City of Mount Vernon, NY Special Permit Uses

The following standards and requirements are hereby established for specific special permit uses. They must, as applicable, be met before issuance of a special permit by the Planning Board.

Universities, colleges and private schools.

(1)

The institution shall be a not-for-profit corporation.

(2)

The institution shall be chartered by the Board of Regents of the State of New York and shall be operated in accordance with the requirements of the New York State Education Department.

(3)

Outdoor playing fields shall be set back from neighboring streets and property lines and shall be screened from public view with fencing and/or buffer landscaping all in accordance with a plan as determined adequate by the approving agency.

(4)

The minimum off-street parking and loading space requirements shall be determined by the approving agency based on consideration of at least the following: gross floor area; expected number of students and staff; capacity of classrooms, laboratories and places of public assembly; scheduling of classes; availability of public transit; availability of public parking in the immediate area; and expected number of students to be resident on campus.

Domiciliary care facilities. No office of a professional person shall be permitted except for the treatment of residents of the facility itself.

Radio towers.

(1)

Radio towers for licensed amateur radio stations shall not exceed 75 feet above the established grade.

(2)

The radio tower shall be set back from any lot line a distance at least equal to its height.

(3)

The tower shall have either a smooth, nonclimbable surface to a height of 10 feet above grade or else a six-foot-high fence with a locked gate completely enclosing the tower and located within 10 feet of it.

(4)

The radio tower shall be a commercially manufactured type with published specifications, standards and stresses.

(5)

The base of the tower shall be no greater than two square feet in area.

(6)

Guy wires shall be provided as necessary and shall terminate at a solid structure not less than 10 feet above grade.

Satellite earth stations and dish antennas. A satellite earth station or dish antenna may be located, installed, constructed or maintained on any lot, building or structure only when in compliance with all the following requirements:

(1)

All satellite earth stations or dish antenna shall be designed, constructed and installed in conformance with all building, electrical, fire prevention, noise and other applicable codes and regulations, as well as any other construction or performance standards, rules and regulations of any government entity having jurisdiction over such devices, including, without limitation, the Federal Communications Commission (FCC).

(2)

The height of the satellite earth station or dish antenna shall be measured from the bottom of its base or pad to the highest point of the earth station or antenna when in the most vertical position.

(3)

All satellite earth stations and dish antennas shall be located in the rear yard.

(4)

Setbacks from the property line shall be equal to or greater than the height of the proposed structure, but not less than 15 feet from the rear and side lot lines.

(5)

The distance from any guy anchorage or similar device shall be at least 10 feet from any property line.

(6)

Suitable protective nonclimbable fencing and a landscape planting screen shall be provided and maintained around the structure and accessory attachments in order to minimize visibility from streets and surrounding properties.

(7)

The applicant shall present appropriate documentation related to any license required by federal, state or local agencies.

(8)

No satellite earth station or dish antenna shall be erected to a height greater than the permitted building height in the district in which it is located.

(9)

Only one such structure shall exist at any one time on any single residentially zoned and used lot or parcel.

(10)

The application shall include construction drawings showing the proposed method of installation, structural engineering analysis and site plan depicting structures and plantings on the property and all residential structures on adjacent properties. At the request of the approving agency, documentation of a maintenance program may be required.

(11)

The construction and installation of roof-mounted satellite dish antennas may be permitted only when the applicant demonstrates to the satisfaction of the approving agency that locating the satellite dish antenna in conformance with Subsection D(3) above would obstruct the antenna's reception window or otherwise excessively interfere with the reception by not allowing receipt of at least 70% of the available programming, and such obstruction or interference involves factors beyond the applicant's control. The construction and installation of roof-mounted satellite dish antennas shall meet the following requirements:

(a)

The load distribution within the building's roof and/or a wind velocity test shall be provided by a registered engineer where deemed necessary by the Building Commissioner.

(b)

A roof-mounted satellite dish antenna installed on a pitched roof shall be installed on that side of the pitched roof not facing any public or private road.

(c)

A roof-mounted satellite dish antenna installed on a flat roof shall be installed on that portion of the flat roof which is least visible from any public or private road.

(d)

A satellite dish antenna mounted on a roof or building shall not exceed 12 feet in height, nor shall any such antenna project more than six feet above the peak or highest point of the roof line.

(e)

Where feasible, and taking into consideration structural and architectural factors, roof-mounted satellite dish antennas shall be installed with parapets and/or an architecturally matching screening plan.

Multifamily dwellings.

(1)

Application. This special permit use shall be applicable only to properties meeting the following standards:

(a)

An area of at least one-half acre;

(b)

Within 1/4 mile of a train station, as measured in a direct line from the closest edge of a passenger platform to the closest point of the property;

(c)

Within 200 feet of an exit to a limited-access highway or parkway, as measured in a direct line from the closest point of an entrance to or exit from such highway or parkway to the closest point of the property; and

(d)

Within 1/4 mile of a municipally operated parking facility, as measured in a direct line from the closest pedestrian entrance of such facility to the closest pedestrian entrance of the property.

