[Added 4-21-2014 by L.L.
No. 2-2014]
A.
The Telecommunications Act of 1996 affirmed the Village of Old Brookville's
authority concerning the placement, construction and modification
of wireless telecommunications facilities or complexes within the
Village. This article provides for the safe and efficient integration
of wireless facilities or complexes necessary for the provision of
advanced wireless telecommunications services throughout the Village
and to ensure the ready availability of reliable wireless services
to the public, government agencies and first responders, with the
intention of furthering the public safety, health and general welfare
of the Village.
B.
The Village finds that wireless telecommunications facilities (facilities)
and complexes may pose significant concerns to the health, safety,
public welfare, character and environment of the Village and its inhabitants
and neighborhoods. 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 ensure that the placement, construction
or modification of a facility or complex is consistent with the Village's
land use policies, the Village is adopting a single comprehensive
wireless telecommunications facility or complex application and permitting
process. The intent of this article is to minimize the physical impact
of wireless telecommunications facilities on the community, protect
the character of the community to the extent reasonably possible,
establish a fair and efficient process for review and approval of
applications, ensure an integrated, comprehensive review of environmental
impacts of such facilities, and protect the health, safety and welfare
of the Village.
Any conditional use permit[1] issued pursuant to this article 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 Board.
[1]
Editor's Note: This Art. VII was generally amended 1-23-2017
by L.L. No. 1-2017 to change "conditional use permit" to "special
use permit."
For purposes of this article, 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 or complexes
and located on the same property or lot as the wireless telecommunications
facilities or complexes, or an immediately adjacent lot including,
but not limited to, utility or transmission equipment storage sheds
or cabinets.
Means and shall relate to any change, addition, correction,
deletion, replacement or substitution, other than typographical changes
of no effect.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
Any wireless service provider submitting an application for
a conditional use permit[1] or other approval for wireless telecommunications facilities.
All necessary and required documentation that an applicant
must submit in order to receive a conditional use permit[2] or a building permit or other approval for wireless telecommunications
facilities.
The Planning Board of the Village of Old Brookville.
[Amended 1-23-2017 by L.L. No. 1-2017]
A required document issued by the Village that confirms that
all work represented in the application:
Was properly permitted;
Was done in compliance with and fulfilled all conditions of
all permits, including any final completion deadline;
Was fully constructed as approved and permitted; and
A final inspection was requested, conducted and the facility
or complex passed the final inspection.
One telecommunications site hosting multiple separate facilities.
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 and for a single site,
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 necessary and required information
and/or data necessary to enable an informed decision to be made with
respect to an application. Where any information is provided pursuant
to the terms of this article and the Building Inspector or the Village's
expert or consultant or the Board determines, based upon information
provided, that further or clarifying information is needed as to one
or more aspects, then the application will not be deemed complete
until that further or clarifying information is provided to the satisfaction
of the Building Inspector or the Village's expert or consultant or
the Board.
The entire site or facility, including all structures and
equipment located at the site.[3]
An antenna combining technology whereby low-power NIER emanates
from multiple facilities, each covering a limited range, and also
allowing for multiple carriers or wireless service providers to use
the same set of antennas, cabling and equipment.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
A set of wireless transmitting and/or receiving equipment,
including any associated electronics and electronics shelter or cabinet
and generator.
The Federal Communications Commission or its duly designated
and authorized successor agency.
When referring to a tower or wireless telecommunications
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.
Replacing a component(s) that is malfunctioning with a properly
functioning component of substantially the same weight and dimensions
and that does not enable an increase or potential increase in revenue
for the service provider or increase the compensation paid to the
owner or manager of the telecommunications structure.
Plumbing, electrical or mechanical work that may require
a building permit but that does not constitute a modification to the
WTF. It is work necessary to assure that a wireless facility and/or
telecommunications structure exists and operates: reliably and in
a safe manner; presents no threat to persons or property; and remains
compliant with the latest editions and amendments of all applicable
laws, codes, rules and regulations, but does not change the number,
types or levels of service provided and is not done for the purpose
of enabling increased revenue for the wireless service provider or
the owner or manager of the telecommunications structure.
The addition, removal or change of any of the physical and
visually discernible components, colors or aspects of a wireless facility
or complex with substantially identical components, including but
not limited to antennas, cabling, equipment shelters, landscaping,
shrouding, fencing, utility feeds, color or materials of any visually
discernible components, vehicular access, parking and/or an upgrade
or change-out of equipment for better or more modern equipment or
component(s). Adding a new antenna, wireless carrier or service provider
to a telecommunication tower or telecommunication site as a co-location
is always a modification.
Village-owned street lamps, streetlight poles, lighting fixtures,
electroliers, flagpoles, and other similar Village-owned structures.
[Added 4-18-2016 by L.L.
No. 1-2016]
Village-owned buildings, and the space in, upon, above, along,
across, and over real property that is under the sole ownership, jurisdiction,
possession and control of the Village (except property leased or licensed
to or by the Village); any property where the Village holds an easement
or other beneficial interest; public right-of-way; and underwater
lands.
[Added 4-18-2016 by L.L.
No. 1-2016]
What is technologically required for the equipment to function
as designed by the manufacturer, and that anything less will result
in prohibiting the provision of service as intended and described
in the narrative of the application. "Necessary" or "need" does not
mean what may be desired, preferred or the most cost-efficient approach
and is not related to an applicant's specific chosen design standards.
Any situation involving a choice between or among alternatives or
options is not a need or a necessity.
Nonionizing 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."
The same meaning as defined and used in the 1996 Telecommunications
Act.
The space, in, upon, above, along, across, and over the public
streets, roads, highways, lanes, courts, ways, alleys, sidewalks,
and similar places, including public utility easements and public
service easements that are under the jurisdiction and exclusive control
of the Village. The term shall not include county, state, or federal
rights-of-way or places owned by the Village jointly with another
person or entity.
The replacement or repair of any components of a wireless
facility or complex where the replacement is substantially identical
and expressly not merely similar or functionally equivalent to the
component being replaced, or for any matters that involve the normal
repair and maintenance of a wireless facility or complex without the
addition, removal or change of any of the physical or visually discernible
components or aspects of a wireless facility or complex that will
impose new visible intrusions of the facility or complex as originally
permitted.
The official document or permit granted by the Planning Board
pursuant to which an applicant is allowed to file for and obtain a
building permit to construct and use a facility or complex as granted
or issued by the Board.
[Added 1-23-2017 by L.L.
No. 1-2017]
The State of New York.
A design or treatment that minimizes 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 building the least visually and physically intrusive facility
and complex that is not technologically or commercially impracticable
under the facts and circumstances. Stealth technology includes such
techniques as DAS or its functional equivalent or camouflage where
the tower is disguised to make it less visually obtrusive and not
recognizable to the average person as a wireless facility or complex.
Notwithstanding anything to the contrary in any other standard,
code, regulation or law, 100% of the designed loading and stress capability
of the telecommunications structure under all conditions of wind,
ice, snow or accidental collisions or other physical stress which
may occur under the worst expected conditions.
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 of "wireless telecommunications facilities."
See definition for "wireless telecommunications facilities."
Not permanent in relation to all aspects and components of
this article, something intended to, and that does, exist for fewer
than 90 days.
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
The Incorporated Village of Old Brookville.
Includes a "telecommunications site," "telecommunications
structure," and "personal wireless facility site." It means a specific
location at which a structure that is designed, or intended to be
used to house or accommodate antennas or other transmitting or receiving
equipment is located. This includes, without limitation, towers of
all types and kinds and support structures, including but not limited
to buildings, church steeples, silos, water towers, signs, utility
poles or other any other structure that is used or is proposed to
be used as a telecommunications structure for antennas or the functional
equivalent of such. It expressly includes all related facilities and
equipment such as cabling, radios and other electronic equipment,
equipment shelters and enclosures, cabinets and other structures enabling
the complex to provide, though not limited to, radio, television,
cellular, SMR, paging, 911, personal communications services (PCS),
commercial satellite services, microwave services and any commercial
wireless telecommunication service licensed by the FCC or not.
[1]
Editor's Note: This Art. VII was generally amended 1-23-2017
by L.L. No. 1-2017 to change "conditional use permit" to "special
use permit."
[2]
Editor's Note: This Art. VII was generally amended 1-23-2017
by L.L. No. 1-2017 to change "conditional use permit" to "special
use permit."
[3]
Editor's Note: The definition of "conditional use permit,"
as amended 4-18-2016 by L.L. No.
1-2016, which immediately followed this definition,
was repealed 1-23-2017 by L.L.
No. 1-2017.
A.
In order to ensure that the placement, construction or modification
of a facility or the components of a complex do not endanger or jeopardize
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
article and also pose the least adverse effect upon the Village and
its inhabitants, the Village hereby adopts an overall policy and related
procedures with respect to the submittal, review, approval and issuance
of permits or other approvals for wireless facilities for the express
purpose of achieving the policies and goals set forth herein:
(1)
Requiring a special use permit for any new complex, facility or any modification of a facility or complex or for a co-located facility, except as provided in § 300-45.
[Amended 1-23-2017 by L.L. No. 1-2017]
(2)
Requiring a license and/or right-of-way agreement for any new wireless telecommunications facilities in upon, above, along, across, and over municipal facilities, municipal property, and public rights-of-way as provided in § 300-45.
