[HISTORY: Adopted by the Council of the City of Schenectady 11-27-2006 by L.L. No. 5-2006. Amendments noted where applicable.]
The City of Schenectady finds that wireless telecommunications facilities may pose a unique set of circumstances concerning the health, safety, public welfare and environment. The City of Schenectady's intent is to minimize the negative impact of wireless telecommunications facilities and 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 citizens of the City of Schenectady. The provisions herein shall be liberally construed to effectuate this stated intent.
As used in this chapter, the following terms shall have the meanings indicated:
- A system of electrical conductors that transmit or receive electromagnetic waves or radio frequencies or other wireless signals. Such shall include, but not 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.
- The use of the same telecommunications tower or structure to support two or more antennas for the provision of wireless services by two or more persons or entities.
- 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 a commercial impracticability and shall not render an act or the terms of an agreement commercially impracticable.
- COMPLETED APPLICATION
- An application that contains all information and/or data necessary to enable the City or its duly authorized agent to evaluate the merits of the application and to make an informed decision with respect to the effect and impact of wireless telecommunications facilities on the City in the context of the permitted land use for the particular location requested.
- DIRECT-TO-HOME SATELLITE SERVICES or DIRECT BROADCAST SERVICE or DBS
- Only programming transmitted or broadcast by satellite directly to subscribers' premises without the use of ground receiving equipment, except at the subscribers' premises or in the uplink process to the satellite.
- The State and/or Federal Environmental Protection Agency or its duly assigned successor agency.
- The Federal Aviation Administration or its duly designated and authorized successor agency.
- The Federal Communications Commission or its duly designated and authorized successor agency.
- FREESTANDING TOWER
- A tower that is not supported by guy wires and ground anchors or other means of attached or external support.
- Non-ionizing electromagnetic radiation.
- PERSONAL WIRELESS FACILITY
- See definition for "wireless telecommunications facilities."
- PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS
- The same meaning as defined and used in the 1996 Telecommunications Act.
- The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
- TELECOMMUNICATIONS SITE
- See definition for "wireless telecommunications facilities."
- TELECOMMUNICATIONS STRUCTURE
- A structure used in the provision of services described in the definition of "wireless telecommunications facilities."
- WIRELESS TELECOMMUNICATIONS FACILITIES (includes "telecommunications tower," "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, telecommunications towers of all types and kinds, including but not limited to freestanding towers, guyed towers, monopoles, and similar structures that employ camouflage technology, including but not limited to structures such as a multistory building, church steeple, silo, water tower, sign or other similar 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 and 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, but excluding those used exclusively for fire, police and other dispatch telecommunications, or exclusively for private radio and television reception and private citizen's bands, amateur radio and other similar telecommunications where the height of the facility is below the height limits otherwise established by the City of Schenectady.
In order to ensure that the placement, construction, and modification of wireless telecommunications facilities protects the City's health, safety, public welfare, environmental features and the nature and character of the community and neighborhood and other aspects of the quality of life and is consistent with any adopted comprehensive plan and development policies, the City hereby establishes an overall policy with respect to a special use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:
Implementing an application process for person(s) seeking a special use permit for wireless telecommunications facilities;
Establishing a policy for examining an application for and issuing a special use permit for wireless telecommunications facilities that is both fair and consistent;
Establishing reasonable time frames for granting or not granting a special use permit for wireless telecommunications facilities, or recertifying or not recertifying or revoking the special use permit granted under this section;
Promoting and encouraging, wherever possible, the sharing and/or collocation of wireless telecommunications facilities among service providers;
Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner as to minimize adverse aesthetic impacts to 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 that is not technologically or commercially impracticable under the facts and circumstances.
Except as exempted by Subsection A below, 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 chapter and the following:
Notwithstanding any other provisions of this section and all subsections thereof, the collocation and/or shared use of antennas on existing telecommunications towers or other tall structures or compatible use structures, such as utility poles, water towers, and other towers, shall be exempt from the special use permit process and requirements of this section and shall be subject only to an administrative review process by the City.
The applicant shall include a statement in writing 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 or its duly authorized agent, in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable City, county, state and federal laws, rules, and regulations;
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 of New York.
