[HISTORY: Adopted by the Board of Trustees
of the Village of Brewster 10-22-2003 by L.L. No. 2-2003. Amendments noted where
applicable.]
GENERAL REFERENCES
Zoning — See Ch. 263.
The Telecommunications Act of 1996 affirmed
the Village of Brewster's authority concerning the placement, construction
and modification of wireless telecommunications facilities. The Village
of Brewster finds that wireless telecommunications facilities may
pose significant concerns to the health, safety, public welfare, character
and environment of the Village and its inhabitants. The Village also
recognizes that facilitating the development of wireless service technology
can be an economic development asset to the Village and of significant
benefit to the Village and its residents. In order to insure that
the placement, construction or modification of wireless telecommunications
facilities is consistent with the Village's land use policies, the
Village is adopting a single, comprehensive, wireless telecommunications
facilities application and permit process. The intent of this chapter
is to minimize the negative impact of wireless telecommunications
facilities, establish a fair and efficient process for review and
approval of applications, assure an integrated, comprehensive review
of environmental impacts of such facilities, and protect the health,
safety and welfare of the Village of Brewster.
This chapter shall be known and cited as the
"Wireless Telecommunications Facilities Siting Ordinance for the Village
of Brewster, New York."
A.
If any word, phrase, sentence, part, section, subsection
or other portion of this chapter or any application thereof to any
person or circumstance is declared void, unconstitutional or invalid
for any reason, then such word, phrase, sentence, part, section, subsection
or other portion, or the proscribed application thereof, shall be
severable, and the remaining provisions of this chapter, and all applications
thereof, not having been declared void, unconstitutional or invalid,
shall remain in full force and effect.
B.
Any special use permit issued under this chapter shall
be comprehensive and not severable. If part of a permit is deemed
or ruled to be invalid or unenforceable in any material respect, by
a competent authority, or is overturned by a competent authority,
the permit shall be void in total, upon determination by the Village.
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 facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
Such shall include, but not be limited to, radio, television, cellular,
paging, personal telecommunications services (PCS), microwave telecommunications
and services not licensed by the FCC, but not expressly exempt from
the Village's siting, building and permitting authority.
Any wireless service provider submitting an application for
a special use permit for wireless telecommunications facilities.
All necessary and appropriate documentation that an applicant
submits in order to receive a special use permit for wireless telecommunications
facilities.
The Board of Trustees of the Village of Brewster, New York.
The use of a tower or structure to support antennas for the
provision of wireless services without increasing the height of the
tower or structure.
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be commercially impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
When referring to a tower or structure, 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 or lightning
protection device.
The addition, removal or change of any of the physical and
visually discernible components or aspects of a wireless facility,
such as antennas, cabling, radios, equipment shelters, landscaping,
fencing, utility feeds, changing the color or materials of any visually
discernible components, vehicular access, parking and/or an upgrade
or changeout of equipment for better or more modern equipment. Adding
a new wireless carrier or service provider to a telecommunications
tower or telecommunications site is a modification. A modification
shall not include the replacement of any components of a wireless
facility where the replacement is identical to the component being
replaced or for any matters that involve the normal repair and maintenance
of a wireless facility without adding, removing or changing anything.
Non-ionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
See definition for "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act.
The official document or permit by which an applicant is
allowed to construct and use wireless telecommunications facilities
as granted or issued by the Village.
The State of New York.
Minimize adverse aesthetic and visual impacts on the land,
property, buildings and other facilities adjacent to, surrounding
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
The transmission and/or reception of audio, video, data and
other information by wire, radio frequency, light and other electronic
or electromagnetic systems.
See definition for "wireless telecommunications facilities."
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
Temporary in relation to all aspects and components of this
chapter; something intended to, or that does, exist for fewer than
90 days.
The Village of Brewster, New York.
Includes a telecommunications tower, tower, telecommunications
site and personal wireless facility, and means a structure, facility
or location designed or intended to be used as, or used to support,
antennas or other transmitting or receiving devices. This includes,
without limit, towers, wireless telecommunications facilities of all
types and kinds and structures, including those that employ camouflage
or stealth technology to mitigate the visual impact, including but
not limited to structures such as a multistory building, church steeple,
silo, water tower, utility pole, sign or other structures that can
be used to mitigate the visual impact of an antenna or the functional
equivalent of such, including all related facilities such as cabling,
equipment shelters and other structures associated with the site.
