[HISTORY: Adopted by the Board of Trustees
of the Village of Sea Cliff 5-29-2001 by L.L. No. 2-2001. Amendments
noted where applicable.]
This chapter shall be known and may be cited
as the "Wireless Telecommunications Facilities Siting Law for the
Incorporated Village of Sea Cliff."
A.
On February 8, 1996, the United States Congress enacted
the Telecommunications Act of 1996 (hereinafter referred to as the
"Act"). The purpose of the Act is to provide a more competitive environment
for wired and wireless communication services in the United States
by deregulating the telecommunications industry. The Act preserves
the authority of local government to regulate the placement, construction,
and modification of wireless telecommunications facilities.
B.
The purpose of this chapter is to establish predictable
and balanced regulations for the siting and screening of wireless
telecommunications facilities in order to accommodate the growth of
such systems within the Incorporated Village of Sea Cliff (hereinafter
referred to as the "Village") while protecting the public against
any adverse impacts on aesthetic resources, avoiding potential damage
to adjacent properties from tower failure through structural standards
and setback requirements, and reducing the number of towers needed
to service the Village by maximizing the use of existing towers and
structures.
C.
This chapter is intended to regulate the placement,
construction, and modification of wireless telecommunications facilities
in order to protect the health, safety, and welfare of the public,
while at the same time not unreasonably interfering with the development
of the competitive wireless telecommunications marketplace in the
Village. Specifically, this chapter is intended to:
(1)
Establish a fair and efficient process for the review
and approval of applications;
(2)
Regulate the location of the wireless telecommunications
facilities in the Village;
(3)
Protect residential areas and land uses from potential
adverse impacts of wireless telecommunications facilities;
(4)
Minimize negative and adverse visual impacts of wireless
telecommunications facilities through careful design, siting, landscaping,
and innovative camouflaging techniques in order to protect the natural
features and aesthetic character of the Village;
(5)
Promote and encourage shared use/colocation of freestanding
towers and antenna support structures as a primary option rather than
construction of additional single-use towers;
(6)
Promoting and encouraging wherever possible, the placement
of a wireless telecommunications facility in such a manner as to cause
minimal disruption to the land, property, buildings and other facilities
adjacent to, surrounding and in generally the same area as the requested
location of such a wireless telecommunications facility and to minimize
adverse aesthetic impacts to the community;
(7)
Promote and encourage utilization of technological
designs that will either eliminate or reduce the need for erection
of new tower structures to support antennas and telecommunications
facilities;
(8)
Avoid potential damage to property caused by wireless
telecommunications facilities by ensuring such structures are soundly
and carefully designed, constructed, modified, maintained, and removed
when no longer used or determined to be structurally unsound;
(9)
Ensure that wireless telecommunications facilities
are compatible with surrounding land uses; and
(10)
Assure an integrally comprehensive review of environmental
impacts of wireless telecommunications facilities.
D.
Jurisdiction.
(1)
The Communications Act of 1934, as amended by the
Act, grants the Federal Communications Commission (FCC) exclusive
jurisdiction over:
(2)
The Village's regulation of wireless telecommunications
facilities in the Village will not have the effect of prohibiting
any person from providing wireless telecommunications services which
effect would be in violation of the Act.
For the purposes of this chapter, and where
not inconsistent with the context of a particular section, the defined
terms, phrases, words abbreviations and their derivations shall have
the meaning given in this section. When not inconsistent with the
context, words in the present tense include the future tense, words
used in the plural number include words in the singular number, and
words in the singular number include the plural number. The word "shall"
is always mandatory and not merely directory.
An accessory building, facility, or structure serving or
being used in conjunction with a wireless telecommunications facility
and located on the same property or lot as the wireless telecommunications
facility, including, but not limited to, utility or transmission equipment
storage sheds or cabinets, and/or base stations designed and used
to shelter equipment and/or to support personal wireless services.
The term "accessory structure" does not include offices, long-term
storage of vehicles or other equipment storage, or broadcast studios.
A device used to propagate and/or collect electromagnetic
waves or radio frequency signals.
All poles or devices that attach an antenna to a tower or
antenna support structure, including all connection cables.
Any building or structure, other than a freestanding tower,
used to support antennas used in personal wireless services.
Any person submitting an application to the Village for a
special use permit for wireless telecommunications facilities.
The process by which an applicant submits a request to the
Village for a special use permit for a wireless telecommunications
facility. The application shall include all necessary, appropriate,
and written documentation, verbal statements, and representations,
in whatever form or forum submitted or made by an applicant to the
Village concerning such request.
The Board of Trustees of the Village of Sea Cliff.
The construction of facilities to house or support a wireless
telecommunications facility so that the towers and/or antennas blend
readily with the landscape, neighborhood, and adjacent architectural
features. An example of camouflaging would be a simulated tree.
The use of the same telecommunications tower, building, facilities
or structure to carry two or more antennas for the provision of wireless
services by two or more persons or entities.
Shall have the meaning in this chapter and any special use
permit granted hereunder as is defined and applied under the United
States Uniform Commercial Code (UCC).
An application that contains all information and/or data
necessary to enable the Board to evaluate the merits of the application
and to make an informed decision with respect to the effect and impact
of the wireless telecommunications facility on the Village in the
context of the permitted land use for the particular location requested.
The environmental assessment form approved by the New York
State Department of Environmental Conservation.
Any person licensed by the State of New York to practice
engineering services.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
A self-supporting lattice or monopole structure specifically
designed for the purpose of supporting antennas used in connection
with a wireless telecommunications facility.
When referring to a freestanding tower or an antenna support
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.
Nonionizing electromagnetic radiation.
Any person with fee title or a long-term (exceeding 10 years)
leasehold to any parcel of land within the Village who desires to
develop or construct, build, modify or erect a tower upon such parcel
of land.
Any natural person, firm, partnership, association, corporation,
company or other legal entity, private or public, whether for profit
or not for profit.
Commercial mobile services, unlicensed, wireless services,
and common carrier wireless exchange access services as defined by
Section 704 of the Federal Telecommunications Act.
The property, including all buildings and structures located
thereon, on which a wireless telecommunications facility is, or is
proposed to be, located.
The official document or permit by which an applicant is
allowed to construct and use a wireless telecommunications facility
as granted or issued by the Village.
