[HISTORY: Adopted by the Common Council of the City of Port Jervis 3-27-2000 by L.L. No. 3-2000 (Ch. 157 of the 1981 Code). Amendments noted where applicable.]
Zoning — See Ch. 535
The Telecommunications Act of 1996 affirmed the City of Port Jervis's authority concerning the placement, construction and modification of wireless telecommunications facilities. The City Board finds that wireless telecommunications facilities and related equipment may pose a unique hazard to the health, safety, public welfare and environment of the City and its inhabitants and may also have an adverse visual impact on the community, its character and thus the quality of life in the City. The intent of this chapter is to ensure that the placement, construction or modification of wireless telecommunications facilities and related equipment is consistent with the City's land use policies and Zoning Code to minimize the negative and adverse visual impact of wireless telecommunications facilities; to assure a comprehensive review of environmental impacts of such facilities; to protect the health, safety and welfare of the City of Port Jervis; and to encourage shared use of wireless telecommunications facilities. These regulations are not intended to prohibit or have the effect of prohibiting the provision of personal wireless services nor shall they be used to unreasonably discriminate among providers of functionally equivalent services consistent with current federal regulations.
This chapter may be known and cited as the "Wireless Telecommunications Facilities Siting Law for the City of Port Jervis," or may otherwise be known as the "Wireless Facilities Law."
For purposes of this chapter, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations and their derivations shall have the meanings 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.
- ACCESSORY FACILITY OR STRUCTURE
- An accessory facility or structure serving or being used in conjunction with a telecommunications facility and located on the same property or lot as the telecommunications tower, including but not limited to utility or transmission equipment storage sheds or cabinets.
- Includes any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons, limited-liability company or entity submitting an application to the City of Port Jervis for a special permitted use for a telecommunications facility.
- The form approved by the Council, together with all necessary and appropriate documentation, that an applicant submits in order to receive a special permitted use for a telecommunications facility.
- A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency signals. Such waves shall include, but not be limited to, radio, television, cellular, paging, personal telecommunications services (PCS) and microwave telecommunications.
- BREAK POINT
- The location on a telecommunications tower (tower) which, in the event of a failure of the tower, would result in the tower falling or collapsing within the boundaries of the property on which the tower is placed.
- The City of Port Jervis, New York.
- The use of the same telecommunications tower or structure to carry two or more antennas for the provision of wireless services by two or more persons or entities.
- COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
- Shall have the meaning in this chapter and any special permitted use granted hereunder as is defined and applied under the United States Uniform Commercial Code (UCC).
- COMPLETED APPLICATION
- An application that contains all information and/or data necessary to enable the Council to evaluate the merits of the application and to make an informed decision with respect to the effect and impact of the telecommunications tower on the City in the context of the permitted land use for the particular location requested.
- The environmental assessment form approved by the New York Department of Environmental Conservation.
- The Federal Aviation Administration or its duly designated and authorized successor agency.
- The Federal Communications Commission or its duly designated and authorized successor agency.
- FREESTANDING TOWER
- A tower that is not supported by guy wires and ground anchors or other means of attached or external support.
- When referring to a tower or structure, the distance measured from the preexisting grade level to the highest point on the tower or structure, even if said highest point is an antenna.
- Nonionizing electromagnetic radiation.
- Any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons having a joint common interest or governmental entity.
- PERSONAL WIRELESS FACILITY
- See definition of "telecommunications tower."
- PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS (or any functionally equivalent service or technology that may be developed in the future)
- Shall have the same meaning as defined and used in the 1996 Federal Telecommunications Act.
- PLANNING BOARD
- The City of Port Jervis Planning Board is the officially designated agency or body of the community to whom applications for a special permitted use for a telecommunications facility must be made and that is authorized to review, analyze, evaluate and make decisions with respect to granting or revoking special permitted use approvals for telecommunications facilities. The Planning Board may, at its discretion, delegate or designate other official agencies of the City to accept, review, analyze, evaluate and make recommendations to the Planning Board with respect to the granting or not granting, recertifying or not recertifying or revoking of special permitted use approvals for telecommunications facilities.
- See definition of "telecommunications tower."
- SPECIAL PERMITTED USE
- The official document or permit by which an applicant is allowed to construct and use a telecommunications tower, as granted or issued by the City.
- The transmission and reception of audio, video, data and other information by wire, radio frequency, light and other electronic or electromagnetic systems.