It is a structure and facility intended for transmitting and/or receiving
radio, television, cellular, paging, 911, personal telecommunications
services, commercial satellite services, microwave services and services
that may not be licensed by the FCC, but are not expressly exempt
from the Village's land use, siting, building and permitting authority,
excluding those used exclusively for the Village's fire or police
or exclusively for private, noncommercial radio and television reception
and private citizens band facilities, amateur radio and other similar
noncommercial telecommunications where the height of the facility
is below the height limits set forth in this chapter and the facility
is not used for commercial purposes.
In order to ensure that the placement, construction
and modification of wireless telecommunications facilities protects
the Village's health, safety, public welfare, environmental features,
the nature and character of the community and neighborhood and other
aspects of the quality of life specifically listed elsewhere in this
chapter, the Village hereby adopts an overall policy with respect
to a special use permit for wireless telecommunications facilities
for the express purpose of achieving the following goals:
A.
Implementing an application process for person(s)
seeking a special use permit for wireless telecommunications facilities.
B.
Establishing a policy for examining an application
for and issuing a special use permit for wireless telecommunications
facilities that is both fair and consistent.
C.
Promoting and encouraging, wherever possible, the
sharing and/or co-location of wireless telecommunications facilities
among service providers.
D.
Promoting and encouraging, wherever possible, the
placement, height and quantity of wireless telecommunications facilities
in such a manner, including but not limited to the use of stealth
technology, to minimize adverse aesthetic and visual impacts on the
land, property, buildings and other facilities adjacent to, surrounding
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
A.
All applicants for a special use permit for wireless
telecommunications facilities or any modification of such facility
shall comply with the requirements set forth in this section. The
Village of Brewster Board of Trustees is the officially designated
agency or body of the Village to whom applications for a special use
permit for wireless telecommunications facilities must be made, and
that is authorized to review, analyze, evaluate and make decisions
with respect to granting or not granting, recertifying or not recertifying,
or revoking special use permits for wireless telecommunications facilities.
The Village may at its discretion delegate or designate other official
agencies of the Village or others to accept, review, analyze, evaluate
and make recommendations to the Village of Brewster Board of Trustees
with respect to the granting or not granting, recertifying or not
recertifying or revoking special use permits for wireless telecommunications
facilities.
B.
An application for a special use permit for wireless
telecommunications facilities 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 than the applicant,
shall also sign the application and shall agree to remove any existing
violations and make all existing telecommunications facilities compliant
with this chapter and all applicable local, state and telecommunications
codes prior to the issuance of any certificate of occupancy or compliance
or the functional equivalent for a new or modified wireless facility.
At the discretion of the Village, any false or misleading statement
in the application may subject the applicant to denial of the application
without further consideration or opportunity for correction. Applications
not meeting the requirements stated herein or which are otherwise
incomplete may be rejected by the Village.
C.
The applicant shall include a statement in writing:
(1)
That the applicant's proposed wireless telecommunications
facilities 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 in writing, as well
as all applicable and permissible local codes, ordinances and regulations,
including any and all applicable Village, state and federal laws,
rules and regulations.
(2)
That the construction of the wireless telecommunications
facilities is legally permissible, including, but not limited to,
the fact that the applicant is authorized to do business in the state.
D.
No wireless telecommunications facilities shall be
installed or constructed until the application is reviewed and approved
by the Village, and the special use permit has been issued.
E.
All applications for the construction or installation
of new wireless telecommunications facilities shall contain the information
hereinafter set forth. The application shall be signed by an authorized
individual on behalf of the applicant. Where a certification is called
for, such certification shall bear the signature and seal of a professional
engineer licensed in the state. The application shall include the
following information:
(1)
Documentation that demonstrates the need for the wireless
telecommunications facility to provide service primarily and essentially
within the Village. Such documentation shall include propagation studies
of the proposed site and all adjoining planned, proposed, in-service
or existing sites.
(2)
The name, address and phone number of the person preparing
the report.
(3)
The name, address and phone number of the property
owner, operator and applicant, and to include the legal form of the
applicant.
(4)
The postal address and tax map parcel number of the
property.
(5)
The zoning district or designation in which the property
is situated.
(6)
Size of the property stated both in square feet and
lot line dimensions, and a diagram showing the location of all lot
lines.