Any tower or wireless telecommunications facility which is
designed to enhance compatibility with adjacent land uses, including,
but not limited to, architecturally screened roof-mounted antennas,
antennas integrated into architectural elements, and towers designed
to look other than like a tower such as light poles, power poles,
and trees.
The transmission and reception of audio, video, data and
other information by wire, radio frequency, light and other electronic
or electromagnetic systems.
Any structure used in, associated with or necessary for the
provision of wireless services as described in the definition of "wireless
telecommunications facility."
In relation to all aspects and components of this chapter,
fewer than 90 days.
Freestanding tower.
A structure, facility or location designed, or intended to
be used, or used, to transmit and/or receive radio, television, cellular,
paging, 911 data, or personal telecommunications services, commercial
satellite services, or microwave telecommunications signals. Not included
are services used exclusively for fire, police and other dispatch
telecommunications or exclusively for private radio and television
reception and private citizen band, amateur radios and other similar
telecommunications. A wireless telecommunications facility shall include,
without limit, accessory structures and related equipment, antennas
applied to the facade of a building or roof-mounted antennas, antenna
attachments, freestanding towers, monopoles and similar structures,
and all other accessory structures and related equipment.
A.
No person shall build, erect, construct or use any
wireless telecommunications facility upon any parcel of land within
any zoning district within the Village unless a special use permit
shall have been issued by the Board of Trustees.
B.
No wireless telecommunications facility shall hereafter
be used, erected, changed, altered, or modified for use except after
obtaining a special use permit in conformity with this chapter.
C.
Nothing
in this chapter shall be construed to apply to, prohibit, regulate
or otherwise affect the erection, maintenance or utilization, including
antennae and support structures, which are deemed to be permitted
uses and shall not be subject to the issuance of a special use permit,
including:
[Added 6-7-2010 by L.L. No. 4-2010]
(1)
Such
uses located on property owned, leased or otherwise controlled by
the Village of Sea Cliff or any subdivision thereof, provided that
such uses are subject to a license or lease issued by the Village
Board of Trustees.
(2)
Such
uses located on portions of Village roadways known as rights-of-way,
provided that such uses are subject to a license or franchise agreement
with the Village Board of Trustees.
(3)
All
antennae which are accessory to permitted residential uses and are
mounted on the residential dwelling without a tower.
A.
The Board of Trustees is hereby authorized to review,
analyze, evaluate and approve, approve with modifications, or disapprove
applications for special use permits pursuant to this chapter, including
decisions with respect to recertifying or not recertifying, or revoking
such permits. The Board of Trustees shall have the authority to impose
such reasonable conditions and restrictions as are directly related
to and incidental to the proposed wireless telecommunications facility.
B.
The Board of Trustees shall review, analyze, evaluate
and make decisions with respect to granting or revoking special use
permits for wireless telecommunications facilities. The Board 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, recertifying
or not recertifying, or revoking special use permits for wireless
telecommunications facilities.
C.
A special use permit issued by the Board of Trustees
shall be effective for a period of three years which shall be renewable
thereafter upon reapplication by the applicant and the payment of
the required fee.
A.
All applicants for a special use permit for a wireless
telecommunications facility or any modification of such facility shall
comply with the requirements set forth in this section.
B.
All applicants for a special use permit for a wireless
telecommunications facility shall submit an application to the Building
Department on forms prepared by the Village of Sea Cliff.
C.
An application for a special use permit for a wireless
telecommunications facility 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 from 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.
D.
Applications not meeting the requirements stated herein,
or which are otherwise incomplete, may be rejected by the Board.
E.
The applicant shall include a statement, in writing:
(1)
That the applicant's proposed wireless telecommunications
facility 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 respective Board, in writing, as
well as all applicable and permissible local codes, rules and regulations,
including any and all applicable county, state and federal laws, rules
and regulations.
(2)
That the construction of the wireless telecommunications
facility is legally permissible, including, but not limited to, the
fact that the applicant is authorized to do business in New York State.
F.
No wireless telecommunications facility shall be installed
or constructed for the purpose of providing wireless telecommunications
service until a plan of the site is reviewed and approved by the Planning
Board during site plan review.
G.
All applications for the construction or installation
of, or the modification of an existing structure for use as, a new
wireless telecommunications facility shall be accompanied by a facilities
engineering report containing the information hereinafter set forth.
The report shall be signed by a licensed professional engineer registered
in New York State. Where this section calls for certification, such
certification shall be by a qualified New York State licensed professional
engineer acceptable to the Village, unless otherwise noted. The application
shall include, in addition to the other requirements for the special
use permit, the following information:
(1)
Documentation that demonstrates the need for the wireless
telecommunications facility to provide service primarily within the
Village.
(2)
The name, address, and telephone number of the person
preparing the report.
(3)
The name, address, and telephone number of the property
owner, lessee, operator and applicant, including the legal basis for
the applicant's authority.
(4)
The legal description, postal address, and tax map
designation of the property.
(5)
The zoning district in which the property is situated.
(6)
The size of the property, stated both in square feet
and lot line dimensions.
(7)
A survey of the property indicating the dimensions
of the property, the location and height of all structures, the location,
size and height of all proposed and existing towers, antennas, and
accessory structures, and the type, size and location of all proposed
and existing landscaping and fencing.
(8)
The location of all residential structures within
750 feet in the case of a freestanding tower and within 250 feet in
the case of all other wireless telecommunications facility applications.
(9)
The location of all habitable structures within 750
feet in the case of a freestanding tower and within 250 feet in the
case of all other wireless telecommunications facility applications.
(10)
The names, addresses, and telephone numbers of all
owners of other freestanding towers or existing antenna support structures
located within a one-half-mile radius of the proposed wireless telecommunications
facility including Village-owned property. The address and location
of each such freestanding tower or antenna support structure shall
be indicated.
(11)
The number, type and design of the wireless telecommunications
facility's proposed antenna(s) and the basis for the calculations
of the wireless telecommunications facility's 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 preexisting grade, materials,
color and lighting.
(14)
The frequency, modulation and class of service of
radio or other transmitting equipment.
(15)
The transmission and maximum effective radiated power
of the antenna(s).
(16)
The direction of maximum lobes and associated radiation
of the antenna(s).
