It shall be a rebuttable presumption that any such Wireless
Telecommunications Facility that has not been in operation or use
for more than ninety (90) continuous days or a total of one hundred-eighty
(180) days in any three hundred sixty-five (365) day period shall
be deemed abandoned, and the private property owner, Applicant who
filed for the use or installation of the system or equipment, and
the operator or owner of the system or equipment shall be responsible
for removal of all structures and facilities within one hundred twenty
(120) days of the date of the notice of the Director of Public Safety,
or his designee, declaring the Wireless Telecommunications Facility
and/or use abandoned and directing removal, and upon failure to do
so the Town may take such action at the expense of the property owner,
Applicant, and the operator or owner of the system or equipment, as
follows:
(A) Notice. Written notice of the determination that the facility, system
or equipment is not in operation, and the equipment and/or use has
been deemed abandoned and must be removed within one hundred and twenty
(120) calendar days of the date on the notice shall be mailed by the
Department of Public Safety to the private property owner, the Applicant
who filed for the use or installation, and owner and/or operator of
the facility, system, or equipment, if known, to their last known
address, by regular and certified mail, return receipt, requested.
The notice shall also advise the recipient that they are entitled
to a hearing on that determination before an Administrative Hearing
Officer (on behalf of the Town Board) if the facility is on municipal
property, municipal facilities, or using the public right-of-way,
or the Zoning Board of Appeals if the facility is on private property,
as the case may be, provided that written request for such a hearing
is received by the Department of Public Safety within fifteen (15)
calendar days of the date on the notice. If a timely request has been
filed, written notice of the date, place, and time of the hearing
shall be mailed to the Person(s) who have requested a hearing, or
to their attorney(s), if known, along with a statement that they (a)
are entitled to be represented by legal counsel at the hearing; (b)
they will be provided with an opportunity to be heard and may present
the testimony of witnesses, experts, and other evidence in their own
behalf; and (c) that upon their failure to appear at the hearing,
then in such event, the determination of the Town shall be final.
(B) Amendment, modification, or withdrawal. The code enforcement officer
may amend or modify any notice issued if, in his judgment, the circumstances
warrant such action provided the amended or modified notice is clearly
marked as such and is served as provided in (A) herein within ten
(10) calendar days of service of the original notice, and a hearing
has not occurred. A notice may be withdrawn at any time.
(C) Hearing. All hearings shall be recorded, and may be adjourned only
upon good cause shown and at the discretion of the Person or entity
holding the hearing.
(1)
At the hearing the Hearing Officer or Zoning Board shall consider
the evidence, and may adopt or reject, in whole or in part, any portion
of the code officer's determination, with or without conditions, as
deemed advisable or necessary under the circumstances.
(2)
Zoning Board. Upon a finding that the use or equipment has been
abandoned, the Board may order the property owner, and/or the Applicant,
operator and/or owner of the facility or equipment to demolish and
remove the Telecommunications Facilities and restore the site within
the time specified, and upon the failure, neglect, or refusal of such
Person(s) to comply, may authorize the code officer or other town
personnel, upon reasonable notice, to enter the premises and demolish
and remove the same, and restore the site. The decision of the Board
is final as to the Town of Huntington. The decision shall be mailed
to the entity who requested the hearing or his attorney, if known,
and filed in the office of the Huntington Town Clerk.
(3)
Hearing Officer. The Hearing Officer's findings and recommendations
shall be filed with the Town Clerk and mailed to those who requested
the hearing or their attorney(s), if known. The Town Clerk shall forward
the recommendations of the Hearing Officer to the Town Board for ultimate
determination. The Town Board shall consider the evidence, and may
adopt or reject, in whole or in part, any portion of the Hearing Officer's
report, with or without conditions, as deemed necessary by the Board.
Upon a finding that the use or equipment has been abandoned, the Board
may order the Applicant, operator, and/or owner of the facility or
equipment to demolish and remove the Wireless Telecommunications Facilities
and restore the site within the time specified, and upon the failure,
neglect, or refusal of such Person(s) to comply, may authorize the
code officer or other town personnel, upon reasonable notice, to enter
the premises and demolish and remove the same, and restore the site.
The decision of the Board is final as to the Town of Huntington. The
decision shall be mailed to the entity who requested the hearing or
his attorney, if known, and filed in the office of the Huntington
Town Clerk.
(D) Compliance. A property owner, Applicant, operator, or owner of a
facility who wishes to comply with the notice of abandonment and order
to remove shall notify the Director of Public Safety in writing of
its intent to abandon a permitted site. Removal shall comply with
applicable health and safety regulations, including demolition permits
from the Building Department. Upon completion of the removal process,
the site shall be restored to its original condition at the expense
of the private property owner, Applicant, operator, or owner of the
facility.
(E) Grounds for a default. The notice shall automatically become a final
order if there has been no request for a hearing within the period
specified, or, if having requested a hearing, there has been no appearance
at the hearing by the Person who had requested it. The resulting order
shall be served in the same manner as the original notice. Such Facilities
shall be removed and the location restored to its original condition
by the property owner, Applicant, and owner and operator of the facility
or equipment, at their own cost and expense, within one hundred and
twenty (120) calendar days of the date of the notice declaring the
abandonment. In the event of a default, the Town is authorized, upon
reasonable notice, to enter the premises and demolish and remove the
same, and restore the site.
(F) Liability for costs. All facilities or equipment not removed within
the required period shall be in violation of this chapter. In the
event the Town removes abandoned equipment or facilities upon the
failure of the private property owner, Applicant, operator, or facility
owner to timely do so, then the private property owner, Applicant,
operator, and facility owner shall be jointly and severally liable
for the payment of all costs and expenses the Town incurs for the
removal of the facilities and restoration of the site, if applicable,
including legal fees and costs.
(G) Recovery of costs. The costs incurred by the Town shall be certified
by the director of each town department providing services and the
Town Attorney shall mail written notice of such costs by both regular
mail and certified or registered mail, return receipt requested, to
the property owner, Applicant, owner, or operator of the facility,
as the case may be. The notice shall state that upon the failure to
pay the amount certified within ten (10) days of receipt of the notice
by money order, or certified or bank check the amount will be added
to the tax bill or other action will be taken without further notice.
Nothing contained herein shall be construed to limit the Town's remedies
or bar the commencement of an action to collect the debt in lieu of
a tax lien.
(H) Tax lien. In the event the debt is not paid within the ten (10) day
period, or if the mailing is returned by the Post Office because of
the inability to make delivery for any reason, as long as the notice
was properly addressed to the last known address, such certification
of costs shall be provided to the Tax Receiver, who shall cause the
costs as shown thereon to be charged against such lands and/or facilities
without further notice. The amount so charged shall forthwith become
a lien against such lands and/or facilities, and shall be added to
and become part of the taxes next to be assessed and levied, the same
to bear interest at the same rate as taxes, and shall be collected
and enforced by the same officer(s) and in the same manner as taxes.