The Telecommunications Act of 1996 has affirmed the authority
of the Village of Pelham with respect to the placement, construction
and modification of wireless telecommunications facilities. The Village
has received and expects to receive requests to site wireless telecommunications
facilities within its municipal boundaries. It is the intent of the
Village to protect and promote the health, safety and general welfare
of its residents, in a manner consistent with the Telecommunications
Act of 1996, by establishing an orderly process for regulating the
siting of wireless telecommunications facilities while balancing the
need for adequate service levels. The purposes of this chapter, therefore,
are to define the process by which the Village will consider requests
to site wireless telecommunications facilities and to establish standards
for the safe provision of wireless telecommunications facilities within
the Village, consistent with applicable state and federal law, which
will minimize the adverse impact of wireless telecommunications facilities
through proper design, site placement, height limitation and vegetative
screening, and thereby will retain the residential character of the
Village, will promote the safety and welfare of Village residents,
will maintain property values and will encourage the shared use of
wireless telecommunications facilities. In furtherance of these goals,
the Village will give consideration to the Comprehensive Plan, Zoning
Map, existing land uses and environmentally sensitive areas in approving
sites for the location of wireless telecommunications facilities.
This chapter shall be known and cited as the "Wireless Telecommunications
Facilities Siting Law for the Village of Pelham."
As used in this chapter, the following terms shall have the
meanings indicated:
ANTENNA ARRAY
One or more rods, panels, discs, nodes or similar devices
used for the transmission and/or reception of radio frequency signals,
electromagnetic waves or other wireless signals which may include
omnidirectional antennas (whip), directional antennas (panel) and
parabolic antennas (disc).
ATTACHED WIRELESS TELECOMMUNICATIONS FACILITY
An antenna array that is attached to an existing structure
which structure does not have as its primary purpose the provision
of wireless telecommunications services, together with any accompanying
device which attaches the antenna array to the existing structure,
connection cables and any equipment facility which may be located
either inside or outside of the attachment structure.
ATTACHMENT STRUCTURE
The structure to which an attached wireless telecommunications
facility is attached.
BUILDING
A structure constructed or erected on the ground, with a
roof supported by columns or walls. Structures divided by unpierced
masonry division walls extending from the ground through the roof
shall be deemed to be separate buildings.
COLLOCATION
The mounting or installation of an antenna array at an existing
wireless telecommunications facility for the purpose of transmitting
and/or receiving radio frequency signals, electromagnetic waves or
other wireless signals for wireless telecommunications purposes.
EQUIPMENT FACILITY
Any structure, including cabinets, shelters and the build-out
of an existing structure, which is used to contain equipment as part
of a wireless telecommunications facility.
FREESTANDING WIRELESS TELECOMMUNICATIONS FACILITY
An unstaffed facility for the transmission and/or reception
of wireless telecommunications services, usually consisting of one
or more antenna arrays, connection cables, equipment facility, and
a support structure to achieve the necessary elevation. This includes
a wireless tower or base station within the meaning of 47 U.S.C. § 1455(a).
MODIFICATION
A change to a permitted wireless telecommunications facility
that alters the physical appearance or transmission power of the permitted
wireless telecommunications facility, replacement of equipment or
removal of equipment.
MONOPOLE
A single tube structure that is designed and is, or would
be, available for use by utilities, telecommunications service providers,
and cable systems, and has as its sole or primary purpose to support
antennas and their associated facilities.
PERMIT
The approval granted by the Board of Trustees to the applicant
to construct and use wireless telecommunications facilities within
the Village, in accordance with the terms of this chapter.
PERSON
An individual, corporation, trust, partnership, joint-stock
company, association of two or more persons having a joint common
interest or any other entity.
SETBACK
The shortest horizontal distance from a lot line to the part
of a support structure or an equipment facility which is nearest to
the lot line.
STRUCTURE
Anything constructed or erected on or under the ground or
upon another structure or building.
SUPPORT STRUCTURE
Any:
A.
Structure designed and constructed specifically to support an
antenna array, including self-supporting lattice towers, guy-wire
support towers or monopole towers; and
WIRELESS TELECOMMUNICATIONS
The commercial provision of personal wireless service as
defined in the Federal Telecommunications Act of 1996.
UTILITY POLE
A pole that is designed and is, or would be, available for
use by utilities, telecommunications service providers, and cable
systems, but not a structure that has as its sole or primary purpose
to support antennas and their associated facilities.
No person may install a wireless telecommunications facility
without a permit granted by the Board of Trustees. If the wireless
telecommunications facility is proposed to be located in the public
right-of-way or on any other Village property, the facility will also
require a license or franchise granted by the Board of Trustees for
the use of public property.
The following standards will apply to an application for a permit
under this chapter.
A. Necessity
of service. The proposed wireless telecommunications facility must
fill a significant gap in current wireless telecommunications services
in the Village of Pelham. A significant gap may be demonstrated only
by actual in-kind survey data in the area of the proposed installation.
