Village of Farmingdale, NY
Nassau County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Board of Trustees of the Village of Farmingdale 6-2-2014 by L.L. No. 3-2014.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 600.
[1]
Editor's Note: This local law was originally adopted as Ch. 18 but was renumbered to maintain the organization of the Code.

§ 582-1 Statement of purpose and intent.

A. 
The purpose of this chapter is to establish predictable and balanced regulations for the siting and screening of telecommunication facilities, including personal wireless services antennas, towers, and accessory structures. The establishment of such regulations is to accommodate the growth of such systems within the Incorporated Village of Farmingdale ("Village"). It is intended that this chapter will serve to protect the public against, and minimize, any adverse impacts of telecommunication facilities on the Village, including potential aesthetic impacts, and potential damage to adjacent properties from telecommunication structures' failure. It is also intended that the regulations set forth in this chapter will promote the efficient and orderly implementation of reasonably necessary telecommunication facilities and elimination of redundant, unnecessary and superfluous telecommunication facilities, maximizing the use, and the sharing, of existing telecommunication facilities. It is not intended that this chapter violate or otherwise interfere with the Telecommunications Act of 1996 (hereinafter referred to as the "Act") or the purpose of the Act, which is to provide a more competitive environment for wired and wireless communication services in the United States by deregulating the telecommunications industry. The Board of Trustees for the Village of Farmingdale finds that the Act preserves the authority of local government to regulate the placement, construction, and modification of personal wireless services antennas, towers and accessory structures in order to protect the health, safety, and welfare of the public.
B. 
This chapter is intended to regulate the placement, construction, and modification of telecommunication facilities in order to protect the health, safety, and welfare of the public without unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the Village. Specifically, this chapter is intended to:
(1) 
Regulate the location of telecommunications facilities in the Village;
(2) 
Protect residential areas and land uses within and adjacent to the Village from potential adverse impacts of telecommunications facilities; promote and encourage the location of such devices, to the extent possible, in areas where adverse impacts on the surrounding neighborhoods are minimized; protect natural features, aesthetics and the residential character of neighborhoods and protect the efficient and orderly development of land uses from potential adverse impacts and promote and encourage the location of telecommunication facilities in nonresidential areas of the Village;
(3) 
Minimize adverse visual impacts of telecommunications facilities through careful design, siting, landscaping, and innovative camouflaging techniques;
(4) 
Promote and encourage shared use/collocation as a primary option rather than construction of additional single-use towers; minimize, where possible and feasible, the total number of telecommunication facilities within the Village, promote and encourage joint use of new or existing structures and discourage the erection of such structures for single users; promote and encourage utilization of existing telecommunication facilities and technological designs that will either eliminate or reduce the need for erection of new telecommunication facilities;
(5) 
Avoid potential damage to property caused by telecommunications facilities by ensuring such structures are soundly and carefully designed, constructed, modified, maintained, and removed when no longer used or determined to be structurally unsound; and
(6) 
Ensure that telecommunications facilities are compatible with surrounding land uses. Verify that telecommunication facilities comply with federally established regulations and require applicants to conduct field studies and produce such other proof as is reasonably necessary to establish compliance with federal, state and local law.
C. 
It is not intended that this chapter violate the Communications Act of 1934, as amended by the Act, which grants the Federal Communications Commission (FCC) exclusive jurisdiction over the regulation of the environmental effects of radio frequency (RF) emission from telecommunications facilities; and the regulations of radio signal interference among users of the RF spectrum. This chapter is not intended to interfere with matters which Congress or the FCC has exclusive jurisdiction, and the Village's regulation of telecommunications facilities in the Village will not have the effect of prohibiting any person from providing wireless telecommunications services permitted by the Act. The Village Board of Trustees has determined that it is in the best interests of Village residents to establish the standards in this chapter for the location of telecommunication facilities and the provision of communication services consistent with applicable federal and state laws, statutes, rules and regulations.

§ 582-2 Definitions and word usage.

The following terms shall have the meanings ascribed to them in this section, unless the context explicitly indicates a different meaning. Terms which are not defined or which are found to be ambiguous shall be defined in accordance with the Act, and any successor law, together with the rulings and regulations pursuant thereto.
ACCESSORY FACILITY OR STRUCTURE
Includes any building or other structure which is accessory to the principal use, being subordinate in size, area, extent and purpose to the principal use, and located on the same lot as the principal use.
ANTENNA and/or BEACON
A whip (omnidirectional antenna), panel (directional antenna), disc (parabolic antenna) or similar device used for transmission and/or reception of radio frequency waves, including radio navigation, radio and television frequencies (excluding radar), wireless and microwave communications, generally ranging from 10 hertz to 300,000 megahertz, and/or used in communications that radiate or capture electromagnetic waves, digital or analog signals, or other communications signals.
COLLOCATION
The placement of two or more wireless communication facilities upon a single structure in the same location.
FAA
The Federal Aviation Administration of the United States.
FCC
The Federal Communications Commission of the United States.
HEIGHT
The distance measured from the finished mean grade of the parcel to the highest point on the building, tower, telecommunication facility, or other structure attached thereto.
MOUNT
A tower, structure or surface upon which antennas are mounted.
MUNICIPAL FACILITIES
Village-owned water towers, street poles and lamps, lighting fixtures, electrifiers, flagpoles, and other similar Village-owned structures.
MUNICIPAL PROPERTY
Village-owned property and 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 of Farmingdale except: property leased or licensed to or by the Village; any property where the Village holds an easement or other beneficial interest; public rights-of-ways; and underwater lands.
PUBLIC RIGHTS-OF-WAY
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 of Farmingdale. The term shall not include county, state, or federal rights-of-way or places owned by the Village of Farmingdale jointly with another person or entity.
TELECOMMUNICATIONS FACILITY OR FACILITIES
Shall have the same meaning as "wireless telecommunications facility or facilities" and shall be defined as follows: Any antenna, beacon, tower and any other structure, equipment, installation, facility, device, wires, cables or appurtenance designed, installed or intended to be used for transmitting, receiving, distributing, providing or accommodating cellular, radio, television, SMR, enhanced specialized mobile radio (ESMR), paging, 911, personal communication services (PCS), commercial satellite services, microwave, mobile and any commercial wireless telecommunication service not licensed by the FCC, including without limit, mounts, towers of all types, structures, buildings, church steeples, or anything that is used to support antennas or its functional equivalent; and distributed antenna systems (DAS), including all accessory facilities, installations, and equipment, such as transmission cables, wires, mounts, cabling, equipment shelters and other appurtenances. Telecommunication facilities shall include those structures that house, support or form part of the antennas or other transmitting or receiving devices.
TOWER
Any structure which is designed, constructed or installed primarily for the purpose of supporting one or more antennas for telephone, television, radio and other communication purposes, including self-supporting lattice towers, or monopole towers, radio and television transmission and reception towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures and similar structures. A tower shall include the structure and any support systems appurtenant thereto. "Tower" shall not include amateur radio operators' equipment, as licensed by the FCC. Guyed towers shall not be permitted unless the applicant is granted a waiver pursuant to § 582-6M.