(7)
The location of nearest residential structure.
(8)
The location, size and height of all structures on
the property which is the subject of the application.
(9)
The location, size and height of all proposed and
existing antennas and all appurtenant structures.
(10)
The type, locations and dimensions of all proposed
and existing landscaping, and fencing.
(11)
The number, type and design of the tower(s) and antenna(s)
proposed and the basis for the calculations of the tower's capacity
to accommodate multiple users.
(12)
The make, model and manufacturer of the tower and
antenna(s).
(13)
A description of the proposed tower 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 actual intended transmission and the maximum effective
radiated power of the antenna(s).
(16)
Direction of maximum lobes and associated radiation
of the antenna(s).
(17)
Certification that the NIER levels at the proposed
site are within the threshold levels adopted by the FCC.
(18)
Certification that the proposed antenna(s) will not
cause interference with other telecommunications devices.
(19)
A copy of the FCC license applicable for the intended
use of the wireless telecommunications facilities.
(20)
Certification that a topographic and geomorphologic
study and analysis has been conducted, and that 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 facilities on the proposed site.
F.
In the case of a new tower, the applicant shall be
required to submit a written report demonstrating its meaningful efforts
to secure shared use of existing tower(s) or the use of alternative
buildings or other structures within the Village. Copies of written
requests and responses for shared use shall be provided to the Village
in the application, along with any letters of rejection stating the
reason for rejection.
G.
The applicant shall certify that the telecommunications
facility, foundation and attachments are designed and will be constructed
to meet all local, Village, state and federal structural requirements
for loads, including wind and ice loads.
H.
The applicant shall certify that the wireless telecommunications
facilities will be effectively grounded and bonded so as to protect
persons and property and installed with appropriate surge protectors.
I.
An applicant may be required to submit an environmental
assessment analysis and a visual addendum. Based on the results of
the analysis, including the visual addendum, the Village may require
submission of a more detailed visual analysis. The scope of the required
environmental and visual assessment will be reviewed at the preapplication
meeting.
J.
The applicant shall furnish a visual impact assessment,
which shall include:
(1)
A "zone of visibility map" which shall be provided
in order to determine locations from which the tower may be seen.
(2)
Pictorial representations of "before and after" views
from key viewpoints both inside and outside of the Village as may
be appropriate, including, but not limited to, state highways and
other major roads; state and local parks; other public lands; historic
districts; preserves and historic sites normally open to the public;
and from any other location where the site is visible to a large number
of visitors, travelers or residents. Guidance will be provided concerning
the appropriate key sites at a preapplication meeting.
(3)
An assessment of the visual impact of the tower base,
guy wires and accessory buildings from abutting and adjacent properties
and streets as relates to the need or appropriateness of screening.
K.
The applicant shall demonstrate and provide in writing
and/or by drawing how it shall effectively screen from view the base
and all related facilities and structures of the proposed wireless
telecommunications facilities.
L.
Any and all representations made by the applicant
to the Village 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.
M.
All utilities at a wireless telecommunications facilities
site shall be installed underground and in compliance with all laws,
ordinances, rules and regulations of the Village, including specifically,
but not limited to, the National Electrical Safety Code and the National
Electrical Code where appropriate.
N.
All wireless telecommunications facilities shall contain
a demonstration that the facility be sited so as to be the least visually
intrusive reasonably possible and thereby have the least adverse visual
effect on the environment and its character, on existing vegetation
and on the residences in the area of the wireless telecommunications
facility.
O.
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/or to harmonize with
the natural surroundings; this shall include the utilization of stealth
or concealment technology as may be required by the Village.
P.
At a telecommunications site, an access road, turnaround
space and parking 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 the cutting of vegetation.
Road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion.
Q.
A person who holds a special use permit for wireless
telecommunications facilities shall construct, operate, maintain,
repair, provide for removal of, modify or restore the permitted wireless
telecommunications facilities in strict compliance with all current
applicable technical, safety and safety-related codes adopted by the
Village, county, state, or United States, including but not limited
to the most recent editions of the National Electrical Safety Code
and the National Electrical Code, as well as accepted and responsible
workmanlike industry practices and recommended practices of the National
Association of Tower Erectors. The codes referred to are codes that
include, but are not limited to, construction, building, electrical,
fire, safety, health and land use codes. In the event of a conflict
between or among any of the preceding, the more stringent shall apply.[1]
R.
