[Added 3-1-2000 by L.L. No. 5-2000;
amended 6-19-2002 by L.L. No. 3-2002]
The purpose of this article is to establish
predictable and balanced regulations for the siting and screening
of antennas, towers and accessory structures used in connection with
the transmission and/or reception of radio or electromagnetic waves
in order to accommodate the growth of communications systems utilizing
such technology within the Village while protecting the public against
any adverse impacts on aesthetic resources, avoiding potential damage
to adjacent properties from tower failure through structural standards
and setback requirements, and reducing the number of towers needed
to serve the community by maximizing the use of existing towers and
buildings.
Unless otherwise expressly stated, the following
words shall, for the purposes of this article, have the meanings herein
indicated:
Accessory buildings and structures, including base stations,
designed and used to shelter and/or to support towers, antennas and
other equipment in connection with the transmission or reception of
radio or electromagnetic waves. The term "accessory structures" does
not include offices, long-term storage of vehicles or other equipment
storage, or broadcast studios.
A device used to transmit and/or receive radio or electromagnetic
waves, including, but not limited to, directional antennas, such as
panels and microwave dishes, and omnidirectional antennas, such as
whip antennas.
The Board of Trustees of the Village of Great Neck Plaza.
A network of spatially separated antenna nodes connected
to a common source via a transport medium that provides wireless service
within a geographic area or structure. A distributed antenna system
shall be encompassed within the definition of a "wireless telecommunications
system."
[Added 4-3-2019 by L.L.
No. 2-2019]
The Federal Communications Commission.
[Amended 4-3-2019 by L.L.
No. 2-2019]
A tower constructed on grade and not on top of any preexisting
building or structure.
The area on, below or above property that has been designated
for use as, or is used as, a public roadway, highway, street, alley
or similar purpose, and which is subject to the Village's jurisdiction.
[Added 4-3-2019 by L.L.
No. 2-2019]
A tower constructed on top of a preexisting building or structure.
[Added 4-3-2019 by L.L. No. 2-2019]
A low-powered wireless base station that functions like a cell
in a mobile wireless network and which meets both the following qualifications:
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
All other wireless equipment associated with the facility, including
the wireless equipment associated with the antenna and any preexisting
associated equipment on the structure, is cumulatively no more than
28 cubic feet in volume.
A small cell wireless facility shall be encompassed within the
definition of a "wireless telecommunications facility."
Measures and technology which minimize adverse aesthetic
and visual impacts on land, property, buildings and other facilities
adjacent to, surrounding and in generally the same area as the proposed
location of a wireless telecommunications facility, and shall mean
using the least visually and physically intrusive facility that is
not technologically or commercially impracticable.
[Added 4-3-2019 by L.L.
No. 2-2019]
Any ground- or roof-mounted pole, spire, building, structure,
or combination thereof, including supporting lines, cables, wires,
braces and masts, built and/or used for the purpose of mounting an
antenna, meteorological device or similar apparatus above grade as
part of, or in conjunction with, a communication system transmitting
or receiving radio or electromagnetic waves.
[Amended 4-3-2019 by L.L.
No. 2-2019]
A structure, facility or location designed or intended to
be used as or used to support antennas or other transmitting or receiving
devices. This includes, without limit: small wireless facilities and
distributed antenna systems, towers of all types and kinds, and structures
including, but not limited to, buildings, church steeples, silos,
poles, water towers, signs or other structures that can be used as
a support structure for antennas or the functional equivalent of such.
It further includes all related facilities and equipment, such as
cabling, equipment shelters and other structures associated with the
site.
[Added 4-3-2019 by L.L.
No. 2-2019]
A.
No antenna or tower shall hereafter be used, erected,
changed or altered except after obtaining a special exception permit
in conformity with this article.
B.
The Board is hereby authorized to review and approve,
approve with modifications or disapprove special exception permits
pursuant to this article. The Board shall have the authority to impose
such reasonable conditions and restrictions as are directly related
to and incidental to the proposed antenna, tower or accessory structures
and the protection of the health, safety and welfare of the Village,
including, but not limited to, the aesthetics thereof.
C.
Any application for a special exception permit under this Article XIIA shall be submitted on behalf of and signed by all of the following persons or entities, all of whom shall collectively be considered the applicant for the permit:
(1)
The owner of the antenna;
(2)
The operator of the antenna;
(3)
The owner of the tower on which the antenna
is to be installed;
(4)
The operator of the tower on which the antenna
is to be installed; and
(5)
The owner of the building, structure or property
on which the antenna or tower is to be located.
D.
The following shall be exempt from the provisions of this article:
[Added 4-3-2019 by L.L.
No. 2-2019]
(1)
The Village, its agencies and other public facilities owned
and operated by the Village;
(2)
Facilities expressly exempted from the Village's permitting
authority with respect to wireless telecommunications facilities;
(3)
Over-the-air reception devices, including the reception antennas
for direct broadcast satellites, multichannel multipoint distribution
(wireless cable) providers, television broadcast stations, and other
customer-end antennas that receive and transmit fixed wireless signals
that are primarily used for reception;
(4)
Facilities exclusively used for private, noncommercial radio
and television reception and private citizens bands, licensed amateur
radio and other similar noncommercial telecommunication;
(5)
Facilities used exclusively for providing unlicensed spread-spectrum
technology, i.e., Bluetooth® or a "hotspot," where the facility
does not require a new tower, where the service is not to be used
for commercial purposes, where there is no fee or charge for the use
of the service, and where the service is intended to be usable for
less than 200 feet;
(6)
Ordinary repair and maintenance of wireless telecommunications
facilities.