All applications for the construction or installation of new wireless telecommunications facilities shall contain the information hereinafter set forth unless waived. The application shall be signed by an authorized individual on behalf of the applicant, and where a certification is called for, such certification shall be by a qualified New York State licensed professional engineer acceptable to the City, unless otherwise noted.
Unless waived or otherwise modified, the application shall include, in addition to the other requirements for the special use permit, the following information:
Size of the property, stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines;
The location of nearest residential habitable structure;
The location of nearest habitable structure;
The location, size and height of all structures on the property that is the subject of the application;
The location, size and height of all proposed and existing antennas and all appurtenant structures;
The type, locations and dimensions of all proposed and existing landscaping and fencing;
The number, type and design of the telecommunications tower(s) and antenna(s) proposed and the basis for the calculations of the telecommunications tower's capacity to accommodate multiple users;
The make, model and manufacturer of the tower(s) and antenna(s);
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;
The frequency, modulation and class of service of radio or other transmitting equipment;
The actual intended transmission and the maximum effective radiated power of the antenna(s);
Direction of maximum lobes and associated radiation of the antenna(s);
Certification that the RF (NIER) levels at the proposed site are within the threshold levels adopted by the FCC;
Certification by a qualified New York State licensed professional engineer that the proposed antenna(s) will not cause interference with other telecommunications devices;
A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities;
Propagation studies of the proposed site and all adjoining planned, proposed, in-service or existing sites; and
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 new telecommunications tower that it constructs.
In the case of a new telecommunications tower, the applicant shall be required to submit a written report demonstrating its meaningful efforts to secure shared use of existing telecommunications tower(s) or the use of alternative buildings or other structures within the City. Copies of written requests and responses for shared use may be required to be provided along with any letters of rejection stating the reason for rejection.
Foundation and attachments are designed and will be constructed to meet all local, county, state and federal structural requirements for loads, including wind and ice loads.
The applicant shall furnish written certification that the wireless telecommunications facilities will be effectively grounded and bonded so as to protect persons and property, and that the same was installed with appropriate surge protectors.
Prior to the issuance of a land use permit, the applicant may be required to submit a National Environmental Policy Act checklist required by the FCC.
The applicant shall furnish a visual impact assessment which shall include:
A "zone of visibility" map which shall be provided in order to determine locations from which the tower(s) may be seen.
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.
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.
The applicant shall, in a manner approved by the City, 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.
Any and all representations made by the applicant 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.
All utilities at wireless telecommunications facilities sites shall be installed underground and in compliance with all applicable laws, ordinances, rules and regulations, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code, where appropriate. The City may waive or vary the requirements of underground installation of utilities when, in the opinion of the City, such variance or waiver shall not be detrimental to the health, safety, general welfare and environment, including the visual and scenic characteristics of the area.
All wireless telecommunications facilities permit applicants shall demonstrate that the proposed facility will be sited so as to be the least visually intrusive to the extent 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. A visual impact assessment as set forth in Subsection H may be used to satisfy this requirement.
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, including but not limited to the placement of associated facilities underground.
At a wireless telecommunications facility site, an access road, turnaround space and/or parking area 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.
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 county, the state, or the 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 herein 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.
A holder of a special use permit granted under the provisions of this chapter 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.
The applicant shall examine the feasibility of designing a proposed telecommunications tower to accommodate future demand for at least five commercial applications, for example, future collocations. The scope of this examination shall be determined by the City or its duly authorized agent. The telecommunications 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 telecommunications tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:
The foreseeable number of FCC licenses available for the area;
The kind of wireless telecommunications facilities site and structure proposed;
The number of existing and potential licenses without wireless telecommunications facilities spaces/sites; and
Available space on existing and approved telecommunications towers.
The applicant for a new tower shall submit a letter of intent committing the owner of the proposed new tower, and his/her successors in interest, to negotiate in good faith for the shared use of the proposed tower by other telecommunications providers in the future. This letter shall be filed in the City's Planning Department. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the special use permit. The letter shall commit the new tower owner and his/her successors in interest to:
Respond within 60 days to a request for information from a potential shared-use applicant;
Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers; and
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.
