[HISTORY: Adopted by the Board of Trustees of the Village
of Poquott 4-7-2022 by L.L. No.
2-2022. Amendments noted where applicable.]
A.
All definitions of words, terms and phrases that are set forth in
the Communications Act of 1934,[1] P.L. 73-416, as amended by various statutory enactments
including, but not limited to, the Telecommunications Act of 1996,
P.L. 104-104,[2] in the portion of the Middle Class Tax Relief and Job
Creation Act of 2012, P.L. 112-96, as codified in 47 U.S.C. § 455,
and the Declaratory Ruling and Third Report and Order referred to
as "FCC-Circ 1809-02," and any updates or further orders related thereto,
are incorporated herein and are made a part hereof.
B.
PERSONAL WIRELESS SERVICES
PUBLIC RIGHT-OF-WAY
SMALL WIRELESS FACILITY
SMART POLE
UTILITY POLE
In addition to Subsection A above, the following definitions shall apply:
"Personal wireless services" as defined in 47 U.S.C. § 332(c)(7)(C),
as supplemented and/or as amended.
The surface, the airspace above the surface and the area
below the surface of any street, road, highway, lane, alley, boulevard
or drive, including the sidewalk, shoulder and area for utilities
owned by the Village of Poquott or within an easement to the public
or other easement owned by the Village of Poquott.
"Small wireless facility" as defined in the Code of Federal
Regulations at 47 CFR 1.6002(l), as supplemented and/or as amended,
including but not limited to the equipment associated with a small
wireless facility.
A decorative utility pole that conceals, disguises or camouflages
one or more small wireless facility installation(s) and may include
other features such as street lighting, 911 call service access, public
access Wi-Fi and surveillance cameras. A smart pole must allow for
multiple occupants and allow space for municipal use for other services
and/or equipment. Smart poles shall neither have external latches,
external hinges, nor external cabling. The pole should be made of
an inherently rust-resistant material (i.e., aluminum alloys or stainless
steel).
A wooden or metal pole that is used by public utilities to
support electrical wires, telephone wires, coaxial cables, fiber-optic
cables and like and similar appurtenances.
C.
In the event that a term, word or phrase is not defined in any of
the aforementioned statutes and is not otherwise defined herein, then
that term, word or phrase shall have its common, ordinary meaning.
A.
No person shall place a small wireless facility in any right-of-way
without first filing a small wireless facility siting permit application,
in the form specified herein and in accordance with the procedures
specified herein, with the Village Clerk and obtaining a siting permit
therefor, except as otherwise may be provided in this chapter. Upon
approval of a siting permit application, the siting permit authorizing
placement of a small wireless facility in a public right-of-way shall
not be issued by the Village of Poquott to any applicant unless:
(1)
All siting permit application fees and escrow fees, as established
herein, have been paid; and
(2)
All other governmental permits or other governmental approvals that
are required for the deployment(s) proposed by the applicant's
siting permit application under the Poquott Village Code, the New
York State Uniform Code, and by any other applicable federal, state
or municipal law have been issued to the applicant, by the appropriate
issuing authority therefor and the applicant has supplied copies of
such other permits or approvals to the Village Clerk for inclusion
with the applicant's application documents; and
(3)
The applicant has entered into a "right-of-way use agreement," the
approved form of which is set forth in Appendix B to this chapter,
with the Village. The approved form of right-of-way use agreement
may from time to time be revised, supplemented or otherwise amended
or replaced. All such revisions, supplements, amendments or replacements
shall be approved by resolution of Poquott Village Board of Trustees.
The Village Clerk shall maintain on file the currently approved right-of-way
use agreement version and shall provide a copy to all siting permit
applicants. Minor deviations to the terms and conditions that are
set forth in the approved form of right-of-way use agreement may be
approved by the Poquott Village Board of Trustees at the time that
it grants consent to use a right-of-way to a siting permit applicant.
The Current Appendix B shall be kept on file and be available at the
office of the Poquott Village Clerk.
B.
