Buchanan City Zoning Code
ARTICLE XIII
Communications Towers and Personal Wireless Facilities
§ 211-59 Title.
This article may be known and cited as the "Communications Tower/Personal Wireless Facility Special Use Permit Ordinance for the Village of Buchanan."
§ 211-60 Definitions; word usage.
For purposes of this article and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations and their derivations shall have the 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.
Any device used to transmit or receive electromagnetic waves or frequency signals. The term "antenna" includes frequency signals for radio, television, paging, personal communications services (PCS) and microwave communications.
A person submitting an application to the Village of Buchanan for a special use permit for a communications tower or personal wireless facility.
The form approved by the Village, together with all necessary and appropriate documentation, that an applicant submits in its quest to receive a special use permit for a communications tower or personal wireless facility.
The Village Board of the Village of Buchanan.
The location on a communications tower or personal wireless facility which, in the event of a failure of the communications tower or personal wireless facility, would result in the communications tower or personal wireless facility falling or collapsing within the boundaries of the property on which the communications tower or personal wireless facility is placed.
Any tower or supporting structure that, due to design, location or appearance, partially or completely hides, obscures, conceals or otherwise disguises the presence of the tower and one or more antennas or antenna arrays affixed thereto.
The area in which any portion of a communications tower or personal wireless facility could or would fall, collapse or plunge to the ground or into a river or other body of water. The collapse zone shall be no less than the lateral equivalent of the height of the communications tower or personal wireless facility, plus 10 feet.
The Village of Buchanan, New York.
Westchester County, New York.
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.
Any structure, other than a tower, that facilitates the attaching, placement, locating or mounting of an antenna.
Any structure that serves a dual or multiple purpose, including, for example, such a tower located within or outside a bell or church steeple or a tower located within or outside a smokestack or chimney.
The length, either in months or years, of a grant for a special use permit for a communications tower or personal wireless facility and any related or appurtenant facilities.
The date on which the special use permit for a communications tower or personal wireless facility expires. On the expiration date and thereafter, the continued use of a communications tower or a personal wireless facility (including the use of any and all antennas or other telecommunications equipment) is prohibited, unless the holder of the special use permit for a communications tower or personal wireless facility has received either an extension or renewal of such special use permit by the Planning Board.
An initial or subsequent extension or continuance of a special use permit for a communications tower or personal wireless facility for a definitive period of time beyond the expiration date of a then existing special use permit for a communications tower or personal wireless facility.
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 tower that is not supported by guy wires and ground anchors or other means of attached or external support.
When referring to a tower or other structure, the distance measured from the ground level to the highest point on the tower or other structure, even if said highest point is an antenna.
Any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons having a joint common interest or governmental entity.
A facility or facilities used for the provision of personal wireless services. For purposes of this article, a communications tower or personal wireless facility includes any antenna used for the provision of personal wireless services. For purposes of this article, the term "a communications tower or personal wireless facility" does not include an antenna, satellite dish or other type of satellite or video-receiving device that is mounted or located on an individual residential unit or an amateur radio operator's tower or antenna, provided that the amateur radio operator's tower and antenna does not exceed 50 feet in height above ground level.
Commercial mobile services, unlicensed wireless services and common-carrier wireless exchange access services.
The officially designated agency of the Village to whom applications for a special use permit must be made and that is authorized to review, analyze and evaluate an application for a special use permit and that the Board relies on to make recommendations to the Board with respect to granting or not granting, renewing or not renewing, or revoking a special use permit for a communications tower or personal wireless facility.
A personal wireless facilities owner, which means the person who owns, controls or otherwise manages and has financial responsibility for a telecommunications facility.
The State of New York.
An application that contains all information and/or data necessary in order for the Village to evaluate the merits of the application and to make an informed decision with respect to the effect and impact of the communications tower or personal wireless facility on the Village in the context of the permitted land use for the particular location requested.
A tower that is supported, in whole or in part, by guy wires and ground anchor or other permissible and reliable means of support in addition to the superstructure of the tower itself.
With respect to any structure or facility associated with a communications tower or personal wireless facility, any structure or facility intended to or that does exist for fewer than 30 days.
Any structure that is designed and constructed primarily for the purpose of supporting one or more antennas, including self-supporting lattice towers, freestanding towers and supported towers. The term "tower" or "communications tower" includes radio and television transmission towers, microwave towers, common-carrier towers, cellular phone towers, dual tower structures and camouflaged tower structures.
The offering of telecommunications services using duly authorized devices which do not require individual licenses but does not mean the provision of direct-to-home satellite services.
§ 211-61 Overall policy and desired goals for special use permits.
A.
The Board recognizes that, under Section 704 of the Telecommunications Act of 1996, the Congress has preserved the authority of the Board to make decisions with respect to the placement, construction and modification of personal wireless facilities.
B.
The Board further recognizes that to the extent permitted by federal law, the placement, construction and modification of communications towers and personal wireless facilities must be consistent and compatible with the Village's zoning or land use code.
C.
In order to ensure that the placement, construction and modification of personal wireless facilities conforms to the Village's zoning or land use code, the Board creates a special use permit for a communications tower or personal wireless facility.
D.
As such, the Board adopts an overall policy with respect to special use permits for a communications tower or personal wireless facility for the express purpose of achieving the following goals:
(1)
Implementing an application process for persons seeking a special use permit for a communications tower or personal wireless facility.
(2)
Establishing a policy for examining and issuing a special use permit for a communications tower or personal wireless facility that is both fair and consistent with the current zoning or land use code of the Village.
(3)
Establishing reasonable time frames for the examination of a completed application for a special use permit for a communications tower or personal wireless facility.
