Village of Mill Neck, NY Conditional Uses

Unless owned by the Village, and provided that no such use shall be operated for profit, any park, playground or other open recreational area shall be:

Part of and incidental to a permitted educational use.

Reserved by covenants in all deeds for the common use of property owners in an approved subdivision within the Village.

Reserved by deed covenants or other agreement satisfactory to the Board of Trustees for recreational use of Village residents.

In case of areas under Subsection I(1)(a) and (c) hereinabove, at least 50% in number of the governing board of any organization responsible for such areas shall be resident owners of property in the Village, and such areas shall be subject to §§ 129-70 and 129-71.

High wireless telecommunication services facilities.

[Added 9-10-2013 by L.L. No. 4-2013]

Applicability and required findings. The following conditional use standards and requirements shall apply to all high wireless telecommunication services facilities. No special permit for a conditional use shall be granted unless the Zoning Board of Appeals makes the findings in writing that the application fulfills all of the purposes and meets all of the requirements of this Subsection J, or otherwise grants a variance for such permit to be issued.

Purpose. The purpose of these conditional use regulations is to reasonably control the location, construction and maintenance of high wireless telecommunication services facilities in order to:

Limit the number of high wireless telecommunication services facilities to the minimum necessary to provide adequate coverage to the Village;

Minimize the impact of such facilities on residential properties;

Encourage the siting of high wireless telecommunication services facilities on properties and areas which are not used for residential purposes or would adversely affect residential property; and

Protect, to the maximum extent practicable, aesthetic qualities, the open space character of the Village, the property values of the community, the health and safety of citizens and a citizen's ability to receive communication signals without interference from other communication providers, while not unreasonably limiting competition among communication providers.

(3)

No high wireless telecommunication services facility shall be located, constructed or maintained on any lot, building, structure or land area in the Village, except in conformity with the requirements of this article and all other applicable regulations.

(4)

Location and access.

High wireless telecommunications services facilities shall be located on properties meeting the below priority criteria. The applicant shall evaluate and demonstrate the feasibility of all available locations meeting such criteria before considering alternate locations:

Private or public properties exceeding 50 acres in area where one high wireless telecommunication services facility site can provide at least adequate coverage to the Village and which avoids and minimizes impacts upon adjoining residential properties by providing a separation of 1,000 feet or more from all property boundaries and/or residences.

Location sites not meeting with the above priority criteria shall only be permitted by the Board of Appeals when the applicant demonstrates to the Board's satisfaction that a priority site is not available and the alternate site, to the maximum extent practicable, protects and preserves the aesthetic qualities, open space characteristics of the Village, the property values of the community and the health, safety and welfare of its citizens.

(5)

Co-location. The shared use of high-wireless telecommunication services facilities shall be strongly encouraged. All new high wireless telecommunication services facilities and premises shall be of proper size, location and design to accommodate the co-location of all other licensed wireless telecommunication service providers' facilities and the communications equipment of all local emergency services, as necessary to provide adequate coverage of the entire Village, unless otherwise permitted by the Board of Appeals.

(6)

Setbacks. It shall be a priority of the Village to maximize the separation between high wireless telecommunication services facilities and residences and residential properties.

Unless otherwise modified by the Board of Appeals in an effort to accommodate co-location or other purposes of this chapter, freestanding high wireless telecommunication services facilities shall be located from the property line and all dwelling units not less than five times the height of the facility plus the otherwise applicable setback requirements for principal structures for the district in which the property is located, whichever shall be greater.

In addition, it shall be demonstrated to the satisfaction of the Board of Appeals that the proposed facility is set back adequately to prevent damage or injury resulting from ice fall or debris resulting from failure of a high wireless telecommunication services facility or any part thereof and to avoid and minimize all other impacts upon adjoining properties.

(7)

Freestanding structures. The type of freestanding high wireless telecommunication services facility shall be disguised to minimize its visibility and impact to the satisfaction of the Board of Appeals. High wireless telecommunication services facilities which require the use of guy wires are prohibited.