(2)

Procedure. Notwithstanding any other provision of the codes, laws, rules and ordinances of the City of Mountt Vernon, and in recognition of the unique characteristics of this type of development, the following shall apply:

(a)

The special permit application shall be reviewed and approved by the City Council;

(b)

The site plan to be submitted with the special permit application shall depict the proposal to the extent necessary to explain the project; and

(c)

If the special permit is approved, the detailed site plan meeting all requirements Chapter 267, Article VI shall be submitted within six months of such approval, and shall include a stormwater management plan only where clearing, grading, excavating, soil disturbance or placement of fill results in land disturbance of equal to or greater than one acre, or the same activities disturbing less than one acre of total land area that is part of a larger common plan of development;

(3)

Standards:

(a)

The maximum average height of development may not exceed 120 feet (but not more than 12 stories). However, in the case of a corner lot, a height of 180 feet (but not more than 18 stories) may be permitted for up to one third of the lot area and the rest of the lot area must be developed at a lower height so that the average height of all development on the lot is maintained at no more than 120 feet;

(b)

Note 1 on the Schedule of Dimensional Regulations Nonresidence Districts[1] shall not apply; and

[1]

Editor's Note Said schedule is included as an attachment to this chapter.

(c)

The minimum number of parking spaces shall be one per dwelling unit.

Fast-food restaurants providing drive-up window service. No fast-food restaurant providing drive-up window service shall be located within 200 feet of a public school, church or other place of worship or any other fast-food restaurant providing drive-up window service.

Motor vehicle service stations, repair facilities and body repair shops.

(1)

All repair work and servicing, except for the sale of fuel and lubricants, shall be performed within a fully enclosed building.

(2)

All vehicles in the process of repair or servicing, and all products for sale, except lubricants in sealed containers, shall be stored within a fully enclosed building.

(3)

No part of any building, equipment or pump shall be located within 30 feet of any residence district or within 15 feet of any lot line.

(4)

All motor vehicle filling stations, service stations, repair facilities, body repair shops, storage and sales areas shall be screened along all streets and property lines, except where adjoining another automotive use and except at points of ingress and egress. Such screening shall consist of an evergreen hedge or wall of masonry construction (faced in brick or stone). Along the street frontage portion of a lot, the height of screening shall be no less than two nor more than three feet. In all other areas, it shall be a minimum of three feet six inches and a maximum of six feet in height, except where a lesser height is required to provide safe sight distance for traffic or pedestrians. All such screening areas shall be at least three feet in width.

Public utility uses.

(1)

When proposed, aboveground public utility uses shall comply with the district dimensional regulations in which they are located and shall be subject to a finding, in addition to the standards of Chapter 267, Article VI, that a public necessity exists for such use and that the use of the particular site for which application is made is either necessary or appropriate from a public standpoint.

(2)

The approving agency shall require that such use be enclosed by protective fencing with a gate which shall be closed and locked except when necessary to obtain access thereto.

(3)

The installation shall be so designed, enclosed, painted and screened with evergreens that it will be harmonious with the area in which it is located. The entire property shall be suitably landscaped and maintained in reasonable conformity with the standards of property maintenance of the surrounding neighborhood.

Adult entertainment store, adult live entertainment business and adult motion-picture theater. An adult entertainment store, adult live entertainment business or adult motion-picture theater may be established on a property by special permit subject to the following conditions:

(1)

No one establishment may exceed more than 5,000 square feet of floor space. Floor space includes storage areas and other areas restricted to employees or owners only, but does not include spaces where human occupation does not normally occur, such as an unfinished attic or basement with less than six feet from floor to ceiling of said attic or basement.

(2)

Only one type of adult entertainment business shall be established on any one property.

(3)

All adult entertainment businesses shall be prohibited from displaying any adult entertainment merchandise or creating any display or sign illustrating specified sexual activities or specified anatomical areas in such a manner that it may be wholly or partially visible from any public right-of-way.

(4)

All adult live entertainment businesses and adult motion-picture theaters shall be prohibited from conducting performances or creating viewing areas that are conducted out-of-doors and/or are wholly or partially visible from any public right-of-way.

(5)

Persons under the age of 18 shall not be permitted to patronize or be employed for the purpose of working at any adult entertainment business as defined by Chapter 267, Article II.

(6)

Viewing booths used for the viewing of films, videos or other visual material or for viewing live entertainment shall not be enclosed and shall not have more than three walls and shall be placed in such a manner that patrons can be monitored by the employees or the owner of the business in order to control indecent or lewd behavior by the patrons of such viewing booths.

(7)

No property with an adult entertainment business shall be located any closer than 500 feet from an property line of any residential district, parks, schools, places of worship, community centers, youth services, day-care centers, nursery schools or museums within the City or in any adjoining municipality. Distance between property lines shall be measured from the shortest distance between the two property lines irrespective of rights-of-way.

(8)

No adult entertainment business shall be established in any building that has a residence, even if the residence is classified as a nonconforming use for that district or located within 500 feet of any residence, even if the residence is classified as a nonconforming use in the district where the residence is located within the City or in any adjoining municipality.

(9)

No adult entertainment business shall be established within 1,000 feet of any other adult entertainment business, as defined by Chapter 267, Article II.

(10)

Adult live entertainment business with on-site entertainment shall be prohibited from operating from the hours of 4:00 a.m. to 6:00 p.m.

(11)

All adult entertainment business uses shall meet all other requirements of this chapter and other applicable ordinances and laws of the City of Mount Vernon, including parking regulations as set forth in Article VIII of this chapter.

(12)

No adult entertainment business shall be established on the same property or an adjacent property where there is another previously established business that is regularly patronized by children.

Regulations for the siting of wireless telecommunications facilities.

