[HISTORY: Adopted by the Board of Trustees of the Village of Hewlett Neck 12-6-2010 by L.L. No. 5-2010. Amendments noted where applicable.]
Zoning — See Ch. 195.
The Telecommunications Act of 1996 affirmed the Village of Hewlett Neck's authority concerning the placement, construction and modification of wireless telecommunication facilities. The Board of Trustees of the Village of Hewlett Neck finds that wireless telecommunication facilities may pose significant concerns to the health, safety, public welfare, character and environment of the Village and its inhabitants. The Board of Trustees also recognizes that facilitating the development of wireless service technology can be of significant benefit to the Village and its residents. The intent of this chapter is to minimize the impact of wireless telecommunication facilities, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the Village of Hewlett Neck and its residents.
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 meaning 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 member. The word "shall" is always mandatory, and not merely directory.
- ACCESSORY FACILITY or STRUCTURE
- An accessory facility or structure serving or being used in conjunction with wireless telecommunication facilities and located on the same property or lot as the wireless telecommunication facilities, including but not limited to utility or transmission equipment storage sheds or cabinets.
- Any wireless service provider submitting an application for a special use permit for wireless telecommunication facilities.
- All necessary and appropriate documentation that an applicant submits in order to receive a special use permit for wireless telecommunication facilities.
- ANTENNA or ANTENNAE
- A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals.
- The Board of Trustees of the Incorporated Village of Hewlett Neck.
- The use of an existing tower or structure to support antennae for the provision of wireless services. A replacement tower that is constructed on the same site as an existing tower will be considered a co-location as long as the new tower is no taller than the old tower and the old tower is removed within 30 days after the new tower is constructed.
- COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
- The inability to perform an act on terms that are reasonable in commerce, the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be "commercially impracticable" and shall not render an act or the terms of an agreement "commercially impracticable."
- COMPLETED APPLICATION
- An application that contains all information and/or data necessary to enable the Board to make an informed decision with respect to an application.
- DISTRIBUTED ANTENNA SYSTEM (DAS)
- 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.
- The federal Aviation Administration or its duly designated and authorized successor agency.
- The federal Communications Commission or its duly designated and authorized successor agency.
- 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, lightening protection device or other fixture.
- MODIFICATION or MODIFY
- The addition, removal or change of any of the physical and visually discernable components or aspects of a wireless facility, such as antennas, cabling, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernable components, vehicular access, parking and/or an upgrade or changeout of equipment for better or more modem equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site as a co-location is a modification. A modification shall not include the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without adding, removing or changing anything.
- Nonionizing electromagnetic radiation.
- Any individual, corporation, estate, trust, partnership, joint stock company, association of two or more persons having a joint common interest, or any other entity.
- PERSONAL WIRELESS FACILITY
- See "wireless telecommunication facilities."
- PERSONAL WIRELESS SERVICES (PWS) or PERSONAL TELECOMMUNICATIONS SERVICE (PCS)
- The same meaning as defined and used in the 1996 Telecommunications Act.
- REPAIRS AND MAINTENANCE
- The replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without the addition, removal or change of any of the physical or visually discernable components or aspects of a wireless facility that will add to the visible appearance of the facility as originally permitted.
- SPECIAL USE PERMIT
- The official document or permit by which an applicant is allowed to file for a building permit to construct and use wireless telecommunication facilities as granted or issued by the Board.
- The State of New York.
- STEALTH or STEALTH TECHNOLOGY
- To minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunication facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
- The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
- TELECOMMUNICATIONS SITE
- See "wireless telecommunication facilities."
- TELECOMMUNICATIONS STRUCTURE
- A structure used in the provision of services described in the definition of "wireless telecommunication facilities."
- Temporary in relation to all aspects and components of this chapter, something intended to or that does not exist for more than 90 days.
- Any structure designed primarily to support an antenna for receiving and/or transmitting a wireless signal.