(8)

Height limitations. Notwithstanding the following height limitations, in no case shall a high wireless telecommunication services facility exceed the minimum height reasonably necessary to accomplish the purpose it is proposed to serve.

The height of any monopole or other freestanding structure utilized in a high wireless telecommunication services facility shall not exceed 150 feet in height measured from the highest point of such facility to the finished grade elevation of the ground immediately adjacent to the structure, unless otherwise modified by the Board of Appeals in an effort to accommodate co-location or other purposes of this chapter.

(9)

Visual mitigation.

The applicant/provider shall prepare a visual impact assessment of the proposed high wireless telecommunication services facility based upon appropriate modeling, photography and other pertinent analytical techniques as required by the Board of Appeals, including but not limited to a map identifying the zone of visibility.

Landscaping and/or other screening and mitigation, including but not limited to architectural treatment, and alternative construction, structural, transmission and stealth technologies such as antennas attached to or disguised as trees or other features or camouflaging techniques, shall be required to minimize the visual impact of such facility from public thoroughfares, important viewsheds and vantage points and surrounding properties to the extent practicable as determined by the Board of Appeals.

No signs other than exempt signs or as may be required by the Board of Appeals for security or safety purposes shall be erected on any high wireless telecommunication services facility.

All ground-based equipment and structures, shall be located underground or completely screened from roads and neighboring properties with live evergreen trees and plants.

(10)

Lighting. The high wireless telecommunication services facility shall not be artificially lighted unless otherwise required by the Federal Aviation Administration (FAA).

(11)

Operational characteristics.

Unless otherwise superseded by the Federal Communications Commission (FCC), the design and use of the proposed high wireless telecommunication services facility, including its cumulative impact with other existing and approved facilities, shall be certified to conform to the maximum NIER exposure standards promulgated by the FCC, as amended. Said certification shall include a report prepared in accordance with FCC Office of Engineering and Technology Bulletin 65, as amended.

Unless the original certification is based on the maximum capacity of the site and all existing and approved equipment thereon, the Board of Appeals shall require annual certification of conformance with the applicable emissions standards and the requirements and conditions of the conditional use permit approval.

Certification shall also be required prior to any modification of the high wireless telecommunication services facility or at any time the Building Inspector suspects such modification or upon modification of the FCC standards.

The Board of Appeals shall hire a qualified professional of its choosing to review and confirm such initial and annual certification report, the cost of which shall be reimbursed by the applicant.

(e)

Any violation of the emissions standards shall require immediate discontinuation and correction of the use responsible for the violation. Any such violation of these requirements of this chapter or the conditions of conditional use approval shall be deemed to be an offense punishable by fine and/or imprisonment in accordance with this chapter.

(12)

Noise. Noise-producing equipment shall be sited and/or insulated to minimize to the maximum extent practicable any increase in noise above ambient levels as measured at the property line.

(13)

Utility service. Electrical and land-based telephone lines extended to serve the high wireless telecommunication services facility sites shall be installed underground.

(14)

Safety provisions. A high wireless telecommunication services facility shall be designed and erected so that in the event of structural failure, it will fall within the required setback area and, to the maximum extent possible, away from adjacent development. No new structure shall be permitted which would be classified by the FAA Regulations Title 14, CFR Part 77, as an obstruction or hazard.

(15)

Insurance and indemnification.

The owner and applicant shall indemnify, defend, protect and hold harmless the Village, its Board members, officers and employees from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, all costs and cleanup actions of any kind and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense directly or proximately resulting from activities undertaken pursuant to the construction, use, and operation of any approved high wireless telecommunication services facility.

The owner and applicant shall obtain and maintain at all times insurance of an appropriate type and amount from an insurer licensed and authorized in the State of New York meeting the satisfaction of the Board of Appeals, the Village Board of Trustees and the Village Attorney.

(16)

Security provisions. A security program shall be formulated and implemented for the site of a high wireless telecommunication services facility. Such program shall include physical features such as fencing, anticlimbing devices or elevating ladders on monopoles or other approved structure and/or monitoring either by staff or electronic devices approved by the Board of Appeals to prevent unauthorized access and vandalism.