- TELECOMMUNICATIONS STRUCTURE
- Any structure used in, associated with or necessary for the provision of wireless services and as described in the definition of wireless telecommunications facility.
- In relation to all aspects and components of this chapter, fewer than 90 days.
- WIRELESS TELECOMMUNICATIONS FACILITY or TOWER or SITE or PERSONAL WIRELESS FACILITY (or any functionally equivalent service or technology that may be developed in the future)
- A structure or location designed or intended to be used or used to support antennas. It includes, without limit, antennas applied to the facade of a building or roof-mounted antennas, freestanding towers, guyed towers, monopoles and similar structures that employ camouflage technology, and includes, but is not limited to, structures such as a church steeple, water tower, sign or other similar structures intended to mitigate the visual impact of an antenna or the functional equivalent of such. It is a facility or structure intended for transmitting and/or receiving radio, television, cellular, paging, personal telecommunications services or microwave telecommunications, but excludes those used exclusively for private radio and television reception and private citizens' bands, amateur radio and other similar telecommunications.
Telecommunications facilities and towers shall be specially permitted within the City subject to regulation pursuant to this chapter, site plan approval and coordinated state environmental quality review (SEQR), pursuant to the Environmental Conservation Law of New York.
All applicants for a special permitted use for a wireless telecommunications facility or any modification of such facility shall comply with the requirements set forth in this section.
An application for a special permitted use for a wireless telecommunications facility shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different from the applicant, shall also sign the application. At the discretion of the Planning Board, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.
Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the Planning Board.
No wireless telecommunications facility or tower or other tall structure shall be installed or constructed for the purpose of providing wireless telecommunications service until a plan of the site is reviewed and approved by the Planning Board. No construction may be undertaken in furtherance of an application until SEQR review has been completed and site plan approval and special permit approvals have been granted by the Planning Board.
All applications for the construction or installation of a new wireless telecommunications facility shall be prepared by a New-York-licensed professional engineer and land surveyor and shall address, either on the site plan or on a narrative report which may accompany the site plan submission, the following:
The need for the wireless telecommunications facility to provide service primarily within the City.
Name and address of person preparing the report.
Name and address of the property owner, operator and applicant, to include the legal form of the applicant.
Postal address and Tax Map parcel number of the property.
Zoning district or designation in which the property is situated.
Size of the property stated both in square feet and lot line dimensions and a diagram showing the location of all lot lines.
Location of all residential structures within 750 feet.
Location of all occupied structures within 750 feet.
Location of all structures on the property which is the subject of the application.
Location, size and height of all proposed and existing antennas and all appurtenant structures.
Type, size and location of all proposed and existing landscaping.
The number, type and design of the wireless telecommunications facility(s) antenna(s) proposed and the basis for the calculations of the wireless telecommunications facility's capacity to accommodate multiple users.
The make, model and manufacturer of the wireless facility and antenna(s).
A description of the proposed wireless facility and antenna(s) and all related fixtures, structures, appurtenances and apparatuses, including height above preexisting grade, materials, color and lighting.
The frequency, modulation and class of service of radio or other transmitting equipment.
Transmission and maximum effective radiated power of the antenna(s).
Direction of maximum lobes and associated radiation of the antenna(s).
Applicant's proposed wireless facility maintenance and inspection procedures and related system of records.
Certification that NIER levels at the proposed site are within the threshold levels adopted by the FCC.
Certification that the proposed antenna(s) will not cause interference with existing telecommunications devices. The certifying engineer need not be approved by the City.
A copy of the FCC license applicable for the use of the wireless telecommunications facility.
Certification that topographic and geologic conditions, which are to be confirmed by field tests, are sufficient to assure the stability of the proposed wireless telecommunications tower.
Propagation studies of the proposed site and all adjoining proposed or in-service or existing sites.
Certification that the wireless telecommunications facility and attachments both are designed and constructed ("as built") to meet all county, state and federal structural requirements for loads, including wind and ice.
The applicant shall disclose, in writing, any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any new wireless telecommunications facility that it constructs.
In the case of a new wireless telecommunications facility, the applicant shall be required to submit a report demonstrating its efforts to secure shared use of existing wireless telecommunications facility(s). Copies of written requests and responses for shared use shall be provided to the Planning Board.
Prior to issuance of a certificate of compliance or certificate of occupancy, the applicant shall post with the City a cash bond or surety for the cost of removal of the tower in the event that it should be abandoned or become a hazard or otherwise be subject to removal pursuant to a valid exercise of the police power of the City.
