[Added 3-29-1999 by L.L. No. 1-1999]
The purpose of this article 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
reducing 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 article, have the meanings herein
indicated:
Accessory buildings and structures, including base stations
designed and used to shelter equipment and/or to support personal
wireless services (PWS). The term "accessory structures" does not
include offices, long-term storage of vehicles or other equipment
storage or broadcast studios.
includes, but is not limited to:
[Added 10-10-2019 by L.L.
No. 12-2019]
Any additional cabinets or other boxes containing telecommunications
equipment.
Increasing the size of a previously approved cabinet or other
box containing telecommunications equipment by more than one foot
in height, one foot in width, or one foot in depth.
Raising any telecommunications equipment by more than five feet.
Installing any new telecommunications equipment that permits
the emission of radiofrequency radiation greater than previously approved.
Increasing the radiofrequency radiation emitted from the wireless
facility.
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 Kings Point.
As to small wireless facilities, means mounting or installing
an antenna for a small wireless facility on a preexisting structure;
and/or modifying an existing structure for the purpose of mounting
or installing an antenna for a small wireless facilities on that structure.
[Added 3-7-2019 by L.L.
No. 4-2019]
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. 4-2019]
Commercial mobile services, unlicensed wireless services
and common carrier wireless exchange access services as defined by
Section 704 of the Federal Telecommunications Act.
Facilities that meet the following criteria:
[Added 3-7-2019 by L.L.
No. 4-2019]
The facilities:
Are mounted on structures 50 feet or less in height, including
their antennas;
Are mounted on structures no more than 10% taller than other
adjacent structures; or
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.
Each antenna associated with the deployment, excluding associated
antenna equipment, is no more than three cubic feet in volume.
The provisions in §§ 161-83 and 161-84, shall not apply and there shall be no required minimum spacing between structures, however:
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.
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.
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.
All other wireless equipment associated with the structure,
including the wireless equipment associated with the antenna and any
preexisting associated equipment of the structure, is no more than
28 cubic feet in volume.
The facilities do not require antenna structure registration
pursuant to the rules adopted from time to time by the Federal Communications
Commission.
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.
Equipment and related enclosures to implement the emission
of radiofrequency radiation or other frequency or transmission signals.
[Added 10-10-2019 by L.L.
No. 12-2019]
A.
No antenna or tower shall hereafter be used, erected,
changed or altered except after obtaining a special exception permit
in conformity with this article.
B.
The Board is hereby authorized to review and approve,
approve with modifications or disapprove special exception permits
pursuant to this article. 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.
A.
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:
(1)
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.
(2)
The antenna would cause interference materially impacting
the usability of other existing or planned antenna at the tower or
building as documented by a qualified professional engineer, and the
interference cannot be prevented at a reasonable cost.
(3)
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.
(4)
Other foreseen reasons that make it infeasible to
locate the antenna upon an existing or approved tower or building.
B.
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.
C.
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 article) shall commit the new
tower owner and its successors in interest to:
(1)
Respond in a timely comprehensive manner to a request
for information from a potential shared-use applicant.
(2)
Negotiate in good faith concerning future requests
for shared use of the new tower by other PWS providers.
(3)
Allow shared use of the new tower if another PWS provider
agrees, in writing, to pay charges.
(4)
Make no more than a reasonable charge for shared use,
based on generally accepted accounting principles. The charge may
include, but is not limited to, a pro rata share of the cost of site
selection, planning, project administration, land costs, site design,
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.
D.
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 send notice, as provided in Chapter 25 of this Code, to all of the village clerks of each village, 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.
[Amended 12-15-2021 by L.L. No. 1-2022]
A.
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
that 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.
B.
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, 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.
C.
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.
E.
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.
F.
Tower building requirements.
(1)
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.
(2)
The base of the tower shall occupy no more that 500
square feet and no portion of the tower shall be larger than the base.
(3)
Minimum spacing between tower locations shall be 1/4
mile.
G.
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.
H.
Setbacks for towers and accessory structures.
I.
Screening and security of towers and accessory structures.
(1)
Existing on-site vegetation shall be preserved to
the maximum extent practicable.
(2)
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 (not wood) and shall meet the requirements for fences set forth in § 140-3 of the Village Code (swimming pools, fences).
(3)
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.
J.
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 antenna 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.
K.
The equipment for small wireless facilities shall be placed underground
to the extent practicable.
[Added 10-10-2019 by L.L.