No siting permit authorizing placement of a small wireless facility
in a public right-of-way shall be issued to any applicant unless the
Poquott Board of Trustees, in the manner prescribed by applicable
laws of the State of New York, has granted to the siting permit applicant
its consent to use public rights-of-way within the Village. No siting
of a small wireless facility shall be permitted within 200 feet of
another small wireless facility unless it can be established by clear
and convincing evidence that co-location on an existing or previously
approved small wireless facility is not feasible. Any claims of carriers
of technical incompatibility or inability to co-locate need to be
proven by the carrier, not disproven by the Village. Responsibility
for judging proof of said claims lies solely with the Village and/or
or its chosen representative(s).
A.
No application for a small wireless facility siting permit shall
be approved if the application proposes the deployment of a small
wireless facility upon an existing structure in a right-of-way unless
the structure is one of the types of smart poles that are set forth
in Appendix A to this chapter and such smart pole specifically is
designed to accommodate the reasonable and customary equipment necessary
for a small wireless facility installation which will accommodate
at least three carriers per small wireless facility deployment. (Appendix
A is on file at the office of the Village Clerk.)
B.
No small wireless facility shall be installed upon any new structure
within any right-of-way unless the new structure is one of the preapproved
types of smart poles that are identified in Appendix A. A replacement
pole is a new structure. Appendix A to this chapter from time to time
may be revised, supplemented or otherwise amended or replaced. All
such revisions, supplements, amendments or replacements shall be approved
by resolution of the Poquott Village Board of Trustees. The Village
Clerk shall provide a copy of Appendix A and to all siting permit
applicants.
C.
The Village of Poquott may develop a wireless siting plan. In the
event that the Village creates a wireless siting plan, no application
for a small wireless facility siting permit shall be approved if the
application proposes the deployment of a small wireless facility in
an area other than those specific locations set forth within the Village's
wireless siting plan, which can be found on file with the office of
the Village Clerk. All small wireless facilities must be placed within
a twenty-five-foot radius of those specific locations set forth on
the wireless siting plan. No more than one smart pole shall be permitted
per intersection or block if the siting plan calls for the deployment
of a small wireless facility at any location other than an intersection,
unless otherwise specified within the wireless siting plan. No smart
poles shall be located within 200 feet of another.
A.
Application filing. An application for a siting permit to place one
or more small wireless facilities within a right-of-way shall be made
on forms which shall be available from the office of the Poquott Village
Clerk. The application, along with the required application fee and
the required escrow fee, shall be filed with the Village Clerk. Immediately
upon receipt of an application, the Village Clerk shall provide copies
of the application, and all supporting documents that were submitted
by the applicant with the application, to the Village Engineer, the
Construction Official and the Village Attorney.
B.
Application form. The small wireless facility siting permit application
shall be made by a provider of personal wireless services, or its
duly authorized representative as noted in a notarized statement from
the provider of personal wireless services on whose behalf the representative
is acting, and shall contain the following:
(1)
The applicant's name, address, telephone number and e-mail address;
(2)
The names, addresses, telephone numbers, and e-mail addresses of
all consultants, if any, acting on behalf of the applicant with respect
to the filing of the application;
(3)
A general description of the proposed small wireless facility, existing
structure and new structure work to be performed. The scope and detail
of such description shall be appropriate to the nature and character
of the work to be performed, with particular emphasis on those matters
including, but not limited to, subservice utilities likely to be affected
or impacted by the work proposed along with a description of such
other governmental permits or approvals as may be required by applicable
law with respect to the proposed installation(s) and a description
of such other permits or approvals for which the applicant has applied;
(4)
Authorization for any consultant acting on behalf of the applicant
to speak with the Village, or a designee of the Village, on the area
of consultation for the applicant, even if the applicant cannot be
available;
(5)
Verification from an appropriate professional that the small wireless
facility shall comply with all applicable federal, state and local
laws, administrative regulations and codes;
(6)
The applicant shall certify that they shall market the availability
of approved facilities to all major wireless carriers in the marketplace.
The applicant shall further certify that they will encourage, manage
and coordinate the location and placement of any interested carrier's
equipment on their structure.
C.
An applicant seeking to deploy a network of small wireless facilities,
all of which are to be located in rights-of-way, may file a batched
application for up to 25 small wireless facilities and receive a single
siting permit for multiple small wireless facilities.
A.