- WIRELESS TELECOMMUNICATION FACILITIES, TELECOMMUNICATIONS SITE or PERSONAL WIRELESS FACILITY
- A structure, facility or location designed, or intended to be used as, or used to support antennae or other transmitting or receiving devices intended for transmitting and/or receiving radio, television, cellular, SMR, paging, 911, personal communications services (PCS), commercial satellite services, microwave services and any commercial wireless telecommunication service not licensed by the FCC. This includes, but is not limited to, towers of all types and kinds and structures, including, but not limited to, buildings, church steeples, silos, water towers, signs or other structures that can be used as support structures for antennae 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.
In order to ensure that the placement, construction, and modification of wireless telecommunication facilities protects the Village's health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this chapter, the Village hereby adopts an overall policy with respect to a special use permit for wireless telecommunication facilities for the express purpose of achieving the following goals:
Requiring a special use permit for any new, co-location or modification of a wireless telecommunication facility.
Implementing an application process for person(s) seeking a special use permit for wireless telecommunication facilities.
Establishing a policy for examining an application for and issuing a special use permit for wireless telecommunication facilities that is both fair and consistent.
Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless telecommunication facilities among service providers.
Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunication facilities in such a manner, including, but not limited to, the use of stealth technology to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunication facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
That in granting a special use permit, the Board has found that the facility shall be located on a site that will result in the facility being the least visually intrusive among those available in the Village.
Except as otherwise provided by this chapter, no person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunication facilities as of the effective date of this chapter without having first obtained a special use permit for wireless telecommunication facilities from the Board. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those wireless telecommunication facilities enumerated in § 192-5 hereof.
All legally permitted wireless telecommunication facilities, constructed as permitted, existing on or before the effective date of this chapter shall be allowed to continue as they presently exist; provided, however, that any visible modification of an existing wireless telecommunication facility will require the complete facility and any new installation to comply with the requirements of this chapter.
Any repair and maintenance of a wireless facility does not require a special use permit.
The following wireless telecommunication facilities shall be exempt from this chapter:
The Village's fire, police, department of transportation or other public service facilities owned and operated by the local government.
Any facilities expressly exempt from the Village's siting, building and permitting authority.
Over-the-air reception devices including the reception antennae for direct broadcast satellites (DBS), multichannel multipoint distribution (wireless cable) providers (MMDS), television broadcast stations (TVBS) and other customer-end antennas that receive and transmit fixed wireless signals that are primarily used for reception.
Facilities exclusively for private, noncommercial radio and television reception and private citizens' bands, licensed amateur radio and other similar noncommercial telecommunications.
Facilities exclusively for providing unlicensed spread spectrum technologies (such as IEEE 802.11a, b, g [wi-fi] and Bluetooth®) where the facility does not require a new tower.
All applicants for a special use permit for wireless telecommunication facilities or any modification of such facility shall comply with the requirements set forth in this chapter. The Board of Trustees is the officially designated agency or body of the Village to whom applications for a special use permit for wireless telecommunication facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to the granting or not granting or revoking of special use permits for wireless telecommunication facilities. The Village may at its discretion delegate or designate other official agencies or officials of the Village to accept, review, analyze, evaluate and make recommendations to the Board of trustees with respect to the granting or not granting or revoking of special use permits for wireless telecommunication facilities.
The Village may reject applications not meeting the requirements stated herein or which are otherwise incomplete.
No wireless telecommunication facilities shall be installed, constructed or modified until the application is reviewed and approved by the Board and the special use permit has been issued.
Any and all representations made by the applicant to the Village on the record during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Board.
An application for a special use permit for wireless telecommunication facilities 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, and said application shall be consented to and executed by the owner of the property.
The applicant must provide documentation to verify it has a legal interest in the site. Said documentation maybe in the form of a deed, contract or sale or lease for the property depending on whether the applicant is the property owner, contract-vendee or lessee.
The applicant shall include a statement, in writing, that:
The applicant's proposed wireless telecommunication facilities shall be maintained in a safe manner, and in compliance with all conditions of the special use permit, without exception, as well as all applicable and permissible federal, state and local laws, statutes, codes, rules and regulations; and
The construction of the wireless telecommunication facilities is legally permissible, including, but not limited to, the fact that the applicant is authorized to do business in the state.