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, regulation or code, 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.
S.
An applicant shall submit to the Village the number
of completed applications determined to be needed at the preapplication
meeting. Written notification of the application shall be provided
to the legislative body of all adjacent municipalities and to the
Village Planning Department.
T.
The applicant shall examine the feasibility of designing
a proposed tower to accommodate future demand for at least five additional
commercial applications, for example, future co-locations. The tower
shall be structurally designed to accommodate at least five additional
antenna arrays equal to those of the applicant, and located as close
to the applicant's antenna as possible without causing interference.
This requirement may be waived, provided that the applicant, in writing,
demonstrates that the provisions of future shared usage of the tower
is not technologically feasible, is commercially impracticable or
creates an unnecessary and unreasonable burden, based upon:
(1)
The foreseeable number of FCC licenses available for
the area.
(2)
The kind of wireless telecommunications facilities
site and structure proposed.
(3)
The number of existing and potential licenses without
wireless telecommunications facilities spaces/sites.
(4)
Available space on existing and approved towers.
U.
Shared use.
(1)
The owner of the proposed new tower, and his/her successors
in interest, shall negotiate in good faith for the shared use of the
proposed tower by other wireless service providers in the future,
and shall:
(a)
Respond within 60 days to a request for information
from a potential shared-use applicant.
(b)
Negotiate in good faith concerning future requests
for shared use of the new tower by other telecommunications providers.
(c)
Allow shared use of the new tower if another
telecommunications provider agrees in writing to pay reasonable charges.
The charges may include, but are 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, less depreciation, and all of the costs of adapting the
tower or equipment to accommodate a shared user without causing electromagnetic
interference.
(2)
Failure to abide by the conditions outlined above
may be grounds for revocation of the special use permit for the tower.
V.
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. A preapplication
meeting shall also include a site visit if there has not been a prior
site visit for the requested site. Costs of the Village's consultants
to prepare for and attend the preapplication meeting will be borne
by the applicant.
W.
The holder of a special use permit shall notify the
Village of any intended modification of a wireless telecommunications
facility and shall apply to the Village to modify, relocate or rebuild
a wireless telecommunications facility.
X.
In order to better inform the public, in the case
of a new telecommunications tower, the applicant shall, prior to the
public hearing on the application, hold a "balloon test." The applicant
shall arrange to fly, or raise upon a temporary mast, a brightly colored
balloon a minimum of three feet in diameter at the maximum height
of the proposed new tower. The dates (including a second date, in
case of poor visibility on the initial date), times and location of
this balloon test shall be advertised by the applicant seven and 14
days in advance of the first test date in a newspaper with a general
circulation in the Village. The applicant shall inform the Village,
in writing, of the dates and times of the test, at least 14 days in
advance. The balloon shall be flown for at least four consecutive
hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen.
The primary date shall be on a weekend, but in case of poor weather
on the initial date, the secondary date may be on a weekday.
Y.
The applicant will provide a written copy of an analysis,
completed by a qualified individual or organization, to determine
if the tower or existing structure intended to support wireless facilities
requires lighting under Federal Aviation Administration Regulation
Part 77. This requirement shall be for any new tower or for an existing
structure or building where the application increases the height of
the structure or building. If this analysis determines that the FAA
must be contacted, then all filings with the FAA, all responses from
the FAA and any related correspondence shall be provided in a timely
manner.
A.
Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities
in accordance with the following priorities, one being the highest
priority and six being the lowest priority:[1]
(1)
On existing towers without increasing the height of
the tower.
(2)
On Village-owned properties.
(3)
On properties in areas zoned for light manufacturing
and wholesale uses (Zoning District LMW).
(4)
On properties in areas zoned for commercial uses (Zoning
Districts PB, B1, B2, B3, B4, B5 and P).
(5)
On properties in areas zoned for conservation use
(Zoning District C).
(6)
On properties in areas zoned for single-family and
residential uses (Zoning Districts R and R20, respectively).
B.
If the proposed facility is not proposed for the highest
priority listed above, then a detailed explanation must be provided
as to why a site of a higher priority was not selected. The person
seeking such an exception must satisfactorily demonstrate the reason
or reasons why such a permit should be granted for the proposed site,
and the hardship that would be incurred by the applicant if the permit
were not granted for the proposed site.