The Village shall review the application for a small wireless facility
siting permit in light of its conformity with the provisions of this
chapter, and shall approve a siting permit on nondiscriminatory terms
and conditions, subject to the following requirements:
(1)
Within 10 days of receiving an application, the Village Clerk shall
determine and notify the applicant:
(a)
Whether the application is complete;
(b)
If the application is incomplete, what specific information
is missing; and
(c)
Whether the deployment of the small wireless facilities as proposed
requires the applicant to apply for other permits, such as a street
opening permit or construction permit, for which the applicant has
not yet applied. No small wireless facility siting permit application
shall be deemed complete until the applicant has applied for all other
permits and approvals required by all other laws and regulations that
are applicable to the applicant's proposed small wireless facility
deployment.
B.
Time frames.
(1)
The Village shall make its final decision to approve or deny the
application within the following time frames:
(a)
Sixty days from the submission of a complete application to
install a small wireless facility upon one or more existing structures.
(b)
Ninety days from the submission of a complete application to
install a small wireless facility upon one or more new structures.
(c)
Ninety days from the submission of a complete batched application
to install small wireless facilities upon both existing and new structures.
(2)
The time frames described above by which an application shall be
either approved or denied may be extended by mutual consent of the
applicant and Village. Such consent shall be set forth on a form for
such purposes which shall be available from the office of the Village
Clerk. Such consent on behalf of the Village shall be exercised by
the Mayor in his/her reasonable discretion.
C.
The Village Clerk shall notify the applicant in writing of the final
decision, and if the application is denied specify the basis for denial;
and cite such specific provisions, as may be recommended by the Village
Attorney, from federal, state, or local laws, administrative regulations
or codes as to why the application was denied.
D.
Notwithstanding an initial denial, the applicant may cure any deficiencies
identified by the Village within 30 days of the denial without paying
an additional application fee, provided the Village Clerk shall approve
or deny the revised application within 30 days of receipt of the amended
application, which shall be limited to the deficiencies specified
in the original notice of denial.
E.
If the Village fails to act upon an application within the time frames
prescribed by this section, the applicant may provide written notice
to the Village that the application review and decision period has
lapsed. Upon receipt of such notice, the Village Board of Trustees,
by resolution adopted no later than its second regularly scheduled
public meeting next following receipt of the notice, shall either
deny the application or direct that the siting permit shall be approved
and issued. Nothing in this subsection is intended in any way to impact
any other right or remedy that may be available to the applicant under
applicable federal or state law if the Village fails to act upon an
application within the time frames prescribed by this section.
F.
A siting permit from the Village authorizes an applicant to undertake
only certain activities in accordance with this chapter. No approval
or consent granted, or siting permit issued, pursuant to this chapter
shall confer any exclusive right, privilege, license or franchise
to occupy or use any public right-of-way within the Village for the
delivery of telecommunications services or for any other purpose.
No siting permit issued under this chapter shall be valid for
a period longer than 12 months unless construction has actually begun
and continuously and diligently is pursued to completion. Upon written
request from the applicant, the Mayor, upon consultation with the
Building Inspector, may extend the siting permit for a period of up
to 12 months so long as construction has begun at the time that the
applicant's request for an extension is made.
A small wireless facility siting permit shall not be required
for: A) routine maintenance of a small wireless facility; or B) the
replacement of a small wireless facility with another small wireless
facility that is substantially similar or smaller in size, weight
and height to the small wireless facility that is being replaced;
provided, however, that on a location where the Village and/or another
provider has placed equipment or facilities, any routine maintenance
or replacement that is done shall not occur until written authorization
from the Village and/or the other provider, as the case may be, to
proceed is provided to the Village, which authorization to proceed
shall not unreasonably be withheld by the Village and/or the other
provider; provided, further, that if the replacement of a small wireless
facility with another small wireless facility includes replacement
of the structure to which the small wireless facility is attached,
then an application for a siting permit shall be required.
All applications for approval and issuance of a small wireless
facility siting permit pursuant to this chapter shall be accompanied
by a fee as follows:
A.
For applications that do not include the installation of any new
structures within a right-of-way, the application fee shall be $500
for up to five small wireless facilities, with an additional $100
for each small wireless facility beyond five.
B.
For applications that include the installation of a new structure
within a right-of-way, the application fee shall be $1,000 for up
to five small wireless facilities, with an additional $100 for each
small wireless facility beyond five.