(4)
Ensuring that the Planning Board's decision on an application for a special use permit for a communications tower or personal wireless facility is supported by substantial evidence contained in a written record.
(5)
Establishing reasonable parameters and conditions for special use permits for a communications tower or personal wireless facility.
(6)
Promoting and encouraging, wherever possible, the sharing and/or collocation of a communications tower or personal wireless facility among service providers.
(7)
Minimizing the potential negative effects on property values of properties adjacent to, or in reasonably close proximity to, the communications tower or personal wireless facility, such as a surrounding neighborhood with a distinctive character or appearance.
(8)
Promoting and encouraging, wherever possible, the placement of a communications tower or personal wireless facility in such a manner as to cause minimal disruption to aesthetic considerations of the land, property, buildings and other facilities adjacent to, surrounding, and in generally the same neighborhood as the requested location of such a communications tower or personal wireless facility.
§ 211-62 Special use permit required; exceptions.
A.
No person shall be permitted to place, construct or modify a communications tower or a personal wireless facility without having first obtained a special use permit for a communications tower or personal wireless facility.
B.
Notwithstanding Subsection A of this section, for purposes of this article, satellite dishes and equipment necessary to receive direct-to-home satellite video services shall not be considered a communications tower or personal wireless facility. As such, they are not subject to the provisions of this article and do not require a special use permit for placement, construction and modification.
C.
Notwithstanding Subsection A of this section, for purposes of this article, handheld, vehicular or other portable transmitters or receivers or the antennas needed for such portable transmitters or receivers, including but not limited to cellular phones, CB radios and emergency services radios, shall not be considered a communications tower or personal wireless facility. As such, they are not subject to the provisions of this article and do not require a special use permit for placement, construction and modification.
D.
Notwithstanding Subsection A of this section, but nevertheless subject to Subsection F of this section, any communications tower or personal wireless facility existing on the effective date of this article shall be grandfathered and not required to apply for and receive a special use permit for a communications tower or personal wireless facility unless and until any permit granted allowing for the construction of such either expires or is revoked. For the purpose of this section, an existing communications tower or personal wireless facility includes an existing dual-purpose antenna structure.
E.
Notwithstanding Subsection A of this section, but nevertheless subject to Subsection F of this section, any person who has applied for or submitted a request for the construction, erection or installation of a communications tower or personal wireless facility prior to October 6, 1997, which is the effective date of this article, shall be subject to the provisions of this article and shall be required to comply with its terms and provisions.
F.
For communications towers or personal wireless facilities that are covered under Subsections D and E of this section, the owners of such communications towers or personal wireless facilities will nonetheless be required to secure, obtain and maintain a special use permit for a communications tower or personal wireless facility prior to the time that such facility is relocated, rebuilt or modified or prior to the expiration of a current permit.
§ 211-63 Prescreened, preevaluated Village-owned locations.
A.
Consistent with the Village's desire to have communications towers or personal wireless facilities placed and located in areas that are deemed compatible with the surrounding designated zoning or land use and which should cause minimal disruption to or conflict with the surrounding aesthetics of a particular zoned land use, the Village will, within six months from the effective date of this article, conduct an examination of property that it owns and/or controls to determine what, if any, property meets the overall criteria noted in this article and as a result would support the location of a communications tower or personal wireless facility on such property owned by the Village.
B.
For prescreened, preevaluated Village-owned property that meets the overall criteria in this article and that is consequently deemed compatible with the designated surrounding zoning/land use, the Planning Board designates such property and locations as preapproved for the placement, construction and modification of a communications tower or personal wireless facility. As a result, a special use permit for a communications tower or personal wireless facility shall be issued, so long as the Planning Board determines that:
(1)
That the applicant's proposed communications tower or personal wireless facility is designed to be and will be structurally sound.
(2)
The applicant's proposed communications tower or personal wireless facility will be maintained in a safe manner and in compliance with the conditions of the special use permit, as well as all applicable and permissible local codes, ordinances and regulations, including any and all applicable county, state and federal laws, rules and regulations.
(3)
The applicant is financially sound.
(4)
The construction of the communications tower or personal wireless facility is otherwise legally permissible, including but not limited to the following:
(a)
All applicable fees, taxes and/or charges have been paid;
(b)
All necessary and required licenses and permits have been acquired;
(c)
All necessary and required insurance has been obtained and is in force and effect;
(d)
The corporate or other business structure has not lapsed in the state;
(e)
There is no history of violations or a lack of compliance with similar permits and applicable codes in other communities in the past three years;
(f)
There is no other legal impediment to constructing such a facility;
(g)
That the construction of the communications tower or personal wireless facility will occur no later than six months after the issuance of a special use permit;
(h)
That the communications tower or personal wireless facility will be used for the provision of service, as represented in the application, within one year of the date of placement or modification;
(i)
That the construction of the communications tower or personal wireless facility is intended primarily to provide service within the Village and is not intended primarily to provide service within an adjacent, adjoining or neighboring municipality, with service in the Village being merely incidental to the primary service area or the majority of the service area; and
(j)
That the proposed communications tower or personal wireless facility is designed to and will accommodate at least one other provider of telecommunications service.
C.
The special use permit for a communications tower or personal wireless facility that the Planning Board issues as a result of said prescreening and preevaluation shall be a standard special use permit for a communications tower or personal wireless facility that meets at least the minimum requirements for such a special use permit, which are listed elsewhere in this article, including any required or negotiated amendments thereto.
§ 211-64 Duration of special use permit; inspection; renewal; changed circumstances.
A.