(17)
A description of the design plan proposed by the applicant.
The applicant must identify its utilization of the most recent technological
design, including microcell design, as part of the design plan. The
applicant must demonstrate the need for a freestanding tower or an
antenna support structure microcell, cannot be utilized to accomplish
the provision of the applicant's telecommunications services.
(18)
The applicant's proposed wireless facility maintenance
and inspection procedures and related system of records.
(19)
Certification, including such documentation as the
Board of Trustees shall require, that NIER levels at the proposed
site are within the threshold levels adopted by the FCC.
(20)
A certification that the construction and placement
of the proposed freestanding tower and the proposed antenna(s) will
not interfere with public safety communications, the usual and customary
transmission or reception of radio, television, or other communications
services enjoyed by adjacent residential and nonresidential properties,
or other existing telecommunications devices.
(21)
A copy of the FCC license applicable for the use of
the wireless telecommunications facility.
(22)
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 tower on the proposed site.
(23)
Propagation studies of the proposed site and all adjoining
proposed or in-service or existing sites.
(24)
The applicant shall disclose, in writing, any agreement
in existence prior to submission of the application that would limit
or preclude the ability of the applicant to share any wireless telecommunications
facility that it constructs.
(25)
Certification that the wireless telecommunications
facility, foundation and attachments are designed and will be constructed
"as built" to meet all local, county, state and federal structural
requirements for loads, including wind and ice loads. If the wireless
telecommunications facility is subsequently approved and constructed,
similar "as-built" certification indicating that the wireless telecommunications
facility has been constructed in accordance with all standards shall
be furnished prior to the Village issuance of a special use permit.
(26)
An affidavit attesting to the fact that the applicant
made diligent, but unsuccessful, efforts to obtain permission to install
or colocate the applicant's wireless telecommunications facility on
Village-owned freestanding towers or antenna support structures located
within a one-half-mile radius of the proposed wireless telecommunications
facility.
(27)
An affidavit attesting to the fact that the applicant
made diligent, but unsuccessful, efforts to install or colocate the
applicant's wireless telecommunications facility on freestanding towers
or antenna support structure owned by other persons located within
a one-half-mile radius of the proposed wireless telecommunications
facility.
(28)
Written technical evidence from an engineer that the
proposed wireless telecommunications facility cannot be installed
or colocated on a freestanding tower or antenna support structure
owned by other persons located within a one-half-mile radius of the
proposed wireless telecommunications facility.
(29)
Certification that the proposed site of the wireless
telecommunications facility does not pose a risk of explosion, fire,
or other danger to life or property due to its proximity to volatile,
flammable, explosive, or hazardous materials such as LP gas, propane,
gasoline, natural gas, or corrosive or other dangerous chemicals.
H.
In the case of a new wireless telecommunications facility,
the applicant shall be required to submit a written report demonstrating
its efforts to secure municipal use or shared use of existing wireless
telecommunications facilities. Copies of written requests and responses
for shared use shall be provided to the Board.
I.
After construction and prior to receiving a special
use permit, the applicant shall furnish written certification that
the wireless telecommunications facility and related facilities are
grounded and bonded so as to protect persons and property and installed
with appropriate surge protectors.
J.
The applicant shall submit a completed long-form EAF
and a completed visual EAF addendum. Based on the results of the visual
EAF addendum, the Board may require submission of a more detailed
visual analysis. Applicants are encouraged to seek preapplication
meetings with the Board to address the scope of the required visual
assessment.
K.
A visual impact assessment which shall include:
(1)
A "zone of visibility" map which shall be provided
in order to determine locations where the facility may be seen.
(2)
Pictorial representations of "before" and "after"
views from key viewpoints both inside and outside of the Village to
be determined by the Board, including, but not limited to, major roads,
county and local parks, other public lands, historic districts, preserves
and historic sites normally open to the public, and from any other
location where the wireless telecommunications facility is visible
to a large number of visitors, travelers, or residents. The Village
will provide guidance concerning the appropriate key sites at a preapplication
meeting.
(3)
An assessment of the visual impact of the facility
base and accessory structures from abutting and adjacent properties
and streets.
(4)
Color photo simulations showing the proposed site
of the wireless telecommunications facility with a photo-realistic
representation of the proposed wireless telecommunications facility
as it would appear viewed from the closest residential property and
from adjacent roadways.
L.
The applicant shall, in a manner approved by the Board,
demonstrate and provide in writing and/or by drawing how it shall
effectively screen from view its proposed wireless telecommunications
facility base and all related facilities and structures.
M.
All utilities serving any wireless telecommunications
facility site shall be installed underground and in compliance with
all laws, rules and regulations of the Village, including, specifically,
but not limited to, the National Electrical Safety Code and the National
Electrical Code where appropriate. The Board may waive or vary the
requirements of underground installation of utilities whenever, in
the opinion of the Board, such waiver or variance shall not be detrimental
to the health, safety, general welfare or environment, including the
visual and scenic characteristics of the area.
N.
A demonstration that the wireless telecommunications
facility will be sited so as to have the least adverse visual effect
on the environment and its character, on existing vegetation, and
the residences in the area of the wireless telecommunications facility
site.
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 with the natural surroundings.
P.
Access and parking for vehicles 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
vegetation cutting. Road grades shall closely follow natural contours
to assure minimal visual disturbance and reduce soil erosion potential.
Q.
The applicant shall submit 15 copies of the completed
application and such additional copies as may be determined at the
preapplication meeting. A copy of the application shall be provided
to the legislative body of all adjacent municipalities and to the
Nassau County Planning Board. The responsibility of providing such
notification shall be borne by the applicant, who shall file an affidavit
of compliance with the Village.
R.
If the applicant is proposing the construction of
a freestanding tower, the applicant shall examine the feasibility
of designing a tower to accommodate future demand for at least two
additional commercial applications, e.g., future colocations. The
scope of this examination shall be determined by the Board of Trustees.
The wireless telecommunications facility shall be structurally designed
to accommodate at least two 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 wireless telecommunications facility
is not technologically feasible or is commercially impracticable and
creates an unnecessary and unreasonable burden, based upon:
(1)
The number of FCC licenses foreseeably available for
the area.
(2)
The kind of wireless telecommunications facility site
and structure proposed.
