[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.]
GENERAL REFERENCES
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."
A.
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.
B.
ACCESSORY FACILITY OR STRUCTURE
APPLICANT
APPLICATION
ANTENNA
BREAK POINT
CITY
COLLOCATION
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
COMPLETED APPLICATION
EAF
FAA
FCC
FREESTANDING TOWER
HEIGHT
NIER
PERSON
PERSONAL WIRELESS FACILITY
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)
PLANNING BOARD
SITE
SPECIAL PERMITTED USE
TELECOMMUNICATIONS
TELECOMMUNICATIONS STRUCTURE
TEMPORARY
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)
Terms defined.
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.
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.
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).
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.
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.
See definition of "telecommunications tower."
Shall have the same meaning as defined and used in the 1996
Federal Telecommunications Act.
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."
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.
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.
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.
A.
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.
B.
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.
C.
Applications not meeting the requirements stated herein
or which are otherwise incomplete may be rejected by the Planning
Board.
E.
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.
F.
Application procedures.
(1)
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:
(a)
The need for the wireless telecommunications
facility to provide service primarily within the City.
(b)
Name and address of person preparing the report.
(c)
Name and address of the property owner, operator
and applicant, to include the legal form of the applicant.
(d)
Postal address and Tax Map parcel number of
the property.
(e)
Zoning district or designation in which the
property is situated.
(f)
Size of the property stated both in square feet
and lot line dimensions and a diagram showing the location of all
lot lines.
(g)
Location of all residential structures within
750 feet.
(h)
Location of all occupied structures within 750
feet.
(i)
Location of all structures on the property which
is the subject of the application.
(j)
Location, size and height of all proposed and
existing antennas and all appurtenant structures.
(k)
Type, size and location of all proposed and
existing landscaping.
(l)
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.
(m)
The make, model and manufacturer of the wireless
facility and antenna(s).
(n)
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.
(o)
The frequency, modulation and class of service
of radio or other transmitting equipment.
(p)
Transmission and maximum effective radiated
power of the antenna(s).
(q)
Direction of maximum lobes and associated radiation
of the antenna(s).
(r)
Applicant's proposed wireless facility maintenance
and inspection procedures and related system of records.
(s)
Certification that NIER levels at the proposed
site are within the threshold levels adopted by the FCC.
(t)
Certification that the proposed antenna(s) will
not cause interference with existing telecommunications devices. The
certifying engineer need not be approved by the City.
(u)
A copy of the FCC license applicable for the
use of the wireless telecommunications facility.
(v)
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.
(w)
Propagation studies of the proposed site and
all adjoining proposed or in-service or existing sites.
(x)
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.
(2)
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.
(3)
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.
(4)
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.
(5)
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)
A zone of visibility map, indicating the full
range and line of sight within which the proposed facility will be
visible.
(b)
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.
(c)
An assessment of the visual impact of the facility
base, guy wires and accessory buildings from abutting and adjacent
properties and streets.
(d)
A discussion of the feasibility of disguising
the proposed facility utilizing stealth technology to blend with the
surrounding vista.
(6)
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.
G.
Construction.
(1)
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.
(2)
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.
(3)
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.
(4)
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.
H.
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.
I.
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:
(1)
The number of FCC licenses available for the area.
(2)
The kind of wireless telecommunications facility site
and structure proposed.
(3)
The number of existing and potential licenses without
wireless telecommunications facility spaces/sites.
(4)
Available space on existing and approved telecommunications
towers.
A.
Priority of location.
(1)
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:
(a)
On existing tall telecommunications structures
or telecommunications towers.
(b)
Collocation on a site with existing telecommunications
towers or structures.
(c)
In commercially zoned areas along any state
highways within the City of Port Jervis.
(d)
In nonresidential areas.
(e)
On other property in the City.
(2)
If the proposed property site is not the highest priority
listed above, an explanation shall be provided.
(3)
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.
(4)
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.
B.
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.
C.
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.
A.
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.
B.
An applicant intending to share use of an existing
telecommunications tower or other tall structure shall be required
to document the feasibility of same.
C.
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.
A.
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.
B.
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.