E.
All legally permitted wireless telecommunications facilities, constructed
as permitted, and existing on or before the effective date of the
local law enacting this provision, shall be allowed to continue as
they currently exist; provided, however, that any substantial or visible
modification of an existing wireless telecommunications facility will
require the complete facility and any new installation to comply with
this article.
[Added 4-3-2019 by L.L.
No. 2-2019]
All towers erected, constructed or located within
the Village shall comply with the following requirements:
A.
A proposal for a tower shall not be approved unless
the Board finds that the antenna planned for the proposed tower cannot
be accommodated on an existing or approved tower or building within
a one-mile search radius of the proposed tower due to one or more
of the following reasons:
(1)
The antenna would exceed the structural capacity
of any existing or approved tower or building, as documented by a
qualified professional engineer, and the existing or approved tower
or building cannot be reinforced, modified or replaced to accommodate
the planned or equivalent antenna at a reasonable cost.
(2)
The antenna would cause interference materially
impacting the usability of other existing or planned antennas at an
existing tower or building, as documented by a qualified professional
engineer, and the interference cannot be prevented at a reasonable
cost.
(3)
Existing or approved towers and buildings within
the search radius cannot accommodate the antenna at a height necessary
to function reasonably, as documented by a qualified professional
engineer.
(4)
Other foreseen reasons that make it infeasible
to locate the antenna upon an existing or approved tower or building.
B.
Any proposed freestanding tower shall be designed,
structurally, electrically and in all respects, to accommodate both
the applicant's antennas and comparable antennas for at least five
additional users. Freestanding towers must be designed to allow for
future rearrangement of antennas upon the tower and to accept antennas
mounted at varying heights.
C.
The applicant shall submit to the Board a letter of
intent committing the applicant, and its successors in interest, to
negotiate in good faith for shared use of the proposed tower by other
users in the future. The issuance of a permit (assuming the tower
is approved according to this article) shall commit the new tower
owner and its successors in interest to:
(1)
Respond in a timely, comprehensive manner to
a request for information from a potential shared-use applicant.
(2)
Negotiate in good faith concerning future requests
for shared use of the new tower by other users.
(3)
Allow shared use of the new tower if another
user agrees, in writing, to pay charges.
(4)
Make no more than a reasonable charge for shared
use, based on generally accepted accounting principles. The charge
may include, but is not limited to, a pro rata share of the cost of
site selection, planning, project administration, land costs, site
design, Village fees, construction and maintenance financing, return
on equity, and depreciation, and all of the costs of adapting the
tower or equipment to accommodate a shared user without causing radio
or electromagnetic interference.
D.
In order to keep neighboring municipalities informed,
and to facilitate the possibility of directing that an existing tall
structure or existing tower in a neighboring municipality be considered
for shared use, an applicant shall submit to the Board an affidavit
that it has sent, by registered or certified mail, return receipt
requested, at least 15 days prior to the public hearing, a notification
to all of the Village Clerks of each village, the fire departments,
and the water authorities within two miles of the location of the
proposed tower. Such notification shall include the exact location
of the proposed tower and a general description of the project, including,
but not limited to, the height of the tower and its capacity for future
shared use.
Any roof tower or antenna proposed to be installed
on a structure or building within the Village shall comply with the
following requirements:
A.
The applicant shall provide the Village with the drawings,
plans and specifications relating to all other towers and antennas
already located on such building or structure.
B.
The applicant shall provide the Village with all of
the contracts, leases and other agreements relating to other towers
and antennas already located on such building or structure.
C.
The applicant shall provide the Village with engineering
and design studies demonstrating the effect of the proposed tower
or antenna on other towers or antennas already located on such building
or structure in terms of power requirements, interference, servicing
and other relevant factors; how the cumulative effect of all towers
and antennas to be located on said building or structure can be most
effectively minimized in terms of aesthetics, safety, transmission,
radiation and other relevant factors; and whether the structure or
building will be able to accommodate additional towers or antennas
subsequent to the tower or antenna to be installed.
D.
The applicant shall inform the Village, in an appropriate
binding manner, whether the owner of the structure or building is
willing to limit the number of additional towers or antennas that
may be subsequently installed on the building or structure.
E.
Letter of intent.
(1)
In the event that there may be any application
for subsequent towers and antennas to be installed on said building
or structure, then the applicant shall submit to the Board a letter
of intent committing the applicant and its successor in interest:
(a)
To respond in a timely comprehensive manner
to requests for information from any subsequent applicant seeking
to install a tower or antenna on said building or structure;
(b)
To accommodate, to the maximum extent feasible,
any measures and modifications aimed at reducing the cumulative effect
of all towers and antennas to be located on said building or structure
in terms of any negative effect on aesthetics, safety, transmission,
radiation and other relevant factors; and
(c)
To provide the Village with all relevant information
appropriate and necessary to evaluate any subsequent application for
a tower or antenna on said building or structure.
(2)
Such commitments shall be incorporated into
any special exception permit to be issued by the Board.
F.
In no event shall towers or antennas operated by more
than four commercial service providers be located on the same building
or structure.