Where a certification is called for in this chapter, such certification shall bear the signature and seal of a registered professional licensed in the state.
In addition to all other required information as stated in this chapter, all applications for the construction or installation of new wireless telecommunication facilities or modification of an existing facility shall contain this information:
A descriptive statement of the objective(s) for the new facility or modification including and expanding on a need such as coverage and/or capacity requirements;
Documentation that demonstrates and proves the need for the wireless telecommunication facility to provide service primarily and essentially within the Village. 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;
The name, address and phone number of the person preparing the report;
The name, address, and phone number of the property owner and applicant, and to include the legal name of the applicant. If the site is a tower and the owner is different than the applicant, the name and address of the tower owner must be provided;
The postal address and Tax Map parcel number of the property;
The Zoning District or designation in which the property is situated;
Size of the property stated both in square feet and lot line dimensions, and a survey showing the location of all lot lines;
The location of nearest residential structure;
The location, size and height of all existing and proposed structures on the property which is the subject of the application;
The type, locations and dimensions of all proposed and existing landscaping and fencing;
The azimuth, size and center-line height location of all proposed and existing antennae on the supporting structure;
The number, type and model of the antenna(e) proposed with a copy of the specification sheet;
The make, model, type and manufacturer of the tower and design plan stating the tower's capacity to accommodate multiple users;
A site plan describing the proposed tower and antenna(e) and all related fixtures, structures, appurtenances and apparatus, including height above preexisting grade, materials, color and lighting;
The frequency, modulation and class of service of radio or other transmitting equipment;
The actual intended transmission power stated as the maximum effective radiated power (ERP) in watts;
Signed documentation such as the "Checklist to Determine Whether a facility is Categorically Excluded" to verify that the wireless telecommunication facility will be in full compliance with the current FCC RF emissions guidelines (NIER). If not categorically excluded, a complete RF emissions study is required to provide verification;
A signed statement that the proposed installation will not cause physical or RF interference with other telecommunications devices;
A copy of the FCC license applicable for the intended use of the wireless telecommunication facilities;
A copy of the geotechnical subsurface soils investigation, evaluation report and foundation recommendation for a proposed or existing tower site, and if an existing tower or water tank site, a copy of the installed foundation design.
The applicant shall provide a written copy of an analysis, completed by a qualified individual or organization, to determine if a proposed new tower or existing structure intended to support wireless facilities is in compliance with FAA Regulation Part 77 and if it requires lighting. This requirement shall also be for any existing structure or building where the application increases the height of the structure or building. If this analysis determines that an FAA determination is required, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided with the application.
Application for new tower.
In the case of a new tower, the applicant shall be required to submit a written report demonstrating its meaningful efforts to secure shared use of existing tower(s) or the use of alternative buildings or other structures within the Village. Copies of written requests and responses for shared use shall be provided to the Board with the application, along with any letters of rejection stating the reason for rejection.
In order to better inform the public, in the case of a new tower, the applicant shall, prior to the public hearing on the application, arrange to fly or raise upon a temporary mast, a brightly colored balloon having a minimum diameter of a three feet at the maximum height of the proposed new tower. The dates (including a second date, in case of poor visibility on the initial date), times and location of this balloon test shall be advertised by the applicant at least seven days and no more than 14 days in advance of the first test date in the official newspaper of the Village. The applicant shall inform the Village, in writing, of the dates (including a second date, in case of poor visibility on the initial date), times and location of the balloon test at least 14 days in advance of the first test date. The balloon shall be flown for at least four consecutive hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen. The primary date shall be on a weekend, but in case of poor weather on the initial date, the secondary date may be on a weekday. At least six photographs of the balloon taken from surrounding properties, roadways or waterways, with at least one each taken from the north, east, south and west of the proposed tower site, shall be submitted with the application.
The applicant shall examine the feasibility of designing the proposed tower to accommodate future demand for at least four additional commercial applications, for example, future co-locations. The tower shall be structurally designed to accommodate at least four 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, in writing, demonstrates that the provisions of future shared usage of the tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:
The foreseeable number of FCC licenses available for the area;
The kind of wireless telecommunication facilities site and structure proposed;
The number of existing and potential licenses without wireless telecommunication facilities spaces/sites;
Available space on existing and approved towers.