(3)
The number of existing and potential licenses without
wireless telecommunications facility spaces/sites.
(4)
Available space on existing and approved telecommunications
towers.
S.
Unless waived by the Board, there shall be a preapplication
meeting. The purpose of the preapplication meeting will be to address
issues which will help to expedite the review and permitting process.
Where the application is for the shared use of an existing telecommunications
tower or antenna support structure, the applicant can seek to waive
any application requirements that may not be applicable. At the preapplication
meeting, the waiver requests, if appropriate, will be decided by the
Village. Costs of the Village's consultants to prepare for and attend
the preapplication meeting shall be borne by the applicant.
T.
The holder of a special use permit shall notify the
appropriate Village authority of any intended modification of a wireless
telecommunications facility and shall apply to the Village to modify,
relocate or rebuild a wireless telecommunications facility.
U.
Any and all representations made by the applicant
to the Board, on the record, during the application process, whether
written or verbal, shall be deemed a part of the application and may
be relied upon in good faith by the Board.
A.
Location priorities.
(1)
Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities,
including freestanding towers or antenna or antenna support structures,
in accordance with the following priorities, No. 1 being the highest
priority and No. 5 being the lowest priority:
[Amended 11-13-2006 by L.L. No. 2-2006]
|
Priority Ranking
|
Location
| |
|---|---|---|
|
1
|
Colocation on an existing antenna support structure
other than a structure used exclusively for police and/or fire department
communications purposes
| |
|
2
|
Colocation on an existing freestanding tower
other than a structure used exclusively for police and/or fire department
communications purposes
| |
|
3
|
On Village property or structures
| |
|
4
|
On an existing tall structure which can be used
as an antenna support structure
| |
|
5
|
In commercial areas
| |
|
6
|
In nonresidential areas
| |
|
7
|
On other property in the Village
|
(2)
If the proposed property site is not 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 a special use permit should be granted for the proposed site and
the hardship that would be incurred by the applicant if the permit
were not granted for the proposed site.
(3)
An applicant may not bypass sites of higher priority
by stating that the site presented is the only site leased or selected.
An application shall address colocation as an option and, if such
option is not proposed, the applicant must explain why colocation
is commercially or otherwise impracticable. Agreements between providers
limiting or prohibiting colocation shall not be a valid basis for
any claim of commercial impracticability or hardship.
(4)
Notwithstanding the above, the Board may approve any
site located within an area in the above list of priorities, provided
that the Board finds that the proposed site is in the best interest
of the health, safety and welfare of the Village and its inhabitants.
B.
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
the site selected is not the highest priority, then a detailed written
explanation as to why sites of a higher priority were not selected
shall be included with the application.
C.
The applicant shall, in writing, identify and disclose
the number and locations of any additional sites that the applicant
has, is or will be considering, reviewing or planning for wireless
telecommunications facilities in the Village, and all municipalities
adjoining the Village, for a two-year period following the date of
the application.
D.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the
Board may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and
requirements.
(2)
Conflict with traffic needs or traffic laws, or definitive
plans for changes in traffic flow or traffic laws.
(3)
Conflict with the historic nature of a neighborhood
or historical district.
(4)
The use or construction of a wireless telecommunications
facility which is contrary to an already stated purpose of a specific
zoning or land use designation.
(5)
The placement and location of a wireless telecommunications
facility which would create an unacceptable risk, or the probability
of such, to residents, the public, employees and agents of the Village,
or employees of the service provider or other service providers.
(6)
Conflicts with the provisions of this chapter.
E.
The minimum distance between wireless telecommunications
facilities shall be 1/2 mile.
F.
No wireless telecommunications facility shall be located
within 300 feet of an historic building or structure.
A.
Location of antennas on preexisting structures shall
be considered and preferred. Shared use of existing towers or antenna
support structures shall be preferred by the Village, as opposed to
the proposed construction of new towers. Where such shared use is
unavailable, the applicant shall submit a comprehensive report which
lists an inventory of existing towers and antenna support structures
within one mile of any proposed new tower site, unless the applicant
can show that some other distance is more reasonable, and outlining
opportunities for shared use of existing facilities and the use of
other preexisting structures as a preferred alternative to new construction.
B.
An applicant intending to share use of an existing
tower or antenna support structure shall be required to document the
intent of the existing owner to share use.
C.
In the event that an application to share the use
of an existing tower does not increase the height of the tower, the
Board shall waive such requirements of the application required by
this chapter as may be for good cause shown.
D.
Such shared use shall consist only of the minimum
antenna array technologically required to provide service within the
Village unless good cause is shown.
E.
An application for a wireless telecommunications facility
shall not be approved unless the Board finds that the antenna planned
for the proposed wireless telecommunications facility cannot be accommodated
on an existing or approved tower or antenna support structure within
a one-half-mile radius of the proposed wireless telecommunications
facility due to one or more of the following reasons:
(1)
The antenna would exceed the structural capacity of
the existing or approved tower or antenna support structure, as documented
by a qualified professional engineer, and the existing or approved
tower or antenna support structure cannot be reinforced, modified,
or replaced to accommodate the planned or equivalent antenna at a
reasonable cost.
(2)
The antenna would cause interference materially impacting
the usability of other existing or planned antenna at the tower or
antenna support structure as documented by a qualified professional
engineer and the interference cannot be prevented at a reasonable
cost.
(3)
Existing or approved towers and antenna support structures
within the one-half-mile radius cannot accommodate the antenna at
a height necessary to function reasonably as documented by a qualified
professional engineer.
(4)
Other foreseen reasons that make it infeasible to
locate the antenna upon an existing or approved tower or antenna support
structure.
F.
Any proposed tower or installation on an antenna support
structure shall be designed, structurally, electrically, and in all
respects, to accommodate both the applicant's antennas and comparable
antennas for at least two additional users if the tower is over 80
feet in height or for at least one additional user if the tower is
over 60 feet in height. Towers and installations on antenna support
structures must be designed to allow for future rearrangement of antennas
upon the tower and the antenna support structure and to accept antennas
mounted at varying heights.
G.