(1)

Purpose and legislative intent. The Telecommunications Act of 1996 affirmed the City of Mount Vernon's authority concerning the placement, construction and modification of wireless telecommunications facilities. The City of Mount Vernon finds that wireless telecommunications facilities may pose significant concerns to the health, safety, public welfare, character and environment of the City and its inhabitants. The City also recognizes that facilitating the development of wireless service technology can be an economic development asset to the City and of significant benefit to the City and its residents. In order to insure that the placement, construction or modification of wireless telecommunications facilities is consistent with the City's land use policies, the City is adopting a single, comprehensive, wireless telecommunications facilities application and permit process. The intent of this zoning regulation is to minimize the negative impact of wireless telecommunications 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 City of Mount Vernon as well as protect the scenic and aesthetic facets of the City and be in line with the City's Master Plan for Land Use adopted November 27, 1961.

(2)

Severability.

(a)

If any word, phrase, sentence, part, section, subsection, or other portion of these regulations or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of these regulations, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect.

(b)

Any special use permit issued under these regulations shall be comprehensive and not severable. If part of a permit is deemed or ruled to be invalid or unenforceable in any material respect by a competent authority, or is overturned by a competent authority, the permit shall be void in total, upon determination by the City.

(3)

Definitions.

(a)

For purposes of these regulations, 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 number 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)

As used in this section, the following terms shall have meanings indicated:

ACCESSORY FACILITY OR STRUCTURE

An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including, but not limited to, utility or transmission equipment storage sheds or cabinets,

ANTENNA

A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless 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 City's siting, building and permitting authority.

APPLICATION

All necessary and appropriate documentation that an applicant submits in order to receive a special use permit for wireless telecommunications facilities.

BASE TRANSMITTER

A stationary transmitter that provides radio telecommunications service to mobile and/or fixed receivers, including those associated with mobile stations.

COLLOCATION

The use of an existing tower or structure to support antennas for the provision of wireless services.

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.

COMMON CARRIER

An individual, partnership, association, joint-stock company, trust or corporation engaged in rendering radio telecommunications services to the general public for hire.

COMPLETED APPLICATION

An application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application and where a consultant is involved, when the consultant has issued a final report.

DISTRIBUTED ANTENNA SYSTEM or 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.

FAA

The Federal Aviation Administration, or its duly designated and authorized successor agency.

FCC

The Federal Communications Commission, or its duly designated and authorized successor agency.

HEIGHT

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 or lightening protection device.

MODIFICATION or MODIFY

The addition, removal or change of any of the physical and visually discernible components or aspects of a wireless facility, such as antennas, cabling, radios, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernible components, vehicular access, parking and/or an upgrade or change-out of equipment for better or more modem equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site 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, or for the addition of internal equipment which will not result in any change to the visual appearance of a wireless facility.

MONOPOLE

Any freestanding pole greater than 12 feet in height in a residential district and 25 feet in height in a nonresidential district upon which an antenna is or has been located.

NIER

Nonionizing electromagnetic radiation.

PERSON

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 definition for "wireless telecommunications facilities."

PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS

Commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services, including cellular radiotelephone, specialized mobile radio system and personal communications services as defined and used in the 1996 Telecommunications Act.

PLANNING BOARD

The Planning Board of the City of Mount Vernon, New York.

SITE PLAN

A map showing the layout, arrangement and use of buildings and land, including accessory uses, structures, facilities and services and meeting the informational requirements of these regulations.

SPECIAL USE PERMIT

The official document or permit by which an applicant is allowed to construct and use wireless telecommunications facilities as granted or issued by the City.

STATE

The State of New York.

STEALTH or STEALTH TECHNOLOGY

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 telecommunications facilities, which shall mean using the least visually and physically intrusive facility.

TELECOMMUNICATION SITE

See definition for "wireless telecommunications facilities."

TELECOMMUNICATIONS

The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.

TELECOMMUNICATIONS STRUCTURE

A structure used in the provision of services described in the definition of "wireless telecommunications facilities."

TEMPORARY

Temporary in relation to all aspects and components of these regulations, something intended to, or that does, exist for fewer than 90 days.

WIRELESS TELECOMMUNICATIONS FACILITIES means and includes a TELECOMMUNICATIONS TOWER and TOWER and TELECOMMUNICATIONS SITE and PERSONAL WIRELESS FACILITY

A structure, facility or location designed, or intended to be used as, or used to support, antennas or other transmitting or receiving devices. This includes without limit, towers of all types and kinds and structures that employ camouflage technology, including, but not limited to 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 is a structure and facility intended for transmitting and/or receiving radio, television, cellular, paging, 911, personal telecommunications services, commercial satellite services, microwave services and services not licensed by the FCC, but not expressly exempt from the City's siting, building and permitting authority, excluding those used exclusively for the City's fire, police or exclusively for private, noncommercial radio and television reception and private citizen's bands, amateur radio and other similar noncommercial telecommunications where the height of the facility is below the height limits set forth in these regulations and local zoning.

(4)

Special use permit application and other requirements.

(a)

Permit granting agency; applications to be complete.

[1]

All applicants for a special use permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this section. The Planning Board is the officially designated agency or body of the City to whom applications for a special use permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking special use permits for wireless telecommunications facilities. The City may at its discretion delegate or designate other official agencies of the City to accept, review, analyze, evaluate and make recommendations to the Planning Board with respect to the granting or not granting, recertifying or not recertifying or revoking special use permits for wireless telecommunications facilities.

[2]

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 and shall agree to remove any existing violations and make all existing telecommunications facilities compliant with these regulations and all applicable local, state and telecommunications codes prior to the issuance of any certificate of occupancy or compliance or the functional equivalent for a new or modified wireless facility. At the discretion of the City, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.

[3]

Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the City.