The owner of a proposed new tower, and his/her successors in interest, shall negotiate in good faith for the shared use of the proposed tower by other wireless service providers in the future, and shall:
Respond within 60 days to a request for information from a potential shared-use applicant;
Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers;
Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.
Failure to abide by the conditions outlined above may be grounds for revocation of the special use permit.
The applicant shall provide certification with documentation (structural analysis) including calculations that the telecommunication facility tower and foundation and attachments, rooftop support structure, water tank structure, and any other supporting structure as proposed to be utilized are designed and will be constructed to meet all federal, state and local laws, statutes, codes, rules and regulations for loads, including wind and ice loads.
If the proposal is for a co-location or modification on an existing tower, the applicant shall provide signed documentation of the tower condition such as an ANSI report as per Annex E, Tower Maintenance and Inspection Procedures, ANSI/TIA/EIA-222F or most recent version. The inspection report must be performed every three years for a guyed tower and five years for monopoles and other self-supporting towers.
All proposed wireless telecommunication facilities shall contain a demonstration that the facility will be sited so as to minimize visual intrusion as much as possible, given the facts and circumstances involved and will thereby have the least adverse visual effect on the environment, the character of the community, surrounding properties and on the residences in the area of the wireless telecommunication facility.
If a new tower, a new antenna attachment to an existing structure, or modification adding to a visual impact, the applicant shall furnish a visual impact assessment, which shall include:
If a new tower or increasing the height of an existing structure is proposed, a computer generated Zone of Visibility Map at a minimum of one-mile radius from the proposed structure, with and without foliage, shall be provided to illustrate locations from which the proposed installation may be seen.
Pictorial representations of before and after views (photo simulations) from key viewpoints both inside and outside of the Village as may be appropriate, 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; public waterways; and from any other location where the site is visible to a large number of visitors, travelers or residents and a map showing the locations of where the pictures were taken and distance from the proposed structure. Guidance will be provided concerning the appropriate key sites at the preapplication meeting.
A written description of the visual impact of the proposed facility including and, where appropriate, the tower base, guy wires, fencing and accessory buildings from abutting and adjacent properties and streets as relates to the need or appropriateness of screening.
The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related equipment and structures of the proposed wireless telecommunication facility
The wireless telecommunication facility and any and all accessory or associated facilities shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings; this shall include the utilization of stealth or concealment technology as may be required by the Village.
All utilities at a wireless telecommunication facilities site shall be installed underground whenever possible and in compliance with all applicable federal, state and local laws, statutes, codes, rules and regulations, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code, where appropriate.
At a telecommunications site, an access road, turn-around space and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.
All wireless telecommunication facilities shall be constructed, operated, maintained, repaired, provided for removal of, modified or restored in strict compliance with all current applicable federal, state and local technical, safety and safety-related codes, including, but not limited to, the most recent editions of the ANSI Code, National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible 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 applicable codes, the more stringent shall apply.
A holder of a special use permit granted under this chapter shall obtain, at its own expense, all permits and licenses required by applicable laws, statutes, codes, rules or regulations, and must maintain the same, in full force and effect, for as long as required by the Village or other governmental entity or agency having jurisdiction over the applicant.
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. Costs of the Village's consultants to prepare for and attend the preapplication meeting will be borne by the applicant
An applicant shall submit to the Board the number of completed applications determined to be needed at the preapplication meeting. Written notification of the application shall be provided to the legislative body of all adjacent municipalities.
The holder of a special use permit shall notify the Village of any intended modification of a wireless telecommunication facility and shall apply to the Village to modify, relocate or rebuild a wireless telecommunication facility.
With respect to the application process, the Board will normally seek to declare itself as lead agency pursuant to the State Environmental Quality Review Act ("SEQRA"). The Board shall conduct an environmental review of the proposed project pursuant to SEQRA as part of its review of the application.
Applicants for wireless telecommunication facilities shall locate, site and erect said wireless telecommunication facilities in accordance with the following priorities, (1) being the highest priority and (4) being the lowest priority.