§ 582-3 Applicability.

A. 
No telecommunication facility shall hereafter be used, erected, changed or altered except after obtaining a special use permit in conformity with this chapter.
B. 
Applications for a special permit shall be made to the Village Board of Trustees on a form provided by the Village. An application shall not be considered complete until all required documentation shall be submitted to the Village.
C. 
The Board of Trustees is hereby authorized to review and approve, approve with modifications, or disapprove special use permits pursuant to this chapter. The Board of Trustees shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed telecommunication facilities.
D. 
Special use permits issued by the Board of Trustees shall be effective for a period of two years, which shall be renewable thereafter upon the submission of an application for renewal by the applicant, and a finding by the Village that the applicant is in compliance with the special use permit, and the payment of the fee referenced in § 582-18. Additionally, the special use permit shall be subject to review by the Board of Trustees at each five-year anniversary (from the original grant) to determine the following:
(1) 
Whether the technology in the provision of personal wireless services has changed such that the necessity for the special use permit at the time of its approval has been eliminated or modified; and
(2) 
Whether the special use permit should be modified or terminated as a result of any such change.
E. 
This chapter is not intended to prohibit the antennas and other structures permitted pursuant to Chapter 600, Article XXII, and is not intended to regulate or prohibit such uses that are licensed to operate by the FCC (other than height, bulk, and area provisions of Chapter 600), or uses which are pre-empted or exempt from local regulation by federal or state law. The Act gives the FCC sole jurisdiction of the field of regulation of RF emissions and does not allow the Village to condition or deny on the basis of RF impacts of any telecommunications facilities (whether mounted on towers or antenna support structures) which meet FCC standards. Telecommunication facilities shall be subject to state and federal regulations pertaining to nonionizing radiation and other health hazards related to such facilities. In order to provide information to its citizens, the Village shall make available, upon request, copies of ongoing FCC information and RF emission standards for telecommunications facilities. Accordingly, applicants for special permits shall be required to submit to the Village Clerk, with the application and on each anniversary of the special permit grant, such copies of ongoing FCC information and RF emission standards along with information on the power density of their telecommunications facilities. Applicants shall also submit evidence of compliance with FCC and RF emission standards on a quarterly basis to the Village. The applicant shall also, on a quarterly basis, submit a report to the Village outlining changes in the Act, or the regulations pertaining thereto which in any way relate to the public health and welfare or the health hazards associated with telecommunications facilities. If new, more restrictive standards for telecommunications facilities are enacted at the federal, state or local level, the applicant shall notify the Village of such changes, and the applicant, owner, or occupant, as the case may be, shall, at his or her expense, comply with such changes within the time period designated by the Board of Trustees. The cost of verification of compliance shall be borne by the applicant, owner or operator of the telecommunication facilities.

§ 582-4 Special use permits required.

A. 
A special permit shall be required for all telecommunication facilities, and such facilities shall be permitted within the Village of Farmingdale, provided that the Village Board of Trustees, after a public hearing, grants a special permit therefor. An applicant for telecommunication facilities shall file an application for a pre-application conference. All applicants are required to file an application for, and attend, a pre-application conference to be scheduled by the Village Board of Trustees or, if the Board should so refer, the Village Planning Board, to review the proposal and receive comments from the applicable Village departments prior to filing an application for a building permit or special use permit. Applicants shall provide such documents and plans as the Village Board of Trustees or Planning Board may reasonably require in advance of the conference for the purpose of providing comments and recommendations. The pre-application conference shall be held within 45 days of the Village's receipt of a written request for such conference and the Village's receipt of a complete application.
B. 
For all telecommunication facilities in, over or upon municipal property, municipal facilities and public rights-of-way, in addition to the special use permit, the applicant shall be required to enter into a license agreement satisfactory to the Board of Trustees. No building permit shall be granted prior to the grant of a special use permit and a fully executed license agreement for telecommunication facilities.
C. 
No special use permit shall be approved by the Village Board of Trustees unless the application has been granted site plan and architectural review board approval. Applications for a special use permit shall be filed simultaneously with an application for site plan and architectural review board approval in accordance with Chapter 600, Article XXXIII.

§ 582-5 Applications for special permits.

