities shall be in accordance with the
applicable landscaping and buffer requirements in the zoning district where
the tower or wireless telecommunications facilities are located. The Village
Board may require landscaping or buffer areas in excess of the requirements
in the Village Code in order to enhance compatibility with adjacent land uses.
Landscaping shall be installed on the outside of any fencing. Existing on-site
vegetation shall be preserved to the maximum extent practicable. The base
of the tower and any accessory structures shall be landscaped.
Any antennas which are not attached to a tower may be permitted on any
existing structure, except an historic place. The owner of such a structure
shall, by written certification to the Village Board, establish the following
at the time plans are submitted for a special use permit:
A.
The antenna shall not exceed a height of more than 15
feet from the highest point of the roof of the existing structure.
B.
Any antenna and antenna attachments located above the
primary roof of the structure shall be set back one foot from the edge of
the primary roof for each one foot in height above the primary roof of the
antenna. This setback requirement shall not apply to antennas and their antenna
attachments located above the primary roof of the structure if such antennas
are appropriately screened from view through the use of panels, walls, fences,
or other screening techniques approved by the Village Board. Subject to approval
by the Village Board, setback requirements shall not apply to compatible design
antennas which are mounted to the exterior of an existing structure below
the primary roof but which do not protrude more than 18 inches from the side
of such structure.
A.
The Village Board may hire any planning, engineering
and/or environmental consultant and/or expert necessary to assist the Village
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 consultants and expert
evaluation provided to the Village in connection with the review of any application.
The initial deposit shall be $7,500. 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 more frequently than monthly for its services in reviewing
the application and performing its duties. If at any time during the review
process this escrow account has a balance less than $2,500, the applicant
shall immediately, upon notification by the Village, replenish said escrow
account so that it has a balance of at least $5,000. Such additional escrow
funds shall be deposited with the Village before any further action or consideration
is taken on the application. In the event that the amount held in escrow by
the Village is more than the amount of the actual billing or invoicing at
the conclusion of the review process, 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 Village Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as reasonably required and requested by the Village, shall be paid by the applicant.
A.
Prior to the approval of any application for a special
use permit for a wireless telecommunications facility, a public hearing shall
be held by the Village Board, notices of which shall be published in the official
newspaper of the Village no less than 10 calendar days prior to the scheduled
date of the public hearing.
B.
In order that nearby landowners are provided notice of
the hearing, the applicant, at least three weeks prior to the date of said
public hearing, shall provide the names and addresses of all landowners whose
property is located within 1,000 feet of any property line of the lot on which
the new wireless telecommunications facility is proposed to be located. The
applicant shall send notice of the public hearing to all such landowners via
certified or registered mail, return receipt requested, at least 10 days prior
to the scheduled date of the public hearing and shall submit to the Village
Board at the public hearing proof of mailing of the notice of public hearing.
A.
The Village Board will undertake a review of an application
pursuant to this chapter in a timely fashion, consistent with its responsibilities
with the State Environmental Quality Review Act (SEQRA),[1] 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.
[1]
Editor's Note: See Art. 8 of the Environmental Conservation Law.
B.
The Village Board shall be the lead agency pursuant to
the SEQRA. In addition, the Village Board shall review the application pursuant
to its site plan review authority, including any environmental criteria or
considerations contained therein.
C.
The Village Board may refer any application or part thereof
to any other agency or committee for comments and nonbinding recommendations.
D.
The Village Board may require an applicant to supplement
any information that the Village Board considers inadequate or that the applicant
has failed to supply. The Village Board may deny an application on the basis
that the applicant has not satisfactorily supplied the information required
in this subsection.
E.
After the public hearing and after formally considering
the application, the Village Board may approve and issue or deny a special
use permit. Its decision shall be in writing and shall be supported by substantial
evidence contained in a written record. The burden of proof for the grant
of the permit shall always be upon the applicant.
F.
If the Village 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.
G.
Except for necessary building permits, and subsequent
certificates of compliance, once a special use permit has been granted hereunder,
no additional permits or approvals from the Village, such as further site
plan or zoning approvals, shall be required by the Village for the wireless
telecommunications facility covered by the special use permit.
H.
If the Village Board denies the special use permit for
a wireless telecommunications facility, the applicant shall be notified of
such denial in writing within 10 calendar days of the Village Board's action.
A.