A special use permit for a communications tower or personal wireless facility shall have a duration of five years from the date that the special use permit for a communications tower or personal wireless facility is issued, which shall be measured from the date that the special use permit for a communications tower or personal wireless facility is executed by the Village. The Village specifically reserves the right to be the last signatory to the special use permit and any related agreement. A permit for a term longer than five years may be requested, but the Village shall not be obligated to grant such longer term unless the applicant proves, to the satisfaction of the Planning Board, that such is needed to make the project economically viable in the context of the time required to realize the payback of the initial investment with a reasonable rate of return. In other words, the test for a longer term shall be one of commercial impracticability, as defined under the Uniform Commercial Code.
B.
At any time between 12 months and six months from the date that the special use permit for a communications tower or personal wireless facility is set to expire, the holder of such a special use permit may submit a written request for renewal, but in no event shall the request be accepted later than six months from the date of expiration of the special use permit. In the event that a request for renewal is not received by the Planning Board in a timely manner, then the holder of the special use permit for a communications tower or personal wireless facility shall have been deemed to have waived any right to renewal, absent a written waiver of the requirements of this subsection by the Planning Board. In the written request for renewal, the holder of such special use permit shall note the following:
(1)
The name of the holder of the special use permit for the communications tower or personal wireless facility;
(2)
If applicable, the number or title of the special use permit;
(3)
The date of expiration of the special use permit;
(4)
The requested duration or term of the special use permit, if the requested duration is for a period of time that is other than five years;
(5)
Whether the communications tower or personal wireless facility has been moved, relocated, rebuilt, repaired or otherwise modified since the issuance of the special use permit;
(6)
If the communications tower or personal wireless facility has been moved, relocated, rebuilt, repaired or otherwise modified, then whether the Planning Board approved such action and under what terms and conditions and whether those terms and conditions were complied with and abided by; and
(7)
Any requests for waivers or relief of any kind whatsoever from the requirements of this article and any requirements for a special use permit.
C.
Within 90 days from the date that the special use permit is set to expire, an authorized and qualified representative of the Village shall inspect the permitted communications tower or personal wireless facility to verify construction in compliance with the special use permit and compliance with all applicable codes, laws, rules and regulations.
D.
If, after such review, the Village determines that the permitted communications tower or personal wireless facility in compliance with the special use permit and all applicable codes, laws, rules and regulations, then the Village shall issue a renewal special use permit for a communications tower or personal wireless facility, which may include any new provisions that are mutually agreed upon or required by the force of law or regulation.
E.
If the Planning Board does not complete its review, as noted in Subsection C of this section, prior to the expiration date of the special use permit, then the applicant for the permitted communications tower or personal wireless facility shall receive an extension of the special use permit for up to six months, in order for the Village to complete its review as noted in Subsection C of this section.
F.
If the holder of a special use permit for a communications tower or personal wireless facility does not submit a request for renewal 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 expiration, unless the holder of the special use permit adequately demonstrates to the Planning Board that extenuating circumstances prevented a timely renewal request. If the Planning Board agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a renewal request within the Planning Board's new time frame under the conditions noted in Subsection B of this section. If time considerations warrant, then the existing special use permit for a communications tower or personal wireless facility may be extended for up to six months in order to allow the Village adequate time to review the renewal request.
§ 211-65 Authorization to issue special use permit.
Consistent with the authority granted by Congress in Section 704 of the Telecommunications Act of 1996, the Planning Board is authorized to issue a special use permit for the placement, construction and modification of a communications tower or personal wireless facility.
§ 211-66 Contents of application for special use permit; application fee.
A.
Except as noted in Subsection B of this section, an application, at a minimum, must contain the following information:
(1)
The name of the applicant.
(2)
Whether the applicant is an individual, partnership, limited partnership, limited liability company, professional corporation, corporation, professional association, governmental entity or other type of legal group or association.
(3)
A complete, thorough and accurate description of the proposed communications tower or personal wireless facility, including a scale drawing or model of the proposed communications tower or personal wireless facility at a scale and in sufficient detail to enable the determination of the adequacy of the design and the structural integrity of the communications tower or personal wireless facility, as well as its location and placement with respect to the requested site, including required setbacks.
(4)
The intended use of the proposed communications tower or personal wireless facility and, where applicable, noting whether the applicant has a contract, license, lease, letter of understanding, agreement in principle or other type of agreement or arrangement with another person or persons for the use of the proposed wireless facility and, if so, a summary of the agreement or arrangement, disclosing all material terms and conditions of such, so long as such disclosure would not reasonably be expected to place the applicant at a competitive disadvantage.
(5)
The proposed location of the communications tower or personal wireless facility, including both a legal description of the location and a map of sufficient detail so as to pinpoint the exact location of the tower and other facilities on the property within 12 inches of their exact intended location.
(6)
The zoning or land use designation for the site of the proposed communications tower or personal wireless facility.
(7)
Whether the communications tower or personal wireless facility is a tower, freestanding tower, supported tower or a dual-purpose tower and whether the proposed communications tower or personal wireless facility is a camouflaged tower structure.
(8)
Whether the antennas (transmission and receiving facilities) proposed are to be located on an existing tower, freestanding tower, supported tower, a dual-purpose tower or a camouflaged tower structure or a dual-purpose antenna structure.
(9)
If it is a tower, the height of the proposed communications tower or personal wireless facility when fully and completely constructed and erected.
(10)
A certified engineering analysis and/or other data and/or documents that adequately demonstrate that, in the event of a catastrophic failure, fall or collapse of the proposed communications tower or personal wireless facility, said communications tower or personal wireless facility would fall or collapse completely within the collapse zone of the communications tower or personal wireless facility and would not damage, endanger or otherwise negatively impact the real or personal property of the surrounding property owners or the owner of the proposed site, if the property on which the communications tower or personal wireless facility is to be located is leased or rented, or endanger the safety of persons outside the collapse zone.