A.
In addition to the application fee, all applications for approval
and issuance of a small wireless facility siting permit shall be accompanied
by an escrow fee as follows:
B.
The escrow account deposits are required to pay for the costs of
professional services, including engineering, planning, legal and
other third-party professional consulting expenses connected with
the review of submitted materials, including any traffic engineering
review or other special analyses related to the Village's review
of the materials submitted by the applicant and the preparation of
any reports or any necessary legal agreement regarding right-of-way
use. An applicant is required to reimburse the Village for all fees,
costs and expenses of third-party professionals and consultants incurred
and paid by the Village for the review process of a small wireless
facility siting permit application, such as, but not limited to:
(1)
Professional fees for reviews by third-party professionals or consultants
of applications, plans and accompanying documents;
(2)
Issuance of reports or analyses by third-party professionals or consultants
to the Village setting forth recommendations resulting from the review
of any documents submitted by the applicant;
(3)
Charges for any telephone conference(s) or meeting(s), including
travel expenses, requested or initiated by the applicant, the applicant's
attorney or any of the applicant's experts or representatives;
(4)
Review of additional documents submitted by the applicant and issuance
of reports or analyses relating thereto;
(5)
Review or preparation of right-of-way use agreements, easements,
deeds, right-of-way municipal consent ordinances or resolutions and
any and all other like or similar documents; and
(6)
Preparation for and attendance at all meetings by third-party professionals
or consultants serving the Village, such as the Village Attorney,
Village Engineer and Village Planner or other experts as required.
C.
The escrow account deposits shall be placed in a separate account
by the Village's Chief Financial Officer at the request of the
Village Clerk, and an accounting shall be kept of each applicant's
deposit. Thereafter:
(1)
All third-party professional or consultant fees, costs, expenses
and charges shall be paid from the escrow account and charged to the
applicant;
(2)
Upon either final denial of a small wireless facility siting permit
application or upon issuance of a small wireless facility siting permit,
any moneys not expended for third-party professional or consulting
services shall be returned to the applicant within 90 days upon written
request by the applicant and as authorized by the Poquott Village
Board of Trustees;
(3)
If at any time during the application review process 75% of the money
originally posted shall have been expended, the applicant shall be
required to replenish the escrow deposit to 100% of the amount originally
deposited by the applicant;
D.
No small wireless facility siting permit application shall be considered
complete until such time as the required escrow fee has been posted
to guarantee payment of third-party professional or consultant fees,
costs, expenses and charges.
E.
All payments charged to the escrow deposit shall be pursuant to vouchers
from the third-party professionals or consultants, stating the hours
spent, the hourly rate and the fees, costs, expenses and charges incurred.
F.
Third-party professionals and consultants submitting charges pursuant
to this section shall be permitted to charge for such services at
the same rates as they would charge their private clients for like
or similar work, provided that:
(1)
Professional fees are billed at rates that do not exceed such professional
fees as are customarily charged by other like professionals and consultants
performing similar work within Suffolk County; and
(2)
Out-of-pocket costs, expenses and charges are billed on a dollar-for-dollar
basis with no markup being permitted.
G.
The Village shall render a written final accounting to the applicant
on the uses to which the escrow deposit was put. The written final
accounting shall include copies of all vouchers that were submitted
by third-party professionals and consultants and paid by the Village.
An applicant whose siting permit includes the installation of
any new smart pole structure of any of the types that are included
in Appendix A to this chapter shall provide the Village with access
to any of the technological features that are a component of the new
smart pole structure, such as, for example, public access Wi-Fi, 911
call service or security cameras, before the applicant offers such
access to any other person or entity. Should the Village decide to
utilize any such technological features, then the Village, on an annual
basis, shall reimburse the applicant or the subsequent owner of the
structure, the costs, on a dollar-for-dollar basis, of providing the
Village with such access. Such costs shall be limited to the costs
of providing electricity to the components used by the Village and
the costs of any repairs required to be made to the components used
by the Village, unless the repair costs are necessitated by the acts
of the applicant or subsequent owner of the structure, without regard
to whether such acts are negligent or intentional.
This chapter shall take effective immediately upon final passage
and filing with the New York State Department of State.