(b)

The applicant shall include a statement in writing:

[1]

That the applicant's proposed wireless telecommunications facilities shall be maintained in a safe manner, and in compliance with all conditions of the special use permit, without exception, unless specifically granted relief by the City in writing, as well as all applicable and permissible local codes, laws, and regulations, including any and all applicable City, state and federal laws, rules, and regulations;

[2]

That the construction of the wireless telecommunications facilities is legally permissible, including, but not limited to the fact that the applicant is authorized to do business in the state. Written evidence of that authorization shall be provided.

(c)

No wireless telecommunications facilities shall be installed or constructed until the application is reviewed and approved by the City, and the special use permit has been issued and a building permit.

(d)

All applications for the construction or installation of new wireless telecommunications facilities shall contain the information hereinafter set forth. 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 the state. The application shall include the following information:

[1]

Documentation that demonstrates the need for the wireless telecommunications facility to provide service primarily and essentially within the City with service to adjacent municipalities to not exceed 40% of the total area to be covered by the proposed facility. Such documentation shall include propagation studies and maps of the proposed site and all other planned, proposed, in service or existing sites in the City and in all contiguous municipalities. If the applicant is addressing a capacity issue, documentation must be submitted to include but not be limited to the following: usage and forecasted or present blockage; call volume, drive-test data results, including date of test. Locations of tests, and signal strength results; and any other technically pertinent information.

[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 the legal form of the applicant.

[4]

The postal address and Tax Map parcel number of the property.

[5]

The zoning district or designation in which the property is situated.

[6]

Size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines; in the case of a new tower, topographical map of property and adjacent land at increments of two feet zero inches; topographic lines which clearly define the slopes and height of the land and structure location and heights at each finished floor and roof.

[7]

The location of nearest landmark.

[8]

The location of nearest residential structure which shall include a vicinity map to show what facilities are adjacent to the installation.

[9]

The property owner and address of all adjacent residential structures, occupiable structures, child day-care center, schools, camps, public parks and playgrounds.

[10]

The location, size and height of all structures on the property which is the subject of the application.

[11]

The location, size and height of all proposed and existing antennas and all appurtenant structures.

[12]

The type, locations and dimensions of all proposed and existing landscaping, and fencing; in the case of a new tower, such shall be shown via the use of plans, sections and three-dimensional models.

[13]

The number, type and design of the tower(s) and antenna(s) proposed and the basis for the calculations of the tower's capacity to accommodate multiple users.

[14]

The owner, make, model and manufacturer of the tower and antenna(s) and the number and type of existing antennas.

[15]

A description of the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above preexisting grade, materials, color and lighting.

[16]

The frequency, modulation and class of service of radio or other transmitting equipment.

[17]

The actual intended transmission and the maximum effective radiated power of the antenna(s).

[18]

Direction of maximum lobes and associated radiation of the antenna(s).

[19]

Certification that the NIER levels at the proposed site are within the threshold levels adopted by the FCC and that the proposed site will not produce or contribute to the production of emissions levels exceeding the thresholds listed in Table IV or any subsequent superseding emission standard adopted by the FCC, based on the maximum equipment output.

[20]

Certification that the proposed antenna(s) will not cause interference with other telecommunications devices.

[21]

A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities.

[22]

Certification that a topographic and geomorphologic study and analysis has been conducted and that 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.

[23]

Certification, where co-location is not proposed, that co-location is not feasible and why.

(e)

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 City. Copies of written requests and responses for shared use shall be provided to the City in the application, along with any letters of rejection stating the reason for rejection.

(f)

The applicant shall certify that the telecommunications facility, foundation and attachments are designed and will be constructed to meet all local, City, state and federal structural requirements for loads, including wind and ice loads.

(g)

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.

(h)

The Planning Board intends to be the lead agency, pursuant to SEQRA. The Board shall conduct an integrated, comprehensive environmental review of the proposed project in combination with its review of the application under these regulations.

(i)

An applicant shall be required to submit an environmental assessment form and a visual addendum. Based on the results of the form, including the visual addendum, the City may require submission of a more detailed visual analysis. The scope of the required environmental and visual assessment will be reviewed at the preapplication meeting.

(j)

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 tower may be seen by a turning radius of 360°.

[2]

Pictorial representations of before and after views from key viewpoints both inside and outside of the City 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; and from any other location where the site is visible to a large number of visitors, travelers or residents. Guidance will be provided concerning the appropriate key sites at a preapplication meeting.

[3]

An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets as relates to the need or appropriateness of screening.

(k)

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.

(l)

Any and all representations made by the applicant to the City 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 City.

(m)

All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, rules and regulations of New York State and of the City, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code, where appropriate.

(n)

All wireless telecommunications facilities applications shall contain a demonstration that the facility is sited so as to be the least visually intrusive reasonably possible and thereby have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area of the wireless telecommunications facility.

(o)

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; this shall include the utilization of stealth or concealment technology as may be required by the City.

(p)

At a telecommunications site, an access road, turnaround 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, which cutting of vegetation shall be replaced in equal amount to near or in proximity to the location of the proposed cutting. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.

(q)

A person who holds a special use permit for wireless telecommunications facilities shall construct, operate, maintain, repair, provide for removal of, modify or restore the permitted wireless telecommunications facilities in strict compliance with all current applicable technical, safety and safety-related codes adopted by the City, state, or United States, including but not limited to the most recent editions of the 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 preceding, the more stringent shall apply.

(r)

A holder of a special use permit granted under these regulations 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 City or other governmental entity or agency having jurisdiction over the applicant.

(s)

An applicant shall submit to the City 11 completed applications determined to be needed at the pre-application meeting. Written notification of the application shall be provided to the legislative body of all adjacent municipalities.