G.
In no event shall the total base area of all towers
and accessory structures located on the roof of a building or structure,
when combined with the base area of preexisting bulkheads or other
authorized structures on the roof, exceed 30% of the roof area of
said building or structure.
H.
In order to keep neighboring municipalities informed,
and to facilitate the possibility of directing that an existing tall
structure or existing tower in a neighboring municipality be considered
for shared use, an applicant to install an antenna on a building or
structure shall submit to the Board an affidavit that it has sent,
by registered or certified mail, return receipt requested, at least
15 days prior to the public hearing, a notification to all of the
Village Clerks of each village, the fire departments, and the water
authorities within two miles of the proposed location of the antenna
or tower for which approval is sought. Such notification shall include
the exact location of the proposed antenna or tower and a general
description of the project.
I.
The Village may reject an application not meeting the requirements
set forth in this article or which is otherwise incomplete. Within
10 days of receiving an application for a small cell wireless facility,
and within 30 days of receiving any other application for a wireless
telecommunications facility, the Village shall notify the applicant
if the application is incomplete and identify the missing information
and documents. The applicant may resubmit a revised application within
10 days without additional charge, in which case the Village shall
have 10 days to confirm that the application is complete, or notify
the applicant that the application remains incomplete, or deny the
application based on the failure to submit a complete application.
Each additional resubmission by an applicant shall be treated in the
same manner.
[Added 4-3-2019 by L.L.
No. 2-2019]
J.
The Village shall require a license agreement for any new wireless
telecommunications facility to be located in, upon, above, along,
across or over municipal facilities, municipal property and/or the
public right-of-way.
[Added 4-3-2019 by L.L.
No. 2-2019]
K.
The Village shall require an attachment agreement for any new wireless
telecommunications facility that attaches to municipal property.
[Added 4-3-2019 by L.L.
No. 2-2019]
L.
The license and attachment agreements referenced above shall specify
the term of the agreement; shall state that the scope of the agreement
is limited to the installation, operation and maintenance of the wireless
telecommunications facility; shall specify the fees to be paid; shall
state that the agreement is not a warranty of the Village's title
or interest in the public right-of-way; shall state that the license
granted is nonexclusive; shall specify the time period within which
the wireless telecommunications facility shall be constructed and
installed; and shall include such other and further terms as may be
necessary and appropriate, including, but not limited to, the indemnification
and insurance requirements listed in this article.
[Added 4-3-2019 by L.L.
No. 2-2019]
M.
The Village shall prefer locating wireless telecommunications facilities
on existing towers or structures without increasing their height,
as opposed to constructing new towers or structures. For this purpose,
the applicant shall submit a comprehensive report inventorying existing
towers and other suitable structures within one mile of the location
of any proposed new tower, unless the applicant can show that some
other distance is more reasonable and demonstrate conclusively why
an existing tower or other suitable structure cannot be used.
[Added 4-3-2019 by L.L.
No. 2-2019]
N.
An applicant for a special exception permit under this article must
provide documentation to demonstrate and prove that there is a need
for the proposed wireless telecommunications facility in order to
provide service primarily within the Village. In the event that the
facility is not needed to provide service primarily within the Village,
then documentation must be provided to demonstrate why such facility
cannot be located in the area which it will primarily serve. Such
documentation shall include propagation studies of the proposed site
and all adjoining planned, proposed, in-service or existing sites
that demonstrate a significant gap in coverage and/or, if a capacity
need, including an analysis of current and projected usage.
[Added 4-3-2019 by L.L.
No. 2-2019]
O.
Applications for a wireless telecommunications facility shall contain
the following information:
[Added 4-3-2019 by L.L.
No. 2-2019]
(1)
A descriptive statement of the objective for the new facility
or modification;
(2)
The name, address, phone number and e-mail address of the person
preparing the application;
(3)
The name, address, phone number and e-mail address of the property
owner and the legal name of the applicant;
(4)
A survey showing the size of the property, stated both in square
feet and in lot line dimensions; the location of all lot lines; the
location of the nearest residential structure; the location, size
and height of all existing and proposed structures on the property;
and the type, location and dimensions of all proposed and existing
landscaping and fencing;
(5)
The number, type, manufacturer and model of the antennas proposed,
with a copy of the specification sheet, and a design plan showing
the antennas' capacity to serve multiple carriers;
(6)
The make, model, type and manufacturer of the tower, and a design
plan showing the tower's capacity to accommodate multiple users;
(7)
The site plan showing all accessory structures and related fixtures
and apparatus, including height above preexisting grade, materials,
color and lighting;
(8)
The frequency, modulation and class of service of radio and
other transmitting equipment;
(9)
The actual intended transmission power, stated as the maximum
effective radiated power in watts;
(10)
A copy of the FCC license applicable to the intended use of
the facility;
(11)
A long environmental assessment form pursuant to the State Environmental
Quality Review Act;
(12)
A visual impact assessment, which shall include: a computer-generated
"Zone of Visibility Map" at a minimum of a one-mile radius of the
proposed installation, with and without foliage, which illustrates
the locations from which the proposed installation can be seen; a
pictorial representation of "before and after" views (photo simulations)
from key viewpoints from both inside and outside the Village as may
be appropriate, including, but not limited to, those locations where
the site is visible to a large number of visitors, residents or travelers;
and a written description of visual impact of the proposed facility
(including, but not limited to, the base of the tower, guy wires,
fencing and accessory structures) on abutting property and streets;
and
(13)
Such other information and documents reasonably determined by
the Village to be necessary for a thorough evaluation of the application.