(11)
Written evidence that any and all applicable requirements regarding RF emission standards, as such may exist at any time, will be complied with, pursuant to applicable authority.
(12)
Documentation that the proposed communications tower or personal wireless facility will be constructed in a manner that will withstand sustained winds of at least 150 miles per hour or the expected wind load created by a five-hundred-year storm, whichever is greater.
(13)
A description of proposed steps to be taken to ensure that aesthetic considerations are properly and adequately addressed, including a rendering or other visual representation showing the effect of light emanating from the site on neighboring residences within 1/4 mile.
(14)
An acknowledgment that all property owners within 750 feet of the communications tower or personal wireless facility have been previously notified of the intended construction and use of the tower or personal wireless facility.
(15)
Whether the applicant has previously sought a special use permit for a communications tower or personal wireless facility elsewhere in the state and, if so, where and what the ultimate disposition of the application was.
(16)
Whether the applicant has ever had a special use permit, a license, a franchise, a contract or any other legal authority revoked, rescinded, canceled or terminated, which authorized the placement of a communications tower or personal wireless facility.
(17)
A reasonably detailed description of the construction methods to be used to construct the communications tower or personal wireless facility.
(18)
The estimated time for completing constructing and/or locating the communications tower or personal wireless facility.
(19)
The proposed completion date for constructing and/or locating the communications tower or personal wireless facility.
(20)
If a tower is proposed, a detailed plan for sufficient lighting of an 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 residences within 1/4 mile.
(21)
A detailed plan outlining proposed security measures, including limiting access to the communications tower or personal wireless facility and associated equipment, in order to reduce the likelihood of trespass and injury from children and others.
(22)
If a tower is proposed, a detailed plan for ingress and egress, including, where warranted and/or needed, special ingress and egress routes for emergency vehicles, such as emergency medical technician vehicles and ambulances and fire, police and other emergency and law enforcement vehicles, as well as vehicles needed for the maintenance and emergency repair of the permitted facilities.
(23)
If a tower is proposed, a reasonably detailed preventive maintenance plan, including a proposed schedule for the regular inspection of the entire structural facility and any component parts of the structural facility, in the context of a minimum commitment.
(24)
If a tower or other type of structure is proposed, certification by a professional engineer with appropriate qualifications and related experience 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 to the proposed communications tower or personal wireless facility on the proposed site.
(25)
An acknowledgment that the applicant has read, understands and intends to comply with this article and the applicable rules and regulations governing the issuance and enforcement of special use permits for a communications tower or personal wireless facility.
(26)
The names and qualifications of personnel who will construct the proposed communications tower or personal wireless facility, or if that is not known, then data or documentation sufficient to demonstrate to the Village that the applicant or representatives of the applicant has the technical ability, experience and wherewithal to construct the proposed communications tower or personal wireless facility.
(27)
A complete description of the services to be offered that are enabled to be provided using the communications tower or personal wireless facility, including but not limited to the frequencies to be used for each type of service, all relevant and needed RF emissions information related to the use of the facilities and the height of attachment to the tower of any and all equipment and antennas or other arrays to be attached.
(28)
An artist's rendering of the site showing the site after the completion of all construction and construction-related activity, including but not limited to the means of vehicular ingress/egress, drainage work and landscaping and screening or camouflaging work.
(29)
Sufficient data and documentation to demonstrate that applicant has the finances and funds committed and available that are needed to construct the proposed communications tower or personal wireless facility in the manner and in the time frame proposed or as otherwise required by this article.
(30)
If required by the Planning Board, a map showing any and/or all alternative locations in the Village that would achieve the desired service or coverage area, including situations that would require multiple towers and facilities of a lower height to achieve the desired service or coverage area, and accompanied by a cost comparison showing the estimated cost for each approach compared to the cost for the requested or preferred location, as well as a narrative describing any anticipated problems associated with the use of any alternative site or combination of sites.
(31)
Evidence that any and all applicable state requirements have been or will be fulfilled, including obtaining any required permits or other required authorization.
B.
Notwithstanding Subsections A and C of this section, a person (including the Village) seeking a special use permit for a communications tower or personal wireless facility, in order to place such facility on land that is owned by the Village, shall, in addition, follow the procedure detailed in § 211-63 of this article.
C.
At the time that a person submits an application for a special use permit for a communications tower or personal wireless facility, such person shall also submit an application fee in an amount as set from time to time by resolution of the Board of Trustees. The application fee is in addition to any costs that the Village incurs, encounters, expends or absorbs during its review and evaluative process, and such additional costs and expenses shall be charged in accordance with the appropriate provisions of this chapter. The application fee is nonrefundable, regardless of whether or not the person receives a special use permit for a communications tower or personal wireless facility.
[Amended 2-7-2011 by L.L. No. 9-2011]
D.
An application fee in an amount as set from time to time by resolution of the Board of Trustees is required in order to make application to extend or renew a special use permit for a communications tower or personal wireless facility.
[Amended 2-7-2011 by L.L. No. 9-2011]
E.
In the case of a change or modification of an application during the application process and prior to the issuance or denial of a special use permit for a communications tower or personal wireless facility or a change or modification in the plans submitted as part of an application for a special use permit for a communications tower or personal wireless facility, the applicant shall pay to the Village a nonrefundable change of request fee, in an amount as may be established by the Village from time to time. Moreover, to minimize changes or revisions in applications that are primarily for the convenience of the applicant or service provider and on which the efficacy of the project or venture does not hinge, after the first change or modification, each additional or subsequent change or modification of the application or of the plans submitted as part of an application for a special use permit for a communications tower or personal wireless facility prior to the issuance or denial of the special use permit shall require an additional fee that shall increase in increments as established by the Village, which shall accompany each requested change submitted either for the same site or under the same permit application. For purposes of example only, a second change or modification would require a fee consisting of the amount for an initial application plus the increment established by the Village for considering changes or revisions to an initial application.