(17)

Structural inspection and report. An approved structure shall be inspected by a licensed professional engineer, at the expense of the service provider in accordance with the fee reimbursement procedures adopted by the Village, at any time upon a determination by the Building Inspector that the monopole or other approved structure may have sustained structural damage, but in no case less than every five years. A copy of the inspection report shall be submitted to the Building Inspector.

(18)

Emergency plan. An emergency action plan shall be formulated and implemented for the site of a high wireless telecommunication services facility, to the satisfaction of the Board of Appeals and the local providers of emergency services to the Village. Such plan shall include identification of all appropriate features and considerations of each facility, appropriate training of local police, fire and ambulance service providers and appropriate provisions for notification of the public in the event of an emergency, to the satisfaction of the Board of Appeals and the local providers of emergency services to the Village of Mill Neck.

(19)

Lease agreement. In the case of an application for approval of a high wireless telecommunication services facility to be located on lands owned by a party other than the applicant or the Village, a copy of the lease agreement with the property owner, together with any subsequent modifications thereof, shall be provided to the Board of Appeals and a copy shall be filed with the Village Clerk.

The Board of Appeals, at its discretion and in cooperation with the involved parties, shall allow certain proprietary information contained in such lease which is unrelated to the requirements of this chapter or the conditions of the approvals for said facility to be omitted or kept confidential.

The Board of Appeals shall not approve the conditional use application unless it finds that the lease agreement is in conformance with and properly reflects the purposes and requirements of this section and the conditions of conditional use approval.

(20)

Removal.

A high wireless telecommunication services facility, or any portion thereof, including any portion above the height of the antenna, shall be promptly dismantled and removed from the property on which it is located when it has been inoperative or abandoned or no longer has a valid approval, permit or license or is otherwise no longer necessary for the provision of adequate coverage in the Village.

The applicant shall provide to the Village written notification including identification of the date the use of the facility was discontinued or abandoned or no longer has a valid approval, permit or license or is otherwise no longer necessary for the provision of adequate coverage in the Village by one or more of the service providers, acknowledgment of the requirement to remove the facility and identification of the plans for the removal of the facility.

The owner and/or applicant shall provide, to the satisfaction of the Village, a written agreement suitable for filing with the County Clerk, Division of Land Records, to ensure the dismantling, removal and restoration of such an abandoned wireless telecommunications services facility. Performance of the removal requirements as set forth herein shall be secured by a bond posted by the applicant in an amount and for a duration determined to be adequate by the Village Board of Appeals.

In the event that such facility, or portion thereof, is not completely removed from such property within such time, the Village shall be authorized to effect such removal.

(21)

Application procedure.

Application forms. An application for approval of a high wireless telecommunication services facility shall be submitted on the relevant forms for a conditional use approval. No application for a high wireless telecommunication services facility shall be considered complete without multicolor signal level propagation plots at not greater than 10 dBm intervals to minus 100 dBm at standard USGS scale drawings of 1:25,000 or 1:100,000, including but not limited to topography and elevations, existing buildings, streets, towers and other similarly tall structures, tile propagation plots, radial propagation plots and drive propagation plot data, and identification of all of the relevant system design parameters of all existing, approved or proposed facilities which may affect or provide service within the Village of Mill Neck. Separate signal level propagation plots shall be required for each existing and proposed facility.

Demonstration of need and master plan. The operator(s) of the wireless telecommunication service shall submit a copy of the relevant FCC licensing and shall demonstrate to the satisfaction of the Board of Appeals that there is a public need for each such facility at the location(s) proposed by the applicant to provide adequate coverage in the Village. Such demonstration shall include the preparation of existing and master effective service area plans which:

Demonstrate that existing or other planned or approved facilities or structures do not and cannot be modified to accommodate the applicant's antenna, or that alternative technologies cannot be used, to provide adequate coverage to the Village without the need for new or additional facilities in the Village. In no case shall the provision of adequate coverage constitute a public need for a new or additional wireless telecommunications services facility in the Village unless the applicant demonstrates to the satisfaction of the Board of Appeals, in consultation with its engineer, that:

[a]

The provision of adequate coverage unreasonably discriminates against the applicant in comparison to other wireless telecommunication services providers in the Village where imperfect coverage and inequities between competing services are unavoidable; or

[b]

For other technological reasons and considerations, the criteria for determining a public need should be waived or modified to further the intent and purposes of this chapter.

