[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.]
GENERAL REFERENCES
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.
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.
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.
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."
An application that contains all information and/or data
necessary to enable the Board to make an informed decision with respect
to an application.
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.
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.
See "wireless telecommunication facilities."
The same meaning as defined and used in the 1996 Telecommunications
Act.
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.
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.
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.
See "wireless telecommunication facilities."
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.
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:
A.Â
Requiring a special use permit for any new, co-location or modification
of a wireless telecommunication facility.
B.Â
Implementing an application process for person(s) seeking a special
use permit for wireless telecommunication facilities.
C.Â
Establishing a policy for examining an application for and issuing
a special use permit for wireless telecommunication facilities that
is both fair and consistent.
D.Â
Promoting and encouraging, wherever possible, the sharing and/or
co-location of wireless telecommunication facilities among service
providers.
E.Â
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.
F.Â
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.
A.Â
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.
B.Â
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.
C.Â
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:
A.Â
The Village's fire, police, department of transportation or
other public service facilities owned and operated by the local government.
B.Â
Any facilities expressly exempt from the Village's siting, building
and permitting authority.
C.Â
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.
D.Â
Facilities exclusively for private, noncommercial radio and television
reception and private citizens' bands, licensed amateur radio
and other similar noncommercial telecommunications.
E.Â
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.
A.Â
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.
B.Â
The Village may reject applications not meeting the requirements
stated herein or which are otherwise incomplete.
C.Â
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.
D.Â
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.
E.Â
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.
F.Â
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.
G.Â
The applicant shall include a statement, in writing, that:
(1)Â
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
(2)Â
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.
H.Â
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.
I.Â
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:
(1)Â
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;
(2)Â
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;
(3)Â
The name, address and phone number of the person preparing the report;
(4)Â
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;
(5)Â
The postal address and Tax Map parcel number of the property;
(6)Â
The Zoning District or designation in which the property is situated;
(7)Â
Size of the property stated both in square feet and lot line dimensions,
and a survey showing the location of all lot lines;
(8)Â
The location of nearest residential structure;
(9)Â
The location, size and height of all existing and proposed structures
on the property which is the subject of the application;
(10)Â
The type, locations and dimensions of all proposed and existing
landscaping and fencing;
(11)Â
The azimuth, size and center-line height location of all proposed
and existing antennae on the supporting structure;
(12)Â
The number, type and model of the antenna(e) proposed with a
copy of the specification sheet;
(13)Â
The make, model, type and manufacturer of the tower and design
plan stating the tower's capacity to accommodate multiple users;
(14)Â
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;
(15)Â
The frequency, modulation and class of service of radio or other
transmitting equipment;
(16)Â
The actual intended transmission power stated as the maximum
effective radiated power (ERP) in watts;
(17)Â
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;
(18)Â
A signed statement that the proposed installation will not cause
physical or RF interference with other telecommunications devices;
(19)Â
A copy of the FCC license applicable for the intended use of
the wireless telecommunication facilities;
(20)Â
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.
J.Â
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.
K.Â
Application for new tower.
(1)Â
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.
(2)Â
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.
(3)Â
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:
(a)Â
The foreseeable number of FCC licenses available for the area;
(b)Â
The kind of wireless telecommunication facilities site and structure
proposed;
(c)Â
The number of existing and potential licenses without wireless
telecommunication facilities spaces/sites;
(d)Â
Available space on existing and approved towers.
(4)Â
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:
(a)Â
Respond within 60 days to a request for information from a potential
shared-use applicant;
(b)Â
Negotiate in good faith concerning future requests for shared
use of the new tower by other telecommunications providers;
(c)Â
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.
(d)Â
Failure to abide by the conditions outlined above may be grounds
for revocation of the special use permit.
L.Â
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.
M.Â
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.
N.Â
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.
O.Â
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:
(1)Â
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.
(2)Â
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.
(3)Â
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.
P.Â
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
Q.Â
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.
R.Â
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.
S.Â
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.
T.Â
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.
U.Â
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.
V.Â
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
W.Â
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.
X.Â
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.
Y.Â
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.
A.Â
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.
(1)Â
On existing towers or other structures on Village-owned properties,
including Village-owned rights-of-way.
(2)Â
On existing towers or other structures on other property in the Village
(3)Â
A new tower on Village-owned properties, including Village-owned
rights-of-way.
(4)Â
A new tower on properties in areas zoned for residential use.
B.Â
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.
(1)Â
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.
C.Â
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.
D.Â
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.
E.Â
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.
(1)Â
Conflict with safety and safety-related codes and requirements;
(2)Â
Conflict with the historic nature or character of a neighborhood
or historical district;
(3)Â
The use or construction of wireless telecommunication facilities
which is contrary to an already stated purpose of a specific zoning
or land use designation;
(4)Â
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;
(5)Â
Conflicts with the provisions of this chapter.
A.Â
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.
B.Â
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.
C.Â
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.
A.Â
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.
B.Â
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.
A.Â
Wireless telecommunication facilities shall not be artificially lighted
or marked, except as required by law.
B.Â
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.
C.Â
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:
A.Â
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
B.Â
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.
A.Â
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.
B.Â
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.
C.Â
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.
A.Â
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.
B.Â
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.
A.Â
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.
B.Â
The Village may refer any application or part thereof to any advisory
committee, other committee or commission for a nonbinding recommendation.
C.Â
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.
D.Â
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.Â
A special use permit is personal to the applicant and shall not be
assigned, transferred or conveyed.
B.Â
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.Â
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:
B.Â
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.
C.Â
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.Â
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.
E.Â
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.Â
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.
A.Â
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.
A.Â
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:
(1)Â
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;
(2)Â
Permitted wireless telecommunication facilities fall into such a
state of disrepair that it creates a health or safety hazard;
(3)Â
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.
B.Â
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.
C.Â
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.
D.Â
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.
E.Â
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.
A.Â
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.
B.Â
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.