§ 211-67 Review of certain factors in evaluating application and merits for special use permit.
A.
In its review of the application for a special use permit for personal wireless facilities, the Planning Board shall evaluate certain factors in determining whether to grant or deny a special use permit for personal wireless facilities. Those certain evaluative factors are as follow:
(1)
The proposed duration of the special use permit.
(2)
The proposed location of the communications tower or personal wireless facility.
(3)
The zoning or land use designation of the proposed wireless facility.
(4)
If the proposed communications tower or personal wireless facility is a tower or a freestanding antenna or supported antenna, then the height of the tower or freestanding antenna or supported antenna.
(5)
The proposed or the expected or the actual means of access to the communications tower or personal wireless facility.
(6)
The number of communications towers or personal wireless facilities already existing within a specific section or grid of the Village or already existing within the existing zoning or land use designation and the identification of such on a map to a scale of one inch to 1,000 feet, such map to be provided by the applicant.
(7)
The proximity of the proposed communications tower or personal wireless facility to residential units or residential subdivisions within 1/2 mile of the proposed site.
(8)
The proposed aesthetic treatment surrounding the communications tower or personal wireless facility, showing the type of structure and showing any proposed landscaping, plantings, screening, etc., of the property immediately surrounding the communications tower or personal wireless facility.
(9)
The projected collapse zone of the proposed communications tower or personal wireless facility in relation to surrounding buildings and property adjacent to the site.
(10)
Plans to visually blend the proposed communications tower or personal wireless facility with the character of surrounding buildings and facilities.
(11)
If the proposed communications tower or personal wireless facility is part of a camouflaged tower or antenna, then the manner in which it is to be camouflaged.
(12)
If the transmission facilities to be attached to or associated with the proposed communications tower or personal wireless facility will comply with all applicable RF emissions limits and requirements.
(13)
Any other factors that are required to be evaluated by the zoning or land use code of the Village.
B.
In addition to the factors listed in Subsection A of this section, the Planning Board may consider alternatives, if there are any, to granting and/or issuing a special use permit for a communications tower or personal wireless facility in a different section, quadrant or grid of the Village in relation to the Zoning Map of the Village or at a different location within the Village. Among the alternatives are the grant of a special use permit for a communications tower or personal wireless facility at a preapproved or prescreened Village-owned location.
C.
If the proposed or requested site or location for the communications tower or personal wireless facility is unacceptable for any permissible reason and if there are alternative locations that are acceptable to the Village, the Village may require the applicant to locate at one or more of the alternative sites, so long as doing so does not have the effect of prohibiting the emergence of a new service provider or is not commercially impracticable as defined under the United States Uniform Commercial Code.
§ 211-68 Time frames for examination and evaluation of application; submittal to Planning Board.
A.
From the date that a person submits a completed application for a special use permit for a communications tower or personal wireless facility, the Village shall have up to 120 days in which to examine and evaluate the application in a manner consistent with both the policies and evaluative criteria outlined in this article.
B.
Notwithstanding Subsection A of this section, the Village may request additional information from an applicant if needed, even if the application is substantially completed, in order for the Village to conclude its evaluation and examination of said application. The applicant shall comply with such a request in a timely manner. However, such a request shall not extend the time frame for the Village to conclude its evaluation and examination of said application, unless the information is not provided within the time frame established by the Village. In the event that the requested information is not provided in a timely manner, the time for the evaluation and examination of said application shall be tolled until the requested information is provided.
C.
On the date that the Village concludes its examination and evaluation of an application for a special use permit for a communications tower or personal wireless facility, it shall:
§ 211-69 Planning Board action on special use permit application.
A.
The Planning Board shall complete its examination and evaluation within a reasonable period of time as prescribed by law.
B.
The Planning Board shall consider an application for a special use permit for a communications tower or personal wireless facility at a hearing open to the public that is duly noted and/or advertised to the public according to applicable rules. The public hearing shall allow for public input from interested parties.
C.
The Village shall give the applicant at least 21 days' notice in advance of the public hearing to consider the applicant's application for a special use permit for a communications tower or personal wireless facility. The applicant may request a rescheduling of the public hearing date, and for sufficient cause, the Planning Board may reschedule the public hearing date. However, in such a case, the Planning Board shall be under no obligation to formally consider the application within the time frame noted in Subsection A of this section. This specifically means that if an applicant requests an earlier date for the public hearing than was originally set and such a request is granted, then the Planning Board shall have until the expiration of time allowed under Subsection A as measured from the date of the hearing as originally set.
D.
During the hearing, the Planning Board shall receive input from the applicant; staff, representatives and consultants for the Village; the Planning Board; and the public, which includes representatives from homeowners' or civic associations. During the public hearing, the Planning Board may question any person that speaks for or against the issuance of a special use permit for a communications tower or personal wireless facility.
E.
After formally considering the application, the Planning Board may take one of three actions:
F.
If the Planning Board approves the special use permit for a communications tower or personal wireless facility, then the applicant shall be notified in writing within 10 calendar days of the Planning Board's action, and the special use permit shall be issued and executed within 30 days after such approval, with the Village reserving the right to be the last signatory to the special use permit and any related agreement.
G.
If the Planning Board denies the special use permit for a communications tower or personal wireless facility, then the applicant shall be notified in writing within 10 calendar days of the Planning Board's action. The notification shall explain in detail the reasons for the denial and shall, where practical, reference any deficiencies among the evaluative criteria noted elsewhere in this article.