[Amended 4-18-2016 by L.L. No. 1-2016]
(3)
Requiring a properly issued building permit and any other approvals
required for any co-location or modification of a facility or complex.
(4)
Implementing an application process and requirements.
(5)
Establishing procedures for examining an application and issuing
a special use permit and any other necessary permits and approvals
that is both fair and consistent.
[Amended 1-23-2017 by L.L. No. 1-2017]
(6)
Promoting, and requiring wherever possible, the sharing and/or co-location
of support structures among service providers.
(7)
Requiring, promoting and encouraging, wherever possible, the placement,
height and quantity of a facility or complex in such a manner as to
minimize the physical and visual impact on the community including,
but not limited to, the use of stealth technology.
(8)
Requiring that the facility and complex shall be the least visually
and physically intrusive among those options available in the Village
given the facts and circumstances to minimize the adverse aesthetic
and visual impacts on the surrounding areas.
(9)
The Board is the officially designated agency or body of the Village
to whom applications for a special use permit for a facility or complex
must be made, and that is authorized to make decisions with respect
to granting or not granting or revoking special use permits applied
for under this article. The Board may, at its discretion, delegate
or designate other official agencies or officials of the Village or
outside experts or consultants to accept, review, analyze, evaluate
and make recommendations to the Board with respect to the granting
or not granting or revoking of special use permits for wireless telecommunications
facilities. However, the Board shall possess the sole jurisdiction
over the granting of all special use permits.
[Amended 1-23-2017 by L.L. No. 1-2017]
(10)
There shall be a preapplication meeting for all intended applications.
The preapplication meeting may be held either on site, or telephonically
as deemed appropriate by the Board or its designee. The purpose of
the preapplication meeting will be to address:
(11)
If there has not been a prior site visit for the requested complex within the previous six months, a site visit shall be conducted. Costs of the Board's expert or consultant to prepare for and attend the site visit or preapplication meeting will be borne by the applicant and paid for out of a fee set forth in Chapter 154, Fees and Deposits, which shall have been paid to the Village prior to any site visit or preapplication meeting.
(12)
An applicant shall submit to the Board the number of completed
applications determined by the Board to be needed at the preapplication
meeting. If Board action is required, applications will not be transmitted
to the Board for consideration until all of the application is submitted
and deemed complete.
(13)
If the proposed site is within one mile of another jurisdiction,
written notification of the application shall be provided to the legislative
body of all such adjacent jurisdictions as applicable and/or requested.
(14)
The owner(s) of the telecommunications structure to which antennas
or related equipment are to be attached must be an official applicant
of record.
(15)
All applicants shall closely follow the instructions for preparing
a combined application. Deviations from the instructions without permission
shall result in the application being deemed incomplete and a tolling
of the time allowed for action on an application until a complete
application is filed with the Board.
(16)
The applicant shall be notified in writing of any deficiencies
within 45 days of the filing of an application as regards any deficiencies
related to the completeness of the application. Remediation of deficiencies
in an application shall be deemed an amendment of the application
that was previously filed.
(17)
The Board may deny applications not meeting the requirements
stated herein or which are otherwise not complete after proper notice
and a reasonable opportunity to make the application complete has
been afforded. Applications will deemed abandoned if left incomplete
for more than 90 days after the date of notice of incompleteness.
(18)
No work of any kind on a facility or complex shall be commenced
until the application is reviewed and approved by the Board and a
special use permit and building permit have been issued pursuant to
the requirements of this or other applicable laws, rules and regulations.
[Amended 1-23-2017 by L.L. No. 1-2017]
(19)
Any and all representations made in support of the application
shall be deemed to be on the record, whether written or verbal, and
shall be deemed to have been relied upon in good faith by the Board.
Any verbal representation shall be treated as if it were made in writing.
(20)
Other than to remediate noncompliant situations related to matters
of safety or the conditions of a permit, no permits for work at a
facility or complex shall be issued where the facility or complex
is not in full compliance with all applicable local, state and federal
laws, rules, regulations and orders. A facility or complex not in
full compliance with this article shall be required to be brought
into full compliance before any permit of any kind will be issued.
(21)
An application shall be signed on behalf of the applicant(s)
by a person vested with the authority to bind and commit the applicant
attesting to the truthfulness, completeness and accuracy of the information
presented.
(22)
The applicant must provide documentation to substantiate that
it has the right to proceed as proposed on the site or at the complex
in the form of an executed copy of the lease with the owner or a signed
letter of agency and consent granting such authorization.
(23)
All applications shall include written commitment statements
to the effect that:
(a)
The applicant's facility or complex shall at all times and without
exception be maintained in a safe manner, and in compliance with all
conditions of all permits, as well as all applicable and permissible
local codes, ordinances, and regulations and all applicable Village,
state and federal laws, rules, and regulations, unless specifically
granted relief by the Board in writing; and
(b)
The construction of the facility or complex is legally permissible
including, but not limited to, the fact that the applicant is licensed
to do business in the State of New York.
(24)
Where a certification is called for in this article, such certification
shall bear the signature and seal of a professional engineer licensed
in the State of New York.
(25)
A telecommunication structure facility shall harmonize with
the natural surroundings. This shall include the utilization of stealth
or camouflage or concealment techniques as may be required by the
Board.
(26)
All utilities at a complex or site shall be installed underground
and in compliance with all applicable laws, ordinances, rules and
regulations of the Village, including specifically, but not limited
to, applicable electrical codes.
(27)
At a facility or complex needing vehicular access, an access
road, parking and turnaround space for emergency vehicles shall be
provided to assure adequate emergency and service access. Maximum
use of existing roads, whether public or private, shall be made to
the extent practicable. Road construction shall at all times minimize
ground disturbance and the cutting of vegetation. Road grades shall
closely follow natural contours to assure minimal visual disturbance
and reduce soil erosion. If the current access road or turn around
space is deemed in disrepair or in need of remedial work to make it
serviceable and safe and in compliance with any applicable laws, rules
or regulations as determined at a site visit by the Board, the application
shall contain a commitment to remedy or restore the road or turnaround
space so that it is serviceable and safe and in compliance with all
applicable laws, rules and regulations.
(28)
All work at a facility or complex shall be done in strict compliance
with all current applicable technical, safety and safety-related codes
adopted by the Village, state, or United States including, but not
limited to, the most recent edition of the TIAANSI Code, National
Electric Safety Code, the National Electrical Code, the New York State
Building and Fire Prevention Code, and the Occupational and Safety
and Health Administration (OSHA) regulations, recommended practices
of the National Association of Tower Erectors and accepted and responsible
workmanlike industry practices. 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.
(29)
A holder of a special use permit or any other permit or approval
granted under this article shall obtain, at its own expense, all permits
and licenses required by all applicable laws, ordinances, rules, regulations
or codes, 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.
[Amended 1-23-2017 by L.L. No. 1-2017]
(30)
Unless it is proven to be technologically impracticable, the
Village requires the co-location of new antenna arrays on existing
structures, as opposed to the construction of a new complex or telecommunication
structure or increasing the height, footprint or profile of a facility
or complex beyond the conditions of the approved special use permit
for an existing facility or complex. The applicant shall submit a
comprehensive report inventorying all existing structures more than
50 feet in height within 1/2 mile of the location of any proposed
new facility or complex.
[Amended 1-23-2017 by L.L. No. 1-2017]
(31)
An applicant intending to co-locate on or at an existing facility
or complex shall be required to document the intent of the existing
owner to permit its use by the applicant.
(32)
Co-located equipment shall consist only of the minimum antenna
array technologically needed to provide service primarily and essentially
within the Village, to the extent practicable, unless good cause is
shown in the form of clear and convincing evidence.
(33)
DAS systems that are owned or operated by a commercial carrier
and are part of a commercial wireless system, or are used for commercial
purposes, are expressly included in the context of this article, regardless
of the location or whether the facility or any of its components is
located inside or outside a structure or building.
(34)
The existence of a lease or an option to lease shall not be
deemed justification for not complying with the siting priorities
set forth in this article. An applicant may not bypass sites of higher
priority solely because the site proposed is under lease or an option
to lease exists. If a site other than the number "1" priority is proposed,
the applicant must explain to the reasonable satisfaction of the Board
why co-location is technically or commercially impracticable. Build-to-suit
agreements between carriers and a proposed tower owner shall not be
a valid basis for any claim of exemption, exception or waiver from
compliance with this article.
(35)
New towers or other support structures other than utility poles
shall be prohibited in residential areas and areas deemed by the Board
to be visual or scenic sensitive areas, unless the applicant provides
clear and convincing technical evidence demonstrating that:
(a)
A new tower as proposed is necessary;
(b)
That the intended area cannot be served from outside the residential
or visual or sensitive areas;
(c)
That no existing or previously approved facility or complex
can reasonably be used to serve the intended area within the Village;
and
(d)
That not to permit a new tower would result in or would preclude
eliminating a significant gap in service.
A.
The owner(s) of a facility, WTF or complex, or any telecommunications
structure, and of the land upon which a telecommunications structure
or the same is located, shall at all times be jointly and severally
responsible for:
(1)
The physical and safe condition of the facility or complex, telecommunication
structure and all components on the site related to the facility or
complex;
(2)
Assuring that all activities of owners, users, or lessees occurring
on the site, and all components on the site related to the facility
or complex, are at all times in compliance with all applicable laws,
ordinances, rules, regulations, orders, and permits related to the
facility or complex; and
(3)
Assuring the proper permitting as required by this article and other
Village regulations by all lessees and users of the facility or complex,
including but not limited to any upgrades and/or modifications of
equipment.