The applicant shall submit a completed long form EAF and a completed visual EAF addendum. The visual EAF addendum shall be in the form of a visual impact assessment which may include:
A zone of visibility map, indicating the full range and line of sight within which the proposed facility will be visible.
Pictorial representations of "before" and "after" views from key viewpoints to be determined by the Planning Board, 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.
An assessment of the visual impact of the facility base, guy wires and accessory buildings from abutting and adjacent properties and streets.
A discussion of the feasibility of disguising the proposed facility utilizing stealth technology to blend with the surrounding vista.
The applicant shall provide a plan for mitigation of the visual impacts which shall include a screening plan and such other methods as the applicant may employ to diminish any adverse visual impact attributable to the proposal.
Unless otherwise directed by the Planning Board all utilities serving any wireless telecommunications facility site shall be installed underground and in compliance with all laws, rules and regulations of the City, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code, where appropriate. Noise suppression materials shall be utilized in the design and construction of the tower and any appurtenances.
Both the wireless telecommunications facility and any and all accessory or associated facilities shall to the maximum extent employ building materials, colors and textures which are compatible with the natural surroundings of the site.
An access road and parking to assure adequate emergency and service access shall be provided, should such be deemed necessary by the City Board. Existing roads, whether public or private, shall be utilized to the extent possible.
All wireless telecommunications facilities shall be constructed, operated, maintained, repaired, modified or restored in strict compliance with all current technical, safety and safety-related codes adopted by the City, county, state or United States, including but not limited to the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsibly workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health and land use codes. In the event of a conflict between or among any of the preceding, the more stringent shall apply.
Each applicant shall obtain all other permits and licenses required by applicable law, rule or regulation and must maintain the same, in full force and effect, for as long as required by the City or other governmental entity or agency having jurisdiction over the applicant.
All new towers shall demonstrate the feasibility of accommodation of future demand. The scope of this examination shall be determined by the Planning Board. The wireless telecommunications facility shall be structurally designed to accommodate at least two additional antenna arrays equal to those of the applicant and located as close to the applicant's antenna as possible without causing interference. This requirement may be waived, provided that the applicant demonstrates that the provision of future shared usage of the wireless telecommunications facility is not technologically feasible or is commercially impracticable and creates an unnecessary and unreasonable burden, based upon:
The number of FCC licenses available for the area.
The kind of wireless telecommunications facility site and structure proposed.
The number of existing and potential licenses without wireless telecommunications facility spaces/sites.
Available space on existing and approved telecommunications towers.
Priority of location.
Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities, including towers or other tall structures, in accordance with the following priorities, Subsection A(1)(a) being the highest priority and Subsection A(1)(e) being the lowest priority:
On existing tall telecommunications structures or telecommunications towers.
Collocation on a site with existing telecommunications towers or structures.
In commercially zoned areas along any state highways within the City of Port Jervis.
In nonresidential areas.
On other property in the City.
If the proposed property site is not the highest priority listed above, an explanation shall be provided.
Sites with superior priority may not be bypassed absent a demonstration that such site is unavailable. Each applicant shall address collocation as an option, and if such option is not proposed, the applicant must explain. Agreements between providers limiting or prohibiting collocation shall not be a valid basis for any claim of commercial impracticability or hardship.
Notwithstanding the above, the Planning Board may approve any site located within an area in the above list of priorities, provided that it finds that such approval is in the best interest of the health, safety and welfare of the City.
The applicant shall submit a written report demonstrating the applicant's review of the above locations in order of priority and demonstrating the technological reason for the site selection. If the site selected is not the highest priority, then a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.
The applicant shall identify the locations of any additional sites that the applicant has or is or will be considering, reviewing or planning for wireless telecommunications facilities in the vicinity of the City.
Location of antennas on preexisting structures shall be considered and preferred. Shared use of existing telecommunications towers or other existing structures shall be preferred by the City. Where such shared use is unavailable, the applicant shall submit a comprehensive report inventorying existing towers and other appropriate structures within four miles of any proposed new tower site; and the applicant shall provide analysis of the feasibility of shared use of any facility so identified.
An applicant intending to share use of an existing telecommunications tower or other tall structure shall be required to document the feasibility of same.
In the event that an application to share the use of an existing telecommunications tower does not increase the height of the telecommunications tower, the Planning Board may waive any portion of this chapter deemed by the Board to be redundant by virtue of prior review.