The applicant shall submit to the Board of Trustees
a letter of intent committing the applicant and the owner of the property,
and their respective successors in interest, to negotiate in good
faith for shared use of the proposed tower or antenna support structure
by other personal wireless service providers in the future. The issuance
of a special use permit (assuming the wireless telecommunications
facility is approved according to this section) shall commit the new
tower owner, the operator of the wireless telecommunications facility,
and the owner of the antenna support structure, and their respective
successors in interest, to:
(1)
Respond in a timely comprehensive manner to a request
for information from a potential shared-use applicant.
(2)
Negotiate in good faith concerning future requests
for shared use of the new tower or antenna support structure, by other
personal wireless service providers.
(3)
Allow shared use of the new tower or antenna support
structure if another personal wireless service provider agrees in
writing to pay charges.
(4)
Make no more than a reasonable charge for shared use,
based on generally accepted accounting principles. The charge may
include, but is 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, and depreciation,
and all of the costs of adapting the tower or equipment to accommodate
a shared user without causing electromagnetic interference.
H.
In order to keep neighboring municipalities informed,
and to facilitate the possibility of directing that an existing tall
structure or existing tower in a neighboring municipality be considered
for shared use, the applicant shall forward a copy of the application
to the legislative body of each municipality that borders the Village
and the Nassau County Planning Commission. Attached to the application
shall be a notification which shall include the exact location of
the proposed tower or antenna support structure, and a general description
of the project including, but not limited to, the height of the tower
and antenna support structure and their respective capacities for
future shared use.
A.
The applicant must submit documentation justifying
to the respective Board the total height of any wireless telecommunications
facility and/or antenna and the basis therefor. Such justification
shall be to provide service within the Village, to the extent practicable,
unless good cause is shown.
B.
Wireless telecommunications facilities shall be no
higher than the minimum height necessary. Unless waived by the Board
upon good cause shown, the maximum height shall be 100 feet.
C.
The maximum height of any wireless telecommunications
facility shall not exceed that which shall permit operation without
artificial lighting of any kind, except emergency lighting for safety
purposes, in accordance with municipal, county, state and/or federal
laws and/or regulations.
A.
The use of guyed towers is prohibited. Freestanding
towers must be self-supporting without the use of wires, cables, beams
or other means. The design should utilize an open framework or monopole
configuration. Permanent platforms or structures exclusive of antennas
that serve to increase off-site visibility are prohibited.
B.
No new tower shall be built, constructed, or erected
in the Village unless the tower is capable of supporting another person's
operating wireless telecommunications facility comparable in weight,
size, and surface area to the wireless telecommunications facility
installed by the applicant on the tower within six months of the completion
of the tower construction.
A.
Wireless telecommunications facilities shall not be
artificially lighted or marked, except as required by law.
B.
Towers, accessory structures, antennas, and antenna
attachments shall be of a galvanized finish or painted with a rust-preventive
paint of an appropriate color to harmonize with the surroundings,
as approved by the Board, and shall be maintained in accordance with
the requirements of this chapter.
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, and
an artist's rendering or other visual representation showing the effect
of light emanating from the site on neighboring habitable structures
within 500 feet of all property lines of the parcel on which the wireless
telecommunications facility is located.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
which prevents unauthorized access. Specifically:
A.
All antennas, towers and accessory structures shall
be made inaccessible to individuals and constructed or shielded in
such a manner that they cannot be climbed or run into.
B.
Transmitters and telecommunications control shall
be installed such that they are readily accessible only to persons
authorized to operate or service them.
Wireless telecommunications facilities shall
contain a sign no larger than four square feet to provide adequate
notification to persons in the immediate area of the presence of an
antenna that has transmission capabilities. The sign shall contain
the name(s) of the owner(s) and operator(s) of the antenna(s) as well
as emergency telephone number(s). The sign shall be located so as
to be visible from the access point of the site. No other signage,
including advertising, shall be permitted on any wireless telecommunications
facilities, antennas, antenna support structures or antenna towers,
unless required by law. Signs, including their location, shall be
approved by the Board of Architectural Review.
A.
All proposed towers, antennas on an antenna support
structure, and associated equipment shall be set back from abutting
parcels, recorded rights-of-way and road and street lines a distance
equal to or greater than the existing setback requirements of the
underlying zoning district, or a distance sufficient to substantially
contain on site all icefall or debris from a tower or tower failure,
or from an antenna or antenna attachment failure, and to preserve
the privacy and sanctity of any adjoining properties.
B.
Wireless telecommunications facilities and antenna
support structures shall be located with a minimum setback from any
property line a distance equal to the existing setback requirement
of the underlying zoning district.
C.
Accessory structures shall be located so as to comply
with the minimum setback requirements for the property on which they
are situated.
D.
Setback requirements for towers and antenna support
structures shall be measured from the base of the tower or antenna
support structure to the property line of the parcel of land on which
it is located.
E.
Setback requirements may be modified when such modification
will permit placement of a tower or antenna or an antenna support
structure in a location which will reduce the visual impact.
F.
The setback of a tower or antenna or an antenna support
structure may be reduced in the sole discretion of the Board of Trustees
to allow the integration of a tower or antenna or antenna support
structure into an existing or proposed structure such as a church
steeple, light pole, power line, or similar structure.
Antennas, antenna attachments, towers and accessory
structures shall be designed by use of camouflaging and stealth design
to facilitate their blending into the surrounding environment through
the use of color and camouflaging architectural treatment, except
in instances where the color is indicated by federal or state authorities
such as the Federal Aviation Administration. Every antenna, antenna
attachment, tower and accessory structure shall be of neutral colors
that are harmonious with, and that blend with, the natural features,
buildings and structures surrounding such towers, antenna, antenna
attachments and structures; provided, however, that directional or
panel antennas and omnidirectional or whip antennas located on an
antenna support structure shall be of colors that match, and cause
the antenna to blend with, the exterior of the building. Accessory
structures will be designed to be architecturally compatible with
principal structures on the site.
All landscaping and buffer areas on a parcel
of land containing towers, antenna support structures, or telecommunications
structures shall be in accordance with the applicable landscaping
and buffer requirements in the zoning district where the tower, antenna
support structure, or telecommunications structures are located. The
Village may require landscaping or buffer areas in excess of the requirements
in the Village Code in order to enhance compatibility with adjacent
land uses. Landscaping shall be installed on the outside of any fencing.