On existing towers or other structures on Village-owned properties, including Village-owned rights-of-way.
On existing towers or other structures on other property in the Village
A new tower on Village-owned properties, including Village-owned rights-of-way.
A new tower on properties in areas zoned for residential use.
If the proposed site is not proposed for the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a special use permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.
An applicant may not bypass sites of higher priority by stating the site proposed is the only site leased or selected. An application shall address co-location as an option. If such option is not proposed, the applicant must explain to the reasonable satisfaction of the Board why co-location is Commercially Impracticable. Agreements between providers limiting or prohibiting co-location shall not be a valid basis for any claim of commercial impracticability or hardship.
Notwithstanding the above, the Board may approve any site located within an area in the above list of priorities, provided that the Board finds that the proposed site is in the best interest of the health, safety and welfare of the Village and its inhabitants and will not have a deleterious effect on the nature and character of the community and surrounding properties.
The applicant shall submit a written report demonstrating the applicant's review of the above locations in order of priority, demonstrating the technological reason for the site selection. If appropriate, based on selecting a site of lower priority, a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.
Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Board may disapprove an application for any of the following reasons.
Conflict with safety and safety-related codes and requirements;
Conflict with the historic nature or character of a neighborhood or historical district;
The use or construction of wireless telecommunication facilities which is contrary to an already stated purpose of a specific zoning or land use designation;
The placement and location of wireless telecommunication facilities which would create an unacceptable risk, or the reasonable probability of such, to residents, the public, employees and agents of the Village, or employees of the service provider or other service providers;
Conflicts with the provisions of this chapter.
The Village's preference is for applicants to co-locate wireless telecommunication facilities on existing towers or others structures that do not require an increase in height to accommodate the co-located facilities. The applicant shall submit a comprehensive report inventorying existing towers and other suitable structures within two miles 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.
An applicant intending to locate on an existing tower or other suitable structure shall be required to document the intent of the existing owner to permit its use by the applicant.
Such shared use shall consist only of the minimum antenna array technologically required to provide service primarily and essentially within the Village, to the extent practicable; unless good cause is shown.
The applicant shall submit documentation justifying the total height of any tower, facility and/or antenna requested and the basis therefore. Documentation in the form of propagation studies must include all backup data used to perform at the requested height and a minimum of 10 feet lower height to allow verification of this height need. Such documentation will be analyzed in the context of the justification of the height needed to provide service primarily and essentially within the Village, to the extent practicable, unless good cause is shown.
No tower constructed after the effective date of this chapter, including allowing for all attachments, shall exceed that height which shall permit operation without required artificial lighting of any kind in accordance with federal, state and local laws, statutes, codes, rules or regulations.
Wireless telecommunication facilities shall not be artificially lighted or marked, except as required by law.
Towers shall be galvanized and/or painted with a rust-preventive paint of an appropriate color as specified by the Board, to harmonize with the surroundings and shall be maintained in accordance with the requirements of this chapter.
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 federal, state and local laws, statutes, codes, rules or regulations.
All wireless telecommunication facilities and antennae, shall be located, fenced or otherwise secured in a manner that prevents unauthorized access. Specifically:
All antennae, towers and other supporting structures, including guy anchor points and wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or collided with; and
Transmitters and telecommunications control points shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them.
Wireless telecommunication facilities shall contain a sign no larger than four square feet in order to provide adequate notification to persons in the immediate area of the presence of RF radiation or to control exposure to RF radiation within a given area. A sign of the same size is also to be installed to contain the name(s) of the owner(s) and operator(s) of the antenna(e) as well as emergency phone number(s). The sign shall be on the equipment shelter or cabinet of the applicant and be visible from the access point of the site and must identify the equipment owner of the shelter or cabinet. On tower sites, an FCC registration sign as applicable shall also be present. The signs shall not be lighted, unless applicable law, rule or regulation requires lighting. No other signage, including advertising, shall be permitted.