The applicant shall submit documentation justifying to the Planning Board the total height of any wireless telecommunications facility and/or antenna and the basis therefor.
Wireless telecommunications facilities shall be no higher than the minimum height necessary. Unless waived by the Planning Board upon good cause shown, the maximum height shall be 100 feet, based on three collocated antenna arrays and ambient tree height of 70 feet.
The maximum height of any wireless telecommunications facility and attached antennas constructed after the effective date of this chapter shall not exceed that which shall permit operation without artificial lighting of any kind in accordance with municipal, county, state and/or any federal law and/or regulation.
Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.
Unless otherwise directed by the Planning Board, towers and facilities shall contain a galvanized finish or be painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings, as approved by the Planning Board. To the extent available, the facility shall employ available technology to obscure the facility from public view.
The Planning Board may impose such conditions for maintenance as are deemed necessary to preserve the appearance of the structure.
If lighting is required, the applicant shall provide a detailed plan for sufficient lighting, of as unobtrusive and inoffensive an effect as is permissible under state and federal regulations, and an artist's rendering or other visual representation showing the effect of light emanating from the site onto neighboring habitable structures within 1,500 feet of property lines of the parcel on which the wireless telecommunications facility is located.
All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner which prevents unauthorized access, specifically:
All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or run into.
Transmitters and telecommunications control points must be installed such that they are readily accessible only to persons authorized to operate or service them.
Signage shall be governed by the regulation of the particular district within which the facility is to be located.
In addition to the bulk requirements of the City Zoning Law, any proposed telecommunications towers and associated equipment shall satisfy the following additional requirements:
Be additionally set back from abutting parcels, recorded rights-of-way and road and street lines a distance sufficient to contain on site all icefall or debris from a tower or tower failure and to preserve the privacy and sanctity of any adjoining properties. In order to better protect the health, safety and welfare of the general public and to avoid the potential for injury due to falling ice or debris, all towers shall be not less than 350 feet from the nearest property boundary of any school, park, day-care center, public playground or similar occupancy.
Have a minimum setback from any property line a distance equal to the height of the facility, plus 10 feet, or the existing setback requirement of the underlying zoning district, whichever is greater. All accessory structures shall be located so as to comply with the minimum setback requirements for the property on which they are situated.
In addition to the provisions of 6 NYCRR § 617.17(c), the Planning Board may engage such consultants as it may deem necessary to assist the Board in reviewing and evaluating the application and any requests for recertification.
An applicant shall deposit with the City funds sufficient to reimburse the City for all reasonable costs of consultant and expert evaluation and consultation to the Planning Board in connection with the review of any application.
In addition to the requirements of City Code § 535-61 governing site plans, no person shall be permitted to site, place, build, construct or modify or prepare any site for the placement or use of a wireless telecommunications facility as of the effective date of this chapter without having first obtained a special permitted use for a wireless telecommunications facility.
Notwithstanding anything to the contrary in this section, no special permitted use shall be required for those exceptions noted in the definition of wireless telecommunications facility, such as those used exclusively for fire, police and other dispatch telecommunications, or exclusively for private radio and television reception and private citizens' bands, amateur radio and other similar telecommunications.
New construction, including routine maintenance on an existing wireless telecommunications facility, shall comply with the requirements of this chapter.
All wireless telecommunications facilities existing on or before the effective date of this chapter shall be allowed to continue as they presently exist; provided, however, that any modification to existing facilities must comply with this chapter.
The Planning Board shall hold a public hearing prior to the grant of a special permit. Such public hearing may, in the judgment of the Planning Board, be held jointly with either the public hearing required pursuant to City Code § 535-61H and all provisions relating thereto, including notice and publication.
The Planning Board will undertake a review of an application pursuant to this chapter in a timely fashion and shall act within a reasonable period of time, given the relative complexity of the application and the circumstances, with due regard for the public's interest and need to be involved and the applicant's desire for a timely resolution.
Except for necessary building permits, and subsequent certificates of compliance, no additional permits or approvals from the City, other than the special permitted use granted under this chapter, shall be required for telecommunications facilities covered by this chapter.
After the public hearing and after formally considering the application, the Planning Board may approve and issue or deny a special permitted use and/or site plan. Its decision shall be in writing and shall be based on substantial evidence in the record. The burden of proof for the grant of the permit shall always be upon the applicant.
If the Planning Board approves the special permitted use for a wireless telecommunications facility, then the applicant shall be notified of such approval, in writing.
