[HISTORY: Adopted by the Board of Trustees of the Village of Baxter Estates by L.L. No. 2-2002. Amendments noted where applicable.]
The purpose of this chapter is to establish predictable and balanced regulations for the siting and screening of personal wireless services antennas, towers, and accessory structures in order to accommodate the growth of such systems within 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 reduce the number of towers needed to serve the community by maximizing the use of existing towers and buildings.
Unless otherwise expressly stated, the following words shall, for the purposes of this chapter, have the meanings herein indicated:
- ACCESSORY STRUCTURES
- Accessory buildings and structures, including base stations designed and used to shelter equipment and/or to support personal wireless services. The term “accessory structures” does not include offices, long-term storage of vehicles or other equipment storage, or broadcast studios.
- A device used to transmit and/or receive radio or electromagnetic waves, including but not limited to directional antennas, such as panels and microwave dishes, and omnidirectional antennas, such as whip antennas, as part of, or in conjunction with, a personal wireless services system.
- The Board of Trustees of the Village of Baxter Estates.
- As to small wireless facilities, means mounting or installing
an antenna for a small wireless facility on a pre-existing structure;
and/or modifying an existing structure for the purpose of mounting
or installing an antenna for a small wireless facility on that structure.[Added 3-7-2019 by L.L. No. 3-2019]
- A structure that is used for the provision of personal wireless
service, whether such service is provided on a stand-alone basis or
commingled with other wireless communications services.[Added 3-7-2019 by L.L. No. 3-2019]
- PERSONAL WIRELESS SERVICES (sometimes referred to as “PWS”)
- Commercial mobile services, unlicensed wireless services, and common-carrier wireless exchange access services as defined by Section 704 of the Federal Telecommunications Act.
- SMALL WIRELESS FACILITIES
- Facilities that meet the following criteria:[Added 3-7-2019 by L.L. No. 3-2019]
- A. The facilities:
- (1) Are mounted on structures 50 feet or less in height, including their antennas;
- (2) Are mounted on structures no more than 10% taller than other adjacent structures; or
- (3) Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10%, whichever is greater.
- B. Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume.
- C. The provisions in §§ 159-4 and 159-5 shall not apply, and there shall be no required minimum spacing between structures; however:
- (1) The spacing and location of the structures shall be such as to minimize the aesthetic impact upon nearby residential dwellings, taking into account property lines, driveways, topography, sight lines, water views, and existing landscaping.
- (2) New small wireless facilities shall be placed on existing structures with existing small wireless facilities to the extent feasible, so long as the collocation does not have a material adverse aesthetic impact on nearby residential dwellings from the multiplicity of facilities and associated equipment.
- (3) If such new small wireless facilities are not to be placed on existing structures with existing small wireless facilities, they shall be placed on other existing structures to the extent feasible, so long as the location does not have a material adverse aesthetic impact on nearby residential dwellings.
- D. All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment of the structure, is no more than 28 cubic feet in volume.
- E. The facilities do not require antenna structure registration pursuant to the rules adopted from time to time by the Federal Communications Commission.
- F. The facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards adopted from time to time by the Federal Communications Commission.
- Any ground- or roof-mounted pole, spire, structure, or combination thereof taller than 15 feet, including supporting lines, cables, wires, braces, and masts, built for the purpose of mounting an antenna, meteorological device, or similar apparatus above grade as part of, or in conjunction with, a personal wireless services system.
No antenna or tower shall hereafter be used, erected, changed or altered except after obtaining a special exception permit in conformity with this chapter.
The Board is hereby authorized to review and approve, approve with modifications or disapprove special exception permits pursuant to this chapter. The Board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed antenna, tower, or accessory structures and the protection of the health, safety, and welfare of the Village, including, but not limited to, the aesthetics thereof.
All towers erected, constructed, or located within the Village shall comply with the following requirements:
A proposal for a tower shall not be approved unless the Board finds that the antenna planned for the proposed tower cannot be accommodated on an existing or approved tower or building within a one-mile search radius of the proposed tower due to one or more of the following reasons:
The antenna would exceed the structural capacity of the existing or approved tower or building, as documented by a qualified professional engineer, and the existing or approved tower cannot be reinforced, modified, or replaced to accommodate the planned or equivalent antenna at a reasonable cost.