Unless waived by the City 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. A preapplication shall also include a site visit, unless otherwise waived by the City. The costs of the consultants to prepare for and attend the preapplication meeting will be borne by the applicant. The preapplication meeting could be conducted by telephone or video conference at the discretion of the City.
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; provided, however, that nothing in this section shall be deemed to require an approval of a modification of a special use permit for the replacement of existing antennas or base station electronic equipment at a wireless transmission facility.
If required by the City, in order to better inform the public relative to the application for construction of a new telecommunications tower, the applicant shall, prior to the Planning Board meeting and the public hearing on the application, hold a "balloon test" as follows: the applicant shall arrange to fly, or raise upon a temporary mast, a minimum of a three-foot-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 in general circulation in the City and as agreed to by 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 eight 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 the second date, in case of poor visibility on the initial date, may be on a weekday.
The applicant will provided a written copy of an analysis, completed by a qualified individual or organization, to determine if the telecommunications tower or existing structure intended to support wireless telecommunications 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.
After an approved special use permit is recorded, the applicant shall submit, as part of the site plan approval and building permit process, the following information:
The make, model and manufacturer of the tower(s) and antenna(s);
Certification that a topographic and geomorphologic study and analysis has been conducted. Said study must take into account the subsurface and substrata conditions and proposed drainage, and certify that the site is adequate to assure the stability of the proposed wireless transmission facilities to be installed.
Written certification that the wireless telecommunications facility foundation and attachments are designed and will be constructed to meet all county, state and federal structural requirements for loads, including wind and ice loads.
Wireless telecommunications facilities may not be located in any area zoned either A, A-2, B, B-2, or C. The City will nevertheless consider an application to locate a facility within one of the listed zones, provided the applicant meets the requirements specified in the Telecommunications Act of 1996 and any applicable statute, rule or regulation promulgated thereunder.
Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, Subsection B(1) being the highest priority and Subsection B(5) being the lowest priority:
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 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.
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 collocation as an option. If such option is not proposed, the applicant must explain to the reasonable satisfaction of the City why collocation is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting collocation shall not be a valid basis for any claim of commercial impracticability or hardship.
Notwithstanding the above, the City may approve any site 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.
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.
The applicant shall, in writing, identify and disclose the number and locations of any additional sites that the applicant has been, is, or anticipates considering for the placement of wireless telecommunications facilities in the City, and all municipalities immediately adjacent to the City of Schenectady or within one mile of its border, for a two-year period following the date of the application, based on the information currently available to the applicant at that time.
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:
Conflict with safety and safety-related codes and requirements;
Conflict with traffic laws or adverse impact upon traffic needs or definitive plans for changes in traffic flow;
Adverse impact upon the historic nature or character of a neighborhood or historical district;
The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;
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;
Conflicts with the provisions of this chapter; and/or
There is no demonstration of need for a facility.
When telecommunications facilities are to be located on property owned by the City of Schenectady:
The standards specified herein shall apply, and, at the discretion of the City of Schenectady, appropriate fees may be charged; however, the application shall be exempt from the procedures and processes outlined herein.
The rent or other compensation paid to the City of Schenectady shall be negotiated and subject to the approval of the City Council.
Shared use of existing wireless telecommunications facilities shall be preferred by the City, as opposed to the construction of a new telecommunications support facility. Where such shared use is unavailable, location of antennas on other pre-existing structures shall be preferred. The applicant shall submit a comprehensive report inventorying existing towers and other appropriate compatible structures within four miles of any proposed new tower site, unless the applicant can show that some other distance is more reasonable, outlining opportunities for the shared use of existing facilities and the use of other pre-existing compatible structures as a preferred alternative to new construction.
An applicant intending to locate on an existing telecommunications tower or other compatible structure shall be required to document the intent of the existing owner to permit its use by the applicant. In the event an application to collocate on an existing telecommunications tower or compatible structure does not increase the height of the telecommunications tower or structure, the City shall waive such requirements of the application required by this chapter as may be inappropriate or for good cause shown.
The applicant shall submit documentation justifying to the City the total height of any telecommunications tower, facility and/or antenna and the basis therefor.
Telecommunications towers and facilities shall be no higher than the minimum height necessary to accomplish the wireless service coverage or capacity required within the community.
Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.