A. 
Application requirements. An original and 11 copies of an application to the Village Board of Trustees shall be filed in the Office of the Village Clerk and shall consist of all documents, information, proof and plans required for applications before the Board of Trustees, along with such other documents as may be requested during the review process by Village departments, and a nonrefundable application fee, in an amount set from time to time by resolution of the Board of Trustees. The application fee shall be tripled in all cases where installations have been made or work commenced in violation of this chapter. The Village Clerk shall forward copies of the application to the Village Board of Trustees, Village Engineer, Village Planning Board, Village Architectural Review Board, and the Village Attorney.
B. 
Applications for telecommunication facilities shall include the following:
(1) 
The name, address, and telephone number of the owner and lessee of the parcel of land upon which the telecommunication facility is to be situated. If the applicant is not the owner of the parcel of land upon which the facility is to be situated, the applicant shall submit evidence of the written consent of the owner with the application;
(2) 
The legal description and address of the parcel of land upon which the telecommunication facility is to be situated;
(3) 
An inventory of all existing like telecommunication facilities, or sites approved for such facilities, that are either located within the jurisdiction of the Village or within one mile of any border thereof, including specific information about the location, height and design of each such telecommunication facility, tower or DAS system, compiled from public records by the best efforts of the applicant; the distance from the proposed telecommunication facility as shown on the map or plan submitted with the application; and the name of the owner and operator of each such facility, as best as same can be ascertained. The inventory shall include names, addresses, and telephone numbers of all owners and operators of other telecommunication facilities or usable antenna support structures within the area referenced herein, including all municipal property, municipal facilities and public rights-of-way. Information on other facilities shall include location, height and design thereof. Where the applicant seeks a new telecommunication facility, it must demonstrate, by clear and convincing evidence, why an existing telecommunication facility in such inventory is not suitable or available to satisfy the stated need;
(4) 
A description of the design plan proposed by the applicant in the Village. The applicant must identify its utilization of the most recent technological design, including microcell design, as part of the design plan. The applicant must demonstrate the need for its proposal and why other design alternatives, such as the use of microcell, cannot be utilized to accomplish the provision of the applicant's telecommunications services;
(5) 
A long-form environmental assessment form;
(6) 
Insurance with appropriate endorsements demonstrating that the Village and its elected and appointed officers, officials, employees and agents are named as principal or additional insureds for the following:
(a) 
Comprehensive general liability insurance with limits not less than:
[1] 
Five million dollars for bodily injury or death to each person.
[2] 
Five million dollars for property damage resulting from any one accident.
[3] 
Five million dollars for all other types of liability.
(b) 
Automobile liability for owned, nonowned and hired vehicles with a limit of $3,000,000 for each person and $3,000,000 for each accident.
(c) 
Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.
(d) 
Coverage comprehensive for premises, operations, explosions and collapse hazard, underground hazard and products completed hazard, with limits of not less than $3,000,000.
(e) 
The liability insurance policies required by this section shall be maintained by the applicant throughout the terms of the use and removal of the telecommunications facilities. Each such insurance policy shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 30 days after receipt by the Village, by registered or certified mail, of a written notice addressed to the Village of such intent to cancel or not to renew."
(f) 
In the event the Village receives notice of such cancellation or intention not to renew, within 20 days after receipt of said notice and in no event later than 10 days prior to said cancellation, the applicant shall obtain and furnish to the Village documentation of replacement insurance policies meeting the requirements of this section;
(7) 
A sworn, notarized statement by the applicant's qualified professional that:
(a) 
The proposed telecommunication facility complies with all applicable federal, state, and local laws, and a certification by a qualified professional establishing that the facility meets or exceeds the standards and regulations of the FAA, the FCC, and any other state or federal agency having jurisdiction, including a statement that the proposed telecommunication facility will be in full compliance with the current RF emissions guidelines of the FCC or other agency having jurisdiction, that the proposed telecommunication facility or other structure that will support the proposed antenna or beacon or facility is in compliance with FAA Regulation Part 77 or successor regulation and whether it requires lighting together, with a complete study as verification of such compliance. The statement shall also contain the following information: a) frequency, modulation and class of service of radio or other transmitting equipment; b) actual intended transmission power stated as the maximum effective radiated power (ERP) in watts; c) certification that an attached copy of the FCC license for the intended use of the telecommunication facilities is a true and complete copy; and d) the number, type and model of the proposed facilities or antenna(s) with a copy of the specification sheet;
(b) 
The proposed telecommunication facility will/will not accommodate collocation of additional facilities or antennas for future users;
(c) 
The construction and placement of the telecommunications facility will not interfere with public safety communications and the usual and customary transmission or reception of radio, television, or other communications services;
(d) 
The proposed structure meets the standards set forth in § 582-6I, Structural requirements, of this chapter; and
(e) 
The telecommunications facilities do not pose a risk of explosion, fire, or other danger to life or property due to their proximity to volatile, flammable, explosive, or hazardous materials such as LP gas, propane, gasoline, natural gas, or corrosive or other dangerous chemicals;
(8) 
A site plan, drawn to scale, meeting all the requirements contained in the Village Code;
(9) 
Delineation of all distances between the proposed facility and all adjoining residentially zoned or residentially utilized properties, and the distance between the nearest boundary line of any school property and the proposed telecommunication facility;