H.
If the Planning Board conditionally approves the special use permit for a communications tower or personal wireless facility, then the applicant shall be notified within 10 calendar days of the Planning Board's action. The notification shall precisely detail the reasons for the conditional approval. A conditional approval for a special use permit for a communications tower or personal wireless facility may be granted in those circumstances where only minor deficiencies or issues in the evaluative process remain, such as final approval of specific details of an acceptable plan regarding the aesthetic treatment. Under no circumstances shall such conditional approval extend beyond 60 days from the date of the Planning Board's action.
I.
In the case of a conditional approval of a special use permit for a communications tower or personal wireless facility, such special use permit shall not be issued until the Planning Board is satisfied that all legal, technical, safety, aesthetic, financial and conditional concerns have been met or exceeded.
§ 211-70 Extent and parameters of special use permit.
The extent and parameters of a special use permit for a communications tower or personal wireless facility shall be as follows:
A.
Such special use permit shall be nonexclusive;
B.
Such special use permit shall not be assignable or transferable without the express written consent of the Planning Board;
C.
Such special use permit shall not be extended or renewed, except in accordance with the procedures detailed in this article; and
D.
Such special use permit may be revoked, canceled or terminated for a violation of the conditions and provisions of the special use permit for a communications tower or personal wireless facility or for a violation of this article.
§ 211-71 Compatible/noncompatible zoning or land use designations or locations; waivers.
A.
Except as noted in Subsection E of this section, a communications tower or personal wireless facility must be located in a compatible location and/or zoning or land use designation.
B.
Consistent with the Village's zoning or land use code, a permitted communications tower or personal wireless facility may be placed in areas designated as M-1 of the Village Zoning Map.
C.
Consistent with the Village's zoning or land use code, a communications tower or a personal wireless facility may not be placed in any other location and/or zoning or land use designated on the Village Zoning Map other than those locations designated as an M-1 Zone on the Village Zoning Map.
D.
While not limited to the following, locating a communications tower or personal wireless facility in a zoning or land use designation noted in Subsection C of this section would not be compatible for 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 residential section of the Village;
(4)
The use or construction of a communications tower or personal wireless facility is contrary to an already stated purpose of a specific zoning or land use designation; or
(5)
The placement and location would create an unacceptable risk or the probability of such to residents, the public, Village employees and agents or employees of the service provider.
E.
Notwithstanding the other provisions of this section, a person may seek to locate a communications tower or personal wireless facility within a noncompatible zoning or land use designation. However, the person seeking such an exception must satisfactorily demonstrate to the Planning Board the reason or reasons why such a waiver should be granted and the hardship that would be incurred by the applicant or service provider if not granted or the benefits that might inure because of the exemption and the beneficiaries of the exemption.
F.
The Planning Board may grant a waiver for one or more of the following reasons:
(1)
The ruling of a state or federal agency of competent jurisdiction and authority requires the location of a communications tower or personal wireless facility within a noncompatible zoning or land use designation.
(2)
Federal or state law requires the location of a communications tower or personal wireless facility within a noncompatible zoning or land use designation.
(3)
A court or administrative body of competent jurisdiction and authority requires or orders the location of a communications tower or personal wireless facility within a noncompatible zoning or land use designation.
(4)
There is no other location or combination of locations available within the Village that would serve the intended purpose of the proposed site for the communications tower or personal wireless facility.
(5)
The proposed location for the proposed communications tower or personal wireless facility is an essential and/or necessary component of an overall telecommunications network for which there is no comparable or functional siting alternative as regards the desired service area.
(6)
The proposed location for the proposed communications tower or personal wireless facility is an essential and/or necessary component of an overall telecommunications plan of the Village.
G.
Notwithstanding the fact that the Planning Board may grant a waiver with respect to the zoning or land use designation, a proposed communications tower or personal wireless facility must still satisfy all other evaluative criteria before the Planning Board grants a special use permit for a communications tower or personal wireless facility.
§ 211-72 Minimum contents of special use permit.
A.
Should the Planning Board issue a special use permit for a communications tower or personal wireless facility, such special use permit shall be sufficiently detailed so as to clearly delineate the rights, duties and obligations of the parties concerned.
B.
At a minimum, the special use permit shall contain provisions addressing and clearly delineating the following:
(1)
Duration of the special use permit, including a specific expiration date;
(2)
Insurance requirements and obligations;
(3)
Indemnification requirements and obligations;
(4)
Agreement to adherence to all applicable laws, codes, rules, regulations and fees requirements;
(5)
If applicable, conditions or provisions concerning all matters relating to site preparation;
(6)
Conditions or provisions concerning the adherence to any and all maintenance standards and requirements;
(7)
Conditions or provisions concerning an assignment or transfer of the special use permit;
(8)
Conditions or provisions concerning the repair, rebuild or modification of the communications tower or personal wireless facility;
(9)
Conditions or provisions concerning the removal of any communications tower or personal wireless facility; and
(10)
Termination, revocation, and/or cancellation of the special use permit.
§ 211-73 Adherence to state and/or federal rules and regulations.
A.
To the extent that the holder of a special use permit for a communications tower or personal wireless 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 communications tower or personal wireless facility, then the holder of such a special use permit shall conform the permitted communications tower or personal wireless 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.
§ 211-74 Insurance.
A.
A holder of a special use permit for a communications tower or personal wireless facility shall secure and at all times maintain public liability insurance, property damage insurance and umbrella insurance coverage for the duration of the special use permit in at least the following amounts:
B.
The public and personal liability and property damage insurance policy shall specifically include the Village and its officials, employees and agents as additional insureds.
C.