(t)

The applicant shall examine the feasibility of designing a proposed tower to accommodate future demand for at least five additional commercial applications; for example, future co-locations. The tower shall be structurally designed to accommodate at least five 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:

[1]

The foreseeable number of FCC licenses available for the area.

[2]

The kind of wireless telecommunications facilities site and structure proposed.

[3]

The number of existing and potential licenses without wireless telecommunications facilities spaces/sites.

[4]

Available space on existing and approved towers.

(u)

Shared use.

[1]

The owner of the 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]

Respond within 60 days to a request for information from a potential shared-use applicant;

[b]

Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers;

[c]

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.

[2]

Failure to abide by the conditions outlined above may be grounds for revocation of the special use permit for the tower.

(v)

There shall be a pre-application meeting. The purpose of the preapplication meeting will be to address issues which will help the applicant with the review and permitting process. A pre-application meeting shall also include a site visit if there has not been a prior site visit for the requested site. Costs of the City's consultants to prepare for and attend the pre-application meeting will be borne by the applicant.

(w)

The holder of a special use permit shall notify the City of any intended modification of a wireless telecommunications facility and shall apply to the City to modify, relocate or rebuild a wireless telecommunications facility.

(x)

In order to better inform the public, in the case of a new telecommunication tower, the applicant shall, prior to the public hearing on the application, hold a "balloon test." The applicant shall arrange to fly, or raise upon a temporary mast, a minimum of a three-foot in diameter brightly colored balloon 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 seven and 14 days in advance of the first test date in a newspaper with a general circulation in the City. The applicant shall inform the City, in writing, of the dates and times of the test, at least 14 days in advance. 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.

(y)

The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the tower or existing structure intended to support wireless facilities requires lighting under Federal Aviation Administration Regulation Part 77. This requirement shall be for any new tower or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines that the FAA must be contacted, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided in a timely manner.

(5)

Location of wireless telecommunications facilities.

(a)

Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, Subsection J(5)(a)[1] being the highest priority and Subsection J(5)(a)[11] being the lowest priority.

[1]

On existing towers, buildings or other structures on City-owned properties, including the right-of-way, and properties owned by the Industrial Development Agency (IDA) and the Urban Renewal Agency (URA).

[2]

On existing towers, buildings or other structures elsewhere in the City.

[3]

A new tower on City-owned properties, including the right-of-way, and properties owned by the IDA or URA in areas zoned for industrial use.

[4]

A new tower on City-owned properties, including the right-of-way, and properties owned by the IDA or URA in areas zoned for commercial use.

[5]

A new tower on City-owned properties, including the right-of-way, and properties owned by the IDA or URA in areas zoned for downtown business use.

[6]

A new tower on City-owned properties, including the right-of-way, and properties owned by the IDA or URA in areas zoned for neighborhood business use.

[7]

A new tower on City-owned properties, including the right-of-way, and properties owned by the IDA or URA in areas zoned for residential use.

[8]

A new tower on properties in areas zoned for commercial use.

[9]

A new tower on properties in areas zoned for downtown business.

[10]

A new tower on properties in areas zoned for neighborhood business use.

[11]

A new tower on properties in areas zoned for residential use.

(b)

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 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.

(c)

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 City why co-location is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting co-location shall not be a valid basis for any claim of commercial impracticability or hardship.

(d)

Notwithstanding the above, the City may approve any site located within an area in the above list of priorities, provided that the City finds that the proposed site is in the best interest of the health, safety and welfare of the City and its inhabitants and will not have a deleterious effect on the nature and character of the community and neighborhood.

(e)

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.

(f)

Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the City 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 character of a neighborhood or historical district.

[3]

The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation.

[4]

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 City, or employees of the service provider or other service providers.

[5]

Conflicts with the provisions of these regulations.

(6)

Shared use of wireless telecommunications facilities and other structures.

(a)

Locating on existing towers or other structures without increasing the height shall be preferred by the City, as opposed to the construction of a new tower. The applicant shall submit a comprehensive report inventorying existing towers and other suitable structures within four 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)

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)

Such shared use shall consist only of the minimum antenna array technologically required to provide service primarily and essentially within the City, to the extent practicable, unless good cause is shown.

(7)

Height of telecommunications tower(s).

(a)

The applicant shall submit documentation justifying the total height of any tower, facility 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 City, to the extent practicable, unless good cause is shown.

(b)

The maximum permitted height of a new tower shall be the minimum height necessary to provide service to locations within the City of Mount Vernon, but in no case shall the height exceed 80 feet above average grade level, unless the applicant can demonstrate to the satisfaction of the Board that a greater height is necessary.

(c)

Omnidirectional or whip antennas shall not exceed 20 feet in height or seven inches in diameter and shall be of a material or color which matches the exterior of the tower or tall building.

(d)

Directional or panel antenna shall not exceed six feet in height or two feet in width and shall be of a material or color which matches either the exterior of the tower or tall building or the sky tone above and beyond.

(e)

Satellite and microwave dish antennas shall not exceed three feet in diameter and, when building- or rooftop-mounted, shall be located or screened so as not be easily visible from abutting public streets. No dish antennas shall be clustered.

(f)

Building-mounted antennas should be located and designed to be an integral part of the building and any wall-mounted antennas should not exceed more than four feet from wall.

(g)

No tower constructed after the effective date of these regulations, including allowing for all attachments, shall exceed that height which shall permit operation without required artificial lighting of any kind in accordance with municipal, City, state, and/or any federal statute, law, local law, City law, code, rule or regulation.

(8)

Appearance and visibility of wireless telecommunications facilities.

(a)

Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.