[2]

Minimize the number of such facilities within the Village;

[3]

Maximize co-location and shared use of existing public utility and high wireless telecommunication services facilities;

[4]

Identify all existing and proposed wireless telecommunication facilities which impact the service area covering the Village and identify all proposed and other locations considered for such facility(ies); and

[5]

Analyze feasible alternatives, including alternative sites, construction and transmission technologies, to reasonably minimize the visual and other adverse impacts.

The Board of Appeals may hire a qualified professional of its choosing to review and confirm or disaffirm the information and conclusions contained in the application materials, the cost of which shall be reimbursed by the applicant.

Proof of co-location attempts. Any application for a high wireless telecommunication services facility shall include a statement and appropriate documentation demonstrating to the satisfaction of the Board of Appeals and in consultation with its consulting engineer that all reasonable efforts have been made to co-locate such facility on all existing and proposed sites with a high wireless telecommunication services facility which may affect or provide service to the Village.

(e)

Statement of co-location accommodation. As a condition of approval for a conditional use, the applicant shall be required to provide a written agreement, in recordable form suitable for filing and prepared to the satisfaction of the Village Attorney, acknowledging that it shall be required to allow the co-location of all other future wireless telecommunication service facilities unless otherwise unreasonably limited by technological, structural or other engineering considerations and expressly stating that it shall negotiate in good faith with all other providers.

(f)

Owner/applicant representative contacts. The applicant and all future owners/operators of the premises and the high wireless telecommunication services facility shall at all times keep on file in the office of the Village Clerk the name, address and telephone number of the owner and operator of such facility and of at least one individual who shall have authority to arrange for the maintenance of the premises and facility and who shall be authorized to accept service of notices and legal process on behalf of the owner and operator(s) of the premises and facility and to bind the owner to any settlement, fine, judgment or other disposition (other than incarceration) which may result from any civil or criminal action or proceeding instituted by the Village against such owner and/or operator(s).

(22)

Intermunicipal notification of applications. In addition to all other referral requirements for special permit applications pursuant to § 239 of the General Municipal Law and as set forth in this chapter, notification shall be made to all municipalities of all applications involving wireless telecommunication services. With said referral, the Village shall request reciprocal referral of all applications in the adjacent municipality involving wireless telecommunication services.

(23)

Decisions. All decisions of the Board of Appeals involving applications for wireless telecommunication services shall be in writing and supported by substantial evidence contained in a written record.

(24)

Waiver or modification of standards. In order to further the purposes of this chapter, the Board of Appeals may, upon just cause shown, waive or modify any of the conditional use special permit standards and criteria contained herein.

Low wireless telecommunication services facilities.

No low wireless telecommunication services facility shall be located, constructed or maintained on any lot, building, structure or land area (including public and private roads) in the Village, except in conformity with the requirements of this section and all other applicable regulations.

An application to construct, install, operate or otherwise establish any low wireless telecommunication facilities (including but not limited to a DAS and each node thereof) shall be administered as provided below.

(3)

Any applications under Subsection K(2) above shall require an administrative permit to be issued by the Building Inspector. Such permit shall be issued only after applicant's submission of a building permit application and compliance with Chapter 129 of this Code, as well as all other applicable federal, state and local codes and regulations relating to construction and safety of low wireless telecommunication facilities, as determined by the Building Inspector, and only after such permit is approved by the Board of Appeals, subject to the following procedure and standards:

The Board of Appeals may have a qualified professional (Village's consultant) of its choosing to review and confirm or disaffirm the information and conclusions contained in the application materials, and provide an assessment as to the propriety of each proposed site under the standards hereinafter set forth. Any costs for the Village's consultant shall be reimbursed by the applicant as provided in Chapter A132 of the Village Code.