If the Planning Board denies the special permitted use for a wireless telecommunications facility, then the applicant shall be notified of such denial, in writing.
The City's decision on an application for a special permitted use for a wireless telecommunications facility shall be supported by substantial evidence contained in a written record.
The special permit granted pursuant to this chapter shall be valid for a period of five years, measured from the date of final action by the Planning Board.
Prior to the expiration of a special permit granted pursuant to this chapter, a holder may seek extension/renewal for a period not to exceed five years.
The holder of a special permitted use for such tower shall submit a written request for extension/renewal. In the written request for recertification, the holder of such special permitted use shall submit a renewal application in a form to be established by the Planning Board, which form shall require the following information in support thereof:
The name of the holder of the special permitted use for the wireless telecommunications facility.
If applicable, the number or title of the special permitted use.
The date of the original granting of the special permitted use.
Any physical changes to the site covered by the permit.
A summary of the maintenance record of the facility during the term of the existing permit, which shall include any and all structural changes.
Any requests for waivers or relief of any kind whatsoever from the requirements of this chapter and any requirements for a special permitted use.
If, after such review, the Planning Board determines that the permitted wireless telecommunications facility is in compliance with the special permitted use and all applicable codes, laws and rules, then the Planning Board shall issue an extension/renewal of the special permitted use for the wireless telecommunications facility, which may include any new provisions or conditions that are mutually agreed upon, or required by codes, law or regulation.
If the Planning Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special permitted use, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facility shall receive an extension of the special permitted use for up to six months, in order for the Planning Board to complete its review.
If the holder of a special permitted use for a wireless telecommunications facility does not submit a request recertification of such special permitted use within the time frame noted in Subsection A of this section, then and in that event the special permitted use and any authorizations granted thereunder shall expire and the rights granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special permitted use, or subsequent fifth anniversaries, unless the holder of the special permitted use adequately demonstrates to the Planning Board that extenuating circumstances prevented a timely submission.
The extent and parameters of a special permitted use for a wireless telecommunications facility shall be as follows:
Such special permitted use shall be nonexclusive.
Such special permitted use shall not be assignable or transferable without the consent of the City Planning Board and City Board.
Such special permitted use may be revoked, canceled or terminated for a violation of the conditions and provisions of the special permitted use for a wireless telecommunications facility or for a material violation of this chapter.
At the time the person submits an application for a special permitted use for a new wireless telecommunications facility, such person shall pay an application fee to the City of Port Jervis as provided in Chapter 280, Fees, or such other fee as the City Board may establish at the annual reorganization meeting of the City Board.
The applicant and the owner of record of any proposed wireless telecommunications facility property site shall be jointly required to execute and file with the City a bond or other form of security acceptable to the City, as to type of security and the form and manner of execution, in an amount and with such sureties as are deemed sufficient by the Planning Board to assure the faithful performance of the terms and conditions of this chapter and conditions of any special permitted use issued pursuant to this chapter. The full amount of the bond or security shall remain in full force and effect throughout the term of the special permitted use and/or until the removal of the wireless telecommunications facility and any necessary site restoration is completed. The failure to pay any annual premium for the renewal of any such security shall be a violation of the provisions of the special permitted use and shall entitle the Planning Board to revoke the special permitted use after prior written notice to the applicant and holder of the permit.
The City may from time to time cause the inspection of facilities constructed pursuant to a permit granted pursuant to this chapter in accordance with state and local law and building codes to ensure the continued compliance with law and conditions of the special permit, if any.
The holder of the special permitted use shall, annually, certify to the City that NIER levels at the site are within the threshold levels adopted by the FCC. The certifying engineer need not be approved by the City.
Amount and type of coverage.
A holder of a special permitted use for a wireless telecommunications facility shall secure and at all times maintain public liability insurance, property damage insurance and umbrella insurance coverage for the duration of the special permitted use in amounts as set forth below:
The commercial general liability insurance policy shall specifically include the City and its officials, employees and agents as additional insureds.
The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state.
The insurance policies shall contain an endorsement obligating the insurance company to furnish the City with at least 30 days' written notice in advance of the cancellation of the insurance.
Renewal or replacement policies or certificates shall be delivered to the City at least 15 days before the expiration of the insurance which such policies are to renew or replace.
Prior to the issuance of a building permit for construction the holder of the special permitted use shall deliver to the City a copy of each of the policies or certificates representing the insurance in the required amounts.
