[Added 5-25-2005 by L.L. No. 6-2005;
amended 10-10-2019 by L.L. No. 10-2019]
A.
For purposes of this article, and where not inconsistent with the
context of a particular section, the defined terms, phrases, words;
abbreviations, and their derivations shall have the meanings given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
include words in the singular number and words in the singular number
include the plural number. The word "shall" is always mandatory, and
not merely directory.
B.
ACCESSORY FACILITY OR STRUCTURE
ACCESSORY WIRELESS FACILITY
ANTENNAS
APPLICANT
APPLICATION
BOARD
COLLOCATION
COMPLETE APPLICATION
EQUIPMENT
EXISTING TOWERS AND EXISTING ANTENNAS
FAA
FCC
HEIGHT
MODIFICATION
NIER
PERSON
PERSONAL WIRELESS FACILITY
PERSONAL WIRELESS-SERVICES or PWS or PERSONAL TELECOMMUNICATIONS
SERVICE or PCS
PUBLIC RIGHT-OF-WAY or PUBLIC ROW
PUBLIC UTILITY STRUCTURE
REPEATER
REVOCABLE LICENSE
SECONDARY WIRELESS TELECOMMUNICATIONS SERVICE FACILITY
SPECIAL USE PERMIT
STATE
STEALTH or STEALTH TECHNOLOGY
TELECOMMUNICATIONS
TELECOMMUNICATIONS SITE
TELECOMMUNICATIONS STRUCTURE
TEMPORARY
VILLAGE
WIRELESS TELECOMMUNICATIONS FACILITIES
As used in this article, the following terms shall have the meanings
indicated:
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities and located
on the same property or lots as the wireless telecommunications facilities,
including but not limited to, utility or transmission equipment, storage
sheds or cabinets.
Any equipment, shed, pole, distributed network and small
cells, fencing or structure, or combination thereof, containing any
electrical components necessary for the proper operation of antennas.
Any exterior transmitting and receiving device mounted on
a tower, pole, building or structure and used in communications that
radiate or capture electromagnetic waves, digital signals, analog
signals, radio frequencies (excluding radar signals), wireless telecommunications
signals or other communications signals. Such shall include but not
be limited to radio, television, cellular, paging, personal telecommunications
services (PCS), microwave telecommunications and services not licensed
by the FCC, but not expressly exempt from the Village's siting, building
and permitting authority.
Any wireless service provider submitting an application for
a special use permit for wireless telecommunications facilities.
All the necessary and appropriate documentation that an applicant
is required to submit for consideration of a special use permit for
a wireless telecommunications facility as specifically set forth in
this article.
The Board of Trustees of the Incorporated Village of Manorhaven,
which is hereby authorized to review special use permit applications
pursuant to this article.
The use of a wireless telecommunications facility or other
structure to support antennas for the provision of wireless services
without increasing the height of such facility or other structure.
An application that contains all the information and/or data
required by this article necessary to enable an informed decision
to be made with respect to an application.
Poles, wires, electrical conductors, conduits, subways, manholes,
fixtures, appliances and appurtenances used to provide telecommunications
services.
Any tower or antenna for which a building permit or special
use permit has been properly issued prior to the effective date of
this chapter, including permitted towers or antennas that have not
yet been completed or constructed, provided that such approved permit(s)
is current and has not expired; or any tower which is constructed
and has a certificate of completion/compliance/occupancy.
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 wireless telecommunications facility
or other structure, the distance measured from the preexisting grade
level to the highest point on such facility or other structure, even
if said highest point is an antenna or lightning protection device.
The addition, removal, change or alteration of any of the
physical and visually discernable components or aspects of a wireless
telecommunications facility, such as antennas, cabling, radios, 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 modern equipment. Adding a new wireless carrier or service provider
to a wireless telecommunications facility or telecommunications site
for purposes of this article shall be deemed as a modification, except
that a co-locating antenna previously approved by a special permit
issued by the Board of Zoning Appeals shall not be deemed a modification
whether or not such antenna has been installed. A modification shall
not include the replacement of any components of a wireless telecommunications
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 telecommunications facility without adding, removing,
changing, or altering the wireless telecommunications facility in
any respect.
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 definition for "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the Telecommunications
Act of 1996.
The area on, below, or above property that has been designated
for use as or is used for a public roadway, highway, street, sidewalk,
alley or similar purpose, but not including an area not within the
legal jurisdiction or within the legal ownership or control of the
municipality.