All proposed towers and any other proposed wireless telecommunication facility structures shall be set back from abutting parcels, recorded rights-of-way and road and street lines by the greater of the following distances: A distance equal to the height of the proposed tower or wireless telecommunication facility structure plus 10% of the height of the tower or structure, or the applicable setback requirement of the underlying zoning district, whichever is greater. Any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.
The Village may hire any consultant and/or expert necessary to assist the Village in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any site inspections.
An applicant shall deposit with the Village funds sufficient to reimburse the Village for all reasonable costs of consultant and expert evaluation and consultation to the Village in connection with the review of any application including, where applicable, the lease negotiation, the pre-application meeting, and the construction and modification of the site, once permitted. The initial deposit shall be $8,500. The placement of the $8,500 with the Village shall precede the pre-application meeting. The Village will maintain a separate escrow account for all such funds. The Village's consultants/experts shall invoice the Village for its services related to the application. If at any time during the process this escrow account has a balance less than $2,500, the applicant shall immediately, upon notification by the Village, replenish said escrow account so that it has a balance of at least $5,000. Such additional escrow funds shall be deposited with the Village before any further action is taken on the application. In the event that the amount held in escrow by the Village is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall, upon request of the applicant, be promptly refunded to the applicant.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope (lease negotiations and/or review) and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
Prior to rendering a decision on any application for a special use permit for wireless telecommunication facilities, a public hearing shall be held by the Board, notice of which shall be published in the official Village newspaper at least 10 days prior to the scheduled date of the public hearing. In order that the Village may notify nearby property owners, the application shall contain the names and addresses, as shown on the current assessment roll of the Village, of the owners of all properties located within 1,500 feet of the exterior limits of the lot or parcel on which the new wireless telecommunication facilities are proposed to be located. The Village Clerk shall mail or caused to be mailed a copy of the notice of the public hearing, by first class mail, postmarked no less than 10 days nor more than 20 days prior to the scheduled date of the public hearing. An affidavit of mailing shall be filed with the Board prior to the hearing. Said affidavit shall contain a sworn statement by the affiant that he/she is the person who actually mailed the notices and a list of the names and addresses of the property owners who were notified.
A public hearing on an application for a special use permit for wireless telecommunication facilities shall not be scheduled until the application has been deemed complete. The Village may, at any time prior to rendering its decision on an application for a special use permit, require such additional information as it deems necessary.
The Village will undertake a review of an application pursuant to this Article in a timely fashion, consistent with its responsibilities, 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.
The Village may refer any application or part thereof to any advisory committee, other committee or commission for a nonbinding recommendation.
After the public hearing and after due consideration of the evidence in the record, the Board may approve, approve with conditions, or deny a special use permit. The Board's decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the granting of the special use permit shall be upon the applicant.
The applicant shall be notified of the Board's decision within five business days thereof. Except for necessary building permits and subsequent certificates of compliance, once a special use permit has been granted hereunder, no additional permits or approvals from the Village, such as site plan or zoning approvals, shall be required by the Village for the wireless telecommunication facilities covered by the special use permit.
The extent and parameters of a special use permit for wireless telecommunication facilities shall be as follows:
A special use permit is personal to the applicant and shall not be assigned, transferred or conveyed.
A special use permit may, following a public hearing upon due prior notice to the applicant, be revoked, canceled, or terminated for a violation of the conditions and provisions of the special use permit, or for a material violation of this chapter after prior written notice to the holder of the special use permit.
At the time that a person submits an application for a special use permit for a new tower, such person shall pay a nonrefundable application fee of $5,000 to the Village. If the application is for a special use permit for modifying or co-locating on an existing tower or other suitable structure, where no increase in height of the tower or structure is required, or for a temporary facility, the non-refundable fee shall be $2,500.
The applicant and the owner of record of any proposed wireless telecommunication facilities property site shall, at their cost and expense, be jointly required to execute and file with the Village a bond, or other form of security acceptable to the Village as to type of security and the form and manner of execution, in an amount of at least $75,000 for a tower facility and $25,000 for a co-location on an existing tower or other structure and with such sureties as are deemed sufficient by the Board to assure the faithful performance of the terms and conditions of this chapter and conditions of any special use permit 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 use permit and/or until any necessary site restoration is completed to restore the site to a condition comparable to that which existed prior to the issuance of the original special use permit.