(b)

Towers shall be galvanized and 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 these regulations.

(c)

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 state and federal regulations.

(9)

Security and noise of wireless telecommunications facilities. All wireless telecommunications facilities and antennas shall be located or otherwise secured in a manner that prevents unauthorized access. Specifically:

(a)

All antennas, towers and other supporting structures, including guy 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)

Transmitters and telecommunications control points shall be installed such a manner that they are readily accessible only to persons authorized to operate or service them;

(c)

Equipment shelters in connection with facilities on existing buildings shall be constructed either within the building or on the rooftop in a location secured from the public;

(d)

Noise-producing equipment shall be sited and insulated to guarantee there is no increase in noise above allowable ambient levels measured from habitable or used spaces as per codes at the property line and adjacent edifice.

(10)

Signage. Wireless telecommunications 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 an antenna that has transmission capabilities and shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s); the date of installation and the application number and inspection dates. 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. The sign shall not be lighted, unless lighting is required by applicable law, rule or regulation. No other signage, including advertising, shall be permitted.

(11)

Lot size and setbacks. All proposed towers and any other proposed wireless telecommunications 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 telecommunications facility structure plus 10% of the height of the tower or structure, or the existing 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.

(12)

Retention of expert assistance and reimbursement by applicant.

(a)

The Board and City may hire any consultant and/or expert necessary to assist the Board and the City in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any requests for recertification.

(b)

An applicant shall deposit with the City funds sufficient to reimburse the City for all reasonable costs of consultant and expert evaluation and consultation to the City in connection with the review of any application, including the construction and modification of the site, once permitted. The initial deposit shall be $5,000. The placement of the $5,000 in escrow fees with the City shall precede the pre-application meeting. The City will maintain a separate escrow account for all such funds. The City's consultants/experts shall invoice the City for its services in reviewing the application, including the construction and modification of the site, once permitted. If at any time during the process this escrow account has a balance less than $1,500, the applicant shall immediately, upon notification by the City, replenish said escrow account so that it has a balance of at least $3,000. Such additional escrow funds shall be deposited with the City before any further action or consideration is taken on the application. In the event that the amount held in escrow by the City 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.

(c)

The total amount of the funds needed as set forth in § 267-32J(12)(b) of this section may vary with the scope 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.

(d)

An applicant shall have 10 days for the date of billing to appeal to the Planning Board through the Commissioner of Planning and Development for any fee that the applicant deems unreasonable. The Commissioner of Planning and Development shall conduct a investigation into the matter and report back to the Planning Board and the applicant within 30 days. The Planning Board shall make the final determination as to the fee's reasonableness.

(13)

Exceptions from a special use permit for wireless telecommunications facilities.

(a)

No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of these regulations without having first obtained a special use permit for wireless telecommunications facilities and a building permit. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those noncommercial exceptions noted in the definition of wireless telecommunications facilities.

(b)

All wireless telecommunications facilities existing on or before the effective date of these regulations shall be allowed to continue as they presently exist; provided, however, that any visible modification, including visible deterioration, of an existing wireless telecommunications facility must comply with these regulations.

(14)

Public hearing and notification requirements.

(a)

Prior to the approval of any application for a special use permit for wireless telecommunications facilities, a public hearing shall be held by the Board, notice of which the applicant shall handle, and shall be published in the official newspaper of the City no fewer than 10 calendar days prior to the scheduled date of the public hearing. The applicant shall also notify nearby landowners whose property is located within 1,500 feet of any property line of the lot or parcel on which the new wireless telecommunications facilities are proposed to be located. For co-locations without increasing the height, the applicant shall notify nearby landowners whose property is located within 500 feet of any property line of the lot or parcel on which the new wireless telecommunications facilities are proposed to be located.

(b)

The Board will set the public hearing date referred to in § 267-32J(14)(a) of this section only after it finds the application is complete. The Board, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary.

(c)

In addition, the applicant shall post a sign on the property proposed for the special permit on or before 15 days prior to the first date of public hearing and shall remove such sign within two days following such hearing. The sign shall be at least 30 inches by 20 inches, consist of sturdy and serviceable material containing a white background with black letters and shall be placed in a location plainly visible from the most commonly traveled street upon which the property fronts but in no case more than 20 feet back from the front lot line. Such sign shall not be more than three feet above the ground and shall read as follows, in legible lettering at least two inches high:

THIS SITE IS PROPOSED FOR ISSUANCE OF A SPECIAL PERMIT AS FOLLOWS (DESCRIBE PROPOSED SPECIAL PERMIT). THIS MATTER IS SUBJECT TO A PUBLIC HEARING BEFORE THE CITY OF MOUNT VERNON PLANNING BOARD ON (GIVE DATE) AT 9:00 A.M. AT CITY HALL IN THE MAYOR'S CONFERENCE ROOM UNLESS OTHERWISE INDICATED.

(d)

In addition, an applicant for a new facility on an existing building shall post a copy of the notice of public hearing at least 10 days prior to public hearing in the lobby of the building.

(e)

Prior to the first public hearing on the application, the applicant shall submit a notarized statement to the secretary of the Planning Board certifying full compliance with the requirements set forth above.

(15)

Action on an application for a special use permit for wireless telecommunications facilities.

(a)

The Board will undertake a review of an application pursuant to these regulations in a timely fashion 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)

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. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.

(d)

If the Board approves the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such approval in writing within 15 calendar days of the Board's action, and the special use permit shall be issued within 30 days after such approval. Except for necessary building permits and subsequent certificates of compliance, once a special use permit has been granted hereunder and approval of the site plan, no additional permits or approvals from the City, such as zoning approvals, shall be required by the City for the wireless telecommunications facilities covered by the special use permit.