Any special permitted use issued pursuant to this chapter shall contain a provision with respect to indemnification. Such provision shall require the holder of the special permitted use, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless and exempt the City, officials of the City, its officers, agents, servants and employees from any and all penalties, damage 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 construction, erection, modification, location, products performance, operation, maintenance, repair, installation, replacement, removal or restoration of a wireless telecommunications facility within the City. 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 City.
Civil sanctions. Any person who violates any of the provisions of this chapter shall be liable for a civil penalty not to exceed $3,000 for every such violation.
Criminal sanctions. Any person, firm or corporation who or which willfully violates any of the provisions of this chapter or permits promulgated thereunder, excluding provisions set forth in the rules and regulations promulgated thereunder, upon conviction thereof of the first offense, shall be guilty of a violation punishable by a fine of not less than $500 and not more than $1,000, and for a second offense and each subsequent offense shall be guilty of a violation punishable by a fine of not less than $1,000 nor more than $2,000 or a term of imprisonment of not more than 15 days, or both.
Notwithstanding anything in this chapter, the holder of the special permitted use for a wireless telecommunications facility may not use the payment of fines, liquidated damages or other penalties to evade or avoid compliance with this chapter or any section of this chapter. An attempt to do so shall subject the holder of the special permitted use to termination and revocation of the special permitted use. The City may also seek injunctive relief to prevent the continued violation of this chapter.
If a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special permitted use, then the City shall notify the holder of the special permitted use, in writing, of such violation. Such notice shall specify the nature of the violation or noncompliance and that the violations must be corrected within seven days of the date of the postmark of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this subsection or any other section of this chapter, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the Planning Board may, at its sole discretion, order the violation remedied forthwith or may take such actions as may be authorized pursuant to the City Law and or Executive Law of the State of New York.
Failure to comply with the terms hereof may give rise to revocation of the special permit and/or site plan approval.
In the event that a facility shall be found in any of the following conditions, it shall be subject to removal pursuant to the authority of the City pursuant to the City Law and the Executive Law:
A wireless telecommunications facility which has been abandoned (i.e., not used as a wireless telecommunications facility) for a period exceeding 90 days or a total of 180 days in any three-hundred-sixty-five-day period, except for periods caused by force majeure or acts of God.
A permitted wireless telecommunications facility which falls into such a state of disrepair that it creates a health or safety hazard.
A wireless telecommunications facility which has been located, constructed or modified without first obtaining the required special permitted use or any other necessary authorization.
The holder of the special permitted use, or its successors or assigns, shall dismantle and remove such wireless telecommunications facility, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within 90 days of receipt of written notice from the City.
If the City removes, or causes to be removed, a wireless telecommunications facility, and the owner of the wireless telecommunications facility does not claim the property and remove the facility from the site to a lawful property or remove the facility from the site to a lawful location within 10 days, then the City may take steps to declare the facility abandoned and sell it and its components.
Any applicant can request the waiver of application requirements that are inapplicable to its permit application. Such request shall be in writing. Requests should be discussed at the preapplication meeting. The applicant shall have the burden of supporting such requests. Determinations as to applicability of application requirements shall be made by the City.
In determining permit conditions, the Planning Board can waive inapplicable permit requirements, consistent with the policy goals and priorities of this chapter. The applicant shall have the burden of supporting such requests. Determinations as to applicability of permit condition requirements shall be made by the Planning Board.
To the extent that the holder of a special permitted use for a wireless telecommunications facility 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 permitted use 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.
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 permitted use for a wireless telecommunications facility, then the holder of such a special permitted use shall conform the permitted wireless telecommunications facility to the applicable changed and/or modified rule, regulation, standard or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard or provision, or sooner as may be required by the issuing entity.
Where this chapter differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the county, state or federal government, the more restrictive or protective of the City and the public shall apply.
If any phrase, sentence, part, section, subsection or other portion of this chapter or any application thereof to any person or circumstance is declared void, unconstitutional or invalid for any reason, then such word, phrase, sentence, part, section, subsection or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect.
This chapter shall be enforced by the Building Official in the same manner as provided in the City Code of the City of Port Jervis, state building and fire codes and the City Law and the Executive Law of the State of New York.
This chapter is enacted pursuant to the Municipal Home Rule Law. This chapter shall supersede the provisions of the City Law to the extent that it is inconsistent with the same, and to the extent permitted by the New York State Constitution, the Municipal Home Rule Law or any other applicable statute.