The public and personal liability insurance and property damage insurance policy shall be issued by an agent or representative of an insurance company licensed to do business in the state and which has one of the three highest ratings or best ratings from the Alfred M. Best Company or an equally recognized rating company.
D.
The public liability and property damage insurance policy shall contain an endorsement obligating the insurance company to furnish the Planning Board with at least 30 days' written notice in advance of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall be delivered to the Planning Board at least 15 days before the expiration of the insurance which such policies are to renew or replace.
F.
Before construction of a permitted communications tower or personal wireless 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 Clerk a copy of each of the policies or certificates representing the insurance in the required amounts.
G.
Absent a written extension of time for the delivery of the required copy(s) of the insurance policy or certificate(s) of insurance, should an applicant for a special use permit or a communications tower or personal wireless facility fail to provide said proof of insurance in a timely manner as set forth in Subsection F of this section, the special use permit shall be deemed revoked without the need for further proceedings or action by the Village, except that the Village must, within five days of the deadline, notify the holder of the special use permit of the revocation in writing.
§ 211-75 Indemnity.
A.
Any special use permit issued for the construction and/or location of a telecommunications facility shall contain a provision with respect to indemnity. Such a provision shall require the holder of the special use permit to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless and exempt the Village, Board and Supervisor, their officers, agents, servants and employees, from any and all penalties, damage or charges arising out of 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 construction, erection, modification, location, products performance, operation, maintenance, repair, installation, replacement, removal or restoration of a telecommunications facility, specifically including a tower or antenna, within the Village. With respect to the penalties, damages or charges referenced herein, reasonable attorney's fees, consultant fees and expert witness fees are included in those costs that are recoverable by the Village.
B.
Notwithstanding the requirements noted in Subsection A of this section, an indemnity provision will not be required in those instances where the Village itself applies for and secures a special use permit for a communications tower or personal wireless facility. The rationale for such an exemption is that the Village need not indemnify itself against loss or damage and, therefore, in such an instance, requiring an indemnity provision would be unnecessary.
§ 211-76 Construction standards.
A.
A person who holds a special use permit for a communications tower or personal wireless facility shall construct, operate, maintain, repair, modify or restore the permitted communications tower or personal wireless facility in strict compliance with all current technical, safety and safety-related codes adopted by the Village, 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 responsibly workmanlike industry practices and recommended practices of the National Association of Tower Erectors.
§ 211-77 Maintenance standards.
For the duration of any special use permit for a communications tower or personal wireless facility, the permitted communications tower or personal wireless facility must adhere to the following minimum maintenance standards:
A.
In order to minimize visual sighting concerns and the likelihood of deterioration affecting the structural integrity of the structural components of any permitted communications tower or personal wireless facility or a change in the condition of the structural components of the facility, if the permitted communications tower or personal wireless facility is a tower, then the tower shall be maintained in good condition at all times, shall be coated with a galvanized steel finish or other rust-resistant metal or be painted a neutral color using a rust-preventive paint or other treatment of proven good quality, subject to any applicable standards and requirements of the FAA and the National Association of Tower Erectors;
B.
If the permitted communications tower or personal wireless facility is a dual-purpose tower, then the openings in the other structure that is not a tower, such as a building or other enclosure and the equipment in the other structure shall be protected, including by fire sprinklers where applicable and/or required, against ingress or penetration and resultant damage by fire and windblown embers, or any other factor that could cause a fire;
C.
Any signs located on a permitted a communications tower or personal wireless facility must be consistent and compatible with the aesthetic treatment of the site as approved by the Planning Board, must be located so as not to interfere with routine, periodic and/or customary maintenance of the permitted communications tower or personal wireless facility and, if intended for the public, must be plainly visible and able to be read from a distance of no less than the outer limit of the collapse zone of the permitted communications tower or personal wireless facility; and
D.
Any debris, including but not limited to tree limbs, grass cuttings, abandoned solid waste or trash, construction materials or any other materials which would, in the sole determination of the Village, pose a threat to the health or safety of persons or property, whether real or personal, or reasonably create an aesthetic concern, shall not at any time be permitted to exist but, in any event, shall be removed within 24 hours of notification by the Village.
§ 211-78 Reservation of authority to inspect.
A.
In order to verify that not only the holder of a special use permit for a communications tower or personal wireless facility, but also any and all lessees, renters and/or licensees of a communications tower or personal wireless facility, places and constructs such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building and zoning or land use codes or other applicable requirements, the Village reserves the right to inspect all facets of said 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. This specifically includes any temporary structure or facility, as defined in § 211-60 of this article.
B.
The Village shall pay for all of its costs associated with such an inspection, except for those circumstances occasioned by said holder's, lessee's or licensee's refusal to provide necessary information or necessary access to such facilities, including towers, antennas and appurtenant or associated facilities, or refusal to otherwise cooperate with the Village with respect to an inspection.
C.
Payment of such reimbursement shall be made to the Village within 30 days from the date of the invoice or other demand for reimbursement. In the event that the finding(s) of violation is/are appealed in accordance with the procedures set forth in this article, said reimbursement payment must still be paid to the Village, and the reimbursement shall be placed in an escrow account established by the Village specifically for this purpose, pending the final decision on appeal.
§ 211-79 Permits and licenses.
A holder of a special use permit for a communications tower or personal wireless facility shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or ordinance and must maintain the same, in full force and effect, for as long as required by the Village or other appropriate governmental entity or agency.
§ 211-80 Default and/or revocation of special use permit.
A.