A.
Proof of noninterference from antenna. Each application
for installation of an antenna shall include either a preliminary
or a certified statement that the installation of the antenna, including
reception and transmission functions, will not interfere with the
radio or television service enjoyed by adjacent residential and nonresidential
properties or with public safety telecommunications. In the event
that only a preliminary statement is submitted with the application,
a final certified statement of noninterference shall be provided,
subject to the approval of the Village, prior to the issuance of a
permit. The statement shall be prepared and certified by a professional
engineer.
B.
Antenna safety.
(1)
Antennas shall be subject to state and federal
regulations pertaining to nonionizing radiation and other health hazards
related to such facilities. The owner shall submit evidence of compliance
with the FCC standards on a yearly basis. If new, more-restrictive
standards are adopted, the antennas shall be made to comply, or continued
operations may be restricted by the Board. The cost of verification
of compliance shall be borne by the owner and operator of the antenna.
(2)
Each application for installation of an antenna
shall also include the following information:
(a)
Measurements demonstrating the total calculated
and actual amount of radio and electromagnetic background radiation,
both broad-band and narrow-band, at all points within 250 feet of
the site of the proposed antenna at representative times before the
proposed antenna is installed and operational;
(b)
Measurements demonstrating the total calculated
and actual amount of radio and electromagnetic radiation, both broad-band
and narrow-band, at all points within 250 feet of the site of the
antenna at representative times after the proposed antenna is installed
and operational;
(d)
Appropriate data demonstrating that, after the
proposed antenna is installed and becomes operational, any resident,
occupant or user of a building, structure or public area within 250
feet of the site of the proposed antenna will not receive exposure
from radio or electromagnetic waves that exceeds the maximum permissible
exposure limits established by the FCC.
C.
Tower lighting. Towers shall not be illuminated by
artificial means and shall not display strobe lights unless such lighting
is specifically required by the Federal Aviation Administration or
other federal or state authority for a particular tower. When incorporated
into the approved design of the tower, and approved by the Board,
light fixtures used to illuminate ball fields, parking lots or similar
areas may be attached to a freestanding tower.
D.
Uses, signs and advertising on towers.
E.
Tower height limitations. The maximum height of a
freestanding tower is limited to 50 feet above the ground upon which
the antenna is placed. The ground elevation may not be raised to increase
the height of the tower. The maximum height of a roof tower shall
not exceed the height of any authorized preexisting structure or bulkhead
on said roof.
F.
Building requirements for freestanding towers.
(1)
The use of guyed towers is prohibited. Towers
must be self-supporting without the use of wire, cables, beams or
other means. The design should utilize an open framework or monopole
configuration. Permanent platforms or structures exclusive of antennas
that serve to increase off-site visibility are prohibited.
(2)
The base of the tower shall occupy no more than
500 square feet, and no portion of the tower shall be larger than
the base.
(3)
Minimum spacing between freestanding tower locations
shall be 1/4 mile.
G.
Access to freestanding towers. A road and parking
shall be provided to assure adequate emergency and service access.
Maximum uses of existing roads, public or private, shall be made.
H.
Setbacks for towers and accessory structures.
(1)
The tower and accessory structures shall comply
with all minimum setbacks of the zoning district.
(2)
A tower's setback may be reduced by the Board
to allow the integration of a tower into an existing or proposed structure
such as a church steeple, light pole, power line or similar structure.
(3)
In addition to any setback requirements otherwise
imposed by this Code, the setback of a tower or accessory structure
on the roof of a building or structure may be modified by the Board
as appropriate and necessary to accommodate safety and aesthetic concerns.
I.
Screening and security of freestanding towers and
accessory structures.
(1)
Existing on-site vegetation shall be preserved
to the maximum extent possible.
(2)
Freestanding towers and accessory structures
shall be provided with security fencing to prevent unauthorized entry.
Such fencing shall be no less than six feet and no greater than eight
feet in height, shall have self-closing locking mechanisms, shall
be constructed of either metal or masonry, and shall meet the other
requirements for fences set forth in the Village Code which are not
inconsistent herewith.
(3)
The base of a freestanding tower and any accessory
structures shall be landscaped to the extent feasible to minimize
the impact of the tower, the accessory structures and the security
fencing on the adjacent residential community and the public streets.
J.
Design of antennas, towers and accessory structures.
Towers and antennas shall be designed to blend into the surrounding
environment through the use of color and camouflaging architectural
treatment, except in instances where the color is dictated by federal
or state authorities such as the Federal Aviation Administration.
Every antenna and tower shall be of neutral colors that are harmonious
with, and that blend with, the natural features, buildings and structures
surrounding such antenna and structure; provided, however, that directional
or panel antennas and omnidirectional or whip antennas located on
the exterior of a building that will also serve as an antenna tower
shall be of colors that match, and cause the antenna to blend with,
the exterior of the building. Accessory structures will be designed
to be architecturally compatible with principal structures on the
site and the aesthetics of the neighboring structures.
K.
Other safety features.