B.
Said owner(s) shall regularly and diligently monitor activities at
the site to assure that the facility or complex is operated in compliance
with this article, other Village regulations and any special use permit.
[Amended 1-23-2017 by L.L. No. 1-2017]
[Amended 4-18-2016 by L.L. No. 1-2016]
All fees and charges, including but limited to application fees,
expert or consulting fees, attorney fees, inspection fees and permit
fees, shall be as set forth in the Village's Fee Schedule.
A.
Any legally permitted facility, tower or other telecommunications
structure or complex that exists on the effective date of this article
shall be allowed to continue as it presently exists, provided that:
B.
Any work not properly previously permitted prior to the adoption
of this article must be permitted within 90 days of the effective
date of this article.
C.
Any co-location on or modification of an existing facility, tower
or other telecommunications structure or complex is subject to the
provisions of this article and will require the entire facility or
complex and any new co-location or modification to comply with this
article, including obtaining a valid COC.
A.
No work shall be allowed to be done at or on any facility or complex,
excepting normal repairs and maintenance as defined in this article,
for which the owner cannot produce the COC for the most recent previous
work, until a final inspection has been conducted and a COC has been
issued. The owner of the facility, tower or other telecommunications
structure or complex shall pay for the actual cost of the required
final inspection prior to the inspection being conducted. If the complex
does not pass the initial final inspection, the owner shall be required
to pay for any subsequent inspection prior to the inspection being
conducted. A passing final inspection is required prior to the issuance
of a COC.
B.
If no COC can be produced for previously done work, at the discretion
of the Building Inspector, fines and other penalties as allowed by
law may be imposed until the facility or complex is compliant and
the required COC has been issued.
The following shall be exempt from this article:
A.
Any facility operated by or on behalf of any unit of government for
public or municipal purposes.
B.
Any facilities expressly or implicitly exempt from the Village's
zoning, land use, siting, building or permitting authority under law
or controlling legal precedent.
C.
Any reception or transmission devises expressly exempted under the
Telecommunications Act of 1996.
D.
Any facility used exclusively for private, noncommercial radio and
television reception and private citizen's bands, licensed amateur
radio and other similar noncommercial telecommunications that are
less than 100 feet above ground.
E.
Facilities used exclusively for providing unlicensed spread spectrum
technologies where:
A.
Applicants for a special use permit for a wireless telecommunications
facility shall locate, site and erect all such facilities and associated
equipment in accordance with the following priorities, which are designed
and intended to encourage co-location on existing towers and structures
improved with WTC and to keep the facilities as far away as commercially
practicable from residences, schools, houses of worship and day-care
centers, one being the highest priority and nine being the lowest
priority.
[Amended 4-18-2016 by L.L. No. 1-2016; 1-23-2017 by L.L. No. 1-2017]
(1)
No telecommunication structure shall be allowed in any residential
area.
(3)
On utility poles or the functional equivalent thereof without increasing the total height of the pole, including the height of any antenna, by more than is allowed in § 300-45C(3) of this article.
(4)
On existing nonresidential structures such as water towers, multistory
buildings, church steeples, silos, signs or other similar nonresidential
structures when placement of wireless facilities, including but not
limited to antennas, increase the height by no more than three feet
above the existing structure.
(5)
On existing structures without increasing the height of the structure
by more than can be shown to be technically needed by clear and convincing
evidence, but in no case by no more than 48 inches.
(6)
On nonresidential properties such as churches, universities, clubs
and similar type nonresidential properties exceeding 20 acres in area.
(7)
On Village-owned properties or facilities.
(8)
On other properties in the Village.
(9)
On properties in residential areas zoned for residential use without
increasing the height of the telecommunications structure and only
if camouflaged or stealthed to the maximum practical extent and to
satisfaction of the Board.
B.
If the proposed site is not proposed for the highest priority listed
above, then a detailed narrative and technical explanation must be
provided as to why a site from all higher priority designations was
not selected. The person seeking such an exception must satisfactorily
demonstrate the reason or reasons why such a special use permit or
any other necessary permit or approval should be granted for the proposed
site and why any other location higher on the list of priorities would
serve to prohibit the provision of service.
[Amended 1-23-2017 by L.L. No. 1-2017]
C.
Notwithstanding anything to the contrary provided in this article,
the Board may approve any site located within an area in the list
of priorities, provided that the Board 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 given the totality
of the circumstances. Conversely, the Board may direct that the proposed
location be changed to another location that is more in keeping with
the goals of this article and the public interest and that substantially
meets the primary service objective of the applicant.
D.
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Board may disapprove
an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and requirements, including
but not limited to setback and fall zone requirements;
(2)
Noncompliance with zoning or land use regulations;
(3)
The placement and location of facilities which would create an unacceptable
safety risk to residents or the general public, employees and agents
of the Village or employees of the service provider or other service
providers, physical or financial damage to or trespass on private
property, or the reasonable possibility of such;
(4)
The placement and location of a facility or complex would result
in a conflict with, compromise in or change in the nature or character
of the adjacent and immediately surrounding area, and expressly including
but not limited to loss in value as measured from the end of the calendar
year prior to the application having been filed;
(5)
Conflicts with the provisions of this article;
(6)
Failure to submit a complete application as required under this article,
after proper notice and opportunity to make the application complete.
E.
Notwithstanding anything to the contrary provided in this article,
for good cause shown, as determined by the Board, such as but not
limited to the ability to utilize a shorter, smaller or less intrusive
facility or complex at a different location that is more in keeping
with the goals of this article and the public interest, and that substantially
meets the primary service objective, the Board may require the relocation
of a proposed site, including allowing for the fact that relocating
the site chosen by the applicant may require the use of more than
one site to provide substantially the same service if the relocation
could result in a less intrusive facility or complex, singly or in
combination with other locations.
A.
All new towers shall be of the monopole type. No new towers of a
lattice or guyed type shall be permitted, unless relief is otherwise
expressly granted.
B.
Pursuant to the 1996 Telecommunications Act and subsequent case law
related to the right to deny an application for cause, the applicant
for a new tower or other telecommunications structure shall submit
clear and convincing technical evidence by a carrier or wireless service
provider committed to use the new tower or other telecommunications
structure justifying to the exclusion of all reasonable alternatives:
the need for a new tower; the need for the proposed location; and
the total height of the proposed tower or other telecommunications
structure requested and the basis therefor, including all attachments.
If the applicant chooses to provide evidence in the form of propagation
studies, such must include all modeling information and support data
used to produce the studies at the requested height and a minimum
of 10 feet lower to enable verification of the need for the requested
height and showing the service area/signal strengths for all frequency
bands to be used.
C.
In the event that propagation studies do not resolve the issue of
need, the Board reserves the right to require a drive test to be conducted
under the supervision of the Board or its expert or consultant as
evidence of the technical need for what is requested.
D.
As the Village has made the policy decision that more facilities
of a shorter height is in the public interest, as opposed to fewer
taller facilities, spacing or the distance between facilities shall
be such that the service can be provided without exceeding the maximum
permitted height.
E.
The maximum permitted total height of a tower or other proposed telecommunications
structure shall be 150 feet above preconstruction ground level, unless
it can be shown by clear and convincing technical evidence that such
height would prohibit or have the effect of prohibiting the provision
of service in the intended service area within the Village. The maximum
permitted height is not an as-of-right height, but is the maximum
allowable height.
F.
At no time shall a tower or other telecommunications structure be
of a height that requires lighting by the FAA.
G.
Towers shall be structurally designed to support a minimum of four
carriers using functionally equivalent equipment to that used by the
first carrier attaching to a tower or other telecommunications structure
and that can be increased in height if needed.
A.
Height. No tower or telecommunications structure that is not a building
and is constructed after the effective date of this article shall
be of a height that requires lighting by the FAA.
B.
Stealth. All new facilities, including but not limited to towers,
shall utilize stealth or camouflage siting techniques, unless it can
be shown to be either commercially impracticable or technologically
impracticable.
C.
Finish/color. Towers shall be galvanized and/or 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 article.
D.
Lighting. Notwithstanding the prohibition of lighting, in the event
lighting is subsequently required by the FAA, the applicant shall
provide a detailed plan for sufficient lighting of as unobtrusive
and inoffensive an effect as is permissible under local, state and
federal regulations. For any facility or complex for which lighting
is required under the FAA's regulations, or that for any reason has
lights attached, all such lighting shall be affixed with technology
that enables the light to be seen as intended from the air, but that
prevents the ground-scatter effect so that it is not able to be seen
from the ground to a height of at least 20° vertical for a distance
of at least one mile in a level terrain situation. Such device shall
be compliant with or not expressly in conflict with FAA regulations.
A physical shield may be used, as long as the light is able to be
seen from the air, as intended by the FAA.
E.
Retrofitting relighting. In the event a tower or other telecommunications
structure that is lighted as of the effective date of this article
is modified, at the time of the modification, the Board may require
that the tower be retrofitted so as to comply with the lighting requirements
of this article or be reduced to a height that does not require lighting.
F.