Any structure erected for the purposes of providing a public
utility service, including, but not limited to, water towers, electric
transmission tower/poles and telephone poles.
A small, supplementary and accessory bidirectional amplifier
facility designed and limited in height and transmission power to
provide service only where there is a failure of coverage and to minimize
visual impacts and the need for the primary base stations which may
be attached to a structure or pole.
An initial authorization or renewal thereof, issued by the
Village in accordance with the provisions of this chapter, which authorizes
the limited occupation and use of specifically identified streets
and poles, provided that a revocable license shall be issued only
in the limited circumstances set forth in this chapter.
A small wireless telecommunications service facility that
is intended, designed and limited in its implementation to provide
service only in and for an area where there is a failure of coverage
that does not involve the construction of a new tower or increase
the height of any existing structure to which it is attached. A secondary
wireless telecommunications service facility must meet both of the
following qualifications: each wireless provider's antenna (including,
without limitation, any strand-mounted antenna) could fit within an
enclosure of no more than three cubic feet in volume; and all other
wireless equipment associated with the facility is cumulatively no
more than 28 cubic feet in volume. The following types of associated,
ancillary equipment are not included in the calculation of equipment
volume: electric meter, concealment elements, telecommunications demarcation
box, grounding equipment, power transfer switch, cut-off switch, and
vertical cable runs for connection of power and other services.
The required permit issued by the Board pursuant to which
an applicant is permitted to construct, maintain and use a wireless
telecommunications facility as granted or issued pursuant to this
article. The Board is hereby authorized to review and approve, approve
with modifications, or disapprove special use permits and site plans
consistent with Village Law §§ 7-725 and 7-725(b).
The State of New York.
The use of innovative design technology to minimize adverse
aesthetic and visual impacts on the land, property, buildings, and
other facilities located adjacent to, surrounding, and in generally
the same area as the requested location of such wireless telecommunications
facilities.
The transmission and/or reception of audio, video, data,
and other information by wire, radio, frequency, light, and other
electronic or electromagnetic systems.
See definition for "wireless telecommunications facilities."
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
Temporary in relation to all aspects and components of this
article, something intended to or that does exist for less than 90
days.
The Incorporated Village of Manorhaven.
Include personal wireless facilities and antennas and associated
equipment and/or a structure, tower, facility or location designed,
or intended to be used as or used to support antennas or other transmitting
or receiving devices. This includes, without limitation, all kinds
of structures, such as a multistory building, church steeple, silo,
water tower, sign or other structures that can be used to mitigate
the visual impact of an antenna or the functional equivalent of such,
including all related facilities, such as cabling, equipment shelters
and other structures associated with the site. It includes towers
of all types intended to accommodate wireless telecommunications facilities
and secondary wireless telecommunications service facilities and repeaters,
as well as fixtures, cabinets and other equipment that are affixed
to existing structures including utility poles or other public utility
structures.
No person shall build, erect, or construct a wireless telecommunications
facility upon any parcel of land within any zoning district within
the Village or upon the public right-of-way unless a special use permit
shall have been issued in accordance with this article. The Village
Board of Trustees is hereby authorized to review special use permit
applications submitted pursuant to this section as set forth herein.
All applicants for a special permit for wireless telecommunications
facilities or any modification of such facility shall comply with
the requirements set forth in this section.
A.
Applications for a special use permit for wireless telecommunications
facilities shall be made to the Board of Trustees. The Village may,
at its discretion, delegate or designate other official agencies of
the Village to accept, review, analyze, evaluate and make recommendations
to the Board with respect to the granting or not granting special
use permits for wireless telecommunications facilities.
B.
An application for a special use permit for wireless telecommunications
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.
The landowner, if different than the applicant, shall also sign the
application. At the discretion of the Board any false or misleading
statement in the application may subject the applicant to denial of
the application without further consideration or opportunity for correction.
C.
Applications not meeting the requirements stated herein or which
are otherwise incomplete may be rejected by the Board.
D.
The applicant shall include with the application a written certification,
attesting to the following: that the applicant's proposed wireless
telecommunications facilities will be maintained in a safe manner,
and in compliance with all conditions of the special use permit, without
exception, as well as with all applicable and permissible local codes,
ordinances, and regulations, including any and all applicable Village,
state and federal laws, rules and regulations; that the applicant
is authorized to do business in the State of New York and duly licensed
by the Federal Communications Commission.
E.