C.
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.
A.
Wireless telecommunications facilities shall not be
artificially lighted or marked, except as required by law.
B.
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.
C.
The Planning Board may impose such conditions for
maintenance as are deemed necessary to preserve the appearance of
the structure.
D.
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:
A.
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.
B.
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:
A.
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.
B.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
New construction, including routine maintenance on
an existing wireless telecommunications facility, shall comply with
the requirements of this chapter.
D.
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.
A.
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.
B.
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.
C.
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.
(1)
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.
(2)
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.
D.
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.
A.
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.
B.
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.
(1)
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:
(a)
The name of the holder of the special permitted
use for the wireless telecommunications facility.
(b)
If applicable, the number or title of the special
permitted use.
(c)
The date of the original granting of the special
permitted use.
(d)
Any physical changes to the site covered by
the permit.
(e)
A summary of the maintenance record of the facility
during the term of the existing permit, which shall include any and
all structural changes.
(f)
Any requests for waivers or relief of any kind
whatsoever from the requirements of this chapter and any requirements
for a special permitted use.
(2)
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.
C.
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.
D.
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:
A.
Such special permitted use shall be nonexclusive.
B.
Such special permitted use shall not be assignable
or transferable without the consent of the City Planning Board and
City Board.
C.
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.
D.
Any action to revoke a special permit shall comply
with City Code § 535-61O.
A.
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.
A.
Amount and type of coverage.
(1)
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:
(2)
The commercial general liability insurance policy
shall specifically include the City and its officials, employees and
agents as additional insureds.
B.
The insurance policies shall be issued by an agent
or representative of an insurance company licensed to do business
in the state.
C.
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.
D.
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.
E.
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.
A.
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.
B.
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.[1]
C.
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.
A.
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.
B.
Failure to comply with the terms hereof may give rise
to revocation of the special permit and/or site plan approval.
A.
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:
(1)
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.
(2)
A permitted wireless telecommunications facility which
falls into such a state of disrepair that it creates a health or safety
hazard.
(3)
A wireless telecommunications facility which has been
located, constructed or modified without first obtaining the required
special permitted use or any other necessary authorization.
B.
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.
C.
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.
A.
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.
B.
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.
A.
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.
B.
To the extent that applicable rules, regulations,
standards and provisions of any state or federal agency, including
but not limited to the FAA and the FCC, and specifically including
any rules and regulations regarding height, lighting and security,
are changed and/or are modified during the duration of a special 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.
[Added 8-26-2019 by L.L.
No. 10-2019]
A.
Purpose. The purpose of this article is to establish uniform policies
and procedures for the deployment and installation of small wireless
facilities in rights-of-way within the City's jurisdiction and
owned by the City, which will provide a public health, safety, and
welfare benefit consistent with the preservation of the integrity,
safe usage, and visual qualities of the City rights-of-way and the
City as a whole.
B.
Intent. In enacting this article, the City is establishing uniform
standards to address issues presented by small wireless facilities,
including without limitation, to:
(1)
Prevent interference with the use of streets, sidewalks, alleys,
parkways and other public ways and places;
(2)
Prevent the creation of visual and physical obstructions and other
conditions that are hazardous to vehicular and pedestrian traffic;
(3)
Prevent interference with existing facilities and operations of facilities
presently lawfully located in rights-of-way or public property;
(4)
Ensure reasonable efforts are made to preserve the character of neighborhoods
in which facilities are installed;
(5)
Protect against environmental damage, including damage to trees;
and facilitate rapid deployment of small wireless facilities to provide
the benefits of reliable access to wireless telecommunications technology,
broadband and 9-1-1 services to homes, businesses, schools within
the City.
As used in this article, the following terms shall have the
meanings indicated:
A wireless telecommunications facility that meets both of
the following qualifications: i) each antenna is located inside an
enclosure of no more than three cubic feet in volume or, in the case
of an antenna that has exposed elements, the antenna and all of its
exposed elements could fit within an imaginary enclosure of no more
than three cubic feet; and ii) all other wireless equipment associated
with the facility is cumulatively no more than 28 cubic feet in volume.