C.
An applicant may not bypass sites of higher priority
by stating the site proposed is the only site leased or selected.
An application shall address co-location as an option. If such option
is not proposed, the applicant must explain to the reasonable satisfaction
of the Village why co-location is commercially or otherwise impracticable.
Agreements between providers limiting or prohibiting co-location shall
not be a valid basis for any claim of commercial impracticability
or hardship.
D.
Notwithstanding the above, the Village may approve
any site located within an area in the above list of priorities, provided
that the Village finds that the proposed site is in the best interest
of the health, safety and welfare of the Village and its inhabitants
and will not have a deleterious effect on the nature and character
of the community and neighborhood.
E.
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
appropriate, based on selecting a site of lower priority, a detailed
written explanation as to why sites of a higher priority were not
selected shall be included with the application.
F.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the
Village may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and
requirements.
(2)
Conflict with the historic nature or character of
a neighborhood or historical district.
(3)
The use or construction of wireless telecommunications
facilities which is contrary to an already stated purpose of a specific
zoning or land use designation.
(4)
The placement and location of wireless telecommunications
facilities which would create an unacceptable risk, or the reasonable
probability of such, to residents, the public, employees and agents
of the Village, or employees of the service provider or other service
providers.
(5)
Conflicts with the provisions of this chapter.
A.
Locating on existing towers or others structures without
increasing the height shall be preferred by the Village, as opposed
to the construction of a new tower. The applicant shall submit a comprehensive
report inventorying existing towers and other suitable structures
within four miles of the location of any proposed new tower, unless
the applicant can show that some other distance is more reasonable
and demonstrate conclusively why an existing tower or other suitable
structure cannot be used.
B.
An applicant intending to locate on an existing tower
or other suitable structure shall be required to document the intent
of the existing owner to permit its use by the applicant.
C.
Such shared use shall consist only of the minimum
antenna array technologically required to provide service primarily
and essentially within the Village, to the extent practicable, unless
good cause is shown.
A.
The applicant shall submit documentation justifying
the total height of any tower, facility and/or antenna and the basis
therefor. Such documentation will be analyzed in the context of the
justification of the height needed to provide service primarily and
essentially within the Village, to the extent practicable, unless
good cause is shown.
B.
Building-mounted antennas should be located and designed
to be an integral part of the building and shall be secured or camouflaged,
as necessary or as reasonably required by the Village of Brewster
Board of Trustees, to minimize the visual impact on surrounding properties
and minimize any change in or impact on the nature and character of
the community.
C.
No tower constructed after the effective date of this
chapter, including allowing for all attachments, shall exceed that
height which shall permit operation without required artificial lighting
of any kind in accordance with municipal, Village, state and/or any
federal statute, law, local law, Village ordinance, code, rule or
regulation.
A.
Wireless telecommunications facilities shall not be
artificially lighted or marked, except as required by law.
B.
Towers shall be galvanized and painted with a rust-preventive
paint of an appropriate color to harmonize with the surroundings 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.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
that prevents unauthorized access. Specifically:
A.
All antennas, towers and other supporting structures,
including guy wires, shall be made inaccessible to individuals and
constructed or shielded in such a manner that they cannot be climbed
or collided with; and
B.
Transmitters and telecommunications control points
shall be installed in such a manner 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 in order to provide
adequate notification to persons in the immediate area of the presence
of an antenna that has transmission capabilities and shall contain
the name(s) of the owner(s) and operator(s) of the antenna(s) as well
as emergency phone number(s). The sign shall be on the equipment shelter
or cabinet of the applicant and be visible from the access point of
the site and must identify the equipment owner of the shelter or cabinet.
The sign shall not be lighted, unless lighting is required by applicable
law, rule or regulation. No other signage, including advertising,
shall be permitted.
All proposed towers and any other proposed wireless
telecommunications facility structures shall be set back from abutting
parcels, recorded rights-of-way and road and street lines by the greater
of the following distances: a distance equal to the height of the
proposed tower or wireless telecommunications facility structure plus
10% of the height of the tower or structure, or the existing setback
requirement of the underlying zoning district, whichever is greater.
Any accessory structure shall be located so as to comply with the
applicable minimum setback requirements for the property on which
it is situated.
A.