At any time between 12 months and six months prior to
the three-year anniversary date after the effective date of the special use
permit and all subsequent third anniversaries of the effective date of the
original special use permit for a wireless telecommunications facility, the
holder of a special use permit for such wireless telecommunications facility
shall submit a signed written request to the Village Board 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, or otherwise modified since the issuance of
the special use permit and, if so, in what manner;
(5)
If the wireless telecommunications facility has been
moved, relocated, rebuilt, or otherwise modified, then whether the Village
Board approved such action, and under what terms and conditions, and whether
those terms and conditions were complied with;
(6)
Any requests for waivers or relief of any kind whatsoever
from the requirements of this chapter 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; and
(8)
Recertification that the wireless telecommunications
facility is designed and constructed ("as built") and continues to meet all
local, county, state and federal structural requirements for loads, including
wind and ice loads. Such recertification shall be by a qualified New York
State licensed professional engineer acceptable to the Village, the cost of
which shall be borne by the applicant.
B.
If, after such review, the Village Board determines that
the permitted wireless telecommunications facility is in compliance with the
special use permit and all applicable statutes, laws, local laws, ordinances,
codes, rules and regulations, then the Village 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 applicable statutes, laws, local laws, ordinances, codes, rules
and regulations. If, after review, the Village Board determines that the permitted
wireless telecommunications facility is not in compliance with the special
use permit and all applicable statutes, local laws, ordinances, codes, rules
and regulations, then the Village Board may refuse to issue a recertification
special use permit for the wireless telecommunications facility, and in such
event, such wireless telecommunications facility shall not be used after the
date that the applicant receives written notice of such decision by the Village
Board. Any such decision shall be in writing and supported by substantial
evidence contained in a written record.
C.
If the applicant has submitted all of the information requested by the Village Board and required by this chapter and if the Village Board does not complete its review, as noted in Subsection B of this section, prior to the three-year anniversary date of the special use permit, or subsequent third year 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 Village 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, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the third anniversary of the original granting of the special use permit, or subsequent third year anniversaries, unless the holder of the special use permit adequately demonstrates to the Village Board that extenuating circumstances prevented a timely recertification request. If the Village Board agrees that there were legitimate extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
The extent and parameters of a special use permit for a wireless telecommunications
facility shall be as follows:
A.
Such special use permit shall be nonexclusive.
B.
Such special use permit shall not be assigned, transferred
or conveyed without the express prior written consent of the Village Board,
and such consent shall not be unreasonably withheld.
C.
Such special use permit may, following a hearing upon
due prior notice to the applicant, be revoked, canceled, or terminated for
a violation of the conditions and provisions of the special use permit for
the wireless telecommunications facility, or for a material violation of this
chapter, after prior written notice to the applicant and the holder of the
special use permit.
D.
A holder of a special use permit granted under this chapter
shall obtain, at its own expense, all permits and licenses required by applicable
law, rule 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.
E.
Applicants shall submit information on the proposed power
density of their proposed wireless telecommunications facility and demonstrate
how this meets FCC standards. Applicants shall submit evidence of compliance
with FCC standards on a yearly basis to the Village. If new, more restrictive
standards are adopted, the antennas shall be made to comply, or continued
operations may be restricted by the Village Board. The cost of verification
of compliance shall be borne by the owner and operator of the tower.
F.
All wireless telecommunications facilities shall be certified
by an engineer to be structurally sound and in conformance with the requirements
of the Building Code and all other construction standards set forth by the
Village's Code and federal and state law. Such certification shall be submitted
with an application pursuant to this chapter and every three years thereafter.
The owner of the wireless telecommunications facility may be required by the
Village to submit more frequent certifications should there be reason to believe
that the structural and electrical integrity of the wireless telecommunications
facility is jeopardized.
G.
Owners of a wireless telecommunications facility shall
at all times employ ordinary and reasonable care and shall install and maintain
in use nothing less than commonly accepted methods and devices for preventing
failures and accidents which are likely to cause damage, injuries, or nuisances
to the public.
H.
Owners of a wireless telecommunications facility shall
install and maintain towers, antennas, antenna attachments, accessory structures,
wires, cables, fixtures and all other equipment of the wireless telecommunications
facility in substantial compliance with the requirements of the National Electric
Safety Code and all FCC, state, and local regulations and in such manner that
will not interfere with the use of other property.
I.
All wireless telecommunications facilities shall at all
times be kept and maintained in good condition, order, and repair so that
the same shall not menace or endanger the life or property of any person.