In order to verify that the holder of a special use permit for wireless telecommunication facilities and any and all lessees, renters, and/or licensees of wireless telecommunication facilities place and construct such facilities, including towers and antennae, in accordance with all applicable technical, safety, fire, building, and zoning laws, statutes, codes, rules, regulations and other applicable requirements, the Village may 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, antennae and buildings or other structures constructed or located on the permitted site.
A holder of a special use permit for wireless telecommunication facilities shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage for the duration of the special use permit in amounts as set forth below:
For a wireless telecommunication facility on Village property, the commercial general liability insurance policy shall specifically include the Village and its officers, board members, employees, committee members, attorneys, agents and consultants as additional insureds.
The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State and with a Best's rating of at least A.
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 of the insurance.
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.
Prior to the issuance of a building permit for a wireless telecommunication facility, the holder of the special use permit shall deliver to the Village a copy of each of the policies or certificates representing the insurance in the required amounts.
Any application for wireless telecommunication facilities that is proposed for Village property, pursuant to this chapter, shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the Village and its officers, board members, 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 are 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 those costs that are recoverable by the Village.
If a wireless telecommunication 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 use permit, then the Village shall notify the holder of the special use permit in writing of such violation. A special use permit holder in violation may be considered in default and subject to fines as in § 192-24 and, if a violation is not corrected to the satisfaction of the Village in a reasonable period of time, the special use permit is subject to revocation.
Under the following circumstances, the Village may determine that the health, safety, and welfare interests of the Village warrant and require the removal of wireless telecommunication facilities:
Wireless telecommunication facilities with a permit have been abandoned (i.e., not used as wireless telecommunication facilities) for a period exceeding 90 consecutive 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, in which case, repair or removal shall commence within 90 days;
Permitted wireless telecommunication facilities fall into such a state of disrepair that it creates a health or safety hazard;
Wireless telecommunication facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required special use permit, or any other necessary authorization, and the special permit may be revoked.
If the Board makes such a determination as noted in Subsection A of this section, then it shall notify the holder of the special use permit and the owner of the property that within 48 hours said wireless telecommunication facilities are to be removed.
The holder of the special use permit or the owner of the property shall dismantle and remove such wireless telecommunication facilities, 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 Village. However, if the owner of the property upon which the wireless telecommunication facilities are located wishes to retain any access roadway to the wireless telecommunication facilities, the owner may do so with the approval of the Village.
If wireless telecommunication facilities are not removed or substantial progress has not been made to remove the wireless telecommunication facilities within 90 days after the special use permit holder has received notice, then the Board may order officials or representatives of the Village to remove the wireless telecommunication facilities at the sole expense of the property owner and/or special use permit holder.
If the Village removes or causes to be removed the wireless telecommunication facilities, and the owner of the wireless telecommunication facilities does not claim and remove it from the site to a lawful location within 10 days, then the Village may take steps to declare the wireless telecommunication facilities abandoned, and sell them and their components and retain the proceeds therefrom. The Village may also cause the costs associated with the removal and disposal of the wireless telecommunication facilities to be assessed on the property in the same manner as a tax or assessment.
The Board of Appeals shall have the power to grant variances from the requirements of this chapter pursuant to and in accordance with the requirements of § 7-712-b of the Village Law and Chapter 195, Article VII, of the Village Code. In granting variances, the Board of Appeals shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and general welfare of the Village and its residents. The applicant shall have the burden of demonstrating the hardship or difficulty that creates the need for the variance, and proving that the requested relief should be granted.
The holder of a special use permit issued pursuant to this chapter shall adhere to and comply with all applicable rules, regulations, standards, and provisions of any state or federal agency, including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical and RF emission standards.
To the extent that applicable rules, regulations, standards, and provisions of any state or federal agency, including but not limited to, the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting, and security, are amended and/or are modified during the duration of a special use permit for wireless telecommunication facilities, then the holder of such a special use permit shall conform the permitted wireless telecommunication facilities to the applicable amended 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.