The antenna would cause interference materially impacting the usability of other existing or planned antennas at the tower or building as documented by a qualified professional engineer, and the interference cannot be prevented at a reasonable cost.
Existing or approved towers and buildings within the search radius cannot accommodate the antenna at a height necessary to function reasonably as documented by a qualified professional engineer.
Other unforeseen reasons that make it unfeasible to locate the antenna upon an existing or approved tower or building.
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. Towers must be designed to allow for future rearrangement of antennas upon the tower and to accept antennas mounted at varying heights.
The applicant shall submit to the Board a letter of intent committing the applicant, and its successors in interest, to negotiate in good faith for shared use of the proposed tower by other PWS providers in the future. The issuance of a permit (assuming the tower is approved according to this chapter) shall commit the new tower owner and its successors in interest to:
Respond in a timely and comprehensive manner to a request for information from a potential shared-use applicant.
Negotiate in good faith concerning future requests for shared use of the new tower by other PWS providers.
Allow shared use of the new tower if another PWS provider agrees in writing to pay charges.
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, Village fees, 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.
In order to keep neighboring municipalities informed, and to facilitate the possibility of directing that an existing tall structure or existing tower in a neighboring municipality be considered for shared use, an applicant shall submit to the Board an affidavit that it has sent by registered or certified mail, return receipt requested, at least 15 days prior to the public hearing, a notification to all of the village clerks of each village, the Town Clerk of the Town of North Hempstead, the fire departments and the water authorities within two miles of the proposed location of the tower. Such notification shall include the exact location of the proposed tower, and a general description of the project, including, but not limited to, the height of the tower and its capacity for future shared use.
Proof of noninterference from antenna. Each application for installation of an antenna shall include either a preliminary or a certified statement that the installation of the antenna, including reception and transmission functions, will not interfere with the radio or television service enjoyed by adjacent residential and nonresidential properties or with public safety telecommunications. In the event only a preliminary statement is submitted with the application, a final certified statement of noninterference shall be provided, subject to the approval of the Village, prior to the issuance of a permit. The statement shall be prepared and certified by a professional engineer.
Antenna safety. Antennas shall be subject to state and federal regulations pertaining to nonionizing radiation and other health hazards related to such facilities. The owner shall submit evidence of compliance with the Federal Communication Commission's standards on a yearly basis. If new, more restrictive standards are adopted, the antennas shall be made to comply therewith or continued operations may be restricted by the Board. The cost of verification of compliance shall be borne by the owner and operator of the tower or, if antennas are affixed to a building, then by the owner and operator of the antennas.
Tower lighting. Towers shall not be illuminated by artificial means and shall not display strobe lights unless such lighting is specifically required by the Federal Aviation Administration or other federal or state authority for a particular tower. When incorporated into the approved design of the tower, and approved by the Board, light fixtures used to illuminate ball fields, parking lots, or similar areas may be attached to the tower.
Tower height limitations. The maximum height of a tower is limited to 50 feet above the ground upon which the antenna is placed. The ground elevation may not be raised to increase the height of the tower. The height limitation may be waived by the Board when the antenna is mounted on an existing building or structure or to accommodate collocation.
Tower building requirements.
The use of guyed towers is prohibited. Towers must be self-supporting without the use of wires, cables, beams, or other means. The design should utilize an open framework or monopole configuration. Permanent platforms or structures, exclusive of antennas, that serve to increase off-site visibility are prohibited.
The base of the tower shall occupy no more than 500 square feet, and no portion of the tower shall be no larger than the base.
The minimum spacing between tower locations shall be 1/4 mile.
Access to towers. A road and parking shall be provided to assure adequate emergency and service access. Maximum uses of existing roads, public or private, shall be made.
Setbacks for towers and accessory structures.
Screening and security of towers and accessory structures.
Existing on-site vegetation shall be preserved to the maximum extent practicable.
Towers and accessory structures shall be provided with security fencing to prevent unauthorized entry. Such fencing shall be no less than six feet and no greater than eight feet in height and shall be constructed of either masonry, wrought iron or wire.
The base of the tower and any accessory structures shall be landscaped to the extent feasible to minimize the impact of the tower, the accessory structures and the security fencing from the adjacent residential community and the public streets.