Flush mounting. Except for omnidirectional antennas, all new or replacement
antennas shall be flush-mounted or as close to flush-mounted on the
telecommunications structure as possible, unless it can be demonstrated
by clear and convincing technical evidence that such has the effect
of prohibiting the provision of service to the intended service area,
alone or in combination with another site(s), or unless the applicant
can prove that it is technologically impracticable.
G.
Placement on building. If attached to a building, all antennas shall
be mounted on the facie of the building and camouflaged so as to match
the color and, if possible, the texture of the building, or in a manner
so as to make the antennas as visually innocuous and undetectable
as is possible given the facts and circumstances involved.
All facilities shall be located, fenced or otherwise secured
in a manner that prevents unauthorized access. Specifically:
A.
All facilities, including antennas, towers and other supporting structures,
including all guy anchors points and guy wires, shall be made inaccessible
to unauthorized individuals and shall be 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
so that they are readily accessible only to persons authorized to
operate or service them.
Facilities shall contain a sign no larger than four square feet
and no smaller than two square feet in order to provide adequate warning
to persons in the immediate area of the presence of RF radiation.
A sign of the same size is also to be installed bearing 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 must be visible from the access point of the
facility or complex and must identify the equipment owner of the shelter
or cabinet. On tower sites, an FCC registration sign, as applicable,
is also to be present. The signs shall not be lighted, unless applicable
law, rule or regulation requires lighting. No other signage, including
advertising, shall be permitted.
[Amended 4-18-2016 by L.L. No. 1-2016]
A.
All proposed towers and any other proposed wireless support structures, except utility poles, 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 two times the height of the proposed tower or telecommunications structure, otherwise known as the "fall zone," or the existing setback requirement of the underlying zoning district, whichever is greater. Any accessory structure shall be located within the fenced compound area, or as required under § 300-45 of this article, as approved in the special use permit and so as to comply with the applicable minimum setback requirements for the property on which it is situated. The fall zone shall be measured from the center line of the tower to the nearest portion of the right-of-way or any public road or thoroughfare and any occupied building or domicile, as well as any property boundary lines. Further, the nearest portion of any access road leading to a facility shall be no less than 10 feet from the nearest property line.
[Amended 1-23-2017 by L.L. No. 1-2017]
B.
There shall be no development of habitable buildings within the setback
area or fall zone.
[Amended 4-18-2016 by L.L. No. 1-2016; 1-23-2017 by L.L. No. 1-2017]
All applicants for a special use permit for a new wireless facility
or complex, including for a new tower or other telecommunications
structure or that constitutes a modification, shall comply with the
requirements set forth in this section. In addition to the required
information set forth in this section, all applications for the construction
or installation of a new facility or complex, or that increases the
height of an existing structure, shall contain the information hereinafter
set forth prior to the issuance of a building permit.
A.
Ownership and management.
(1)
The name, address and phone number of the person preparing the application;
(2)
The name, address, and phone number of the property owner and the
applicant, including the legal name of the applicant. If the owner
of the structure is different than the applicant, the name and all
necessary contact information shall be provided;
(3)
The postal address and Tax Map parcel number of the property;
(4)
A copy of the FCC license applicable for the intended use(s) of the
wireless telecommunications facilities, including all FCC licensed
frequency bands;
(5)
The applicant shall disclose in writing any agreement in existence
that would limit or preclude the ability of the applicant to share
any new telecommunication tower that it constructs or has constructed
for it.
B.
Zoning and planning.
(1)
The zoning district or designation in which the property is situated;
(2)
The size of the property footprint on which the structure to be built
or attached is located, stated both in square feet and lot line dimensions,
and an up to date guaranteed survey showing the location of all lot
lines;
(3)
The location, size and height of all existing and proposed structures,
enclosures and cabinets on the property on which the structure is
located and that are in any way related to the subject of the application;
(4)
A certified site plan drawn to scale, prepared by a licensed engineer,
architect or surveyor and not a hand-drawn sketch, showing a vertical
drawing of the tower or other telecommunications structure identifying
all attachments by owner and the height of such, the footprint of
the telecommunications structure and the type, location and dimensions
of access drives, landscaping and buffers, fencing and any other requirements
of site plans;
(5)
Elevation drawings showing the profile or the vertical rendition
of the tower or telecommunications structure at the facility or complex
and identifying all existing and proposed attachments, including the
height above the preexisting grade of each attachment and the owner
or operator of each, as well as all lighting;
(6)
The type and design of the tower or telecommunications structure,
the number of antenna arrays proposed to be accommodated and the basis
for the calculations of the tower's or telecommunications structure's
structural capacity to accommodate the required number of antenna
arrays for which the structure must be designed;
(7)
Disclosure in writing of any agreement in existence prior to the
submission of the application that would limit or preclude the ability
of the applicant to share any new telecommunication tower that it
constructs;
(8)
A certified statement of: the total cost of construction for the
work associated with the application; and the total cost of all equipment
of the applicant at the facility. To verify the accuracy of the information,
the Board reserves the right to require copies of applicable invoices
or other clear and convincing corroborating evidence.
C.
Safety.
(1)
The age of the tower or telecommunications structure and complex
stated in years, including the date of the grant of the original permit.
(2)
A description of the type of tower, e.g. guyed, self-supporting lattice
or monopole, or other type of telecommunication structure.
(3)
The make, model, type and manufacturer of the tower and the structural
design analysis and report, including the calculations, certified
by a professional engineer licensed in the state and proving the tower
or telecommunication structure's capability to safely accommodate
the facilities of the applicant without change or modification.
(4)
If a co-location, change or modification of a facility or complex
is needed, a detailed narrative explaining what changes are needed
and why they are needed. This includes a complete list of all equipment
and facilities proposed to be removed and all equipment proposed to
be added.
(5)
A complete, unredacted copy of the foundation design and report for
the tower or other structure, including a geotechnical subsurface
soils investigation report and foundation design.
(6)
If modifying or co-locating on an existing tower or other telecommunication
structure, a complete, unredacted and certified TIA ANSI 222 report
regarding the physical condition of the complex and its components
done within the previous six months. If such report has not been done
within the previous six months, one shall be done and submitted as
part of the application. No building permit shall be issued for any
wireless facility or related equipment where the structure being attached
to is in need of remediation to comply with the requirements of this
subsection and other adopted standards of the Village, unless and
until all remediation work that is deemed needed has been completed
or a schedule for the remediation work has been approved by the Building
Inspector.
(7)
In an instance involving a tower with only a single array of antennas,
or for the first antenna array to be attached to a tower where the
array will be 10 meters or more above ground level and not within
100 feet of areas to which the public has or could reasonably have
or gain access to, signed documentation in the form of the FCC's "Checklist
to Determine Whether a Facility May Be Categorically Excluded" shall
be provided to verify that the facility and complex with the proposed
installation will be in full compliance with the FCC's current RF
emissions regulations.
(8)
In certain instances, the Board may deem it appropriate to have an
on-site RF survey of the facility or complex performed after the construction
or modification and activation of the facility or complex, to be performed
under the direction of the Village or its designee, and an unredacted
copy of the survey results provided, along with all calculations,
prior to issuance of a certificate of compliance.
(9)
If not previously submitted, a signed statement that the applicant
will expeditiously remedy any physical or RF interference with other
telecommunications or wireless devices or services.
(10)
A written copy of an analysis completed by a qualified individual
or organization to determine if the proposed wireless telecommunications
facility or complex is in compliance with Federal Aviation Administration
Regulation Part 77, and if it requires lighting. Unless already lighted,
this requirement shall also be for any facility or complex where the
application proposes to increase the height of the tower or telecommunications
structure. If this analysis determines that an FAA determination is
required, then all filings with the FAA, all responses from the FAA
and any related correspondence shall be provided with the application.
(11)
All applications for a proposed facility or complex applicable
to this section shall contain clear and convincing evidence that the
facility or complex is sited and designed so as to create the least
visual intrusiveness reasonably possible given the facts and circumstances
involved, and thereby will have the least adverse visual effect on
the environment and its character, on existing vegetation, and on
the nature and character of the community in the area of the facility
or complex. To achieve this goal, the Board expressly reserves the
right to require the use of stealth or camouflage siting techniques
such as, but not limited to, DAS (distributive antenna system) siting
techniques or a functional equivalent siting technique, and such shall
be subject to approval by the Board.
(12)
If proposing a new tower or telecommunications structure, or
if increasing the height of an existing structure or the size of the
profile, the applicant shall be required to submit clear and convincing
evidence that there is no alternative solution within 1/2 mile of
the proposed site that would be less visually intrusive and that not
to permit the proposed new tower or telecommunications structure,
or a co-location or modification would result in the prohibition of
service or the perpetuation of a significant gap in service primarily
within the Village.
(13)
In order to better inform the public, in the case of a new tower,
the applicant shall conduct a "balloon test" prior to the initial
public hearing on the application. The applicant shall arrange to
fly, or raise upon a temporary mast, a minimum of a 10 feet in length
brightly colored balloon at the maximum height of the proposed new
tower.
(14)
At least 14 days prior to the conduct of the balloon test, a
sign shall be erected so as to be clearly visible from the road nearest
the proposed site and shall be removed no later than 14 days after
the conduct of the balloon test. The sign shall be at least four feet
by eight feet in size and shall be readable from the road by a person
with 20/20 vision. Such sign shall be placed off, but as near to,
the public right-of-way as is possible. And shall contain the times
and date(s) of the balloon test and contact information.