(10) 
A photograph, or photograph simulation, of the proposed facility from multiple angles and heights;
(11) 
Evidence that a pre-application conference has been held with the recommendations, findings or comments of the various Village boards, officials, consultants or departments which reviewed the application;
(12) 
Evidence that applicant has, in writing, advised the legislative body of each municipality that borders the Village and the Nassau County Planning Commissions and the Suffolk County Division of Planning of its proposal in accordance with § 582-6G(2)(e);
(13) 
For telecommunication facilities that the applicant claims cannot be collocated:
(a) 
A sworn, notarized statement by the applicant's qualified professional identifying the efforts made to obtain permission to install or collocate the applicant's telecommunications facilities on existing, approved telecommunication facilities or usable antenna support structures. The statement from an engineer shall include written technical evidence and shall state:
[1] 
That the proposed telecommunications facilities cannot be installed or collocated on another site or usable antenna support structures and that there is a significant gap in the telecommunications service available to remote users;
[2] 
The suitability or unsuitability of existing telecommunication facilities, towers or other structures and installations that are available in place of the proposed action, and the uses contemplated for the proposed structure or installations; and
[3] 
That all required approvals from all federal, state and local authorities with jurisdiction have been acquired. The applicant shall provide the Village with copies of proof of such approvals and copies of all materials submitted to such authorities. The applicant shall also document that FAA approval was not required, or if required, provide all documentation filed in connection with the FAA application.
(b) 
Where an applicant contends that a gap in service requires the proposed telecommunication facility, the applicant must produce clear and convincing evidence by qualified professionals in the form of studies, including field studies where appropriate, that a gap in service exists, that the proposed telecommunications facilities meet or exceed the standards in the industry and that the existence of a gap in service would be remedied and the proposed facility is required at the proposed location, and that there is no other reasonable or feasible alternative. Such evidence is also required to support requests to locate in residentially zoned or utilized properties, or within 500 feet of a school or residential district or to erect a new tower or structure of any kind in lieu of installing the facilities within or upon an existing telecommunication facility, tower or structure; and
(14) 
The Board of Trustees may require an applicant to supplement any information that it considers inadequate or that the applicant has failed to supply. The applicant shall furnish any additional documents, studies and specifications deemed necessary by the Board of Trustees, its consultants or professionals or otherwise required pursuant to this chapter during the review process. The Board of Trustees may deny an application on the basis that the applicant has not submitted a complete application and has not satisfactorily supplied the information required in this subsection or chapter.
C. 
All applications for a special use permit shall be before the Village Board of Trustees and shall be determined after a public hearing. A public hearing on the application shall be scheduled within 60 days of receipt of a complete application which shall include all those items required pursuant to this chapter. Applicants shall mail a notice of public hearing, postmarked no less than 30 days (and no more than 45 days) before the hearing to the owners and occupants of all properties located within 500 feet of the nearest boundary line of the property which is the subject of the application, as shown on the current tax roll. Notice of the public hearing shall also be published by the Village Clerk, at the applicant's expense, at least 30 (and no more 45) days before the hearing in the official newspaper(s) of the Village.
D. 
The applicant shall provide a certificate of mailing certified by the United States Postal Service for each recipient which legibly indicates the name and address of the property owner and occupant to which notice was mailed. The certificate of mailing shall be filed by applicants in the Office of the Village Clerk no less than five business days before the hearing. Failure to comply with the required notice periods shall result in postponement of the public hearing at the applicant's cost and expense, which shall include all costs and expenses associated with renoticing the hearing.
E. 
The application can be approved or denied, in whole or in part, with or without conditions as deemed advisable by the Village Board of Trustees. If the application is approved, in whole or in part, a special permit shall be authorized and shall contain the term of the grant; conditions on the use or occupation of Village property, including separate compensation, where applicable, for the use of public rights-of-way, municipal facilities, and municipal property; provisions for construction and/or performance bonds; indemnity and insurance; obligations concerning areas disturbed during construction, installation, attachment or maintenance activities; submission of annual inventory reports showing the exact location of all installations; conditions on transfer or assignment; and such other conditions consistent with the requirements and purposes of this chapter and that ensure that the applicant's use or occupation minimizes disruption to the public, adheres to all applicable laws, and promotes safe, effective and efficient use of property.
F. 
The Village Board of Trustees may require, at the applicant's expense, the applicant to:
(1) 
Erect a structure to house the proposed facility or antenna and related equipment, as it deems necessary or desirable;
(2) 
Require a field demonstration with a crane, balloon or other acceptable means to simulate the aesthetic impacts of the proposed wireless telecommunications facility;
(3) 
Retain qualified consultants and professionals, for the benefit of the Village, to verify that that the applicant has complied with the requirements of this chapter, that the proposed wireless telecommunication facilities and other facilities subject to this chapter comply with applicable limits for RF emissions; that the proposed facility is truly necessary to remedy a significant gap in service at a specified location, and to advise the Board on any aspect of an application in accordance with this chapter; or
(4) 
Refer an application to the Planning Board and any other Village departments for recommendations on any issue it deems necessary and proper. Such referral shall specify the reasons for the referral.