Design of antennas, towers, and accessory structures. Towers and antennas shall be designed to blend into the surrounding environment through the use of color and camouflaging architectural treatment, except in instances where the color is dictated by federal or state authorities such as the Federal Aviation Administration. Every antenna and tower shall be of neutral colors that are harmonious with, and that blend with, the natural features, buildings and structures surrounding such antenna and structure; provided, however, that directional or panel antennas and omnidirectional or whip antennas located on the exterior of a building that will also serve as an antenna tower 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 and the aesthetics of the neighboring structures.
The operator of every PWS antenna shall submit to the Village Clerk copies of all licenses and permits required by other agencies and governments with jurisdiction over the design, construction, location and operation of such antenna and shall maintain such licenses and permits and provide evidence of renewal or extension thereof when granted. The failure to do so after 30 days' notice, in the discretion of the Board, unless good cause for such failure is shown, shall result in the termination of the special exception permit.
No permit granted under this chapter for any antenna or tower, or accessory structure, shall be assigned or transferred without the prior approval of the Board.
All permits granted under this chapter shall be subject to review by the Board at ten-year intervals, to determine whether the technology in the provision of PWS has changed such that the necessity for the permit at the time of its approval has been eliminated or modified, and whether the permit should be modified or terminated as a result of any such change.
[Amended 9-19-2005 by L.L. No. 1-2005]
In addition to the fees set forth in other provisions of the Village Code:
Each owner and operator of a tower shall pay to the Village an annual fee for such tower and for each antenna on such tower in an amount as set from time to time by resolution of the Board of Trustees.
Each owner and operator of an antenna not located on a tower shall pay to the Village an annual fee for such antenna in an amount as set from time to time by resolution of the Board of Trustees.
Each owner and operator of one or more small wireless facilities shall pay to the Village such permit applications fees and annual fees as set from time to time by resolutions of the Board of Trustees.
[Added 3-7-2019 by L.L. No. 3-2019]
Upon the termination of the permit granted pursuant to this chapter, or upon the abandonment or discontinuance of use of any towers, antennas, or portions of towers, antennas or associated facilities, whichever is the first to occur, such towers, antennas, or portions of towers, antennas or associated facilities shall be removed as follows:
All towers, antennas and associated facilities for which the permit granted pursuant to this chapter has been terminated, and all abandoned or unused towers, antennas and associated facilities, shall be removed within six months of such termination, abandonment or discontinuance of use, unless a time extension is approved by the Board. A copy of the relevant portions of a signed lease which requires the applicant to remove the tower and associated facilities upon such termination, abandonment or discontinuance of use at the site shall be submitted at the time of application. In the event that a tower is not removed within six months of the such termination, abandonment or discontinuance of use, the tower and associated facilities may be removed by the Village and the costs of removal assessed against the property, in the manner set forth in Chapter 80, Unsafe Buildings, of the Code of the Village of Baxter Estates, or in any subsequently enacted local law that amends, modifies, replaces or supersedes Chapter 80.
Unused portions of towers above a manufactured connection shall be removed within six months of the time of antenna relocation unless a time extension is approved by the Board. The replacement of portions of a tower previously removed requires the issuance of a new special exception permit. In the event that said unused portion of the tower is not removed within said six months, said portion of the tower may be removed by the Village and the costs of removal assessed against the property, in the manner set forth in Chapter 80, Unsafe Buildings.
No permit shall be issued pursuant to this chapter until the applicant has delivered a performance bond to the Village, in a form satisfactory to the Village Attorney, in a sum equal to the cost of removing the tower, antennas and associated facilities, to secure the applicant's responsibility:
To remove the tower and associated facilities within six months of the termination of the permit granted pursuant to this chapter or the abandonment or discontinuance of use of such tower, antennas and associated facilities, unless a time extension is approved by the Board; and
To remove the unused portions of towers above a manufactured connection within six months of the time of antenna relocation, unless a time extension is approved by the Board.
All such bonds shall be issued by insurance companies licensed to do business in the State of New York with A.M. Best ratings of A or better.
Accompanying such bonds shall be an estimate of the cost of the removal of the tower and associated facilities, certified by a professional engineer.
All such bonds shall be renewed not less than once every three years, and shall be accompanied by an updated professional engineer's certification of the cost of removal.