(15)
The dates (including a second date, in case of poor visibility
or wind in excess of 15 mph 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 the official newspaper
of the Village. The applicant shall inform the Board 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 between 10:00 a.m.
and 2:00 p.m. on the dates chosen. The primary date shall be on a
weekend, but the second date, in case of poor visibility on the initial
date, may be on a weekday. A report with pictures from various locations
of the balloon shall also be provided with the application.
(16)
The applicant shall notify all property owners and residents
located within 1,500 feet of the nearest property line of the subject
property of the proposed construction of the tower and facility or
complex and of the date(s) and time(s) of the balloon test. Such notice
shall be provided at least 14 days prior to the conduct of the balloon
test and shall be delivered by first-class mail.
(17)
The wireless telecommunications facility or complex shall be
structurally designed to accommodate at least four antenna arrays,
with each array to be flush mounted or as close to flush-mounted as
is reasonably possible.
(18)
The applicant shall provide certified documentation in the form
of a structural analysis and report, including all supporting calculations,
showing that the facility or complex will be constructed to meet all
local, state and federal structural requirements for loads, including
wind and ice loads and including, but not limited to all applicable
ANSI (American National Standards Institute) TIA 222 guidelines. In
the event of a conflict, the more stringent shall apply.
(19)
The applicant shall furnish a visual impact assessment, which
shall include:
(a)
Computer-generated "Zone of Visibility Map" at a minimum of
one-mile radius from the proposed structure shall be provided to illustrate
locations from which the proposed installation may be seen, with and
without foliage;
(b)
Pictorial representations (photo simulations) of "before and
after" views from key viewpoints inside of the Village, as may be
appropriate and required, 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 viewpoints at the preapplication
meeting. In addition to photographic simulations to scale showing
the visual impact, the applicant shall also provide a map showing
the locations of where the pictures were taken and the distance(s)
of each location from the proposed structure;
(c)
The applicant shall provide a description in writing and a visual
rendering demonstrating how it shall effectively screen from view
the bottom 15 feet of the facility or complex and all related equipment
and structures associated with the facility or complex.
(20)
A building permit shall not be issued for construction of a
new tower or other telecommunications structure until there is an
application for or by a specific carrier that documents that the facility
or complex is necessary for that carrier to serve the community and
that co-location on an existing structure is not feasible.
(21)
Co-location on an existing structure is not reasonably feasible
if technically or commercially impractical or the owner of the structure
is unwilling to enter into a contract for such use at or below fair
market value. Sufficient documentation in the form of clear and convincing
evidence to support such claims shall be submitted with an application
for the first carrier in order to determine whether co-location on
existing structures is reasonably feasible and to document the need
for a specific stated height, and that less height will serve to prohibit
or have the effect of prohibiting the provision of service.
A.
The Village shall not be required to issue a special use permit for
any facility, the service area for which is not primarily and substantially
within the Village.
[Amended 1-23-2017 by L.L. No. 1-2017]
B.
Attachments to buildings. To preserve and protect the nature and
character of the area and create the least visually intrusive impact
reasonably possible under the facts and circumstances, any attachment
to a building or other structure with a facie, the antennas shall
be flush-mounted on the facie without increasing the height of the
building or other structure, unless it can be shown by clear and convincing
evidence that such will prohibit or have the effect of prohibiting
the provision of service. All such attachments and exposed cabling
shall use camouflage or stealth techniques to match as closely as
possible the color and texture of the structure.
C.
Attachments to towers. So as to be the least visually intrusive reasonably
possible given the facts and circumstances involved, and thereby have
the least adverse visual effect, all antennas attached to a tower
or other structure shall be flush-mounted or as near to flush-mounted
as is possible so as to create the smallest profile reasonably possible
under the facts and circumstances, unless it can be proven that such
would prohibit or serve to prohibit the provision of service or be
technologically impracticable.
D.
Attachments to water tanks. If attaching to a water tank, in order
to maintain the current profile and height, mounting on the top of
the tank or the use of a corral shall only be permitted if the applicant
can prove that to locate elsewhere less visually on the tank will
prohibit or have the effect of prohibiting the provision of service.
E.
Structural analysis and report. The applicant shall provide a certification
by a professional engineer licensed in the state, along with documentation
in the form of a structural analysis, including calculations, that
prove that the telecommunications structure and its foundation as
proposed to be utilized are designed and were or will be constructed
to meet all local, Village, state, federal and TIA ANSI 222 structural
requirements for loads, including wind and ice loads and the placement
of any equipment on the roof a building after the addition of the
proposed new equipment.
F.
ANSI inspection. A complete, unredacted TIA ANSI 222 Report regarding
the physical condition of the facility or complex and its components
done within the previous six months shall be provided. If such report
has not been done within the previous six months, one shall be done
and submitted as part of the application. No building permit shall
be issued for any tower, other telecommunications structure, complex
or wireless facility or related equipment without the required TIA
ANSI 222 report and where the structure being attached to is in need
of remediation to comply with the requirements of this subsection
and other adopted standards of the Village, unless and until all remediation
work that is deemed needed has been completed or a schedule for the
remediation work has been approved by the Village Building Inspector.
G.
Compliance. Other than to remediate noncompliant situations related
to matters of safety or the conditions of a permit, no permits for
work at a facility or complex shall be issued for any work related
to an facility where the facility and complex are not in full compliance
with all applicable local, state and federal laws, rules, regulations
and orders. A facility and complex not in full compliance shall be
required to be brought into full compliance before a building permit
will be issued for work related to a facility request or application.
A.
A special use permit and a building permit shall be required for
any work that is not routine maintenance as defined in this section.
[Amended 1-23-2017 by L.L. No. 1-2017]
B.
No building permit shall be required for routine maintenance, nor
for work that does not constitute a modification or co-location, all
as defined in this article.
C.
The following shall be required in an application for and prior to
obtaining a special use permit. No building permit shall be issued
until the requirements of this article have been complied with. No
work related to a modification or co-location may be performed without
having obtained a valid and properly issued special use permit.
[Amended 1-23-2017 by L.L. No. 1-2017]
(1)
If deemed necessary, a site visit shall be conducted by the Board
and a preapplication meeting shall be held for all intended applications.
At or before the preapplication meeting, the applicant shall be provided
instructions for completing an application. Said instructions shall
be controlling as regards the form and substance of the issues addressed
in the application and must be followed. Applications submitted that
do not follow the instructions shall be deemed incomplete. Prior to
the site visit and the preapplication meeting, the applicant shall
prepare and submit a project information form provided by the Village
and the required fees, but shall not submit the application until
after the preapplication meeting;
(2)
The following information shall be required to be contained in an
application for a modification or co-location:
(a)
Safety.
[1]
A dated and signed copy of the valid COC for the last previously
done work;
[2]
If increasing the height of the telecommunications structure
or the size of the profile, the applicant shall be required to submit
clear and convincing evidence that there is no alternative solution
within 1/2 mile of the proposed site that would be less visually intrusive
and that not to increase the height or the size of the profile would
result in the prohibition of service or the perpetuation of a significant
gap in service primarily within the Village;
[3]
The age of the tower or other telecommunications structure in
years, including the date of the grant of the original permit;
[4]
A description of the type of tower, e.g. guyed, self-supporting
lattice or monopole, or a description of the other type of telecommunications
structure;
[5]
A detailed narrative description and explanation of the specific
objective(s) of the new equipment, expressly including and explaining
the purpose of such, such as coverage and/or capacity, technical requirements,
frequencies to be used and the identified boundaries of the specific
geographic area of intended coverage;
[6]
Technical documentation that shows by clear and convincing technical
evidence that the need for the requested height is necessary to provide
the type and coverage of the service primarily and essentially within
the Village using generally accepted industry methods;
[7]
Certified documentation in the form of a structural analysis
and report, including all supporting calculations, showing that the
facility, as designed, will meet all local, state and federal structural
requirements for loads, including wind and ice loads and including,
but not limited to, NYS Building and Fire Prevention Code and all
applicable ANSI (American National Standards Institute) TIA 222 guidelines.
In the event of a conflict, the more stringent shall apply;
[8]
A copy of the installed foundation design, including a geotechnical
subsurface soils investigation report and foundation design recommendation
for the tower or other structure;
[9]
Certified documentation regarding the physical situation and
physical condition of all equipment and facilities at the site in
the form of a report based on an on-site inspection, done pursuant
to and in compliance with the latest version of TIA/ANSI 222. The
inspection must be done by a qualified individual experienced in performing
such inspections and the report must be signed by an individual with
authority to order any needed remediation or resolution of issues;
[10]
All of the modeling information (i.e., data) inputted
into the software used to produce the evidence used to determine the
needed height, including but not limited to any assumptions made,
such as ambient tree height;
[11]
A copy of the FCC licenses for each frequency
band applicable for the intended use of the wireless telecommunications
transmission and/or receive equipment;
[12]
The frequency, modulation and class of service
of radios or other transmitting and receiving equipment;
[13]
The maximum transmission power capability at which
each type of radio is designed to operate;
[14]
The actual intended transmission power stated
as the maximum effective radiated power (ERP), both in dBms and watts;
[15]
The number, type and model of the antenna(s) proposed,
along with a copy of the specification sheet(s) for the antennas;
[16]
A certified statement from the owner of the facility
certifying that the facility and all attachments thereto are currently
in compliance with the conditions of the approved special use permit
or setting forth any noncompliant situation.
(b)
Ownership and management.