No. 12-2019]
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 article 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 article 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 11-27-2007 by L.L. No. 8-2007]
In addition to the fees set forth in other provisions
of the Village Code, each owner and operator of an antenna and/or
a tower shall pay to the Village an annual fee as shall be established
from time to time by resolution of the Board of Trustees.[1]
A.
Upon the termination of the permit granted pursuant
to this article, or upon the abandonment or discontinuance of use
of any towers or portions of towers or associated facilities, whichever
is the first to occur, such towers or portions of towers or associated
facilities shall be removed as follows:
(1)
All towers and associated facilities for which the permit granted pursuant to this article has been terminated and all abandoned or unused towers 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 § 117-11 of the Village Code (property maintenance, performance of work by Village; assessment of costs).
(2)
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 said § 117-11.
B.
Performance bond.
(1)
No permit shall be issued pursuant to this article
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 and associated facilities, to secure
the applicant's responsibility to remove:
(a)
The tower and associated facilities within six
months of the termination of the permit granted pursuant to this article
or the abandonment or discontinuance of use of such tower and associated
facilities, unless a time extension is approved by the Board; and
(b)
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.
(2)
All such bonds shall be issued by insurance companies
licensed to do business in the State of New York with best ratings
of A or better.
(3)
Accompanying such bonds shall be an estimate of the
cost of the removal of the tower and associated facilities, certified
by a professional engineer.
(4)
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.
C.
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. 4-2019]
(1)
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.
(2)
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.
(3)
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.
(4)
All notices shall be deemed sufficient if hand-delivered, sent by
fax, email, or overnight courier, or mailed by certified mail return
receipt requested to the last address, fax number, or email 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.
(5)
No performance bond shall be required.
Antennas and towers in existence which do not
conform to or comply with this article are subject to the following
provisions:
A.
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 article.
B.
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 article; 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 article.
[Amended 3-7-2019 by L.L.
No. 4-2019]
A.
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.
B.
Small wireless facilities.
[Amended 10-10-2019 by L.L. No. 12-2019]
(1)
The Board shall conduct a public hearing.
(2)
Notice of the public hearing shall be published in the official newspaper of the Village and sent by the applicant, as set forth in Chapter 25 of this Code, to all property owners within 600 feet of the location of all proposed small wireless facilities.
[Amended 12-15-2021 by L.L. No. 1-2022]
(3)
In the event that any new locations are subsequently proposed, the applicant shall send notice, as provided in Chapter 25 of this Code, to the property owners within 400 feet of the new location.
[Amended 12-15-2021 by L.L. No. 1-2022]
(4)
The applicant shall provide a certification from a qualified engineer
that the wireless facility will not emit a radiofrequency radiation
or other frequency or transmission signal greater than approved by
the Federal Communications Commission.
(5)
The applicant shall provide a current report from a qualified engineer
or other professional acceptable to the Village as to all adverse
health impacts from the proposed wireless facility.
(6)
The applicant shall provide certificates of insurance in such forms
and amounts as are then currently required for building permits for
single-family dwellings within the Village, naming the Village of
Kings Point, its officers and employees as additional insureds.
(7)
The Board shall use its best efforts and due diligence to review
an application to co-locate a small wireless facility using an existing
structure within 60 days of its receipt of a complete application.
(8)
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.
(9)
Not more than 30 days and not less than 10 days before each anniversary
of the issuance of the permit, the applicant shall provide a certified
current report from a qualified engineer or other professional acceptable
to the Village confirming that:
(a)
The wireless facility is not emitting a radiofrequency radiation
or other frequency or transmission signal greater than approved by
the Federal Communications Commission;
(b)
The wireless facility is not emitting a radiofrequency radiation
or other frequency or transmission signal different from that approved
by the Village; and
(c)
A current report as to all adverse health impacts from the wireless
facility and that the adverse health impacts are no greater than those
at the time the permit was issued.
(10)
In the event that the annual certified report set forth in Subsection B(9) is not provided to the Village within 15 days of demand by certified mail, return receipt requested, to the last address given to the Village Clerk of the applicant or any subsequent operator of the wireless facility, the permit shall be terminated and the wireless facilities shall be removed within 30 days thereafter.
(11)
In the event that the wireless facilities are not removed within
said thirty-day period, the wireless facilities shall be deemed abandoned
and of no value, and the Village shall have the right to remove them
and dispose of them, and the applicant or last subsequent operator
shall reimburse the Village for any and all costs the Village incurred
for such removal and disposal.
The Board shall have the right to vary the provisions
of this article, 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 all of the foregoing provisions of this article or
if it is shown that any of the foregoing provisions of this article
are not enforceable by the Village because of a federal or state preemption.