Small wireless facilities. In lieu of Subsections A and B of this section, the following provisions shall apply to small wireless facilities:
[Added 3-7-2019 by L.L. No. 3-2019]
A small wireless facility shall be deemed abandoned after 25 days' notice to the permittee of nonpayment of a Village fee to maintain the facility, the expiration of a required permit for the facility, or sufficient other reasons by which the Village may reasonably infer that the facility has been abandoned.
All abandoned small wireless facilities and all of the wireless equipment associated with such facilities shall be removed within 45 days after such facilities have been abandoned or have been deemed abandoned.
In the event that such facilities and the wireless equipment associated with such facilities shall not be removed within said forty-five-day period, such facilities and equipment shall be deemed abandoned and of no further value and may be removed and disposed of at any time thereafter by the Village and the cost of such removal and disposal shall be paid to the Village by the permittee within 30 days of demand by the Village. The permittee shall hold the Village harmless for any claims by any third party for the Village's removal and disposal of any such abandoned facilities and equipment.
All notices shall be deemed sufficient if hand-delivered, sent by fax, e-mail, or overnight courier, or mailed by certified mail, return receipt requested, to the last address, fax number, or e-mail address on file for the permittee with the Village Clerk. Notwithstanding the foregoing, so long as a notice is actually received, the delivery shall be deemed sufficient.
No performance bond shall be required.
Antennas and towers in existence which do not conform to or comply with this chapter are subject to the following provisions:
Antennas and towers may continue in use for the purpose now used and as now existing but may not be replaced or structurally altered without complying in all respects with this chapter.
If such antennas or towers are hereafter damaged or destroyed due to any reason or cause whatsoever, the antenna or tower may be repaired and restored to its former use, location, and physical dimensions without complying with this chapter; provided, however, that if the cost of repairing the tower to the former use, physical dimensions, and location would be 20% or more of the cost of a new tower of like kind and quality, then the tower may not be repaired or restored except in full compliance with this chapter.
[Amended 3-7-2019 by L.L. No. 3-2019]
Non-small wireless facilities. The Board shall conduct a public hearing within 62 days from the day a complete application is filed with the Village Clerk with the appropriate application fee and deposit. The Board shall issue a decision within 35 days after the conclusion of the public hearing and the recommendations of the Nassau County Planning Commission, whichever is the later to occur.
Small wireless facilities.
At the discretion of the Board, the Board may conduct a public hearing.
The Board shall use its best efforts and due diligence to review an application to collocate a small wireless facility using an existing structure within 60 days of its receipt of a complete application.
The Board shall use its best efforts and due diligence to review an application to deploy a small wireless facility using a new structure within 90 days of its receipt of a complete application.
The Board shall have the right to vary the provisions of this chapter, to the extent reasonable or necessary, upon a showing of sufficient evidence by qualified experts that an applicant cannot feasibly provide the services for which it is licensed if it is compelled to conform with the all of the provisions of this chapter or if it is shown that any of the foregoing provisions of this chapter are not enforceable by the Village because of a federal or state preemption.
[Added 9-19-2005 by L.L. No. 1-2005; amended 8-6-2015 by L.L. No. 2-2015]
For each violation of any provision of this chapter, the owner, general agent, or contractor of a building or premises where such violation has been committed or shall exist, and the lessee or tenant of an entire building or entire premises where any such violation has been committed or shall exist, and the owner, general agent, contractor, lessee or tenant of any part of a building or structure or premises in which part such violation has been committed or shall exist, and the general agent, architect, builder, contractor or any other person who knowingly commits, takes part or assists in any such violation, or who maintains any building or premises in which any such violation shall exist, shall constitute a violation, punishable as follows: for a conviction of a first offense, by a fine not more than $250, or imprisonment for a period not to exceed 15 days, or both such fine and imprisonment; for a conviction of a second offense, both of which were committed within a period of five years, by a fine not less than $250, nor more than $500, or imprisonment for a period not to exceed 15 days, or both such fine and imprisonment; and for a conviction of a third or subsequent offense, all of which were committed within a period of five years, by a fine not less than $500, nor more than $1,000, or imprisonment for a period not to exceed 15 days, or both such fine and imprisonment. Each day that a violation occurs or continues shall be deemed a separate and distinct violation hereunder.