Existing on-site vegetation shall be preserved to the maximum extent
practicable. The base of the tower and any accessory structures shall
be landscaped.
Any antennas which are not attached to a tower
may be permitted on any antenna support structure at least 50 feet
tall, regardless of the zoning restrictions pertaining to height applicable
to the zoning district where the structure is located. Antennas are
prohibited on all other structures. The owner of such structure shall,
by written certification to the Board of Trustees, establish the following
at the time plans are submitted for a special use permit:
A.
The height from grade of the antenna shall not exceed
the height from grade of the antenna support structure by more than
20 feet;
B.
Any antenna and antenna attachments located above
the primary roof of an antenna support structure shall be set back
one foot from the edge of the primary roof for each one foot in height
above the primary roof of the antenna. This setback requirement shall
not apply to antennas and their antenna attachments located above
the primary roof of an antenna support structure if such antennas
are appropriately screened from view through the use of panels, walls,
fences, or other screening techniques approved by the Village. Subject
to approval by the Board of Trustees, setback requirements shall not
apply to stealth antennas which are mounted to the exterior of antenna
support structures below the primary roof, but which do not protrude
more than 18 inches from the side of such an antenna support structure.
A.
The Board may hire any consultant and/or expert necessary
to assist the Board in reviewing and evaluating the application and
any requests for recertification.
B.
An applicant shall deposit with the Village funds
sufficient to reimburse the Board for all reasonable costs of consultant
and expert evaluation provided to the Board in connection with the
review of any application. The initial deposit shall be $7,500. These
funds shall accompany the filing of an application, and the Village
will maintain a separate escrow account for all such funds. The Village's
consultants/experts shall bill or invoice the Village no more frequently
than monthly for its services in reviewing the application and performing
its duties. If at any time during the review process this escrow account
has a balance less than $2,500, the applicant shall immediately, upon
notification by the Village, replenish said escrow account so that
it has a balance of at least $5,000. Such additional escrow funds
shall be deposited with the Village before any further action 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 billing
or invoicing at the conclusion of the review process, the difference
shall be promptly refunded to the applicant.
C.
The total amount of the funds set forth in Subsection 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 by the Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as reasonably required and requested by the Village, shall be paid by the applicant.
A.
Prior to the approval of any application for a special
use permit for a wireless telecommunications facility, 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.
B.
In order that nearby landowners are provided notice
of the hearing, the applicant, at least three weeks prior to the date
of said public hearing, shall provide the names and addresses of all
landowners whose property is located within 300 feet of any property
line of the lot on which the new wireless telecommunications facility
is proposed to be located. The applicant shall send notice of the
public hearing to all such landowners via certified or registered
mail, return receipt requested at least 10 days prior to the scheduled
date of the public hearing, and shall submit to the Board at the public
hearing proof of mailing of the notice of public hearing.
A.
The Board will undertake a review of an application
pursuant to this chapter in a timely fashion, consistent with its
responsibilities with 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 and need to be involved,
and the applicant's desire for a timely resolution.
B.
The Board of Trustees shall be the lead agency pursuant
to the State Environmental Quality Review Acct (SEQRA). In addition,
the Planning Board shall review the application pursuant to its site
plan review authority, including any environmental criteria or considerations
contained therein.
C.
The Board may refer any application or part thereof
to any other agency or committee for comments and nonbinding recommendations.
D.
The Board may require an applicant to supplement any
information that the Board considers inadequate or that the applicant
has failed to supply. The Board may deny an application on the basis
that the applicant has not satisfactorily supplied the information
required in this subsection.
E.
No decision shall be made by the Board of Trustees
until the Planning Board has completed its site plan review procedure
and issued a final decision thereon.
F.
After the public hearing and after formally considering
the application, the Board may approve and issue 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.
G.
If the Board approves the special use permit for a
wireless telecommunications facility, then the applicant shall be
notified of such approval in writing within 10 calendar days of the
Board's action, and the special use permit shall be issued within
30 days after such approval.
H.
Except for necessary building permits, and subsequent
certificates of compliance, once a special use permit has been granted
hereunder, no additional permits or approvals from the Village, such
as further site plan or zoning approvals, shall be required by the
Village for the wireless telecommunications facility covered by the
special use permit.
I.
If the Board denies the special use permit for a wireless
telecommunications facility, the applicant shall be notified of such
denial in writing within 10 calendar days of the Board's action.
A.
At any time between 12 months and six months prior
to the three-year anniversary date after the effective date of the
special use permit and all subsequent third anniversaries of the effective
date of the original special use permit for a wireless telecommunications
facility, the holder of a special use permit for such wireless telecommunication
facility shall submit a signed written request to the Board for recertification.
In the written request for recertification, the holder of such special
use permit shall note the following:
(1)
The name of the holder of the special use permit for
the wireless telecommunications facility;
(2)
If applicable, the number or title of the special
use permit;
(3)
The date of the original granting of the special use
permit;
(4)
Whether the wireless telecommunications facility has
been moved, relocated, rebuilt, or otherwise modified since the issuance
of the special use permit and if so, in what manner;
(5)
If the wireless telecommunications facility has been
moved, relocated, rebuilt, or otherwise modified, then whether the
Board approved such action, and under what terms and conditions, and
whether those terms and conditions were complied with;
(6)
Any requests for waivers or relief of any kind whatsoever
from the requirements of this chapter and any requirements for a special
use permit;
(7)
That the wireless telecommunications facility is in
compliance with the special use permit and in compliance with all
applicable codes, laws, rules and regulations;
(8)
Recertification that the wireless telecommunication
facility is designed and constructed ("as built") and continues to
meet all local, county, state and federal structural requirements
for loads, including wind and ice loads. Such recertification shall
be by a qualified New York State licensed professional engineer acceptable
to the Village the cost of which shall be borne by the applicant.
B.
If after such review, the Board determines that the
permitted wireless telecommunications facility is in compliance with
the special use permit and all applicable statutes, laws, local laws,
ordinances, codes, rules and regulations, then the Board shall issue
a recertification special use permit for the wireless telecommunications
facility, which may include any new provisions or conditions that
are mutually agreed upon, or required by applicable statutes, laws,
local laws, ordinances, codes, rules and regulations. If after such
review, the Board determines that the permitted wireless telecommunications
facility is not in compliance with the special use permit and all
applicable statutes, local laws, ordinances, codes, rules and regulations,
then the Board may refuse to issue a recertification special use permit
for the wireless telecommunications facility, and in such event, such
wireless telecommunications facility shall not be used after the date
that the applicant receives written notice of such decision by the
Board. Any such decision shall be in writing and supported by substantial
evidence contained in a written record.