J.
All maintenance or construction of wireless telecommunications
facilities shall be performed by licensed maintenance and construction personnel.
K.
All wireless telecommunications facilities shall maintain
compliance with current RF emission standards of the FCC.
L.
In the event that the use of a wireless telecommunications
facility is discontinued by the wireless telecommunications facility owner,
the wireless telecommunications facility owner shall provide written notice
to the Village of its intent to discontinue use and the date when the use
shall be discontinued.
A.
At the time that a person submits an application for
a special use permit for a wireless telecommunications facility, such person
shall pay a nonrefundable application fee of $2,000 to the Village. If the
application is for a special use permit for collocating on an existing tower
where no increase in height of the tower is required, the application fee
shall be $1,000.
B.
No application fee is required in order to recertify a special use permit for a wireless telecommunications facility, unless there has been a modification of the wireless telecommunications facility since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the application fee provided in Subsection A shall apply.
The applicant of any proposed wireless telecommunications facility property
site shall, at its cost and expense, be required to execute and file with
the Village a bond, or other form of security acceptable to the Village as
to type of security and the form and manner of execution, in an amount of
at least $75,000 and with such sureties as are deemed sufficient by the Village
Board to assure the faithful performance of the terms and conditions of this
chapter and the conditions of any special use permit issued pursuant to this
chapter. The full amount of the bond or security shall remain in full force
and effect throughout the term of the special use permit and/or until the
removal of the wireless telecommunications facility 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 Village Board to revoke the special use permit
after prior written notice to the applicant and holder of the permit and after
a hearing upon due prior notice to the applicant and holder of the special
use permit.
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 wireless telecommunications facilities place, construct
and maintain such facilities, including towers, antennas, antenna attachments
and accessory structures, in accordance with all applicable technical, safety,
fire, building, and zoning codes, laws, ordinances and regulations and other
applicable requirements, the Village shall have authority to enter onto the
property upon which the wireless telecommunications facility is located to
inspect all facets of said permit holder's, renter's, lessee's, licensee's,
or owner's placement, construction, modification and maintenance of such facilities,
including but not limited to towers, antennas, antenna attachments, accessory
structures, buildings or other structures constructed or located on the permitted
site.
B.
The Village reserves the right to conduct such inspections
at any time, upon reasonable notice to the property owner and operator of
the wireless telecommunications facility. All expenses related to such inspections
by the Village shall be borne by the owner of the wireless telecommunications
facility.
The holder of the special use permit shall annually certify in writing
to the Village that NIER levels at the site are within the threshold levels
adopted by the FCC. The certifying engineer must be licensed to practice engineering
in the State of New York.
A.
A holder of a special use permit for a wireless telecommunications
facility shall secure and at all times maintain public liability insurance
for personal injuries, death and property damage, and umbrella insurance coverage,
for the duration of the special use permit in amounts as set forth below:
B.
The commercial general liability insurance policy shall
specifically include the Village as an additional named insured.
C.
The insurance policies shall be issued by an agent or
representative of an insurance company licensed to do business in the State
of New York and with a Best's rating of at least A.
D.
The insurance policies shall contain an endorsement obligating
the insurance company to furnish the Village with at least 30 days' prior
written notice in advance of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall
be delivered to the 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, but in no case later than 15 days after the grant of
the special use permit, the holder of the special use permit shall deliver
to the Village a copy of each of the policies or certificates representing
the insurance in the required amounts.
A.
Any application for a wireless telecommunications facility
that is proposed for Village property shall contain a provision with respect
to indemnification. Such provision shall require the applicant, to the extent
permitted by the law, to at all times defend, indemnify, protect, save, hold
harmless, and exempt the Village and its officers, boards, employees, committee
members, attorneys, agents, and consultants from any and all penalties, damages,
costs, or charges arising out of any and all claims, suits, demands, causes
of action, or award of damages, whether compensatory or punitive, or expenses
arising therefrom, either at law or in equity, which might arise out of or
are caused by the placement, construction, erection, modification, location,
products, performance, use, operation, maintenance, repair, installation,
replacement, removal, or restoration of said wireless telecommunications facility.
With respect to the penalties, damages or charges referenced herein, reasonable
attorney fees, consultant fees, and expert witness fees are included in those
costs that are recoverable by the Village.