§ 582-6 General requirements.

Telecommunication facilities shall comply with the following requirements, unless otherwise required by the Act, FAA, FCC or other applicable authority:
A. 
Color; design. All wireless telecommunication facilities shall be of a neutral color or such other color(s), as the Board of Trustees may require, to reduce the visual impact to surrounding areas. All facilities, antennas, beacons or other structures and their supporting electrical and mechanical components must be of a color that is identical to or closely compatible with the color of the supporting structure so as to render it as visually unobtrusive as practicable. All wireless telecommunication facilities shall, to the extent practicable, use materials, colors, textures, screening and landscaping that will blend them into the natural setting and surrounding buildings. All telecommunication facilities, antennas, towers and accessory structures shall be designed to blend into the surrounding environment through the use of color and camouflaging architectural treatment, except in instances where the color is indicated by federal or state authorities such as the Federal Aviation Administration. All telecommunication facilities, antennas, towers and accessory structures shall be of neutral colors that are harmonious with, and that blend with, the natural features, buildings and structures surrounding such antennas and structures. Accessory structures will be designed to be architecturally compatible with principal structures on the site. All telecommunication facilities, towers and accessory structures shall be of stealth design.
B. 
Landscaping. The Village may require landscaping in excess of the requirements in the Village Code in order to enhance compatibility with adjacent land uses. Landscaping shall be installed on the outside of any fencing. Existing on-site vegetation shall be preserved to the maximum extent practicable. The base of telecommunication facilities, towers and any accessory structures shall be landscaped to the satisfaction of the Board of Trustees and shall be provided with security fencing to prevent unauthorized entry. Telecommunication facilities, towers and any accessory structures shall be landscaped with a buffer or vegetation sufficient to screen the view of such uses from residential properties and to maintain the aesthetic quality of the surrounding community. Existing mature tree growth and natural land forms and topography at the site shall be preserved to the maximum extent possible.
C. 
Lighting. Telecommunication facilities, towers and any accessory structures shall not be artificially lighted except as required by the FAA or other federal or state authority. If applicant demonstrates, by clear and convincing evidence, that lighting is required or permitted by the FAA or other federal or state authority, lighting shall be designed to minimize, to the maximum extent practicable, the resultant disturbance to the surrounding views and properties and otherwise comply with federal, state, local and Village law, including any dark skies legislation. Upon commencement of construction of a tower, in cases where there are residential uses located within a distance which is 300% of the height of the tower from the tower and when required by federal law, dual-mode lighting shall be requested from the Federal Aviation Administration.
D. 
Signs. No signs or advertising of any kind shall be permitted on telecommunications facilities.
E. 
Location. Telecommunication facilities shall be located in accordance with the following priority:
(1) 
Location on municipal facilities and municipal property shall be encouraged over other locations whenever feasible or practical. Location on existing (or approved) municipal facilities or municipal property shall be encouraged over new municipal facilities or municipal property. Locating telecommunication facilities on other locations shall not be permitted unless applicant can demonstrate, by clear and convincing evidence, that the proposed telecommunications or other system or service cannot properly function upon municipal facilities or municipal property and must be located at the proposed location. Where the location upon municipal facilities or municipal property is not feasible, location of such facilities within or upon county, state or federal property and public rights-of-way is encouraged but not required where the facility may be collocated on another existing facility in accordance with Subsection E(2) and (3);
(2) 
Where telecommunication facilities cannot be located in the areas specified in Subsection E(1), the location of such facilities within or upon existing (or approved) telecommunications facilities located in an industrial zoning district shall be encouraged and required unless the applicant can demonstrate, by clear and convincing evidence, that the proposed telecommunications or other system or service cannot properly function if so located and must be located at the proposed location;
(3) 
Where telecommunication facilities cannot be located in the areas specified in Subsection E(1) and (2), the location of such facilities within or upon existing (or approved) telecommunications facilities shall be encouraged and required unless the applicant can demonstrate, by clear and convincing evidence, that the proposed telecommunications or other system or service cannot properly function if so located and must be located at the proposed location;
(4) 
Where telecommunication facilities cannot be located in the areas specified in Subsection E(1), (2) and (3), the location of such facilities within an industrial zoning district shall be encouraged and required unless the applicant can demonstrate, by clear and convincing evidence, that a telecommunications or other system or service cannot properly function if so located and must be located at the proposed location;
(5) 
Telecommunication facilities shall not be located in the D-MU Zoning District, any residential district, or within 500 feet of any residential district unless the applicant can demonstrate, by clear and convincing evidence, that its telecommunications facilities or wireless systems or services cannot properly function in the locations identified in Subsection E(1), (2), (3) and (4) and must be located at the proposed location. Before erecting an entirely new facility in the D-MU or residentially zoned or utilized area, or within 500 feet of any residential district, the applicant must demonstrate by clear and convincing evidence that it cannot collocate on a permitted telecommunication facility. In the event the Board determines that the telecommunication facilities must be located within the five-hundred-foot distance, the Board shall mandate that the facility be located at the greatest possible distance from the residential district; and
(6) 
Distance between towers. The required distance between towers shall be 2,500 feet, measured by drawing or following a straight line between the base of any existing like use and the base of the proposed use, delineated on a map or site plan. Said distance requirement may be reduced by the Board of Trustees only after a finding, by clear and convincing evidence, that the specific application merits a reduction and closer siting due to reception, transmission or other limitations or other relevant factors.
F. 
Height. Compliance with the maximum height limitations of the zoning district shall be required unless the applicant can show, by clear and convincing evidence, that the telecommunication service cannot be provided by such compliance. The applicant shall be required to demonstrate, by clear and convincing evidence, that the proposed height is the lowest possible height required for such telecommunication services.
G. 
Collocation. A proposal for a telecommunication facility shall not be approved unless:
(1) 
The Board of Trustees finds that the facility cannot be accommodated on an existing or approved facility in accordance with this chapter;
(2) 
A telecommunication facility shall be designed, structurally, electrically, and in all respects, to the greatest extent possible, to accommodate both the applicant's use and additional future users. Facilities must be designed to allow for future rearrangement of the facility components and structures. The applicant shall submit to the Board of Trustees a letter of intent committing the applicant, and his/her successors in interest, to negotiate in good faith for shared use of the proposed telecommunication facility in the future. The issuance of a special use permit shall require the applicant and his/her successors in interest to agree, in writing, to:
(a) 
Respond in a timely and comprehensive manner to a request for information from a potential shared-use applicant;
(b) 
Negotiate in good faith concerning future requests for shared use of the new telecommunication facility or tower;
(c) 
Allow shared use of the new telecommunication facility or tower subject to an agreement by the other users to pay appropriate charges;
(d) 
Make no more than a reasonable charge for shared use, based on generally accepted accounting principles. The charge may include, but is not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, and depreciation, and all of the costs of adapting the telecommunication facility, tower or equipment to accommodate a shared user without causing electromagnetic interference; and
(e) 