Telecommunications towers 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 City or its duly authorized agent, and shall be maintained in accordance with the requirements of this chapter.
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 1,500 feet of all property lines of the parcel on which the wireless telecommunications facilities are located.
Whenever practicable, the towers shall be erected in such a manner as to eliminate the need for guy wires.
All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner that prevents unauthorized access. Specifically:
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 run into; and
Transmitters and telecommunications control points must be installed in such a manner that they are readily accessible only to persons authorized to operate or service them.
Wireless telecommunications facilities shall contain a sign adequate 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 phone number(s). The sign shall be on the equipment shelter or shed of the applicant and be located so as to be visible from the access point of the site. The sign shall not be lighted, unless the City expressly allows such lighting or unless such lighting is required by applicable provisions of law. The sign shall be approved by the City before installation. No other signage, including advertising, shall be permitted on any facilities, antennas, supporting structures or antenna towers, unless required by law.
This section shall not prevent lighting and signs when the wireless telecommunications facilities are installed as a shared use on billboards or other similar structures.
All proposed wireless telecommunications facilities 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 tallest wireless telecommunications facility support structure plus 25 feet, or the existing setback requirements of the underlying zoning district, whichever is greater. If the tower is designed to break in the event of failure, the tallest shall be the greatest distance from the base of the tower that any single portion of the tower may reach. Any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.
The City may hire any consultant and/or expert necessary to assist in reviewing and evaluating the application.
An applicant shall deposit with the City funds sufficient to reimburse for all reasonable costs of review of the application plus the cost of consultants and/or expert evaluation and consultation to the City in connection with the review of any application. The amount of the initial deposit shall be established by the City and may be changed within the discretion of the City. These funds shall be deposited with the City five days prior to the preapplication meeting. The City consultants and/or experts shall bill or invoice the City, and the City will immediately notify the applicant of the amount being billed. If the balance in escrow should be diminished to an amount deemed insufficient to complete the review process, the applicant shall immediately, upon request by the City, replenish said escrow account by an amount determined by the City. 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 billing or invoicing at the conclusion of the project, the remaining balance shall be promptly refunded to the applicant. All invoices shall be itemized and be public records available for inspection.
The total amount of the funds needed as set forth above may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed by the City and/or its consultants and/or experts to complete the necessary review and analysis. Additional escrow funds, as reasonably required and requested by the City shall be paid by the applicant. However, notwithstanding any other provisions of this section, if the total amount paid to the consultants and/or experts exceeds $7,500 for a single application, such amount shall be subject to review and approval by the City Council at the request of the applicant.
No person shall be permitted to site, place, build, construct or modify, or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this chapter without having first obtained a special use permit for wireless telecommunications facilities. 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" or the collocation and/or shared use of antenna(s) exempted by § 257-4A.
New construction of and on existing wireless telecommunications facilities shall comply with the requirements of this section.
All wireless telecommunications facilities existing on or before the effective date of this chapter shall be allowed to continue as they presently exist; provided, however, that any modification to existing wireless telecommunications facilities (other than the modification, relocation or replacement of existing antenna(s) or base station electronic equipment) must comply with this section.
At any time between 12 months and six months prior to the five-year anniversary date after the effective date of the special use permit and all subsequent fifth anniversaries of the effective date of the original special use permit for wireless telecommunications facilities, the holder of a special use permit for such wireless telecommunications facilities shall submit to the City documentation as required by this section for recertification. In the recertification documentation, the holder of such special use permit shall note the following:
The name of the holder of the special use permit for the wireless telecommunications facilities;
If applicable, the number or title of the special use permit;
The date of the original granting of the special use permit;
Whether the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise modified since the issuance of the special use permit and, if so, in what manner.
If the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise modified (other than the modification, relocation or replacement of existing antenna(s) or base station electronic equipment), then the application for recertification shall state whether the City or its duly authorized agent approved such action, under what terms and conditions, and whether there was compliance with those terms and conditions;
Any requests for waivers or relief of any kind whatsoever from the requirements of this chapter and any requirements for a special use permit;
That the wireless telecommunications facilities are in compliance with the special use permit and in compliance with all applicable codes, laws, rules and regulations;
That the telecommunications tower and attachments both are designed and constructed ("as built") to and continue 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 City, the cost of which shall be borne by the applicant.