The Board of Appeals shall conduct site reviews, including alternate sites (including but not limited to public lands), and seek to ensure that the proposed placement(s) are on structures or poles that are farthest away from residences, houses of worship, day-care centers and schools as is practicable, and are as stealthed as reasonably possible.

The Board of Appeals shall assess each proposed site individually, addressing the issues of whether applicant has a substantial need to place a wireless facility on the structure or pole in question, and whether there are alternate commercially practicable locations where suitable structures or poles exist or may be established (including but not limited to available public lands) which will adequately serve the lawful interest of applicant and be farther away from residential, religious or educational uses than that proposed by applicant: subject to the following standards. For installation on utility-type poles in roadside rights-of-way:

Existing utility poles should be utilized unless it shall be demonstrated by the applicant that the functional or performance requirements of the facility cannot be satisfied using an existing utility pole that conforms to the requirements of this section.

[2]

Cabinet installations shall be mounted no higher than: 36 inches above grade at the base of the pole; or mounted at least 15 feet above grade at the base of the pole.

[3]

Antennas shall be mounted at least 15 feet above grade at the base of the pole and one omni ("whip")-style antenna having a maximum diameter of three inches and a maximum length of 72 inches may extend above the top of the pole.

[4]

DAS installations on utility poles shall not use poles: adjacent to or opposite driveways; adjacent to or opposite intersections; or opposite a dwelling, in cases where a nonconforming dwelling is set back less than the required front yard, the installation shall be set back at least 75 feet from such a dwelling which is located in the Estate E1 (five-acre) District and at least 50 feet from such a dwelling which is located in the Residence R2 (three-acre) District when the installation is located on the same side of the street as such a dwelling, plus an additional 50 feet when the installation is located on the opposite side of the street from such a dwelling.

[5]

A new pole shall not be installed: adjacent to or opposite driveways; adjacent to or opposite intersections; or opposite a dwelling in cases where a nonconforming dwelling is set back less than the required front yard.

[6]

A new pole shall be no higher than the highest of the existing poles within 300 feet of such new pole and shall not exceed a maximum height of 45 feet above grade.

[7]

All cabinets and antennas should be finished in nonreflective coatings in camouflage natural tone colors and patterns.

[8]

The Board of Appeals may, upon just cause shown, waive or modify any of the aforementioned requirements.

The Board of Appeals may authorize the issuance of any administrative permit by the Building Inspector for each site or node.

(e)

On an application to the Board of Appeals as referenced above, the Board shall treat each proposed site or node as a separate case, and require a fee from applicant as required by Chapter A132 of this Code, except that the applicant may include up to three nodes in a single application, provided sufficient funds are deposited to cover the cost of mailing notices and decisions to all property owners located within a two-hundred-foot radius of each proposed node. In considering the case(s), the Board shall employ all standard procedures, including all public notice and hearing requirements as required generally under § 7-712-a of the New York State Village Law, Article XII, Chapter 129 of this Code, and the rules of the Board of Appeals, subject to the provisions of the Federal Telecommunications Act of 1996, as applicable.

(f)

The Village consultant's report shall be included in the Board of Appeals' record. The Board of Appeals may seek the advice and testimony of the Village's consultant, and may require applicant to provide such further information to the Village consultant to enable the consultant to provide full expert and probative input to the Board of Appeals as to the merits of the application.

(g)

The Board of Appeals shall grant a special permit for each site or node only if it shall determine that applicant has a substantial need to place a wireless facility on the structure/pole in question, and that no other structure/pole in a commercially practicable location exists or may be installed or established (including but not limited to available public lands) which will adequately serve the lawful interest of applicant and be further away from residential, religious or educational uses than that proposed.

(h)

The Building Inspector shall issue an administrative permit only for those sites for which a special permit has been granted by the Board of Appeals under this section, which permits shall require the following:

Indemnification. The owner and applicant shall indemnify, defend, protect and hold harmless the Village, its Board members, officers and employees from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, all costs and cleanup actions of any kind and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense directly or proximately resulting from activities undertaken pursuant to the construction, use, and operation of any approved low wireless telecommunication services facility.