The Village may hire any consultant and/or expert
necessary to assist the Village in reviewing and evaluating the application,
including the construction and modification of the site, once permitted,
and any requests for recertification.
B.
An applicant shall deposit with the Village funds
sufficient to reimburse the Village for all reasonable costs of consultant
and expert evaluation and consultation to the Village in connection
with the review of any application including the construction and
modification of the site, once permitted. The initial deposit shall
be $8,500. The placement of the $8,500 with the Village shall precede
the preapplication meeting. The Village will maintain a separate escrow
account for all such funds. The Village's consultants/experts shall
invoice the Village for its services in reviewing the application,
including the construction and modification of the site, once permitted.
If at any time during the 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 invoicing at the
conclusion of the project, the remaining balance shall be promptly
refunded to the applicant.
C.
The total amount of the funds needed as 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 to complete the necessary review, analysis and inspection of any construction or modification.
A.
No person shall be permitted to site, place, build,
construct, modify or prepare any site for the placement or use of
wireless telecommunications facilities as of the effective date of
this chapter without having first obtained a special use permit for
wireless telecommunications facilities. Notwithstanding anything to
the contrary in this section, no special use permit shall be required
for those noncommercial exceptions noted in the definition of "wireless
telecommunications facilities."
B.
All wireless telecommunications facilities existing
on or before the effective date of this chapter shall be allowed to
continue as they presently exist; provided, however, that any visible
modification of an existing wireless telecommunications facility must
comply with this chapter.
A.
Prior to the approval of any application for a special
use permit for wireless telecommunications facilities, a public hearing
shall be held by the Village, notice 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. In order that the
Village may notify nearby landowners, the application shall contain
the names and addresses of all landowners whose property is located
within 1,500 feet of any property line of the lot or parcel on which
the new wireless telecommunications facilities are proposed to be
located.
B.
There shall be no public hearing required for an application
to co-locate on an existing tower or other structure, as long as there
is no proposed increase in the height of the tower or structure, including
attachments thereto.
A.
The Village will undertake a review of an application
pursuant to this chapter in a timely fashion, and shall act within
a reasonable period of time given the relative complexity of the application
and the circumstances, with due regard for the public's interest and
need to be involved, and the applicant's desire for a timely resolution.
B.
The Village may refer any application or part thereof
to any advisory or other committee for a nonbinding recommendation.
C.
After the public hearing and after formally considering
the application, the Village may approve, approve with conditions
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.
D.
If the Village approves the special use permit for
wireless telecommunications facilities, then the applicant shall be
notified of such approval in writing within 10 calendar days of the
Village's action, and the special use permit shall be issued within
30 days after such approval. 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 site plan or zoning approvals, shall be required
by the Village for the wireless telecommunications facilities covered
by the special use permit.
E.
If the Village denies the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such denial in writing within 10 calendar days of the Village's
action.
A.
Between 12 months and six months prior to the five-year
anniversary date after the effect date of the special use permit and
all subsequent five-year anniversaries of the effective date of the
original special use permit for wireless telecommunications facilities,
the holder of a special use permit for such wireless telecommunications
facilities shall submit a signed written request to the Village 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 facilities.
(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 facilities
have been moved, relocated, rebuilt or otherwise visibly modified
since the issuance of the special use permit and, if so, in what manner.
(5)
If the wireless telecommunications facilities have
been moved, re-located, rebuilt or otherwise visibly modified, then
whether the Village approved such action, and under what terms and
conditions, and whether those terms and conditions were complied with.
(6)
That the wireless telecommunications facilities are
in compliance with the special use permit and compliance with all
applicable codes, laws, rules and regulations.
(7)
Recertification that the tower and attachments both
are designed and constructed and continue to meet all local, Village,
state and federal structural requirements for loads, including wind
and ice loads. Such recertification shall be by a professional engineer
licensed in the state, the cost of which shall be borne by the applicant.
B.
If, after such review, the Village determines that
the permitted wireless telecommunications facilities are in compliance
with the special use permit and all applicable statutes, laws, local
laws, ordinances, codes, rules and regulations, then the Village may
issue a recertification of the special use permit for the wireless
telecommunications facilities, which may include any new provisions
or conditions that are mutually agreed upon, or that are required
by applicable statutes, laws, ordinances, codes, rules or regulations.