C.
If the applicant has submitted all of the information requested by the Board and required by this chapter and if the Board does not complete its review, as noted in Subsection B of this section, prior to the three-year anniversary date of the special use permit, or subsequent third year anniversaries, then the applicant for the permitted wireless telecommunications facility shall receive an extension of the special use permit for up to six months, in order for the Board to complete its review.
D.
If the holder of a special use permit for a wireless telecommunications facility does not submit a request for recertification of such special use permit within the time frame noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the third anniversary of the original granting of the special use permit, or subsequent third year anniversaries, unless the holder of the special use permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimate extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
The extent and parameters of a special use permit
for a wireless telecommunications facility 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 consent of the Board,
and such consent shall not be unreasonably withheld or delayed.
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 for the wireless telecommunications facility, or for a material
violation of this chapter after prior written notice to the applicant
and the holder of the special use permit.
D.
A holder of a special use permit granted under this
chapter shall obtain, at its own expense, all permits and licenses
required by applicable law, rule or regulation and must maintain the
same, in full force and effect, for as long as required by the Village
or other governmental entity or agency having jurisdiction over the
applicant.
E.
Applicants shall submit information on the proposed
power density of their proposed wireless telecommunications facility
and demonstrate how this meets FCC standards. Applicants shall submit
evidence of compliance with FCC standards on a yearly basis to the
Village. If new, more restrictive standards are adopted, the antennas
shall be made to comply, or continued operations may be restricted
by the Board of Trustees. The cost of verification of compliance shall
be borne by the owner and operator of the tower.
F.
All wireless telecommunication facilities shall be
certified by an engineer to be structurally sound and in conformance
with the requirements of the Building Code and all other construction
standards set forth by the Village's Code and federal and state law.
Such certification shall be submitted with an application pursuant
to this chapter and every three years thereafter. The owner of the
wireless telecommunications facility may be required by the Village
to submit more frequent certifications should there be reason to believe
that the structural and electrical integrity of the wireless telecommunications
facility is jeopardized.
G.
Owners of a wireless telecommunications facility and
owners of an antenna support structure shall at all times employ ordinary
and reasonable care and shall install and maintain in use nothing
less than commonly accepted methods and devices for preventing failures
and accidents which are likely to cause damage, injuries, or nuisances
to the public.
H.
Owners of a wireless telecommunications facility shall
install and maintain towers, antennas, antenna attachments, accessory
structures, wires, cables, fixtures and all other equipment of the
wireless telecommunications facility in substantial compliance with
the requirements of the National Electric Safety Code and all FCC,
state, and local regulations, and in such manner that will not interfere
with the use of other property.
I.
All wireless telecommunications facilities and antenna
support structures shall at all times be kept and maintained in good
condition, order, and repair so that the same shall not menace or
endanger the life or property of any person.
J.
All maintenance or construction of wireless telecommunications
facilities and antenna support structures shall be performed by licensed
maintenance and construction personnel.
K.
All wireless telecommunications facilities shall maintain
compliance with current RF emission standards of the FCC.
L.
In the event that the use of a wireless telecommunications
facility is discontinued by the wireless telecommunications facility
owner, the wireless telecommunications facility owner shall provide
written notice to the Village of its intent to discontinue use and
the date when the use shall be discontinued.
A.
At the time that a person submits an application for
a special use permit for a wireless telecommunications facility, such
person shall pay a nonrefundable application fee of $5,000 to the
Village. If the application is for a special use permit for colocating
on an existing tower or antenna support structure where no increase
in height of the tower or antenna support structure is required, the
application fee shall be $2,000.
B.
No application fee is required in order to recertify a special use permit for a wireless telecommunications facility, unless there has been a 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 application fees provided in Subsection A shall apply.
The applicant and the owner of record of any
proposed wireless telecommunications facility property site shall
at their cost and expense, be jointly required to execute and file
with the Village a bond, or other form of security acceptable to the
Village as to type of security and the form and manner of execution,
in an amount of at least $75,000 and with such sureties as are deemed
sufficient by the Board to assure the faithful performance of the
terms and conditions of this chapter and the conditions of any special
use permit issued pursuant to this chapter. The full amount of the
bond or security shall remain in full force and effect throughout
the term of the special use permit and/or until the removal of the
wireless telecommunications facility, and any necessary site restoration
is completed. The failure to pay any annual premium for the renewal
of any such security shall be a violation of the provisions of the
special use permit and shall entitle the Board to revoke the special
use permit after prior written notice to the applicant and holder
of the permit and after a hearing upon due prior notice to the applicant
and holder of the special use permit.
A.
In order to verify that the holder of a special use
permit for a wireless telecommunications facility and any and all
lessees, renters, and/or licensees of wireless telecommunications
facilities, place, construct and maintain such facilities, including
towers, antennas, antenna attachments and accessory structures, in
accordance with all applicable technical, safety, fire, building,
and zoning codes, laws, ordinances and regulations and other applicable
requirements, the Village shall have authority to enter onto the property
upon which the wireless telecommunications facility is located to
inspect all facets of said permit holder's, renter's, lessee's, licensee's,
or owner's placement, construction, modification and maintenance of
such facilities, including, but not limited to, towers, antennas,
antenna attachments, accessory structures, buildings or other structures
constructed or located on the permitted site.
B.
The Village reserves the right to conduct such inspections
at any time, upon reasonable notice to the property owner and operator
of the wireless telecommunications facility. All expenses related
to such inspections by the Village shall be borne by the owner of
the wireless telecommunications facility.
The holder of the special use permit shall,
annually, certify in writing to the Village that NIER levels at the
site are within the threshold levels adopted by the FCC. The certifying
engineer must be licensed to practice engineering in the State of
New York.
A.
A holder of a special use permit for a wireless telecommunications
facility 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:
[Amended 11-13-2006 by L.L. No. 2-2006]
B.
The commercial general liability insurance policy
shall specifically include the Village as an additional named insured.