[1]
The name, address and phone number of the person preparing the
application;
[2]
The name, address, and phone number of the property owner and
the applicant, including the legal name of the applicant. If the owner
of the structure is different than the applicant, the name and all
necessary contact information shall be provided;
[3]
The postal address and Tax Map parcel number of the property;
[4]
A copy of the FCC license applicable for the intended use of
the wireless telecommunications facilities.
(c)
Construction. The total cost of construction and the value of
all new and replacement components and equipment.
D.
In certain instances, the Board may deem it appropriate to have an
on-site RF survey of the facility performed after the construction
or modification and activation of the facility, such to be performed
under the direction of the Board or its designee, and an unredacted
copy of the survey results provided, along with all calculations,
prior to issuance of a certificate of compliance.
E.
Attachments.
(1)
Attachments to buildings. To preserve and protect the nature and
character of the area and create the least visually intrusive impact
reasonably possible under the facts and circumstances, any attachment
to a building or other structure with a facie, the antennas shall
be mounted on the facie without increasing the height of the building
or other structure, unless it can be proven that such will prohibit
or have the effect of prohibiting the provision of service, and all
such attachments and exposed cabling shall use camouflage or stealth
techniques to match as closely as possible the color and texture of
the structure.
(2)
Attachments to water tanks. If attaching to a water tank, in order
to maintain the current profile and height, mounting on the top of
the tank or the use of a corral shall only be permitted if the applicant
can prove that to locate elsewhere less visually on the tank will
prohibit or have the effect of prohibiting the provision of service.
(3)
Profile. So as to be the least visually intrusive reasonably possible
given the facts and circumstances involved, and thereby have the least
adverse visual effect, all antennas attached to a tower or other structure
shall be flush-mounted or as near to flush-mounted as is possible
so as to create the smallest profile reasonably possible under the
facts and circumstances, unless it can be proven that such would prohibit
or serve to prohibit the provision of service or be technologically
impracticable.
A.
In addition to any other approvals or permits required by Article VI herein, all applications to construct, install, operate, maintain or otherwise establish new wireless telecommunications facilities (including but not limited to DAS equipment and systems) in, upon, above, along, across and over municipal facilities, municipal property and public rights-of-way (including, but not limited to, utility poles or other similar structures owned by other municipal entities or utility companies) shall be subject to the approval of a license and/or right-of-way agreement by the Board of Trustees, except that no license and/or right- of-way agreement shall be required of any entity that already holds a cable television or telecommunications franchise issued or covering the Village.
[Amended 1-23-2017 by L.L. No. 1-2017]
B.
Any applications under Subsection A solely for installation of wireless telecommunications facilities on poles or similar structures of 40 feet or less in height shall be administered exclusively as provided in this section, and not require a special use permit as provided in this article. Such applications shall require an administrative permit to be issued by the Building Inspector. Such permit shall be issued only after applicant's submission of a building permit application and compliance with all other requirements of this chapter, and the Village Code, as well as all other applicable federal, state and local codes and regulations relating to the construction and safety of wireless telecommunications facilities, as determined by the Building Inspector and only after such permit is approved by the Board subject to the following procedures and standards:
[Amended 4-18-2016 by L.L. No. 1-2016; 1-23-2017 by L.L. No. 1-2017]
(1)
The Board may have a qualified professional expert or consultant
of its choosing to review and confirm or disaffirm the information
and conclusions contained in the application materials, and provide
an assessment as to the propriety of each proposed site under the
standards hereinafter set forth. Any costs for the Village's expert
or consultant shall be reimbursed by the applicant as provided in
the Village's Fee Schedule.
(2)
The Board shall conduct site visits, including possible alternate
sites (including but not limited to public lands), and seek to ensure
that the proposed placement(s) are as far farthest away from residences,
houses of worship, day-care centers and schools as is commercially
practicable, and are as stealthed as reasonably possible.
C.
The Board shall assess each proposed site individually, addressing
the issues of whether the applicant has a substantial need to locate
a wireless telecommunications facility in, upon, above, along, across
and over municipal facilities, municipal property and public rights-of-way,
and whether there are alternate commercially practicable locations
(including but not limited to available public lands) which will adequately
serve the lawful interest of applicant and be farther away from residential,
religious or educational uses than that proposed by applicant subject
to the following standards:
[Amended 4-18-2016 by L.L. No. 1-2016]
(1)
Existing utility poles or other similar structures should be utilized
unless it shall be demonstrated by the applicant that the functional
or performance requirements of the facility cannot be satisfied using
an existing utility pole or other similar structure that conforms
to the requirements of this section;
(3)
Antennas shall be mounted at least 15 feet above the grade at the
base of the pole, and one omnidirectional antenna having a maximum
diameter no greater than the diameter of the pole it is attached to
and a maximum length of 72 inches may extend above the top of the
pole.
(4)
Installations shall not be on utility poles or other similar structures:
adjacent to or opposite driveways; adjacent to or opposite intersections;
or directly opposite a nonconforming dwelling or other building where
such nonconforming dwelling or building is set back less than the
required front yard. The installation shall be set back at least 75
feet from such a dwelling or building when the installation is located
on the same side of the street as such a nonconforming dwelling or
building and no less than 125 feet from such a dwelling or building
when the installation is located on the opposite side of the street
from such a dwelling or building.
(6)
A new pole or other similar structure shall be no higher than the
highest of the existing utility poles within 300 feet of such new
pole and shall not exceed a maximum height of 45 feet above existing
grade.
(7)
All aboveground cabinets and antennas shall be finished in nonreflective
coatings in camouflage natural-tone colors and patterns matching the
color of the pole.
(8)
The Board may, upon just cause shown by clear and convincing evidence,
waive or modify any of the aforementioned requirements.
D.
The Board may authorize the issuance of an administrative permit
by the Building Inspector for each site or node.
E.
On an application to the Board as referenced above, the Board shall
treat each proposed site or node as a separate case, and require a
fee from the applicant as required by the Village's Fee Schedule,
except that the applicant may include up to three nodes in a single
application, provided sufficient funds are deposited to cover the
cost of mailing notices and decisions to all property owners as required
by this article, in addition to all other required fees and deposits
as set forth in Village's Fee Schedule and in this article. In
considering the case(s), the Board shall employ all standard procedures,
including all public notice and hearing requirements as required generally
under § 7-712-a of the New York State Village Law, this
Code, and the rules of the Board, subject to the provisions of the
Federal Telecommunications Act of 1996, as applicable. Notwithstanding,
the notice of public hearing shall be given by publication in the
Village's official newspaper at least 10 days prior to the date
thereof. The applicant must mail a copy of the public notice thereof
to the owners of all real property located within 300 feet of each
proposed node, as shown on the official Tax Map of the Village, by
certified mail, return receipt requested, at least 10 days but not
more than 20 days before the date of the public hearing.
[Amended 4-18-2016 by L.L. No. 1-2016; 1-23-2017 by L.L. No. 1-2017]
F.
The Village's expert's or consultant's report shall be included in
the Board record. The Board may seek the advice and testimony of the
Village's expert or consultant, who by virtue of the Village having
done its due diligence prior to retaining the expert or consultant,
shall be deemed to be a qualified expert. The Board may require the
applicant to provide such further information to the Village's expert
or consultant to enable the expert or consultant to provide full expert
and probative input to the Board as to the merits of the application.
G.
The Board shall grant a special permit for each site or node only
if it shall determine that applicant has a substantial need to place
a wireless telecommunications facility in, upon, along, across and
over municipal facilities, municipal property and public rights-of-way
and that no other pole in a commercially practicable location exists
or may be installed or established in compliance with this article
(including but not limited to available public lands) which will adequately
serve the lawful interest of applicant and be further away from residential,
religious or educational uses than that proposed.
[Amended 4-18-2016 by L.L. No. 1-2016]
H.
The Building Inspector shall issue an administrative permit only
for those sites for which such administrative permit has been approved
by the Board under this article, which permits shall require the following:
[Amended 4-18-2016 by L.L. No. 1-2016; 1-23-2017 by L.L. No. 1-2017]
(1)
Indemnification. The applicant shall indemnify, defend and protect
and hold harmless the Village, its Board members, officers and employees
from and against any and all claims, demands, losses, damages, liabilities,
fines, charges, penalties, administrative and judicial proceedings
and orders, judgments, remedial actions of any kind, all costs and
cleanup actions of any kind and all costs and expenses incurred in
connection therewith, including reasonable attorney's fees and costs
of defense directly or proximately resulting from activities undertaken
pursuant to the construction, use, and operation of any approved wireless
telecommunication facility as provided in this section.
(2)
Insurance. The owner and applicant shall obtain and maintain at all
times insurance of an appropriate type and amount, with the Village
as a named insured, from an insurer licensed and authorized in the
State of New York meeting the satisfaction of the Board, the Village
Board of Trustees and the Village Attorney.
[Amended 4-18-2016 by L.L. No. 1-2016; 1-23-2017 by L.L. No. 1-2017]
A.
The Board may retain any consultant and/or expert necessary to assist
the Board in reviewing and evaluating the application, including the
construction and modification of the site, once permitted, and any
site inspections. To prevent taxpayers from having to bear the costs
and expenses related to the permitting and regulating of wireless
telecommunications facilities, the applicant shall pay to the Village
a fee(s) as set forth in the Village's Fee Schedule. The fee(s)
is intended to cover all the costs and expenses of the expert or consultant
and attorneys' fees in connection with the review of any application
or the permitting, inspection, construction or modification requested
under this article.