If, after such review, it is determined that the permitted wireless
telecommunications facilities are not in compliance with the special
use permit and all applicable statutes, laws, ordinances, codes, rules
and regulations, then the Village may refuse to issue a recertification
special use permit for the wireless telecommunications facilities,
and, in such event, such wireless telecommunications facilities shall
not be used after the date that the applicant receives written notice
of the decision by the Village until such time as the facility is
brought into compliance. Any decision requiring the cessation of use
of the facility or imposing a penalty shall be in writing and supported
by substantial evidence contained in a written record and shall be
promptly provided to the owner of the facility.
C.
If the applicant has submitted all of the information requested and required by this chapter, and if the review is not completed, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent five-year anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months, in order for the completion of the review.
D.
If the holder of a special use permit for wireless telecommunications facilities 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 fifth anniversary of the original granting of the special use permit, or subsequent five-year anniversaries, unless the holder of the special use permit adequately demonstrates that extenuating circumstances prevented a timely recertification request. If the Village agrees that there were legitimately 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 wireless telecommunications facilities 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 notification to the
Village.
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, or for a material violation of this chapter after prior written
notice to the holder of the special use permit.
A.
At the time that a person submits an application for
a special use permit for a new tower, such person shall pay a nonrefundable
application fee to the Village as set forth in the Village fee schedule
set from time to time by resolution of the Village of Brewster Board
of Trustees. If the application is for a special use permit for co-locating
on an existing tower or other suitable structure, where no increase
in height of the tower or structure is required, the nonrefundable
fee shall be as set forth in the Village fee schedule set from time
to time by resolution of the Village of Brewster Board of Trustees.
B.
No application fee is required in order to recertify a special use permit for wireless telecommunications facilities, unless there has been a visible 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 fees provided in Subsection A shall apply.
The applicant and the owner of record of any
proposed wireless telecommunications facilities property site shall,
at their cost and expense, be jointly 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 $100,000 and with such sureties as are deemed
sufficient by the Village to assure the faithful performance of the
terms and conditions of this chapter and 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 any necessary site
restoration is completed to restore the site to a condition comparable
to that which existed prior to the issuance of the original special
use permit.
In order to verify that the holder of a special
use permit for wireless telecommunications facilities and any and
all lessees, renters and/or licensees of wireless telecommunications
facilities place and construct such facilities, including towers and
antennas, in accordance with all applicable technical, safety, fire,
building and zoning codes, laws, ordinances and regulations and other
applicable requirements, the Village may inspect all facets of said
permit holder's, renter's, lessee's or licensee's placement, construction,
modification and maintenance of such facilities, including, but not
limited to, towers, antennas and buildings or other structures constructed
or located on the permitted site.
The holder of the special use permit shall,
annually, certify to the Village that NIER levels at the site are
within the threshold levels adopted by the FCC.
A.
A holder of a special use permit for wireless telecommunications
facilities 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:
(1)
Commercial general liability covering personal injuries,
death and property damage: $1,000,000 per occurrence/$2,500,000 aggregate.
(2)
Automobile coverage: $1,000,000 per occurrence/$2,500,000
aggregate.
(3)
Workers' compensation and disability: statutory amounts,
not less than required by other local and state governmental requirements.
B.
The commercial general liability insurance policy
shall specifically include the Village and its officers, boards, employees,
committee members, attorneys, agents and consultants as additional
named insureds.
C.
The insurance policies shall be issued by an agent
or representative of an insurance company licensed to do business
in the state 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 that such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications
facilities 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 wireless telecommunications facilities
that is proposed for Village property, pursuant to this chapter, 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
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.
A.
In the event of a violation of this chapter or any
special use permit issued pursuant to this chapter, the Village may
impose and collect, and the holder of the special use permit for wireless
telecommunications facilities shall pay to the Village, fines or penalties
as set forth below.
B.
A violation of this chapter is hereby declared to
be an offense, punishable by a fine not exceeding $350 per day per
occurrence or imprisonment for a period not to exceed six months,
or both, for conviction of a first offense; for conviction of a second
offense, both of which were committed within a period of five years,
punishable by a fine not less than $350 nor more than $700 or imprisonment
for a period not to exceed six months, or both; and, upon conviction
for a third or subsequent offense, all of which were committed within
a period of five years, punishable by a fine not less than $700 nor
more than $1,000 or imprisonment for a period not to exceed six months,
or both. However, for the purpose of conferring jurisdiction upon
courts and judicial officers generally, violations of this article
or of such ordinance or regulation shall be deemed misdemeanors and
for such purpose only all provisions of law relating to misdemeanors
shall apply to such violations. Each week's continued violation shall
constitute a separate additional violation.