(e)

If the Board denies the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within 15 calendar days of the Board's action.

(16)

Extent and parameters of special use permit for wireless telecommunications facilities. The extent and parameters of a special use permit for wireless telecommunications facilities shall be as follows:

(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 approval of the Board, which shall not be unreasonably withheld. The applicant shall submit an executed assignment and assumption agreement to the Board prior to obtaining such approval by which the assignee or transferee agrees to all requirements of this chapter and the special permit.

(c)

Such special use permit may, following a 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 these regulations after prior written notice to the holder of the special use permit.

(17)

Application fee.

(a)

At the time that a person submits an application for a special use permit for a new tower or collocating on an existing tower or other suitable structure where there is an increase in height of the tower or structure, such person shall pay a nonrefundable application fee of $10,000 to the City, such fee is exclusive of any and all other fees. If the application is for a special use permit for collocating on an existing tower or other suitable structure, where no increase in height of the tower or structure is required, the nonrefundable fee shall be $4,500.

(b)

No application fee is required in order to rectify a special use permit for wireless telecommunications facilities, unless there has been a visible modification of the wireless telecommunications facility since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in Subsection J(17)(a) shall apply.

(c)

Performance security. The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at its cost and expense, be jointly required to execute and file with the City a bond, or other form of security acceptable to the City as to type of security and the form and manner of execution, in an amount of at least $75,000 and with such sureties as are deemed sufficient by the City to assure the faithful performance of the terms and conditions of these regulations and conditions of any special use permit issued pursuant to these regulations. 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.

(18)

Reservation of authority to inspect wireless telecommunications facilities. In order to verify that the holder of a special use permit for wireless telecommunications facilities and any and all lessees, renters, and/or licensees of wireless telecommunications facilities, place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building, and zoning codes, laws and regulations and other applicable requirements, the City 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, antennas and buildings or other structures constructed or located on the permitted site.

(19)

Liability insurance.

(a)

A holder of a special use permit for wireless telecommunications 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:

[1]

Commercial general liability covering personal injuries, death and property damage: $1,000,000 per occurrence/$2,000,000 aggregate;

[2]

Automobile coverage: $1,000,000 per occurrence/$2,000,000 aggregate;

[3]

Workers' compensation and disability: statutory amounts.

(b)

The commercial general liability insurance policy shall specifically include the City and its officers, boards, employees, committee members, attorneys, agents and consultants as additional named insureds for all wireless facilities located on City-owned property, which includes properties owned by IDA and Urban Renewal Agency.

(c)

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)

The insurance policies shall contain an endorsement obligating the insurance company to furnish the City with at least 30 days' prior written notice in advance of the cancellation of the insurance.

(e)

Renewal or replacement policies or certificates shall be delivered to the City at least 15 days before the expiration of the insurance that such policies are to renew or replace.

(f)

Before construction of a permitted wireless telecommunications facilities is initiated, but in no case later than 15 days after the grant of the special use permit, the holder of the special use permit shall deliver to the City a copy of each of the policies or certificates representing the insurance in the required amounts.

(20)

Defense and indemnification.

(a)

Any application for wireless telecommunication facilities that is proposed for City property, pursuant to these regulations, 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, hold harmless, and exempt the City, 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, 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 City, 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 City.

(b)

Notwithstanding the requirements noted in § 267-32J(20)(a) of this section, an indemnification provision will not be required in those instances where the City itself applies for and secures a special use permit for wireless telecommunications facilities.

(21)

Fines.

(a)

In the event of a violation of these regulations or any special use permit issued pursuant to these regulations, the City may impose and collect, and the holder of the special use permit for wireless telecommunications facilities shall pay to the City, fines or penalties as set forth below.

(b)

A violation of this local section is hereby declared to be a violation, punishable by a fine not exceeding $1,000 per day per occurrence or imprisonment for a period not to exceed 15 days. Each week's continued violation shall constitute a separate additional violation.

(c)

Notwithstanding anything in this section, the holder of the special use permit for wireless telecommunications facilities may not use the payment of fines, liquidated damages or other penalties to evade or avoid compliance with these regulations or any section of these regulations. An attempt to do so shall subject the holder of the special use permit to termination and revocation of the special use permit. The City may also seek injunctive relief to prevent the continued violation of these regulations, without limiting other remedies available to the City.

(22)

Default and/or revocation.

(a)

If wireless telecommunications facilities are repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of these regulations or of the special use permit, then the City shall notify the holder of the special use permit in writing of such violation. Such notice shall specify the nature of the violation or noncompliance and that the violations must be corrected within seven days of the date of the postmark of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this subsection or any other section of these regulations, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the City may, at its sole discretion, order the violation remedied immediately.

(b)

If within the period set forth in § 267-32J(22)(a) above, the wireless telecommunications facilities are not brought into compliance with the provisions of these regulations or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the City may revoke such special use permit for wireless telecommunications facilities, and shall notify the holder of the special use permit within 48 hours of such action.

(23)

Removal of wireless telecommunications facilities.

(a)

Under the following circumstances, the City may determine that the health, safety, and welfare interests of the City warrant and require the removal of wireless telecommunications facilities:

[1]

Wireless telecommunications facilities with a permit have been abandoned (i.e., not used as wireless telecommunications facilities) for a period exceeding 90 consecutive days or a total of 180 days in any 365-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]

Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard;

[3]

Wireless telecommunications 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.

(b)

If the City makes such a determination as noted in Article VI - 5J(24a) of this section, then the City shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed. The City may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.