All applications for the construction or installation of new wireless
telecommunications facilities shall contain the information set forth
hereafter. The application shall be signed by an authorized individual
on behalf of the applicant. Where a certification is called for, such
certification shall bear the signature and seal of a professional
engineer licensed in this state. The application shall include, at
a minimum, the following information:
(1)
Documentation demonstrating the public necessity of the wireless
telecommunications facility at the location proposed to provide service
primarily and essentially within the Village. Such documentation shall
include, without limitation, propagation studies, in sufficient detail
as determined by the Board, of the proposed site and all adjoining
planned, proposed, in-service or existing sites and any alternative
site or sites proposed by the Village;
(2)
The name, address and phone number of the person preparing the report;
(3)
The name, address and phone number of the property owner, operator
and applicant, and to include documentation of the legal formation
of the applicant;
(4)
The postal address and tax map designation of the property;
(5)
The zoning district or designation in which the property is situated;
(6)
The size of the property, stated both in square feet and lot line
dimensions, and a diagram showing the location of all lot lines;
(7)
The location of the nearest residential structure(s);
(8)
The location, size and height of all structures on the property which
is the subject of the application;
(9)
The location, size and height of all proposed and existing antennas
and all appurtenant structures;
(10)
The type, locations and dimensions of all proposed and existing
landscaping and fencing;
(11)
The number, type and design of the wireless telecommunications
facility and antenna(s) proposed and the basis for the calculations
of the facilities capacity to accommodate multiple users;
(12)
The make, model and manufacturer of the wireless telecommunications
facility and antenna(s);
(13)
A description of the proposed wireless telecommunications facility
and antenna(s) and all related fixtures, structures, appurtenances
and apparatus, including height above existing grade, materials, color
and lighting;
(14)
The frequency modulation and class of service of radio or other
transmitting equipment;
(15)
The actual intended transmission and the maximum effective radiated
power of the antenna(s);
(16)
Direction of maximum lobes and associated radiation of the antenna(s);
(17)
Certification that the NIER levels at the proposed site are
within the permissible threshold levels adopted by the FCC;
(18)
Certification that the proposed antenna(s) will not cause interference
with other telecommunications devices;
(19)
A copy of the FCC license applicable for the intended use of
the wireless telecommunications facilities;
(20)
Certification that a topographic and geomorphologic study and
analysis has been conducted, and, taking into account the subsurface
and substrata and the proposed drainage plan, that the site is adequate
to assure the stability of the proposed wireless telecommunications
facilities on the proposed site;
(21)
A radius map, certified by its preparer, showing the name, address,
section, block and lot number on all property located within 1,000
feet of any property line or the lot or parcel on which the new wireless
telecommunications facilities are proposed to be located;
(22)
Site plan. An applicant shall be required to submit a site plan
as follows:
(a)
The site plan shall show all existing and proposed structures
and improvements.
(b)
The site plan shall also include documentation on the proposed
intent and capacity of use as well as a justification for the height
of any tower or antennas and justification for any land or vegetation
clearing required.
(c)
A visual environmental assessment form ("visual EAF") and landscaping
plan addressing other standards listed within this section, with particular
attention to visibility from key viewpoints within and outside of
the municipality as identified in the visual EAF. The Board may require
submission of a more detailed visual analysis based on the results
of the visual EAF.
F.
In the case of a new wireless telecommunications facility, the applicant
shall be required to submit a written report demonstrating its meaningful
efforts to secure shared use of existing wireless telecommunications
facilities, or the use of alternative buildings or other structures
within or adjoining the Village.
G.
The applicant shall certify that the wireless telecommunications
facility, foundation and attachments, are designated and will be constructed
to meet all local, Village, state and federal structural requirements
for loads, including wind and ice loads.
H.
The applicant shall certify that the wireless telecommunications
facilities will be effectively grounded and bonded so as to protect
persons and property, and installed with appropriate surge protectors.
I.
The applicant shall furnish a visual impact assessment which shall
include:
(1)
A zone of visibility map which shall be provided in order to determine
locations from which the wireless telecommunications facility may
be seen.
(2)
Pictorial representations of before and after views from key viewpoints
both inside and outside of the Village as may be appropriate.
(3)
An assessment of the visual impact of the wireless telecommunications
facility base and accessory buildings from abutting and adjacent properties
and streets which will demonstrate the need or appropriateness of
screening of said structures.