C.
Notwithstanding anything in this chapter, the holder
of the special use permit for wireless telecommunications facilities
may not use the payment of fines, liquidated damages or other penalties
to evade or avoid compliance with this chapter or any section of this
chapter. An attempt to do so shall subject the holder of the special
use permit to termination and revocation of the special use permit.
The Village may also seek injunctive relief to prevent the continued
violation of this chapter, without limiting other remedies available
to the Village.
A.
If wireless telecommunications facilities are 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 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 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 facilities are 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 facilities into compliance, then the Village may revoke such special use permit for wireless telecommunications facilities, and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the Village may
determine that the health, safety and welfare interests of the Village
warrant and require the removal of wireless telecommunications facilities:
(1)
Wireless telecommunications facilities with a permit
have been abandoned (i.e., not used as wireless telecommunications
facilities) for a period exceeding 90 consecutive days or a total
of 180 days in any three-hundred-sixty-five-day period, except for
periods caused by force majeure or acts of God, in which case, repair
or removal shall commence within 90 days.
(2)
Permitted wireless telecommunications facilities fall
into such a state of disrepair that it creates a health or safety
hazard.
(3)
Wireless telecommunications facilities have 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 makes such a determination as noted in Subsection A of this section, then the Village shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed; the Village may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the special use permit, or its successors
or assigns, shall dismantle and remove such wireless telecommunications
facilities, 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. However, if the owner of the property upon which the
wireless telecommunications facilities are located wishes to retain
any access roadway to the wireless telecommunications facilities,
the owner may do so with the approval of the Village.
D.
If wireless telecommunications facilities are not
removed or substantial progress has not been made to remove the wireless
telecommunications facilities within 90 days after the permit holder
has received notice, then the Village may order officials or representatives
of the Village to remove the wireless telecommunications facilities
at the sole expense of the owner or special use permit holder.
E.
If the Village removes, or causes to be removed, wireless
telecommunications facilities, and the owner of the wireless telecommunications
facilities does not claim and remove them from the site to a lawful
location within 10 days, then the Village may take steps to declare
the wireless telecommunications facilities abandoned, and sell them
and their components.
F.
Notwithstanding anything in this section to the contrary,
the Village may approve a temporary use permit/agreement for the wireless
telecommunications facilities, for no more than 90 days, during which
time a suitable plan for removal, conversion or relocation of the
affected wireless telecommunications facilities shall be developed
by the holder of the special use permit, subject to the approval of
the Village, and 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 facilities in the manner provided in this
section.
Any applicant desiring relief, waiver or exemption
from any aspect or requirement of this chapter may request such at
the 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 tower and/or facilities.
Such relief may be temporary or permanent, partial or complete. However,
the burden of proving the need for the requested relief, waiver or
exemption is solely on the applicant to prove. The applicant shall
bear all costs of the Village in considering the request and the relief,
waiver or exemption. No such relief or exemption shall be approved
unless the applicant demonstrates by clear and convincing evidence
that, if granted, the relief, waiver or exemption will have no significant
effect on the health, safety and welfare of the Village, its residents
and other service providers.
A.
The Village may at any time conduct a review and examination
of this entire chapter.
B.
If, after such a periodic review and examination of
this chapter, the Village determines that one or more provisions of
this chapter should be amended, repealed, revised, clarified or deleted,
then the Village may take whatever measures are necessary in accordance
with applicable law in order to accomplish the same. It is noted that,
where warranted, and in the best interests of the Village, the Village
may repeal this entire chapter at any time.
A.
To the extent that the holder of a special use permit
for wireless telecommunications facilities 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, 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 wireless telecommunications facilities, then the holder
of such a special use 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.
Where this chapter differs or conflicts with
other laws, rules and regulations, unless the right to do so is preempted
or prohibited by the Village, state or federal government, this chapter
shall apply.
This chapter is enacted pursuant to applicable
authority granted by the state and federal government, and New York
State's Municipal Home Rule Law.