In order to keep neighboring municipalities informed, and to facilitate the possibility of directing that an existing tall telecommunication facility or structure or existing tower in a neighboring municipality be considered for shared use, the Board of Trustees shall require that an applicant who proposes a new telecommunication facility or tower to notify in writing the legislative body of each municipality that borders the Village and the Nassau County Planning Commissions and the Suffolk County Division of Planning. Notification shall include the exact location of the proposed facility and a general description of the project, including, but not limited to, the height of the facility and its capacity for future shared use. Documentation of this modification shall be submitted to the Board of Trustees at the time of application.
H. 
Setbacks. Telecommunication facilities, towers and all accessory structures shall conform with each of the following minimum setback requirements:
(1) 
Telecommunication facilities shall be set back from any adjoining lot line a distance equal to at least 150% of the height of the facility in order to provide a safe fall zone. For such structures in excess of 100 feet in height, one additional foot per each foot of facility height in excess of 100 feet shall be required. This requirement may be varied only if the Board of Trustees finds by clear and convincing evidence that the telecommunication facility cannot be located in accordance with this section and its proposed location does not create an unsafe condition. The Board of Trustees shall require that the applicant take appropriate measures, at the applicant's expense, to eliminate any unsafe conditions. In the event that the facility cannot be located pursuant to the setback requirements herein, the Board shall require the greatest possible setback;
(2) 
All accessory structures shall satisfy the minimum district setback requirements for the district in which they are located;
(3) 
Setback requirements for telecommunication facilities shall be measured from the base of the telecommunication facilities to the property line of the parcel of land on which they are located;
(4) 
Setback requirements may be modified, as provided in this chapter, when placement of a telecommunication facility in a location will reduce the visual impact and the modification does not create an unsafe condition. The Board of Trustees shall require that the applicant take appropriate measures, at the applicant's expense, to eliminate any unsafe conditions;
(5) 
A facility's setback may be reduced in the sole discretion of the Board of Trustees to allow the integration of a facility into an existing or proposed structure such as a water tower, church steeple, light pole, power line, or similar structure; and
(6) 
Facilities are not permitted to be located on a site where the property line of the site is within 500 feet of the nearest property line of a lot containing a school, unless the applicant can establish by clear and convincing evidence that its telecommunications or other system cannot properly function within or upon an alternate location in any other zoning district of the Village and must be located at the proposed location.
I. 
Structural requirements. All telecommunication facilities must be designed and certified by an engineer to be structurally sound and, at a minimum, in conformance with the Village Code, and any other standards outlined in this chapter. All telecommunication facilities or towers in operation shall be affixed to land. Guyed towers shall be prohibited. Telecommunication facilities must be self-supporting without the use of wires, cables, beams or other means. Where possible, the design should utilize an open framework or monopole configuration. Permanent platforms or structures exclusive of antennas that serve to increase off-site visibility are prohibited. The base of the telecommunication facility or tower shall occupy not more than 500 square feet, and the top of such facility shall be no longer or wider than the base.
J. 
Separation and buffer requirements. For the purpose of this chapter, the separation distances between telecommunication facilities shall be measured by drawing or following a straight line between the base of the existing or approved structure and the proposed base, pursuant to a site plan, of the proposed telecommunication facilities. Telecommunication facilities separation distances from residentially zoned lands shall be measured from the base of a telecommunication facility to the closest point of residentially zoned property. The minimum telecommunication facilities separation distances from residentially zoned land and from other telecommunication facilities shall be calculated and applied irrespective of Village jurisdictional boundaries. Telecommunication facilities shall be separated from all residentially zoned lands by a minimum of 500 feet. Proposed telecommunication facilities must meet the following minimum separation requirements from existing telecommunication facilities (or those which have approval but are not yet constructed). Monopole tower structures shall be separated from all other towers, whether monopole or self-supporting lattice, by a minimum of 2,500 feet.
K. 
Security fencing. Telecommunication facilities shall be surrounded by security fencing, satisfactory to the Board of Trustees, which shall be equipped with appropriate anticlimbing devices and be of sufficient height to safeguard the public.
L. 
Other conditions.
(1) 
The operator of every telecommunication facility and accessory structure shall submit to the Village Clerk copies of all licenses and permits required by other agencies and governments with jurisdiction over the design, construction, location and operation of the proposed telecommunication facility and accessory structure and shall maintain such licenses and permits and provide evidence of renewal or extension thereof when granted; and
(2) 
Every special use permit granted hereunder shall state that any assignment or transfer of the special use permit or of any rights thereunder may be made only with the approval of the Village.
M. 
Notwithstanding the requirements provided in this section, the Board of Trustees may waive or modify any of the requirements of this chapter subject to the following:
(1) 
An application to modify the requirements is submitted along with the application for telecommunication facilities, which shall include:
(a) 
A description of how the plan addresses any adverse impact that might occur as a result of approving the modification;
(b) 
A description of off-site or on-site factors which mitigate any adverse impacts which might occur as a result of the modification;
(c) 
A technical study that documents and supports the criteria submitted by the applicant upon which the request for modification is based. The technical study shall be certified by a qualified professional and shall document the existence of the facts related to the proposed modification and shall demonstrate by clear and convincing evidence that the proposed telecommunications or other system or service cannot properly function if the waiver or modification is not granted;
(d) 
For a modification of the setback requirement, the application shall identify the efforts made to locate the proposed telecommunication facility in compliance with this chapter, including any attempts by the applicant to contract and negotiate an agreement for collocation, and the result of such attempts; and
(e) 
The Board of Trustees may require, at the applicant's expense, the application to be reviewed by an independent engineer or other qualified professional to determine whether the applicant's submissions support the basis for the modification requested.
(2) 
The Board of Trustees shall consider the application for modification based on the following criteria:
(a) 
That the facility as modified will be compatible with and not adversely impact the character and integrity of surrounding properties;
(b) 
Off-site or on-site conditions exist which mitigate the adverse impacts, if any, created by the modification; and
(c) 
The Board of Trustees may include conditions which are necessary to preserve the character and integrity of the neighborhoods affected by the proposed facility and which mitigate any adverse impacts which arise in connection with the approval of the modification.
(3) 
In the following cases, the Board of Trustees shall consider the following:
(a) 
In the case of a requested modification to the setback requirements, that the setback requirement cannot be met on the parcel of land upon which the facility is proposed and the alternative for the applicant is to locate the facility on another site which is closer in proximity to a residentially zoned land.
(b) 
In the case of a requested modification to the separation and buffer requirements from other facilities, that the proposed site is zoned industrial or the proposed site is at least the double minimum standard for separation from residentially zoned lands.
(c) 
In the case of a requested modification of the separation and buffer requirements from residentially zoned land, if the person provides written technical evidence from a qualified professional that the proposed facility must be located at the proposed site in order to meet the coverage requirements of the applicant's wireless communications system, and if the applicant, at the applicant's expense, provides landscaping and other buffers to screen the facility from being visible to residentially zoned property.
(d) 
In the case of a request for modification of the height limit, that the modification is necessary to facilitate collocation of telecommunications facilities in order to avoid construction of a new facility or to meet the coverage requirements of the applicant's wireless communications system, which requirements must be documented with written technical evidence from a qualified professional that demonstrates that the height of the proposed facility is the minimum height required to function satisfactorily, and no facility that is taller than such minimum height shall be approved.