C.
The insurance policies shall be issued by an agent
or representative of an insurance company licensed to do business
in the State of New York 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 Village 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 Village at least 15 days before the expiration
of the insurance which such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications
facility 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 Village a copy of each of the policies or certificates
representing the insurance in the required amounts.
A.
Any application for a wireless telecommunication facility
that is proposed for Village property 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 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 wireless
telecommunications 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.
A.
In the event of a violation of this chapter or any
special use permit issued pursuant to this chapter, the holder of
the special use permit for the wireless telecommunications facility,
and the owner of the property on which the wireless telecommunications
facility is located, shall be guilty of a violation and shall, upon
conviction by a court of competent jurisdiction, be sentenced to a
fine as set forth below.
B.
A violation of this chapter shall be punishable by
a fine not exceeding $250 for conviction of a first offense; for conviction
of a second offense both of which were committed within a period of
five years, the violation shall be punishable by a fine of not less
than $250 nor more than $500; and, upon conviction for a third or
subsequent offense all of which were committed within a period of
five years, the violation shall be punishable by a fine of not less
than $500 nor more than $1,000.
C.
Notwithstanding anything in this chapter, the holder
of the special use permit for a wireless telecommunications facility
may not use the payment of fines, liquidated damages or other penalties
to evade or avoid compliance with this chapter or any section of this
chapter. An attempt to do so shall subject the holder of the special
use permit to termination and revocation of the special use permit.
The Village may also seek injunctive relief to prevent the continued
violation of this chapter, without limiting other remedies available
to the Village.
A.
If a wireless telecommunications facility is repaired,
rebuilt, placed, moved, relocated, modified or maintained in a way
that is inconsistent or not in compliance with the provisions of this
chapter or of the special use permit, then the Board 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 this chapter,
if the violation causes, creates or presents an imminent danger or
threat to the health or safety of lives or property, the Board may,
at its sole discretion, order the violation remedied within 24 hours.
B.
If within the period set forth in Subsection A above the wireless telecommunications facility is not brought into compliance with the provisions of this chapter, or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facility into compliance, then the Board may revoke such special use permit for the wireless telecommunications facility, and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the Board may determine
that the health, safety, and welfare interests of the Village warrant
and require the removal of a wireless telecommunications facility.
(1)
A wireless telecommunications facility with a permit
has been abandoned (i.e., not used as a wireless telecommunications
facility) for a period exceeding 90 days or a total of 180 days in
any three-hundred-sixty-five-day period, except for periods caused
by force majeure or acts of God, in which case, repair or removal
shall commence within 90 days;
(2)
A permitted wireless telecommunications facility falls
into such a state of disrepair that it creates a health or safety
hazard;
(3)
A wireless telecommunications facility has 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 Board makes such a determination as noted in Subsection A of this section, then the Board shall notify the holder of the special use permit for the wireless telecommunications facility and the owner of the property within 48 hours that said wireless telecommunications facility is to be removed. The Board may approve an interim, temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facility.
C.
The holder of the special use permit, or its successors
or assigns, or the property owner, shall dismantle and remove such
wireless telecommunications facility and all associated structures
and facilities, from the site and restore the site to as close to
its original condition as is possible, such restoration being limited
only by physical or commercial impracticability, within 90 days of
receipt of written notice from the Board. However, if the owner of
the property upon which the wireless telecommunications facility is
located wishes to retain any access roadway to the wireless telecommunications
facility, the owner may do so with the approval of the Board.
D.
If a wireless telecommunications facility is not removed
or substantial progress has not been made to remove the wireless telecommunications
facility within 90 days after the permit holder and the property owner
have received notice, then the Board may order officials or representatives
of the Village to remove the wireless telecommunications facility
at the sole expense of the owner and/or the special use permit holder.
E.
If the Village removes, or causes to be removed, the
wireless telecommunications facility, and the owner or operator of
the wireless telecommunications facility or the property owner do
not claim and remove it from the site to a lawful location within
10 days, then the Village may take steps to declare the wireless telecommunications
facility abandoned, and sell it and its components.
F.
Notwithstanding anything in this section to the contrary,
the Board may approve a temporary use permit/agreement for the wireless
telecommunications facility, for no more than 90 days, during which
time a suitable plan for removal, conversion, or relocation of the
affected wireless telecommunications facility shall be developed by
the holder of the special use permit, subject to the approval of the
Board, and upon such approval an agreement to such plan shall be executed
by the holder of the special use permit and the Village. If such a
plan is not developed, approved and executed within the ninety-day
time period, then the Village may take possession of and dispose of
the affected wireless telecommunications facility in the manner provided
in this section.
Any applicant desiring relief or exemption from
any aspect or requirement of this chapter may request such from the
Board at a 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 wireless telecommunications
facility. Such relief may be temporary or permanent; partial or complete,
at the sole discretion of the Board. However, the burden of proving
the need for the requested relief or exemption, is solely on the applicant
to prove to the satisfaction of the Board. The applicant shall bear
all costs of the Board or the Village in considering the request and
the relief shall not be transferable to a new or different holder
of the permit or owner of the wireless telecommunications facility
without the specific written permission of the Board. No such relief
or exemption shall be approved unless the applicant demonstrates by
clear and convincing evidence that, if granted, the relief or exemption
will have no significant affect on the health, safety and welfare
of the Village, its residents and other service providers, and the
Board must determine that the grant of relief or exemption does not
conflict with and/or violate the intent of this chapter. Under no
circumstances are the provisions for public hearing contained in this
chapter to be waived.
A.
To the extent that the holder of a special use permit
for a wireless telecommunications facility 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 a wireless telecommunications facility, then the holder
of such a special use permit shall conform the permitted wireless
telecommunications facility 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.
Where this chapter differs or conflicts with
other laws, rules and regulations, unless the right to do so is preempted
or prohibited by the county, state or federal government, the more
restrictive or protective of the Village and the public shall apply.
This chapter is enacted pursuant to the Municipal
Home Rule Law. This chapter shall supersede the provisions of Village
Law to the extent it is inconsistent with the same, and to the extent
permitted by the New York State Constitution, the Municipal Home Rule
Law, or any other applicable statute.
This chapter shall take effect 10 days after
publication, posting, and filing with the Secretary of State.