(c)

The holder of the special use permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to its original condition, such restoration being limited only by physical or commercial impracticability, within 90 days of receipt of written notice from the City. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the City.

(d)

If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the permit holder has received notice, then the City may order officials or representatives of the City to remove the wireless telecommunications facilities at the sole expense of the owner or special use permit holder.

(e)

If, the City removes, or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications facilities does not claim and remove it from the site to a lawful location within 10 days, then the City may take steps to declare the wireless telecommunications facilities abandoned, and sell them and their components.

(f)

Notwithstanding anything in this section to the contrary, the City may approve a temporary use permit/agreement for the wireless telecommunications facilities, for no more than 90 days, during which time a suitable plan for removal, conversion, or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the special use permit, subject to the approval of the City, and an agreement to such plan shall be executed by the holder of the special use permit and the City. If such a plan is not developed, approved and executed within the ninety-day time period, then the City may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.

(24)

Relief. Any applicant desiring relief, waiver or exemption from any aspect or requirement of these regulations may request such at the preapplication meeting, provided that the relief or exemption is contained in the original application for either a special use permit, or in the case of an existing or previously granted special use permit, a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete. However, the burden of proving the need for the requested relief, waiver or exemption is solely on the applicant to prove. The applicant shall bear all costs of the Board and the City in considering the request and the relief, waiver or exemption. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief, waiver or exemption will have no significant effect on the health, safety and welfare of the City, its residents and other service providers.

(25)

Adherence to state and/or federal rules and regulations.

(a)

To the extent that the holder of a special use permit for wireless telecommunications facilities has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules or regulations, then the holder of such a special use permit 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)

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 changed and/or are modified during the duration of a special use permit for wireless telecommunications facilities, then the holder of such a special use permit shall conform the permitted wireless telecommunications facilities to the applicable changed 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.

(26)

Conflict with other laws. Where this section differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the City, state or federal government, this section shall control.

Self-storage facilities shall be permitted as a special permit use in the I - Industrial Zoning District, the LI-7.5 Landscape Industrial Zoning District and the Commercial Business Zoning District, subject to the following requirements:

[Added 6-9-2021, approved 6-10-2021; amended 6-23-2021, approved 6-24-2021]

(1)

The site for a self-storage facility shall have a minimum area of 20,000 square feet.

(2)

The maximum height of the self-storage facility shall be four stories, unless excepted herein.

(a)

The maximum height of the self-storage facility may be increased to five stories if a minimum of 75% of the frontage of the building along the primary street level is occupied by a permissible retail use.

(b)

Permissible retail uses on the ground level include: banks, retail bakers, restaurants, or stores and shops for sales at retail or the performance of customary personal services.

(3)

The self-storage use is limited to individual storage units or compartments.

(4)

Storage units shall be a minimum of 50 square feet and shall not exceed 300 square feet.

(5)

One off-street parking space shall be provided for every 25 storage units (or fraction thereof).

(6)

One truck loading space shall be provided for every self-storage facility, and one additional truck loading space for every 150 storage units (or fraction thereof) above the first 100 storage units.

(7)

Storage units shall not be used for the manufacture, fabrication, processing, vehicle or equipment repair, or similar activities, or to conduct retails sales of any kind or any other commercial activity.

(8)

No outside storage shall be permitted.

(9)

No more than 5% of the individual storage units shall be permitted to contain electrical outlets.

(10)

The building shall be designed to have an architectural character that is harmonious with and enhances the surrounding neighborhood, and minimizes the historically negative appearance of such facilities. This includes, among other elements deemed satisfactory to the Planning and Architectural Review Boards, appropriate setbacks and massing as necessary to ensure harmony with the surrounding neighborhood. Building colors shall be neutral or earth-tone, and shall not call attention to the use. Exterior walls visible from a public street shall not include metal as the primary material.

(11)

Sufficient landscaping shall be provided on the site.

(12)

Lighting shall not cause a nuisance for surrounding uses.

(13)

All self-storage facilities shall include continuous video surveillance of all indoor and outdoor common areas.

(14)

The hours of access to a self-storage facility shall be restricted to between 6:00 a.m. and 10:00 p.m.

(15)

No more than 25% of all garage or roll up doors serving individual storage units shall be located parallel to the public street upon which the site has frontage, to minimize visual impacts.

(16)

No less than 40% of the building facade along a public street, shall consist of a nonreflecting glazing material.

(17)

No less than 75% of the ground-level facade along a public street shall consist of transparent windows.

(18)

No ground level building wall along a public street shall have a dimension greater than 20 feet without windows or functional entries.

(19)

Any ground-level retail must have a floor-to-ceiling height of 11 feet.

(20)

Any ground-level retail must have a minimum square footage of 1,000 feet.

(21)

Where windows are provided along the storage space, the interior space visible from the public perspective shall be treated so as to present a neutral commercial appearance (and not visible storage units).

(22)

Fencing shall be masonry, wrought iron, steel, wood, or aluminum and shall be painted or vinyl coated with colors that complement the building. High-security fencing, razor ribbon, or similar materials is prohibited.

(23)

All multistory self-storage facilities shall have elevators.

(24)

No more than 10% of individual storage units shall be directly accessible from the exterior of the building. Ninety percent of all units shall only be accessible from the interior of the building.

(25)

The self-storage facility shall contain sprinklers.

(26)

The self-storage facility shall prepare and provide a market analysis, demonstrating the need for such facility at the subject location, as well as demonstrate that there is not an overconcentration of such facilities in a particular neighborhood.