(1)
No special permit under this article may be
issued for any antenna located on a building or structure in the Village,
whether on a tower or otherwise, unless adequate provision has been
made to ensure that, in the event of malfunction, no radiation will
be directed from the antennas toward the occupant or users of the
building or structure. Such provisions may consist of automatic cut-off
devices; of insulation (ground plane) shielding those areas of the
building used by human persons from the area of the building where
the antennas are located; and similar devices.
(2)
The applicant shall ensure that, at the entrance
to the roof of any building or structure where an antenna is located,
there shall be placed conspicuous signage stating as follows:
|
"You are entering an area of radio frequency
and/or electromagnetic emissions. This may pose a risk to persons
with pacemakers or other specific health problems."
|
(3)
All power and signal wires running to or from
antennas, towers or accessory structures on the roof of a building
or structure within the Village shall be adequately shielded to ensure
that no radio or electromagnetic radiation of any kind escapes from
the conduits enclosing such wires.
L.
In connection with an application for a wireless telecommunications
facility, the Village may direct the applicant to hold one or more
balloon tests to illustrate the visibility of the proposed installation
from various locations. The specifications for the balloon tests shall
be determined at a preapplication meeting.
[Added 4-3-2019 by L.L.
No. 2-2019]
The operator of every antenna shall submit to
the Village Clerk copies of all licenses and permits required by other
agencies and governments with jurisdiction over the design, construction,
location and operation of such antenna and shall maintain such licenses
and permits and provide evidence of renewal or extension thereof when
granted. Failure to do so after 30 days' notice, in the discretion
of the Board, unless good cause for such failure is shown, shall result
in the termination of the special exception permit.
No permit granted under this article for any
antenna or tower, or accessory structure, shall be assigned or transferred
without the prior approval of the Board.
[Amended 4-3-2019 by L.L.
No. 2-2019]
A.
All special exception permits approved pursuant to this article shall
expire 10 years from the date of issuance unless, between 12 months
and six months prior to the ten-year anniversary date of the special
exception permit being issued, and all subsequent ten-year anniversaries
of the issuance of the original special exception permit for wireless
telecommunications facilities, the holder of a special exception permit
for such facility shall submit a signed, written request to the Board
for recertification.
B.
After such review, if the Board determines that the permitted wireless
telecommunications facility is in compliance with the special exception
permit and all applicable statutes, laws, local laws, ordinances,
codes, rules and regulations currently in effect, then the Board shall
issue a recertification of the special exception permit for the wireless
telecommunications facility, which may include any new provisions
or conditions that are required by applicable statutes, laws, ordinances,
codes, rules or regulations. If, after such review, it is determined
that the permitted wireless telecommunications facility is not in
compliance with the special exception permit and all applicable statutes,
laws, ordinances, codes, rules and regulations, then the Board may
refuse to issue a recertification of the special exception permit
for the wireless telecommunications facility. The applicant for recertification
shall be notified of the Board's refusal to recertify in writing.
The wireless telecommunications facility shall thereafter he brought
into compliance within 30 days. In the event the wireless telecommunications
facility is not brought into compliance within 30 days from the date
of the decision of the Board, the facility shall be subject to a new
special exception permit application, which shall be promptly filed,
or the structure and/or facility shall be removed by the permittee
in accordance with the provisions of this article.
C.
If, on review, the Board determines that the wireless telecommunications
facility can be replaced by a facility of improved visual appearance
through the use of stealth technology, the special exception permit
shall be renewed on the condition that the wireless telecommunications
facility shall be replaced by a wireless telecommunications facility
of improved stealth technology as approved by the Board.
[Amended 5-4-2005 by L.L. No. 2-2005; 4-3-2019 by L.L. No. 2-2019]
A.
There shall be paid to the Village by the approved
applicant an annual fee of $750 for each location within the Village
at which an approved applicant maintains a roof tower or freestanding
tower, which fee shall be inclusive of the fees for any antennas or
related equipment located by said applicant at the same location.
B.
With respect to an antenna or related equipment (such
as repeaters) maintained by an approved applicant at a location separate
from the location of a roof tower or freestanding tower, there shall
be paid by the approved applicant to the Village an annual fee of
$100 for each such antenna or item of related equipment.
C.
The above-referenced fees shall be paid to the Village
on or before June 1 of each year.
D.
The Village shall not act on or consider any application
for a permit or other approvals by an applicant that maintains towers,
antennas or related equipment within the Village with respect to which
all requisite annual fees have not been paid.
E.
Each wireless telecommunications facility which makes use of a Village-owned
pole or structure shall pay an annual fee which shall be specified
in an attachment agreement with the Village, the amount of which shall
be determined based on the nature of the facility and the installation.
F.
Each wireless telecommunications facility which makes use of a Village-owned
pole or structure, or of a pole or structure within the public right-of-way,
shall pay a "make ready" fee, which shall be determined on a site-specific
engineering basis, to pay for costs necessarily and reasonably incurred
by the Village in making a particular pole or structure, or the public
right-of-way, suitable for the wireless telecommunications facility,
which fee shall be paid within 10 days after the Village notifies
the applicant, in writing, of the amount of said fee.
G.
Each wireless facility located in the public right-of-way shall pay
an annual license fee which shall be specified in a license agreement
with the Village, the amount of which shall be determined based on
the nature of the facility and the installation.
H.