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 chapter or of
the special use permit, then the Village Board shall notify the holder of
the special use permit in writing of such violation. Such notice shall specify
the nature of the violation or noncompliance and that the violations must
be corrected within seven days of the date of the postmark of the notice,
or of the date of personal service of the notice, whichever is earlier. Notwithstanding
anything to the contrary in this subsection or any other section of this chapter,
if the violation causes, creates or presents an imminent danger or threat
to the health or safety of lives or property, the Village Board 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 chapter, 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 Village Board may revoke such special use permit for the 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 Village 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 days or a total of 180 days in any three-hundred-sixty-five-day
period, except for periods caused by force majeure or acts of God, in which
case, repair or removal shall commence within 90 days.
(2)
A permitted wireless telecommunications facility falls
into such a state of disrepair, as determined by the Village Board, that it
creates a health or safety hazard.
(3)
A wireless telecommunications facility has been located,
constructed, or modified without first obtaining, or in a manner not authorized
by, the required special use permit, or any other necessary authorization.
B.
If the Village Board makes such a determination as noted in Subsection A of this section, then the Village Board shall notify the holder of the special use permit for the wireless telecommunications facility and the owner of the property within 48 hours that said wireless telecommunications facility is to be removed. The Village Board may approve an interim, temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facility.
C.
The holder of the special use permit, or its successors
or assigns, or the property owner, 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 Village Board. However,
if the owner of the property upon which the wireless telecommunications facility
is located wishes to retain any access roadway to the wireless telecommunications
facility, the owner may do so with the approval of the Village 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 and the property owner have
received notice, then the Village Board may order officials or representatives
of the Village to remove the wireless telecommunications facility at the sole
expense of the owner and/or the special use permit holder.
E.
If the Village removes, or causes to be removed, the
wireless telecommunications facility and the owner or operator of the wireless
telecommunications facility or the property owner does not claim and remove
it from the site to a lawful location within 10 days, then the Village may
take steps to declare the wireless telecommunications facility abandoned and
sell it and its components.
F.
Notwithstanding anything in this section to the contrary,
the Village Board may approve a temporary use permit/agreement 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 special
use permit, subject to the approval of the Village Board, and upon such approval
an agreement to such plan shall be executed by the holder of the special use
permit and the Village. If such a plan is not developed, approved and executed
within the ninety-day time period, then the Village may take possession of
and dispose of the affected wireless telecommunications facility in the manner
provided in this section.
Any applicant desiring relief or exemption from any aspect or requirement
of this chapter may request such from the Village Board at a preapplication
meeting, provided that the relief or exemption is contained in the original
application for either a special use permit or, in the case of an existing
or previously granted special use permit, a request for modification of its
wireless telecommunications facility. Such relief may be temporary or permanent;
partial or complete, at the sole discretion of the Village Board. However,
the burden of proving the need for the requested relief or exemption is solely
on the applicant to prove to the satisfaction of the Village Board. The applicant
shall bear all costs of the Village Board or the Village in considering the
request, and the relief shall not be transferable to a new or different holder
of the permit or owner of the wireless telecommunications facility without
the specific written permission of the Village Board. No such relief or exemption
shall be approved unless the applicant demonstrates by clear and convincing
evidence that, if granted, the relief or exemption will have no significant
affect on the health, safety and welfare of the Village, its residents and
other service providers, and the Village Board must determine that the grant
of relief or exemption does not conflict with and/or violate the intent of
this chapter. Under no circumstances are the provisions for public hearing
contained in this chapter to be waived.
A.
To the extent that the holder of a special use permit
for a wireless telecommunications facility has not received relief or is otherwise
exempt from appropriate state and/or federal agency rules or regulations,
then the holder of such a special use permit shall adhere to, and comply with,
all applicable rules, regulations, standards, and provisions of any state
or federal agency, including but not limited to the FAA and the FCC. Specifically
included in this requirement are any rules and regulations regarding height,
lighting, security, and 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 permitted
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 the issuing entity.
Where this chapter differs or conflicts with other laws, rules and regulations,
unless the right to do so is preempted or prohibited by the county, state
or federal government, the more restrictive or protective of the Village and
the public shall apply.
This chapter is enacted pursuant to the Municipal Home Rule Law. This
chapter shall supersede the provisions of Village Law to the extent it is
inconsistent with the same and to the extent permitted by the New York State
Constitution, the Municipal Home Rule Law, or any other applicable statute.