For example, if the significant gap is within a building or buildings,
then the survey data must be measured inside the building or buildings
in the survey area. Aggregated data purchased from a third party is
not sufficient to establish a gap in service.
B. Least
intrusive means. The proposed wireless telecommunications facility
must be the least intrusive means of filling the significant gap in
current wireless telecommunications services in the Village of Pelham.
In determining whether a proposed wireless telecommunications facility
is the least intrusive means of closing a significant gap in service,
the Board of Trustees will consider the feasibility of locating the
proposed facility in the following locations, in the specified order
of priority:
(1) On an existing support structure located on Village property in a
commercially zoned area without increasing the height of the support
structure;
(2) On an attachment structure in a commercially zoned area without increasing
the height of the attachment structure; and
(3) On a property in a commercially zoned area.
C. Operation
and security.
(1) Every wireless telecommunications facility must be designed, constructed,
maintained and operated in a manner that minimizes noise and traffic
to surrounding areas and ensures the security of the facility.
(2) Every wireless telecommunications facility must be protected against
unauthorized access. If the protection is provided by means of a fence
or other enclosure, the design must be approved by the Board of Trustees.
(3) No use ancillary to the wireless telecommunications facility, such
as a business office, maintenance depot or vehicle and equipment storage,
is permitted.
D. Radiofrequency emissions. The proposed wireless telecommunications
facility, considered both individually and in conjunction with other
sources of radiofrequency emissions whose effects are to be considered
in determining compliance with applicable laws and regulations, must
comply with applicable standards for environmental effects of radiofrequency
emissions. When calculating radio frequency emission levels, the applicant
must use the general population standards (as such term is defined
by the Federal Communications Commission) and clearly disclose the
minimum distance upon which the calculations are based and establish
that the distance specified is the closest distance any member of
the public could come to the proposed facility.
E. Collocation and use of existing structures. Collocation is required
unless the applicant demonstrates that reasonable efforts to collocate
have been unsuccessful. The use of a utility pole or an attachment
structure to locate a wireless telecommunications facility is required
unless the applicant demonstrates that no attachment structure is
suitable for the location of the wireless telecommunications facility.
F. New support structure. A new support structure is permissible only
if use of an existing structure is not feasible and a new support
structure is the least intrusive means to fill the significant gap
in current wireless telecommunications service in the Village of Pelham.
Every new support structure must be a utility pole, unless the applicant
demonstrates that the use of a utility pole would be infeasible, in
which case the new support structure must be a monopole, rather than
a self-supporting lattice or guy-wire support tower, unless the applicant
demonstrates that the use of a monopole would be infeasible.
G. Height. The total height of any support structure, attachment structure,
equipment facility and antenna must be the least necessary to fill
the significant gap in current wireless telecommunications service
in the Village of Pelham.
(1) Attached wireless telecommunications facility. The antenna array(s) and attachment device for an attached wireless telecommunications facility may not be higher than the maximum permissible height of a building in the zoning district in which the facility is proposed to be located, without regard to the provisions of §
98-102. An antenna array attached to the side of the attachment structure may not extend above the highest point of the attachment structure.
(2) Freestanding wireless telecommunications facility. The maximum height
of a freestanding wireless telecommunications facility may not be
greater than the maximum height permitted for a building in the zoning
district in which the facility is proposed to be located, when measured
from unimproved ground level to the highest point of the antenna array.
H. Setback standards.
(1) An antenna array for an attached wireless telecommunications facility
is exempt from the setback requirements for the zoning district in
which the attachment structure is located. An antenna array attached
to the side of an attachment structure may extend up to five feet
horizontally from the side of the attachment structure, provided that
the antenna array does not encroach upon an adjoining parcel.
(2) Unless infeasible, a freestanding wireless telecommunications facility
must:
(a)
Comply with the setback requirements applicable to a principal
building in the zoning district in which the facility is located;
and
(b)
Be set back from the property line a sufficient distance:
[1]
That any debris resulting from support structure failure or
ice-fall will be contained on the site; and
[2]
To preserve the privacy of adjoining private and public property.
I. Visual impact. A wireless telecommunications facility shall be sited
to have minimum adverse visual impact on surrounding areas, parks
and roadways.
(1) The antenna array(s) of an attached wireless telecommunications facility
must be of colors that are harmonious with the exterior of the attachment
structure.
(2) The antenna array(s) and support structure of a freestanding wireless
telecommunication facility must be of a neutral color that is harmonious
with the surrounding natural features, buildings and structures.
(3) An equipment facility must be sited to minimize adverse visual impact
on surrounding areas, parks and roadways, even if that requires that
the equipment facility be located completely or partially below grade
or within an existing building or structure. An equipment facility
not located within an existing building or structure must be treated
in an architectural manner compatible with the buildings and structures
in the vicinity using architecture, materials, colors and textures
designed to blend with the surrounding buildings and structures and/or
natural surroundings.