The applicant for a special exception permit for a wireless telecommunications facility shall be required to pay the application fee and all other costs and deposits in connection with the application as specified in § 225-136 of this chapter. These same fees, costs and deposits shall also be required in applications for recertifications.
I.
An applicant for a special exception permit shall pay all generally
applicable nondiscriminatory fees otherwise specified in the Village
Code for necessary permits such as electrical permits, street opening
permits and building permits.
J.
The fees and costs imposed by the Village in connection with applications
for wireless telecommunications facilities shall not exceed amounts
permitted by applicable federal and state law or regulation.
A.
Upon the termination of the permit granted pursuant
to this article, or upon the abandonment or discontinuance of use
of any antennas, towers or portions of towers or associated facilities,
whichever is the first to occur, such antennas, towers or portions
of towers or associated facilities shall be removed as follows:
(1)
All antennas, towers and associated facilities for which the permit granted pursuant to this article has been terminated, and all abandoned or unused antennas, towers and associated facilities, shall be removed within six months of such termination, abandonment or discontinuance of use, unless a time extension is approved by the Board. A copy of the relevant portions of a signed lease which requires the applicant to remove the antenna, tower and associated facilities upon such termination, abandonment or discontinuance of use at the site shall be submitted at the time of application. In the event that a tower or antenna or associated facility is not removed within six months of such termination, abandonment or discontinuance of use, the antenna, tower and associated facilities may be removed by the Village and the costs of removal assessed against the property, in the manner set forth in Chapter 164 of the Village Code.
(2)
Unused portions of towers above a manufactured connection shall be removed within six months of the time of antenna relocation unless a time extension is approved by the Board. The replacement of portions of a tower previously removed requires the issuance of a new special exception permit. In the event that said unused portion of the tower is not removed within said six months, said portion of the tower may be removed by the Village and the costs of removal assessed against the property, in the manner set forth in said Chapter 164.
B.
Performance bond.
(1)
No permit shall be issued pursuant to this article
until the applicant has delivered a performance bond to the Village,
in a form satisfactory to the Village Attorney, in a sum equal to
the cost of removing the antenna, tower and associated facilities,
to secure the applicant's responsibility:
(a)
To remove the antenna, tower and associated
facilities within six months of the termination of the permit granted
pursuant to this article or the abandonment or discontinuance of use
of such antenna, tower and associated facilities, unless a time extension
is approved by the Board; and
(b)
To remove the unused portions of towers above
a manufactured connection within six months of the time of antenna
relocation, unless a time extension is approved by the Board.
(2)
All such bonds shall be issued by insurance
companies licensed to do business in the State of New York with Best
ratings of "A" or better.
(3)
Accompanying such bonds shall be an estimate
of the cost of the removal of the antenna, tower and associated facilities,
certified by a professional engineer.
(4)
All such bonds shall be renewed not less than
once every three years and shall be accompanied by an updated professional
engineer's certification of the cost of removal.
Antennas and towers in existence which do not
conform to or comply with this article are subject to the following
provisions:
A.
Antennas and towers may continue in use for the purpose
now used and as now existing but may not be replaced or structurally
altered without complying in all respects with this article.
B.
If such antenna or tower is hereafter damaged or destroyed
due to any reason or cause whatsoever, the antenna or tower may be
repaired and restored to its former use, location and physical dimensions
without complying with this article; provided, however, that if the
cost of repairing the antenna or tower to the former use, physical
dimensions and location would be 20% or more of the cost of a new
tower of like kind and quality, then the tower may not be repaired
or restored except in full compliance with this article. Furthermore,
no such damaged or destroyed antenna may be repaired or restored without
complying with this article in the absence of proof that the power
requirements and radiation emission from said antenna will not exceed
those of the replaced antenna.
[Amended 4-3-2019 by L.L.
No. 2-2019]
A.
No wireless telecommunications facilities shall be installed, constructed
or modified until the complete application is reviewed and approved
by the Village and a special exception permit has been issued.
B.
Except as otherwise set forth herein, there shall be a preapplication
meeting. The purpose of the preapplication meeting will be to address
issues that will help to expedite the review and permitting process.
A preapplication meeting shall also include a site visit if there
has not been a prior site visit for the requested site. In the event
an applicant submits an application without a preapplication meeting,
then, if the application is in fact complete, the requirement of a
preapplication meeting may be waived. In any event, the requirement
of a preapplication meeting shall not delay the commencement of any
time period applicable to the consideration and review of a properly
completed application.
C.
The Village may retain consultants and experts to assist it in reviewing and evaluating applications, the construction and modifications of a site, and site inspections. The reasonable costs and fees of such consultants and experts shall be paid by the applicant as specified in § 225-104.13C of this chapter.
D.
Hearing.
(1)
The Board shall conduct a public hearing within the following
number of days after the date a complete application is submitted
to the Village with all required fees and deposit:
(a)
Applications for co-location of a small cell wireless facility:
45 days.
(b)
Other applications for a small cell wireless facility: 75 days.
(c)
Applications for co-location of other wireless telecommunications
facilities: 75 days.
(d)
All other applications for wireless telecommunications facilities:
135 days.
(2)
The Board shall issue a decision within 15 days after the conclusion
of the public hearing and the recommendation of the Nassau County
Planning Commission, whichever is later.