B.
Timing of payment. The payment of the expert or consultant fees to
the Village shall precede any work being done related to the intended
application, including but not limited to a site visit, preapplication
meeting or discussions or inquiries initiated by the applicant.
C.
Review prior to the formal submittal of the application. The expert
or consultant costs for any review of an application or any portion
thereof that is requested by the applicant prior to the formal submittal
of the application shall be paid for by the applicant and shall be
separate and apart from the cost for expert or consultant assistance
related to the formal review of the application.
D.
Amended or changed application. If an application is amended or changed
after its formal submittal at any time prior to the grant of the permit
or approval required under this article, the Board reserves the right
to require additional payment for review and analysis equal to, but
not exceeding, the cost incurred by the Village by the amendment of
the application. Such amount shall be paid to the Village prior to
the issuance of the special use permit, any building permit or any
other required permit or approval.
E.
Relief or waiver request. The cost of expert or consulting assistance
to the Village related to work associated with a request for relief
or waiver after the initial submittal of an application shall be paid
for by the applicant and shall not count toward the fee cap.
F.
Lease negotiations. The intended lessee shall pay all costs of the
Village's expert assistance incurred for lease negotiations.
The cost for the Village's expert assistance for lease negotiations
is and shall be separate and apart from an application review for
any permit, and shall be required to be paid for by the requesting
lessee prior to the start of any work related to the intended lease
negotiations.
G.
Qualifications. The Village may hire any consultant of its choice
to assist the Village in reviewing and evaluating applications, provided
the consultant has at least five years' experience working exclusively
for the public sector regulating towers and wireless facilities and
negotiating leases for such facilities and has reviewed at least 500
applications.
H.
The total amount of the funds needed for expert or consulting assistance
as set forth in the Village's Fee Schedule may vary with the
scope and complexity of the application, 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 or the
amount of time spent responding to an applicant's arguments as
regards its application or the requirements of this article.
I.
The Village will maintain an accounting for the expenditure of all
such funds.
A.
Co-location or modification. There shall be no public hearing required
for an application to co-locate on an existing structure or to modify
a facility, so long as there is no increase in the height of the telecommunications
structure or increase in the size of the profile of the facility.
In such an instance, the Building Inspector shall be authorized to
administratively issue the appropriate authorization or permit.
B.
New telecommunications structure or increased height or size of profile.
When the Building Inspector determines that the application is complete,
with all required submissions having been received in proper form
and all the information contained therein is truthful, correct and
accurate, the application shall be referred to the Board to schedule
a public hearing. Except where expressly prohibited by applicable
state and federal law, the Board may require such additional information
as it deems necessary and relevant to the application or the impact
on the Village of what is proposed, or the scheduling of a public
hearing.
C.
In order for a public hearing to be held, notice of the hearing shall
be published in the official newspaper of the Village no fewer than
10 calendar days prior to the scheduled date of the public hearing.
In order that nearby property owners shall be specifically notified
of the application, the applicant shall, no less than 14 calendar
days prior to the scheduled date of the public hearing, mail a written
notice of the hearing to all property owners 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, and for
that purpose, applicant shall complete and utilize a form provided
by the Board, and provide affidavits or such other proof to the Board
as the Board requires to ensure that such mailing has properly taken
place. The notice of hearing shall be sent by certified mail, return
receipt requested, to all property owners located within 500 feet,
and by first class mail to all other property owners entitled to notice
hereunder.
D.
The applicant shall pay for all costs related to the public notice
of any hearing and for the individual notices to property owners of
the hearing.
E.
Upon Board review and approval, a special use permit shall be issued.
[Amended 1-23-2017 by L.L. No. 1-2017]
A.
Timely review. The Village will undertake a review of an application
pursuant to this article in a timely fashion, consistent with its
responsibilities and applicable law, and shall act within the time
required by applicable law.
B.
Referral of application. The Village may refer any application or
part thereof to any advisory committee or expert or consultant for
a nonbinding recommendation.
C.
Action on an application. After the public hearing is completed,
and after formally considering the application, the Board may: approve;
approve with conditions; or deny a special use permit. If denied,
the decision shall be in writing and shall be supported by substantial
evidence contained in a written record. Throughout the application
and permitting process, the burden of proof for compliance with this
article or the need for a waiver or relief shall always be upon the
applicant.
[Amended 1-23-2017 by L.L. No. 1-2017]
D.
Refusal to provide information needed for written record. An applicant
shall not be permitted to refuse to provide information needed to
establish the substantial written record required under federal law
and applicable case law. Refusal shall result in a denial of the application.
E.
Approval notification. If the Board approves the special use permit
or administrative authority for the facility or complex, then the
applicant shall be notified of approval of its application, including
any conditions, within 30 calendar days of the Village's action.
The special use permit or administrative authorization shall be issued
within 30 days after such approval.
[Amended 1-23-2017 by L.L. No. 1-2017]
F.
Denial notification. The applicant shall be notified of a denial
of its application at the Board Meeting when the decision was made,
and in writing within 30 calendar days of the Board's action, which
notice shall set forth in writing the reason or reasons for the denial.
The written record expressly includes the minutes of any hearing.
[Amended 1-23-2017 by L.L. No. 1-2017]
The extent and parameters of a special use permit or administrative
authorization for a facility or complex shall be as follows:
A.
Such special use permit or administrative authorization shall not
be assigned, transferred or conveyed without the express prior written
notification to the Village, such notice to be not fewer than 30 business
days prior to the intended assignment, transfer or conveyance.
B.
A transfer, assignment or other conveyance of the special use permit
or administrative authorization shall require the written commitment
of the proposed new holder of the special use permit or administrative
authorization to abide by all applicable laws, rules and regulations,
including but not limited to this article.
C.
Following notice and an opportunity to cure, a special use permit
granted under this article may be revoked, canceled or terminated
for a violation of the conditions and provisions of the special use
permit or other applicable law, rule, regulation or order, and if
warranted, the payment of a fine(s) as is permissible.
D.
If a violation is not cured within the time frame set forth in the
notice of violation, a hearing shall be held upon due prior notice
to the applicant citing the violation and the date, time and place
of the hearing, which shall be provided by registered mail to the
last known address of the holder of the special use permit.
E.
Following the original notice and an opportunity to cure, subsequent
or repeated violations of a substantially similar nature shall be
deemed a pattern of misbehavior and not require an opportunity to
cure prior to the imposition of fines or penalties.
[Amended 1-23-2017 by L.L. No. 1-2017]
Prior to the issuance of any building permit, the applicant
and the owner of record of any proposed new tower or other telecommunications
structure or complex shall, at its sole cost and expense, be jointly
required to execute and file with the Village a bond or other form
of security that is acceptable to the Village Attorney as to the type
of security and the form and manner of execution, in an amount of
at least $75,000 for a tower or other telecommunications structure
and with such sureties as are deemed adequate by the Village Attorney
to assure the faithful performance of the requirements of this article
and conditions of any special use permit issued pursuant to this article.
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.
A.
In order to verify that the holder of a special use permit for a
facility or complex and any and all lessees, renters and/or licensees
of wireless telecommunications facilities, place and construct such
facilities in accordance with all applicable technical, safety, fire,
building codes, zoning codes, laws, ordinances and regulations and
other applicable requirements and the conditions of any permit granted
under this article, and remains in compliance with such, the Village
or its designee shall have the right to 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.
[Amended 1-23-2017 by L.L. No. 1-2017]
B.
Refusal to allow or grant access to the Village's representative
upon reasonable notice shall be deemed a violation of this chapter.
A.
A holder of a special use permit for a wireless telecommunications
structure shall secure and at all times maintain general comprehensive
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:
[Amended 1-23-2017 by L.L. No. 1-2017]
(1)
Commercial general liability covering personal injuries, death and
property damage; $2,000,000 per occurrence/$5,000,000 aggregate;
(2)
Automobile coverage: $1,000,000 per occurrence/$3,000,000 aggregate;
(3)
A $10,000,000 umbrella coverage; and
(4)
Workers' compensation and disability: statutory amounts.
B.
For a facility or complex located on Village property, the commercial
general liability insurance policy shall specifically name 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 of New
York and with an AM 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 30 days before the expiration of the insurance
that such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications facility
or complex is initiated, but in no case later than 15 days prior to
the grant of the building 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.
[Amended 1-23-2017 by L.L. No. 1-2017]
G.
A certificate of insurance that states that it is for informational
purposes only and does not confer rights upon the Village shall not
be deemed to comply with this chapter.
[Amended 1-23-2017 by L.L. No. 1-2017]
A.
Any application for wireless telecommunication facilities that is
proposed to be located on Village property shall contain a provision
with respect to indemnification of the Village. Such provision shall
require the applicant, to the extent permitted by applicable 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 or complex, 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.
B.
Notwithstanding the requirements noted in Subsection A of this section, an indemnification provision will not be required in those instances where the Village itself applies for and secures a special use permit for a wireless telecommunications facility or complex.
[Amended 1-23-2017 by L.L. No. 1-2017]
A.