If, after review of the required documentation, the City determines that the permitted wireless telecommunications facilities are not in compliance with the special use permit and all applicable statutes, laws, ordinances, codes, rules and regulations, then the City may send notice that the wireless telecommunications facilities must either be brought into compliance within 60 days or the use of the same must terminate. Such compliance must be verified by an inspection, which inspection shall be performed expeditiously upon notice that the facility is ready for inspection. Any decision requiring the cessation of use of the facility or imposing a penalty shall be in writing and supported by substantial evidence contained in a written record and shall be promptly provided to the owner of the facility.
If the applicant has submitted all of the information requested by the City and required by this chapter, and if the City does not complete its review, as noted above, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months, in order for the City to complete its review.
If the holder of a special use permit for wireless telecommunications facilities does not submit documentation for recertification of such special use permit within the time frame noted above, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the City that extenuating circumstances prevented a timely submission of recertification documentation. If the City agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit late documentation or an application for a new special use permit.
The extent and parameters of a special use permit for wireless telecommunications facilities shall be as follows:
Such special use permit shall be nonexclusive;
Such special use permit shall run with the land and be enforceable upon successor owners and may be assigned, transferred or conveyed to successor owners of the wireless transmission facility after express prior written notification to the City.
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 wireless telecommunications facilities or for a material violation of this section after prior written notice to the applicant and the holder of the special use permit.
At the time that a person submits an application for a special use permit as outlined herein, or for a recertification, such person shall pay a nonrefundable application fee, established by the City, which may be changed within the discretion of the City to an amount not to exceed an amount commensurate with the complexity of the application, and in order to reimburse the City for its time and expenses involved in processing and reviewing the application.
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 established by the City, and as may be changed within the discretion of the City, and with such sureties as are deemed sufficient by the City, to assure the faithful performance of the terms and conditions of this chapter and conditions of any special use permit issued pursuant to this chapter. The full amount of the bond or security shall remain in full force and effect throughout the term of the special use permit and/or until the removal of the wireless telecommunications facilities 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 City 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.
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, ordinances 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.
The City reserves the right to require the holder of the special use permit to provide periodic certification in writing to the City that NIER levels at the site are within the threshold levels adopted by the FCC, so long as such certification is not required more frequently than annually. Unless otherwise waived by the City, the certifying engineer must be licensed to practice engineering in the State of New York; however, he/she need not be approved by the City.
A holder of a special use permit for wireless telecommunications facilities shall secure, and at all times maintain, liability insurance for personal injuries, death and property damage, in reasonable amounts consistent with industry standards, for the duration of the special use permit. Before construction of a permitted wireless telecommunications facility is initiated, 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. The City shall be a named insured on any and all such policies of insurance.
Any application for wireless telecommunications facilities that is proposed for City property, pursuant to this chapter, 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, save, hold harmless, and exempt the City, its officers, boards, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said facility, 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 attorney's fees, consultants' fees, and expert witness fees are included in those costs that are recoverable by the City.
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 this chapter or of the special use permit, then the City may notify the holder of the special use permit, in writing, of such violation. The applicant and/or holder of the special use permit shall have 60 days to cure any specified default. Upon a failure to cure the stated default, the City may revoke the special use permit and all use of the wireless telecommunications facilities shall cease.
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:
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 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;
Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard; and/or
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.
If the City makes such determination as noted in Subsection A 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.
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 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 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.
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.
If the City removes or causes removal of wireless telecommunications facilities and the owner of the wireless telecommunications facilities does not claim and remove all items 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.
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. 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 herein.
Any applicant or permittee (a party to the special use permit) desiring relief or exemption from any aspect or requirement of this section may request such from the City 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 tower and/or facilities. Such relief may be temporary or permanent, partial or complete, at the sole discretion of the City. 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 City. The applicant shall bear all costs of the City in considering the request, and the relief shall not be transferable to a new or different holder of the permit or owner of the tower(s) or facilities without the specific written permission of the City. Such permission shall not be unreasonably withheld or delayed. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted the relief or exemption, it will have no significant effect on the health, safety and welfare of the City, its residents and other service providers.
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.
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.