(3)
Notwithstanding anything to the contrary set forth in this article,
the time periods within which the Village shall act with respect to
an application regarding a wireless telecommunications facility shall
not exceed the maximum time periods allowed for its actions by applicable
state or federal law or regulation, unless there is good cause for
the Village's inability to do so. The time periods within which the
Village must act will be tolled by reason of the applicant's submission
of an incomplete application.
(4)
In order to verify that the holder of a special exception permit
for wireless telecommunications facilities and any and all lessees,
renters, and/or licensees of wireless telecommunications facilities
place and construct such facilities, including towers and antennas,
in accordance with all applicable technical, safety, fire, building,
and zoning codes, laws, ordinances, rules and regulations and other
applicable requirements, the Village shall have the right to inspect
all facets of said permit holder's, renter's, lessee's or licensee's
placement, construction, modification and maintenance of such facilities,
including, but not limited to, towers, antenna, and buildings or other
structures constructed or located on the permitted site. The applicant's
application for a special exception permit shall constitute consent
to such inspection. The Village shall have the right to retain a qualified
engineer or consultant to assist in such inspection, and to conduct
any necessary and appropriate rests in connection with such inspection,
the costs of which shall be paid by the holder of the special exception
permit.
(5)
Any special exception permit issued pursuant to this article
shall be comprehensive and not severable. If part of a permit is deemed
or ruled to be invalid or unenforceable in any material respect by
a competent authority, or is overturned by a competent authority,
the permit shall be void in total, unless determined otherwise by
the Village.
A.
The Board shall have the right to waive and/or modify
the provisions of this article to the extent reasonable and necessary
if it is shown that any of the foregoing provisions of this article
are not enforceable by the Village because of a federal or state preemption.
B.
The Board shall also have the right, in its discretion,
to waive and/or modify the provisions of this article to the extent
reasonable and necessary in circumstances where an applicant has demonstrated
by qualified experts that it cannot feasibly provide the services
for which it is licensed if it is compelled to conform with the provisions
of this article. In making such determination, the Board shall consider
all relevant factors, including the nature of the services provided
by the applicant; the nature of the waiver or modification sought;
the degree of hardship to the applicant; the extent of divergence
between the waiver or modification sought and the provisions of this
article; costs and other financial factors; the availability of ameliorative
measures; and the effect of the waiver or modification on the health,
welfare, and safety of the Village and its residents, including aesthetic
concerns.
C.
An applicant desiring relief, waiver or exemption from any aspect
or requirement of this article may request such, provided that the
relief or exemption is contained in the submitted application or,
in the case of an existing or previously granted special permit, a
request for modification. Such relief may be temporary or permanent,
partial or complete. The burden of proving the need for the requested
relief, waiver or exemption is solely on the applicant to prove.
[Added 4-3-2019 by L.L.
No. 2-2019]
D.
The applicant shall bear all costs of the Village in considering
the request and the relief, waiver or exemption. No such relief or
exemption shall be approved unless the applicant demonstrates by clear
and convincing evidence that, if granted, the relief, waiver or exemption
will have no significant effect on the health, safety and welfare
of the Village, its residents and service providers.
[Added 4-3-2019 by L.L.
No. 2-2019]
[Added 4-3-2019 by L.L.
No. 2-2019]
A.
All holders of a special exception permit for a wireless telecommunications
facility under this article shall secure, and maintain in effect for
the duration of the special exception permit, insurance coverage of
the following kinds and amounts:
B.
The commercial general liability insurance policy shall specifically
include the Board, the Village and its officers, boards, employees,
committee members, attorneys, agents and consultants as additional
insureds.
C.
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the state and with
a Best's rating of at least "A."
D.
The insurance policies shall contain an endorsement obligating the
insurance company to furnish the Village with at least 30 days' prior
written notice in advance of the cancellation or material modification
of the policy.
E.
Renewal or replacement policies or certificates shall be delivered
to the Village at least 15 days before the expiration of the insurance
that such policies are to renew or replace.
F.
Before construction of permitted wireless telecommunications facilities
is initiated, but in no case later than 15 days after the granting
of the special exception permit, the holder of the special exception
permit shall deliver to the Village a copy of each of the policies
or certificates representing the insurance in the required amounts.
[Added 4-3-2019 by L.L.
No. 2-2019]
All license and attachment agreements required under this article
shall contain a provision with respect to indemnification. Such provision
shall obligate the applicant, to the extent permitted by law, to at
all times defend, indemnify, protect, save, hold harmless, and exempt
the Board, the Village, and its officers, boards, employees, committee
members, attorneys, agents, and consultants from any and all penalties,
damages, costs, or charges arising out of any and all claims, suits,
demands, causes of action, or award of damages, whether compensatory
or punitive, or expenses arising therefrom, either at law or in equity,
which might arise out of or be caused by the placement, construction,
erection, modification, location, product performance, use, operation,
maintenance, repair, installation, replacement, removal, or restoration
of said facility; excepting, however, any portion of such claims,
suits, demands, causes of action or award of damages as may be attributable
to the negligent or intentional acts or omissions of the Village,
or its servants or agents. With respect to the penalties, damages
or charges referenced herein, reasonable attorneys' fees, consultants'
fees, and expert witness fees are included in these costs that are
recoverable by the Village.
[Added 4-3-2019 by L.L.
No. 2-2019]
A.
In the event of a violation of this article, or of the provisions of any special exception permit issued pursuant to this article, the Village may impose and collect, and the holder of the special exception permit for wireless telecommunications facilities shall pay to the Village, fines or penalties as set forth in Article XX of Chapter 225 of the Village Code.