The owner of the property on which a wireless telecommunications
facility or wireless equipment is located, as well as the owner and/or
manager of the facility, including any support structure and/or the
land on which it is located, shall at all times be responsible for
assuring that all activities occurring on the structure or at the
site of the facility that are related to the operation of the facility
and the support structure, including but not limited to: proper permitting
for all activities as required by this and other Village laws, rules
or regulations; the physical and safe condition and operation of the
facility, including any components of such; and compliance with all
applicable laws, ordinances, rules, regulations and orders related
to the presence and operation of the facility by any user or lessee
of all or part of the facility. Said owner(s) and/or manager(s) shall
monitor activities at the site and operate the facility so as to assure
compliance as set forth in this subsection.
B.
In the event of a violation of this article or any of the terms and
conditions of a special use permit or other approval required pursuant
to this article, and in addition to any other remedy available to
the Village at law or equity, the Village may impose and collect,
and the holder of the special use permit for wireless telecommunications
facilities or the owner of the support structure responsible for adherence
to the law for the construction, maintenance, operation and modification
shall pay to the Village, civil penalties in the amount of $500 per
day, until the violation or violations are abated to the satisfaction
of the Village.
[Amended 1-23-2017 by L.L. No. 1-2017]
C.
Additionally, the failure to comply with provisions of this article
or the terms and conditions of any special use permit, building permit,
administrative permit or other required approval shall constitute
a violation of this article by the owner of the property, the owner
of the improvements and any lessee or other person or entity in control
of the property or facility, jointly and severally, and shall subject
them or any of them to prosecutions in the Old Brookville Village
Court or other court of competent jurisdiction, or injunction actions
in any court of competent jurisdiction to compel compliance.
[Amended 1-23-2017 by L.L. No. 1-2017]
D.
In the case of a Village Court prosecution, any person, firm or corporation
which shall construct, alter, repair, move, remove, demolish, equip,
use, occupy or maintain any wireless telecommunications facility or
part thereof in violation of this article, or the conditions of any
special use permit, building permit, administrative permit or other
approval issued hereunder, shall be guilty of a violation punishable
by a fine not exceeding $1,000 or imprisonment for a period not exceeding
15 days for each such offense, or by both such fine and imprisonment.
Each day that an offense continues shall be deemed a separate offense.
For conviction of a second offense, both of which were committed within
a period of five years, such violation shall be punishable by a fine
of not less than $250 and not more than $1,000 or by imprisonment
for a period not to exceed 15 days, or both. Except as provided otherwise
by law, such a violation shall not be a crime and the penalty or punishment
imposed therefor shall not be deemed for any purpose a penal or criminal
penalty or punishment and shall not impose any disability upon or
affect or impair the credibility as a witness, or otherwise, of any
person convicted thereof.
[Amended 1-23-2017 by L.L. No. 1-2017]
E.
No person or entity may use the payment of penalties set forth in
this section as a means of evading or avoiding compliance with the
letter and the intent of this article.
[Amended 1-23-2017 by L.L. No. 1-2017]
If a telecommunications structure, facility or complex is repaired,
rebuilt, placed, moved, relocated, modified or maintained in a way
that is inconsistent or not in compliance with the provisions of this
article or of the special use permit or any other required permit
or approval, then the Village shall notify the holder of the special
use permit or other required permit or approval in writing of such
violation. A special use permit or any other permit or approval holder
found to be in violation may be considered in default and subject
to fines as provided in this article; and if a violation is not corrected
to the satisfaction of the Village in a reasonable period of time,
the special use permit or other required permit or approval shall
be subject to revocation.
If attached to an existing tower or other telecommunications
structure, unless the Board deems doing so to be in the public interest,
it shall be impermissible for a wireless service provider's or carrier's
equipment to be relocated from one structure to another without clear
and convincing evidence that not to do so would, for technical reasons,
prohibit or serve to prohibit the provision of service in the service
area served by the existing wireless facility.
A.
If the lease for the existing co-location expires and is not renewed,
thereby forcing the facility to be moved, such move shall be allowed
upon: the provision of clear and convincing evidence satisfactory
to the Board of the need to move or relocate the Facility; and clear
and convincing evidence satisfactory to the Board of the lack of impact
on the neighborhood or area of intended new location. Cancellation
or abandonment of a lease by a lessee shall not be deemed a permissible
reason for relocating.
B.
The owner of any facility or complex shall be required to provide
a minimum of 60 days prior written notice to the Village Clerk prior
to abandoning any facility or complex and shall bear the costs of
removal and restoration of the sites of the complex to their original
condition, the costs of which shall be bonded in the event the owner/operator
does not remove restore the areas of the installation or transfer
the ownership and obligations to another entity under this article.
C.
Under the following circumstances, the Village may determine that
the health, safety and welfare interests of the Village warrant and
require the removal of facilities.
(1)
A facility or complex that has been abandoned (i.e., not used as
wireless telecommunications facilities) for a period exceeding 90
consecutive days or a cumulative total of 180 nonconsecutive 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 be completed within 90 days of abandonment.
(2)
A telecommunications structure or facility or complex falls into
a state of disrepair as to create a health or safety hazard or is
deemed an attractive nuisance or a visual blight.
(3)
A telecommunications structure or facility or complex has been located,
constructed or modified without first obtaining, or in a manner not
authorized by, the required special use permit, or any other necessary
permit or approval and the special use permit or any other necessary
permit or approval has been revoked as provided in this article.
[Amended 1-23-2017 by L.L. No. 1-2017]
(4)
If the Village makes such a determination under this section, then
the Village shall notify the holder of the special use permit or any
other necessary permit or approval for the facility or complex in
writing that said facility or complex is to be removed.
[Amended 1-23-2017 by L.L. No. 1-2017]
(5)
The holder of the special use permit or any other necessary permit
or approval, its successors or assigns, shall dismantle and remove
such facility or complex and all associated structures and equipment
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. Restoration shall be completed within
90 days of receipt of written notice from the Village. However, if
the owner of the property upon which the facility or complex is located
wishes to retain any access roadway to the facility or complex, the
owner may do so with the approval of the Board.
[Amended 1-23-2017 by L.L. No. 1-2017]
(6)
If a facility or complex has not been removed within 90 days after
the permit holder has received written notice from the Village, then
the Village may order officials or representatives of the Village
to remove the facility or complex at the sole cost and expense of
the owner and the special use permit or any other necessary permit
or approval holder, dispose of the equipment as it sees fit and charge
a tax lien against the property on which the structure(s) are situated
to cover all of the Village's cost and expenses, including attorney
fees.
[Amended 1-23-2017 by L.L. No. 1-2017]
(7)
If the Village removes, or causes facilities to be removed, and the
owner of the facility or complex does not claim and remove it from
the site to a lawful location within 10 days, then the Village may
take steps to declare the facility or complex abandoned, and sell
them and their components.
(8)
Notwithstanding anything in this article to the contrary, the Village
may approve a temporary use permit/agreement for the facility or complex
for no more than 90 days' duration, during which time a suitable
plan for removal, conversion or relocation of the affected facility
or complex 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 or other
approval 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 facility or complex
in the manner provided in this article and utilize the bond as provided
for in this article.
[Amended 1-23-2017 by L.L. No. 1-2017]
To assure the protection of the public health and safety, unless
expressly prohibited by state or federal law, the Village expressly
reserves the right to require that an applicant, a user of a facility
or complex or the owner of the facility or complex verify compliance
with the FCC's regulations regarding RF emissions as may be deemed
appropriate from time to time, and that all users of the facility
or complex cooperate with the party responsible for such verification.
Failure to cooperate shall be deemed a violation of this article and
subject the non-cooperating party to all fines and other remedies
at law or in equity and shall further be deemed cause for the Village
to call upon the services of the U.S. Department of Labor's Occupational
Safety and Health Administration (OSHA) to make a determination.
A.
With respect to telecommunications structures other than towers,
if any section or portion of the structure to be attached to or area
within 100 feet of such, is not in compliance with the FCC's regulations
regarding RF radiation, that section or portion must be barricaded
with a suitable barrier to discourage approaching into the area in
excess of the FCC's regulations, and be marked off with brightly colored
plastic chain or striped warning tape as appropriate, as well as placing
RF radiation signs as needed and appropriate to warn individuals of
the potential danger.
A.
Any applicant desiring relief, waiver or exemption from any provision
or requirement of this article shall address and identify such at
the pre-application meeting. The relief or exemption must be contained
in the filed application for either a special use permit or any other
necessary permit or approval, or in the case of an existing or previously
granted special use permit or any other necessary permit or approval,
a request for modification of the facility or complex and/or equipment.
Such relief may be temporary or permanent, partial or complete.
[Amended 1-23-2017 by L.L. No. 1-2017]
B.
Requests for relief shall not be considered part of the application
process.
C.
The burden of proving the need for the requested relief, waiver or
exemption shall be solely on the applicant.
D.
The applicant shall bear all costs and expenses of the Village in
considering the request and the relief, waiver or exemption, including
expert assistance costs.
E.
No 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 affect on the health, safety
and welfare of the Village, its residents and other service providers.
[Amended 1-23-2017 by L.L. No. 1-2017]
A.
To the extent that the holder of a special use permit or any other
necessary permit or approval for a wireless telecommunications facility
or complex 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, permit or approval 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 or any other necessary
permit or approval for wireless telecommunications facilities, then
the holder of such a special use permit or other permit or approval
shall conform the permitted facility or complex 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.
This article is enacted as a local law under the Municipal Home
Rule Law, pursuant to applicable authority granted by the State and
federal governments.