[2]

Insurance. The owner and applicant shall obtain and maintain at all times insurance of an appropriate type and amount, with the Village as a named insured, from an insurer licensed and authorized in the State of New York meeting the satisfaction of the Board of Appeals, the Village Board of Trustees and the Village Attorney.

§ 129-69 Specification of authorized uses.

In approving an application for a community facility or institution, the Board of Appeals may specify, among other conditions which it deems appropriate in the public interest, the principal and accessory uses authorized in each case as well as the conditions under which such uses may be conducted.

§ 129-70 Application and approval procedure.

[Amended 9-10-2013 by L.L. No. 4-2013[1]]

An applicant seeking approval of a special permit for a conditional use shall submit a written application on the form required by the Board of Appeals and a detailed site plan and general building plan showing the design, location, height and use of buildings or structures and open spaces and any specific application requirements relating to such conditional use. Upon receipt of a completed application, the Board of Appeals shall comply with the following procedure:

Reference to Planning Board. Before any special permit for a conditional use is granted, except for a low wireless telecommunication services facility, the Board of Appeals shall refer the matter to the Planning Board for review and report.

Reference and approval procedure:

Reference of application and plans. The Board of Appeals shall refer any application for a special permit for a conditional use, except for a low wireless telecommunication services facility, to the Planning Board for a report, which shall be rendered to the Board of Appeals within 90 days after the receipt by the Planning Board. In the case of an unfavorable report by the Planning Board, such application for a special permit for a conditional use shall not be approved except by a favorable vote of four members of the Board of Appeals.

Planning Board duties. In reviewing the site plan and general building plans of an application for a special permit for a conditional use, the Planning Board shall determine whether the proposed use will provide for or contribute to the desirable improvement of the Village and its protection and development in accordance with the Village's Comprehensive Plan (formerly "Master Plan") for the development of the entire Village and whether the area and frontage of the plot or site or the location of the proposed facility will be adequate for the proposed use or uses and shall give due consideration, among other things, to the design and proposed location and uses of land, buildings, structures and open spaces of such project with respect to the provision of adequate light and air access, adequate and safe pedestrian and vehicular access and egress, the value of buildings and land, the conservation of property values and the most appropriate use of land. Due consideration also shall be given to the creation of a balanced and harmonious project and to the harmonious relationship of the project to adjacent property as well as to the conservation and protection of natural features.

(3)

Board of Appeals approval. Upon receipt of a report from the Planning Board, if required, or if after 90 days said Board fails to report, the Board of Appeals, after public notice and hearing, may approve the project plan, subject to such conditions and safeguards (including the posting of cash, bonds or other adequate security and the imposition of covenants and restrictions running with the land to ensure compliance therewith) as it may prescribe in the public interest and may direct the Building Inspector to issue permits in accordance with the approved site plan and general building plans thereof.

(4)

Notice to neighboring owners. Notice of any hearing on a conditional use application, except one involving a low telecommunication services facility, shall be provided to the owners of all land which lies outside of and within 500 feet of each boundary line of the lot or lots of the applicant to be used for such conditional use and all the land owned by the applicant which is adjacent to the lot or lots intended to be used for such conditional use and, if the applicant shall be a prospective purchaser with a contract of purchase, all lands which lie adjacent to the lot or lots to be used for such conditional use owned by the seller. Notice of any hearing involving a low telecommunication services facility shall be provided to the owners of all land within 200 feet of the proposed location of such facility.

(5)

Modification or change. No addition, modification, variance or change in the general location, layout, character and use of any conditional use facility or alteration to any structure as shown on the plans so approved shall be permitted except when approved in accordance with the procedure set forth in this section. Any minor addition, modification, variance or change may be made upon the review and approval of the Board of Appeals after a hearing and upon notice to the owners of property within 300 feet of the particular addition, building or facility being modified, varied or changed.