§ 582-7 Review of applications.

The following factors, where applicable, shall be considered for all telecommunication facility applications:
A. 
The Village's Comprehensive Plan, existing land uses and development, and environmentally sensitive areas;
B. 
Height, size, condition, stability, and appearance of the proposed or existing facility, structure, pole, or device;
C. 
Proximity of the proposed use to residential structures and residential district boundaries;
D. 
Nature of existing and/or proposed uses on adjacent and nearby properties;
E. 
The topography of the site and surrounding areas;
F. 
Surrounding tree coverage and foliage;
G. 
Design and aesthetic appearance of the structure, facility, or device, with particular reference to design elements that have the effect of reducing or eliminating visual obtrusiveness;
H. 
The proposed ingress and egress;
I. 
Availability of suitable existing uses or structures or poles, or alternative technologies not requiring the use of new structures, poles or devices;
J. 
Whether the proposed telecommunication facility, or its location, will impede or obstruct vehicular or pedestrian travel, obstruct or interfere with directional signs or traffic maintenance devices, create a nuisance or hazard, and/or substantially detract from an historic landmark, site or district, scenic or visual space or corridor, or culturally significant resource; and
K. 
Any other relevant factor, including those found by the Board to be relevant considerations under statutory and decisional law, and regulatory agency rulings.

§ 582-8 Special conditions; required proof.

No application for a special permit for a telecommunication facility shall be granted unless the applicant can demonstrate to the Village Board of Trustees, by clear and convincing evidence, that:
A. 
No existing use, building, facility or structure not requiring new construction or installations can accommodate the applicant's proposed use. Such evidence may consist of any or all of the following:
(1) 
That no suitable existing uses or structures are located within the geographic area which meet the applicant's engineering requirements;
(2) 
That the fees, costs or contractual provisions required by the owner of an existing like use or structure in order to share it, or adapt it for sharing, are not economically feasible or are otherwise unreasonable; or
(3) 
When consistent with applicable federal and state law, alternative technologies not requiring the use of towers or structures, such as a cable microcell network using multiple low-powered transmitters/receivers attached to a wireline system, are unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable; and
B. 
A significant gap in service exists that requires the location of wireless communication facilities at the proposed location. In determining whether a significant gap in service exists at a specific location, the Board of Trustees must find that the telecommunications failure is substantial and can only be remedied by the location of the proposed antennas, DAS system, or tower. The Board may reduce the height of the proposed structure or make other modifications to the proposed wireless communication facilities for the purpose of making aesthetic improvements, even if it means that the gap in service is not fully remedied; substantial remediation of the gap in service shall be sufficient. In determining what constitutes substantial remediation of a gap in service, and to what extent an applicant needs to locate a facility at a specific location or height, and what level of service is to be made available to users, the Board shall be guided by standards set or as interpreted by federal or state law, decisional law and regulatory agencies.

§ 582-9 Abandonment.

A. 
If any telecommunication facility shall cease to be used for a period of six consecutive months, the Board of Trustees shall notify the owner, with a copy to the applicant, that the site and/or facility will be subject to a determination by the Board of Trustees that such site or facility has been abandoned. The owner shall have 30 days from receipt of said notice to show, by clear and convincing evidence, that the site or facility is in use or under repair during the period. If the owner or applicant fails to show that the site or facility has been in use, is in use or is under repair during the period, the Board of Trustees shall issue a final determination of abandonment for the site or facility, and any permit or approval shall be revoked. Upon issuance of the final determination of abandonment and revocation, the owner shall, within 60 days, dismantle and remove the telecommunication facility.
B. 
In the event the telecommunication facilities are not removed within the relevant time period, the facilities may be removed by the Village and the costs of removal assessed against the owner, occupant or applicant as the case may be.

§ 582-10 Nonconforming uses.

A. 
Telecommunication facilities existing prior to the effective date of this chapter which were compliant with the Village Code immediately prior to the effective date of this chapter may continue in existence as nonconforming structures, subject to the following:
(1) 
A special permit shall be required to alter, modify, demolish or rebuild any nonconforming telecommunication facility;
(2) 
Where more than 50% of the overall value of the facility is being altered, modified, demolished or rebuilt, the telecommunication facility shall comply with this chapter; and
(3) 
All facilities shall be required to comply with §§ 582-11, 582-12 and 582-13.
B. 
Except as provided in this chapter, a nonconforming structure or use may not be enlarged, increased in size, or discontinued in use for a period of more than 180 days. This chapter shall not be interpreted to legalize any structure or use existing at the time this chapter is adopted, which structure or use is in violation of the Village Code prior to enactment of this chapter.

§ 582-11 Certifications.

A. 
All telecommunication facilities shall be certified by a qualified professional in accordance with § 582-6I and federal and state law. Such certification shall be submitted with a telecommunication facility application and every renewal thereof. For existing facilities, certification shall be submitted within 60 days of the effective date of this chapter and then every five years thereafter. Certain facilities' owners may be required by the Village to submit more frequent certifications should there be reason to believe that the structural and electrical integrity of the facility is jeopardized.
B. 
All telecommunications facilities shall be operated and maintained so as to prevent unauthorized access to and upon such facilities. Any owner, occupant, tenant or person in charge of the property, an accessory facility or any wireless telecommunications facility who commits an offense against the provisions of this section shall be deemed to be in violation of this chapter.
C. 
A parcel of land upon which a telecommunication facility is located must provide access to at least one paved vehicular parking space on site. A road and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads, public or private, shall be made.

§ 582-12 Inspections.