The following types of associated ancillary equipment are not included
in the calculation of equipment volume: electric meter, concealment
elements, telecommunications demarcation box, ground-based enclosures,
grounding equipment, power transfer switch, cut-off switch, and vertical
cable runs for the connection of power and other services.
A wireless telecommunications infrastructure provider or
a wireless telecommunications services provider.
A.
Permitted use: Collocation of a small wireless facility or a new
or modified utility pole or wireless support structure for the collocation
of a small wireless facility shall be a permitted use not requiring
discretionary zoning approvals subject to the restrictions contained
herein.
B.
Permit required. No person shall place a small wireless facility
in the rights-of-way, without first filing a small wireless facility
application and obtaining a small cell building permit therefor, except
as otherwise provided in this article.
C.
Permit application. All small wireless facility applications for
small cell building/work permits filed pursuant to this article shall
be on a form set by the Building Department of the City of Port Jervis.
The Building Department shall review the application for a small cell
building permit in light of its conformity with applicable regulations
of this article and all applicable building and safety codes. If the
application is denied, the basis of denial shall be provided to the
applicant in writing.
D.
Routine maintenance and modifications. An application shall not be
required for: i) routine maintenance; and ii) like-kind modifications
to any existing small wireless facility that do not materially change
the appearance of the small wireless facility or exceed the structural
capacity of the supporting structure.
E.
Information updates. Any amendment to information contained in a
small cell building permit application shall be submitted in writing
to the Building Department within 30 days after the change necessitating
the amendment.
F.
Application fees. All applications for small cell building permits
pursuant to this article shall be accompanied by a fee for actual,
direct, and reasonable costs incurred by the City related to processing
the application.
G.
Violations. A permit shall be revoked for any violation of the provisions
of this article.
A.
Maximum size of permitted use. Small wireless facilities, and new
or modified utility poles and wireless telecommunications support
structures for the collocation of small wireless facilities may be
placed in City rights-of-way as a permitted use subject to the following
requirements:
B.
Design requirements. Small wireless facilities must be designed so
as to avoid unsightly or out-of-character deployments and subject
to the approval of the Building Department.
C.
Zoning. Any wireless telecommunications provider that seeks to construct
or modify a utility pole, wireless telecommunication support structure
or wireless telecommunications facility that exceeds the height or
size limits contained in this section, shall be subject to applicable
zoning requirements. In all other instances, no discretionary zoning
approvals shall be required for projects which comply with the terms
of this article and a small cell building/work permit shall be issued.
A.
Notice. Following written notice from the City, wireless provider
shall, at its own expense, protect, support, temporarily or permanently
disconnect, remove, relocate, change or alter the position of any
small wireless facilities within the rights-of-way whenever the City
has determined that such removal, relocation, change or alteration,
is necessary for the construction, repair, maintenance, or installation
of any City improvement in or upon, or the operations of the City
in or upon, the rights-of-way.
B.
Emergency removal or relocation of facilities. The City retains the
right to cut or move any small wireless facility located within the
rights-of-way of the City, as the City may determine to be necessary,
appropriate or useful in response to any public health or safety emergency.
If circumstances permit, the City shall notify the wireless telecommunications
provider and provide the wireless telecommunications provider an opportunity
to move its own facilities prior to cutting or removing a facility
and shall notify the wireless telecommunications provider after cutting
or removing a small wireless facility.
C.
Abandonment of facilities. Upon abandonment of a small wireless facility
within the rights-of-way of the City, the wireless provider shall
notify the City within 90 days. Following receipt of such notice the
City may direct the wireless provider to remove all or any portion
of the small wireless facility if the City, or any of its departments,
determines that such removal will be in the best interest of the public
health, safety and welfare.
A.
ROW administration fee. A wireless telecommunications provider authorized
to place small wireless facilities in the rights-of-way shall pay
to the City an annual administration rate to be set by resolution
of the Common Council.
B.
Attachment fee. A wireless telecommunications provider authorized
to place small wireless facilities shall pay an annual fee to place
a small wireless facility on a City-owned pole in a City right-of-way.
Such fee shall be set by resolution of the Common Council.