J. Landscaping. Landscaping must be provided for each freestanding wireless
telecommunications facility, sufficient to minimize the visual impact
of the wireless telecommunications facility, and as follows. No additional
landscaping is required for collocation on an existing freestanding
wireless telecommunications facility unless necessary to minimize
the visual impact of the new facility.
(1) The area surrounding the facility must be landscaped and maintained
with paving, trees, shrubs and ground cover consistent with the surrounding
community character, considering the visual impact of the wireless
telecommunications facility in its setting with regard to immediate
proximity of observers and the sight lines from major viewing points.
(2) When a fence is required to secure a wireless telecommunications
facility, the outside of such fencing must be landscaped with trees,
shrubs or climbing material on the fencing satisfactory to the Board
of Trustees.
(3) An existing natural vegetative buffer which meets or exceeds the
above requirements may be retained to meet the landscape requirements
set forth above.
K. Access. The accessway to a wireless telecommunications facility must
provide an adequate turning radius for vehicles servicing the wireless
telecommunications facility to enter and leave the site without reversing,
but is not required to satisfy the standards for width and construction
applicable to a public road.
L. Lighting. No signal lights or illumination is permitted unless required:
(1) By applicable law or regulations; or
(2) By the Board of Trustees for the purpose of maintaining the public
safety.
M. Signage. No signage is permitted unless required:
(1) By applicable law or regulations; or
(2) By the Board of Trustees for the purpose of maintaining the public
safety.
The Board of Trustees may impose such terms and conditions on
a permit under this chapter as may be necessary to compel compliance
with this chapter, including the following:
A. A wireless telecommunications facility must at all times comply with
the applicable individual facility and cumulative standards for environmental
effects of radiofrequency emissions based on general population limits
(and not occupational limits) as such terms are defined by the Federal
Communications Commission and must demonstrate compliance with those
standards upon request. The Board of Trustees may require that the
applicant deposit with the Village, and maintain on deposit throughout
the term of the permit, funds sufficient to reimburse the Village
for the reasonable costs of a regular review by an appropriate expert
of the facility's compliance with these standards.
B. The permit may allow the permit holder to make subsequent modifications
to the wireless telecommunications facility upon notice to the Village
but without further application to the Board of Trustees; but the
specification of such permitted modifications does not relieve the
applicant of its obligation to apply for and obtain permits, authorizations
or inspections required from other Village departments in connection
with the modifications.
C. To the extent that applicable rules, regulations, standards, and
provisions of any state or federal agency, including but not limited
to, the Federal Aviation Administration and the Federal Communications
Commission, and specifically including any rules and regulations regarding
height, lighting, and security are changed and/or are modified during
the duration of a permit for wireless telecommunications facilities,
then the holder of such a permit shall conform the permitted wireless
telecommunications facilities to the applicable changed and/or modified
rule, regulation, standard, or provision within a maximum of 24 months
of the effective date of the applicable changed and/or modified rule,
regulation, standard, or provision, or sooner as may be required by
the issuing entity.
D. The permit must require the applicant to secure and maintain throughout
the duration of the permit public liability insurance for personal
injuries, death and property damage, and umbrella insurance coverage
in accordance with the following provisions:
(1) The policy will provide coverage in the following amounts:
(a)
Commercial general liability insurance covering personal injuries,
death and property damage in the amount of $1,000,000 per occurrence
and $2,000,000 in the aggregate;
(b)
Automobile liability insurance in the amounts of $1,000,000
per occurrence and $2,000,000 in the aggregate; and
(c)
Workers compensation liability and disability insurance in the
amounts required by statute.
(2) The commercial general liability insurance policy shall specifically
include in an endorsement the Village and its officers, boards, employees,
committee members, attorneys, agents and consultants as additional
named insureds.
(3) 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. The insurance policies
shall contain an endorsement obligating the insurer to furnish the
Village with at least 30 days' prior written notice in advance
of the cancellation of the insurance.
(4) Before construction of a permitted wireless telecommunications facility
is initiated, but in no case later than 15 days after the grant of
the permit, the holder of the permit must deliver to the Village a
copy of each of the policies or certificates representing the insurance
in the required amounts.
(5) Renewal or replacement policies or certificates shall be delivered
to the Village at least 15 days before the expiration of the insurance
that such policies are to renew or replace.
E. The applicant, to the greatest extent permitted by the law, will
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 facility, excepting, however, any portion of such claims,
suits, demands, causes of action or award of damages as may be attributable
to the negligent or intentional acts or omissions of the Village,
or its servants or agents. With respect to the penalties, damages
or charges referenced herein, reasonable attorneys' fees, consultants'
fees, and expert witness fees are included in those costs that are
recoverable by the Village.
F. The applicant will provide and maintain throughout the term of the
permit a bond in an amount at least $75,000, in a form acceptable
to the Village Attorney. The bond will be in an amount sufficient
to ensure the safe and timely removal of the wireless telecommunications
facility in case of abandonment, and/or to restore the site to a condition
comparable to that which existed prior to the issuance of the permit.
The bond shall remain in effect throughout the term of the permit
and shall be renewed annually.