(4)
The applicant shall demonstrate and provide in writing and/or by
drawing how it shall effectively screen from view the base and all
related facilities and structures of the proposed wireless telecommunications
facilities/structures.
J.
Any and all representations made by the applicant or its counsel
to the Board, on the record or otherwise, during the application process;
whether written or oral, shall be deemed a part of the application
and may be relied upon in good faith by the Board.
K.
All utilities at a wireless telecommunications facilities site shall
be installed underground and in compliance with all laws, ordinances,
rules and regulations of the Village, including specifically, but
not limited to, the National Electrical Safety Code and the National
Electrical Code where appropriate.
L.
All applications for wireless telecommunications facilities shall
demonstrate that the facility has been sited to minimize the adverse
visual and physical impacts and effect on the environment, the adjacent
neighborhood, and the Village and its character.
M.
Both the wireless telecommunications 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,
which shall include the utilization of stealth or concealment technology
as may be required by the Board.
N.
A holder of a special use permit granted under this article shall
obtain, at its own expense, all permits and licenses required by applicable
law, rule, regulation or code, 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 permittee.
O.
With respect to the application process, the Board will seek lead
agency status pursuant to SEQRA. The Board shall conduct an environmental
review of the proposed project pursuant to SEQRA in combination with
its review of the application pursuant to this article.
P.
An applicant shall submit to the Village the number of completed
applications determined by the Village Clerk to be necessary for the
Village's review.
Q.
The applicant shall examine the feasibility of designing a proposed
wireless telecommunications facility to accommodate future demand
for at least five additional commercial applications, for future collocations.
R.
The holder of a special use permit shall notify the Village of any
intended modification of a wireless telecommunications facility and
shall apply to the Board to modify, relocate or rebuild a wireless
telecommunications facility.
A.
The Village may approve an application for any site, provided that
the Village 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 aesthetic nature and
character of the community, the neighborhood and all nearby property
values.
B.
The applicant shall submit a written report demonstrating the applicant's
review of the proposed site locations, demonstrating the reason(s)
for the specific site selection.
C.
Notwithstanding the findings of the applicant's report regarding
site selection, the Village may disapprove an application for any
of the following reasons:
(1)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with the historic nature or aesthetic character of
a neighborhood or historical district;
(3)
The placement and location of wireless telecommunications 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; and/or
(4)
Conflicts with the provisions of this article.
A.
The applicant shall submit documentation justifying the total height
of any wireless telecommunications facility, structure and/or antenna
and the basis therefor. Such documentation will be analyzed in the
context of the justification of the height needed to provide service
primarily and essentially within the Village.
B.
If the need for a new wireless telecommunications facility can be
proven, the maximum permitted height of a wireless telecommunications
facility shall be no higher than the minimum height necessary to eliminate
substantial gaps in service within the Village, whether in whole or
in part. In no event shall a tower be higher than 50 feet.
A.
All wireless telecommunications facilities shall employ stealth design
technology as determined by the Board.
B.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
C.
Wireless telecommunications facilities shall be galvanized or, if
deemed necessary, painted with a rust-preventive paint of an appropriate
color to harmonize with the surroundings and shall be maintained in
accordance with the requirements of this article.
D.
If lighting is required, the applicant shall provide a detailed plan
for sufficient lighting of as unobtrusive and inoffensive an effect
as is permissible under applicable regulations.
A.
Landscaping and/or other screening and visual mitigation treatments,
including but not limited to, the use of camouflage, stealth or concealment
technologies or treatments shall be required to minimize the visual
and aesthetic impact of such facility.
B.
All ground-based equipment and structures shall either be located
underground or placed so as not to be directly or easily visible from
any property line.
C.
Accessory facilities shall maximize use of building materials, colors
and textures designed to blend with the natural surroundings.
Noise-producing equipment shall be sited and/or insulated to
minimize any increase in noise above ambient levels as measured at
the property line.
A.
The Board may retain any attorney, consultant and/or expert necessary
to assist it in reviewing and evaluating the application, including
the construction, modification and inspection of the site, once permitted,
and any requests for recertification.
B.
An applicant shall deposit with the Village funds sufficient to reimburse
the Village for all reasonable costs of such attorney, consultant
and expert evaluation and consultation to the Board in connection
with the review of any application, including the construction and
modification of the site, once permitted. The initial deposit shall
be $7,500. The Village will maintain a separate escrow account for
all such funds. In reviewing the application, the Village's consultants/experts
shall invoice the Village for their services at the consultant's/expert's
standard rates, including the construction and modification of the
site, once permitted. If at any time during the process this escrow
account has a balance of 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 $7,500 as determined by the Village.