The Village or its agents shall have authority to enter onto the property upon which a facility is located to inspect and confirm compliance with the requirements of this chapter, the Village Code and all other construction standards provided by the Village Code and federal and state law. The Village reserves the right to conduct such inspections at any time, upon reasonable notice, for the purpose of verifying continuing compliance with the special use permit, building permit and, where applicable, site plan or other approval. All expenses related to such inspections by the Village shall be borne by the applicant or facility owner or operator as the case may be.

§ 582-13 Maintenance.

A. 
Telecommunication facilities' owners and operators shall at all times employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.
B. 
Telecommunication facilities' owners and operators shall install and maintain telecommunications facilities, wires, cables, fixtures and other equipment in substantial compliance with the requirements of the National Electric Safety Code and all FCC, state, and local regulations, and in such manner that will not interfere with the use of other property.
C. 
All telecommunications facilities and antenna support structures shall at all times be kept and maintained in good condition, order, and repair so that the same shall not menace or endanger the life or property of any person.
D. 
All maintenance or construction of telecommunications facilities or antenna support structures shall be performed by licensed maintenance and construction personnel.
E. 
All telecommunication facilities' owners and operators shall maintain compliance with current RF emission standards of the FCC.
F. 
In the event that the use of a telecommunication facility is discontinued, the owner shall provide written notice to the Village of its intent to discontinue use and the date when the use shall be discontinued. Upon the discontinuance the owner shall immediately remove, at its expense, the telecommunication facility. In the event that the facility is not removed within 60 days, the Village shall have the right to remove the facility at the expense of the applicant or owner, as the case may be.

§ 582-14 Revocation of special use permit approval.

The Board of Trustees may, upon notice after a public hearing, revoke any special use permit if the Board determines that there are substantial violations of this chapter or the conditions or provisions of the grant, or if false documents or statements have been submitted in support of the application.

§ 582-15 Site plan approval and building permits.

A. 
All applicants for telecommunications facilities shall file a simultaneous application for and obtain site plan and architectural review board approval and a building permit prior to the commencement of work. Site plan and architectural board review shall run concurrently with review by the Village Board of Trustees and shall be timed so that determinations can be made at approximately the same time to the extent practicable.
B. 
All telecommunications facilities shall be maintained in a safe and proper manner, and shall be in compliance with all conditions of the building permit, certificate of occupancy or compliance, special use permit, site plan approval, and license agreement, as well as with all applicable Village, state and federal laws, rules and regulations, without exception. Any owner, occupant, tenant or person in charge of the property, accessory facility, or telecommunications facility who commits an offense against the provisions of this section shall be deemed in violation of this chapter.
C. 
Municipal facilities and public rights-of-way. Applications to locate telecommunication facilities on municipal facilities, or on streetlights and poles owned by public utilities or other municipal entities along the public rights-of-way shall include photographs of the proposed installation locations, architectural elevations of the installation, detailed sheets showing the dimensions of the equipment, a specification sheet or rendering indicating the color of the equipment, mounting system and other information requested by the Board of Trustees or Planning Board. In addition to the standards and factors established in this chapter, the Board of Trustees and Planning Board shall review applications to determine if there are other safety, aesthetic or other concerns that may warrant a denial of approval for a location, or an approval with conditions.

§ 582-16 Unlawful acts.

A. 
It shall be unlawful for any person or business entity to install, attach, erect, locate, deploy, repair, replace, reinstall, modify, demolish or alter any portion of a telecommunication facility without first having secured the applicable approvals and permits. A violation of this section shall be deemed an offense against this chapter and shall subject the person or business entity to the penalties thereof.
B. 
It shall be unlawful for any person or business entity to open or cause the opening or other disturbance to the surface of any street, sidewalk, public right-of-way or other public place to locate, install, extend, repair, maintain, modify or alter telecommunication facilities without first obtaining all required approvals and permits. A violation of this section shall be deemed an offense against this chapter and shall subject the person or business entity to the penalties thereof.

§ 582-17 Penalties for offenses.

A. 
Any person who violates any sections of this chapter, including anyone who attempts to erect, erects or substantially modifies a wireless telecommunications facility without having first obtained the necessary permits or permissions described in this chapter, shall be deemed in violation of this chapter. Any responsible party or other persons convicted by a court of competent jurisdiction of violating any provision of this chapter shall be punished by a fine not to exceed $5,000 or by imprisonment not to exceed 30 days, or both. The court shall have the power and authority to place any person guilty of violation of this chapter on probation and to suspend or modify any fine or sentence. As a condition of such suspension, the court may require payment of restitution or impose other punishment allowed by law. Each week such violation continues may be deemed a separate offense and punishable as such.
B. 
If any structure is erected, constructed, reconstructed, altered, repaired, converted or maintained in violation of this chapter or without obtaining any required permits or permissions, or if any building, structure or land is used in violation of this chapter, the Village Attorney, in addition to any other remedies, may institute proceedings to prevent such unlawful violation or to correct or abate such violations.

§ 582-18 Costs, fees and expenses.

All applicants for telecommunications facilities shall be required to pay an application fee which shall be set, from time to time, by resolution of the Board of Trustees. All applicants shall also be required to pay all Village costs associated with any application for telecommunication facilities, including the cost associated with engineering, environmental, architectural, legal and other consulting professionals retained by or on behalf of the Village which are deemed necessary by the Village. The applicant shall, at the time of the application, deposit with the Village Clerk such amount, as determined from, time to time, by resolution of the Board of Trustees to cover such consultation fees and other expenses. No building permit shall be issued until all such expenses incurred by the Village in connection with this chapter are reimbursed to the Village by the applicant.

§ 582-19 Severability; conflicts with existing provisions.

A. 
If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof.
B. 
This chapter supersedes all ordinances and local laws or parts thereof adopted prior hereto which are in conflict herewith, to the extent of such conflict.

§ 582-20 When effective.

This chapter shall become effective immediately upon filing with the Secretary of State.