B.
The failure of the holder of a special exception permit to comply with provisions of this article or with the provisions of the special exception permit shall constitute a violation and shall subject the applicant to the sanctions, penalties and procedures set forth in Article XX of Chapter 225 of the Village Code.
C.
Notwithstanding anything in this article, the holder of the special
exception permit for wireless telecommunications facilities may not
use the payment of fines, liquidated damages or other penalties to
evade or avoid compliance with this article or any section of this
article. An attempt to do so shall subject the holder of the special
exception permit to termination and revocation of the special exception
permit. The Village may also seek injunctive relief to prevent the
continued violation of this article, without limiting other remedies
available to the Village.
[Added 4-3-2019 by L.L.
No. 2-2019]
In addition to all other requirements set forth in this article:
A.
Where feasible, as new technology becomes available, the holder of
a special exception permit for a small cell wireless facility shall
replace larger, more visually intrusive facilities with smaller, less
visually intrusive facilities, after receiving all necessary permits
and approvals from the Village.
B.
All small cell wireless facilities shall have an adequate fall zone
to minimize the possibility of damage or injury resulting from pole
collapse or failure, ice fall or debris fall, and to avoid and minimize
all other impacts on neighboring properties.
C.
The applicant for a special exception permit shall make every effort
to locate small cell wireless facilities as far as possible from any
permanent dwelling located in a residential zoning district.
D.
No small cell wireless facility will be allowed on the Village's
Central Park Sentry Street poles or on any historic structures.
E.
With respect to any single or co-located small cell wireless facility
that is connected to a utility pole, light pole, decorative pole or
telephone pole:
(1)
It must be connected to a pole that can support its weight and
the weight of any co-located equipment;
(2)
Any wires must be located within the width of the pole so as
not to exceed the diameter and height of the existing pole;
(3)
All equipment not to be installed on or inside the pole must
be located underground, flush to the ground, within three feet of
the pole;
(4)
No antenna or accessory structure may be located less than 12
feet above ground;
(5)
It must conform to the aesthetics of the pole; and
(6)
It must have its own dedicated power source to be installed
and metered separately.
[Added 4-3-2019 by L.L.
No. 2-2019]
A.
No wireless telecommunications facility located in the public right-of-way
shall interfere with the use of the public right-of-way by the Village,
by the general public or by other persons authorized to use or be
present in or upon the public right-of-way.
B.
No wireless telecommunications facility located in the public right-of-way
shall exceed the height of any preexisting pole, tower or other structure
in the public right-of-way within 250 feet of the wireless telecommunications
facility.
C.
A wireless telecommunications facility located in the public right-of-way
shall not interfere with existing facilities or structures in the
public right-of-way and shall be located in such a manner as not to
interfere with the usual traffic patterns (vehicular or pedestrian)
or with the rights or reasonable convenience of owners of property
that abuts the public right-of-way.
D.
Unless otherwise required by applicable law, whenever any existing
electric utilities or other communications facilities within a public
right-of-way are located underground, a wireless telecommunications
facility authorized to occupy the same portion of the public right-of-way
shall be required, at its own expense, to be located underground,
to the extent possible. For wireless telecommunications facilities,
or components thereof, that by their nature cannot operate unless
located above ground, the Village Board may authorize a suitable location
for such facilities or components, which may be outside the public
right-of-way.
E.
Installation of a wireless telecommunications facility in the public
right-of-way shall comply with all traffic and safety control measures
specified by the Village Commissioner of Public Services to protect,
warn and guide the public (vehicular and pedestrian) through the work
zone, including, but not limited to: the erection of barriers around
the perimeter of any excavation; the provision of traffic control
lights, signs and devices; and the utilization of traffic and signal
control personnel.
[Added 4-3-2019 by L.L.
No. 2-2019]
A.
To the extent that the holder of a special exception permit for wireless
telecommunications facilities has not received relief, or is not otherwise
exempt, from appropriate state and/or federal agency rules or regulations,
then the holder of such a special exception permit 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 exception permit for
wireless telecommunications facilities, then the holder of such a
special exception permit shall conform the permitted wireless telecommunications
facilities 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.
[Added 4-3-2019 by L.L.
No. 2-2019]
A.
Where this article differs or conflicts with other applicable laws,
rules or regulations, this article shall apply, unless it is preempted
or prohibited by binding applicable state or federal law or regulation,
and then only to the extent of such exemption or prohibition.
B.
This article is not intended to, nor shall it be interpreted or applied
to:
(1)
Prohibit or effectively prohibit any personal wireless service
provider's ability to provide personal wireless services in the Village;
(2)
Prohibit or effectively prohibit any entity's ability to provide
any interstate or intrastate telecommunications service, subject to
any competitively neutral and nondiscriminatory rules or regulations
for right-of-way management;
(3)
Unreasonably discriminate among providers of functionally equivalent
services;
(4)
Deny any request for authorization to place, construct or modify
personal wireless service facilities on the basis of environmental
effects of radio frequency emissions so long as such wireless facilities
comply with the FCC's regulations concerning such emissions;
(5)
Prohibit any co-location or modification that the Village may
not deny under federal or state law, or otherwise authorize the Village
to preempt any applicable binding and valid federal or state law.