Such additional escrow funds shall be deposited with the Village before
any further action or consideration 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 be promptly refunded to the applicant.
In the event the amount deposited by the applicant is insufficient
to pay the actual cost of the Village consultants, the applicant shall
pay any additional amount due prior to the issuance or denial of the
special use permit.
C.
The applicant shall also reimburse the Village for the actual and
necessary charges for legal fees which have been incurred by the Village
in connection with the application.
All wireless telecommunications facilities legally existing
on or before the effective date of this article shall be allowed to
continue as they presently exist; provided, however, that any modifications
of an existing wireless telecommunications facility must comply with
the provisions of this article.
A.
Prior to the approval of any application for a special use permit
or revocable license for wireless telecommunications facilities, a
public hearing shall be held by the Board, notice of which shall be
published in the official newspaper of the Village no less than 10
calendar days prior to the scheduled date of the public hearing. The
applicant shall notify all landowners, in writing, whose property
is located within 1,000 feet of any property line of the lot or parcel
on which the new wireless telecommunications facilities are proposed
to be located, and any property owner or organization directly impacted
by the proposed facility as determined by the Board, by certified
mail, return receipt requested, no less than 10 calendar days and
no more than 20 calendar days prior to the scheduled date of the public
hearing.
B.
The Board shall schedule the public hearing referred to in Subsection A of this section once it determines that the application is complete. The Village, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary. The Board may waive any part or item to be contained in the application upon request of that applicant for good cause shown as determined by the Board.
A.
The Board will undertake a review of an application pursuant to this
article in a timely manner; consistent with its responsibilities under
SEQRA, 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.
B.
The Board may refer any application or part thereof to any advisory
or other committee for a nonbinding recommendation.
C.
After the public hearing and after formally considering the application,
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 the record. The burden
of proof for the grant of the permit shall be upon the applicant.
D.
Construction of a wireless telecommunications facility permitted under this article shall be started within 90 days of the date of the grant of the special use permit and be completed, obtain a certificate of completion, and provide service within 180 days of the date of the grant of the special use permit. If the requirements of this Subsection D are not complied with, the wireless telecommunications facility shall be deemed to have been abandoned.
A.
Such special use permit shall be nonexclusive;
B.
Such special use permit shall not be assigned, transferred or conveyed
without the express prior written notification of the Village of Manorhaven;
C.
Such special use permit may be revoked, canceled, or terminated for
a violation of the conditions, and provisions, if any, of the special
use permit, or for material violation of this article.
At the time of submission of an application for a special use
permit for a wireless telecommunications facility, a nonrefundable
application fee of $3,000 shall be paid to the Village.
The applicant and the property owner of record of any wireless
telecommunications facilities site shall, at its cost and expense,
be jointly required to execute and file with the Village a bond or
other form of security acceptable to the Village, in an amount of
$50,000 and with such sureties as are deemed sufficient by the Village,
to assure the faithful performance of the terms and conditions of
this article, and conditions of any special use permit issued pursuant
to this article.
Any application for wireless telecommunication facilities that
is proposed for property located within the Village pursuant to this
article shall contain a provision with respect to indemnification.
Such provision shall require the applicant, to the extent permitted
by the law, to at all times defend, indemnify, protect, save, and
hold harmless, and exempt the Village and its officers, boards, employees,
committee members, attorneys, agents, and consultants from any and
all penalties, damages, costs, or charges arising out of any and all
claims, suits, demands, causes of action, or award of damages, whether
compensatory or punitive, or expenses arising therefrom, either at
law or in equity, which might arise out of, or are caused by, the
placement, construction, erection, modification, location, products
performance, use, operation, maintenance, repair, installation, replacement,
removal, or restoration of said facility. 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. Said indemnity shall be signed
by a duly authorized corporate officer or representative of the applicant.
Where this article differs or conflicts with other laws, rules
and regulations, unless the right to do so is preempted or prohibited
by state or federal law, this article shall apply.
If any section or subsection, paragraph, clause, phrase or portion
of this article shall be judged invalid or held unconstitutional by
a court or competent jurisdiction, any judgment made thereby shall
not affect the validity of this chapter as a whole or any part thereof
other than the part or provision so adjudged to be invalid or unconstitutional.