When any permitted communications tower or personal wireless facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with either the Village's zoning or land use code or the provisions of this article or of the special use permit, then the Planning Board shall notify the holder of the special use permit for a communications tower or personal wireless facility of the specific inconsistent, noncompliant or violative use or situation. Such notice shall indicate that the communications tower or personal wireless facility and any appurtenant or related facilities located at the permitted site is in violation of or noncompliance with the requirements of this article or the special use permit and that the holder of the special use permit is in default of its special use permit and that the facilities must be returned to consistent, compliant use and status within 10 days of the date of the postmark of the notice or of the date of personal service of the notice, whichever is applicable. Notwithstanding anything to the contrary in this subsection, if the situation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, in the sole determination of the Village, the Village may, at its sole discretion, order the violative or noncompliant situation remedied within 24 hours.
B.
If, within 10 days, the affected and noncompliant communications tower or personal wireless facility is not brought into compliance with either the zoning or land use or with an applicable law, rule or regulation or substantial steps are not taken in order to bring the affected communications tower or personal wireless facility into compliance with either this article, the zoning or land use code or with applicable law, rule or regulation, then the Planning Board may revoke such special use permit for a communications tower or personal wireless facility and shall notify the holder of the special use permit within 48 hours of such action.
§ 211-81 Removal.
A.
Under the following circumstances, the Planning Board may determine that the health, safety and welfare interests of the Village warrant and require the removal of a communications tower or personal wireless facility:
(1)
A permitted communications tower or personal wireless facility has been abandoned for a period exceeding 30 days, which in this case means not used for the intended and permitted purpose for a period of 30 days, except for situations caused by the commonly recognized definition of force majeure or acts of God of an extraordinary and catastrophic nature and effect.
(2)
A permitted communications tower or personal wireless facility falls into such a state of disrepair that it creates a health or safety hazard for the public.
(3)
The Planning Board elects not to renew the special permit for a communications tower or personal wireless facility.
(4)
A communications tower or personal wireless facility has been located, constructed or modified on property located within the Village without having obtained the required special use permit or other necessary authorization.
B.
If the Planning Board makes such a determination as noted in Subsection A of this section, then the Planning Board shall notify the holder of the special use permit for the communications tower or personal wireless facility within 48 hours that said communications tower or personal wireless facility must and shall be removed, unless the Planning Board approves an interim temporary use agreement/permit, such as to enable the sale of the communications tower or personal wireless facility.
C.
If a communications tower or personal wireless facility is not removed voluntarily within 90 days after the permit holder has received notice or substantial progress has not been made to remove the communications tower or personal wireless facility within 90 days, then the Planning Board may order officials or representatives of the Village to remove the communications tower or personal wireless facility at the sole expense of the owner or permit holder or the Village may take possession of the communications tower or personal wireless facility.
D.
If, pursuant to Subsection C of this section, officials, employees or representatives of the Village remove a communications tower or personal wireless facility and the owner of the communications tower or personal wireless facility does not claim the property within 10 days of its removal, then the Planning Board may take whatever steps are available under state law to declare the communications tower or personal wireless facility surplus and sell the facility and its components.
E.
If the Planning Board approves an interim temporary use agreement/permit for the communications tower or personal wireless facility, such agreement/permit shall be for no more 90 days, during which time a suitable plan for removal or conversion or relocation of the affected communications tower or personal wireless facility shall be developed by the holder of the permit, subject to the approval of the Village, and an agreement to such plan shall be executed by the holder of the permit and the Village. If such a plan is not developed within the ninety-day time frame, then the Village may take possession of and dispose of the effected communications tower or personal wireless facility in the manner noted in Subsection C of this section.
§ 211-82 Appeals.
To the extent permitted by federal and state law, any person adversely affected by the Planning Board's actions with respect to an initial application, renewal application or revocation of a special use permit for a communications tower or personal wireless facility shall have the right to appeal the adverse decision to the Planning Board and, if necessary, subsequently to the Village Board Planning Board. In the event of such an internal administrative appeal, to be consistent with the spirit and intent of Section 704 of the Telecommunications Act of 1996, said appeal shall be handled on an expedited basis, within 30 days of the date of the appeal. In the event of an appeal to a state or federal court or administrative agency of competent jurisdiction (including, where applicable, the PSC the FCC and the FAA), said appeal shall be filed in the manner and procedure prescribed by federal and state law and within the time frames noted under federal and state law.
§ 211-83 Periodic regulatory review by Board.
A.
Between 210 and 30 days prior to the fourth and eighth anniversary dates of the effective date of this article, the Board shall conduct a review and examination of this entire article.
B.
In conducting such a periodic review and examination of this article, the Board shall consider, among other things, the following:
(1)
Whether one or more provisions have been superseded, clarified or modified by federal or state law.
(2)
Whether one or more provisions have been superseded, clarified or modified by a subsequent binding judicial decision.
(3)
Whether one of more provisions are unnecessary or ineffective in light of emerging technologies.
(4)
Whether new or different trends relating to a communications tower or personal wireless facility warrant or necessitate additional safeguards for the public at large.
(5)
Whether subsequent safety or technological advances and/or innovations have lessened the need for one or more provisions.
C.
If after such a periodic review and examination of this article, the Board determines that one or more provisions of this article should be amended, repealed, revised clarified, or deleted, then the Board may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the Village, the Board may repeal this entire article at any time.
§ 211-84 Penalties for offenses.
A.
In the event of a violation of this article, the Village may impose and collect, and the holder of the special use permit for a communications tower or personal wireless facility shall pay to the Village, fines as set forth hereafter in this section.
B.
Each day that a violation exists after 48 hours following written notification by the Village to the permittee shall constitute a separate violation, subject to a separate fine.
C.
For situations that create an imminent threat to the health or safety of the public or the employees of any user or occupant of the communications tower or personal wireless facility, there shall be no requirement for written notification by the Village to the holder of the special use permit for a communications tower or personal wireless facility. Rather, in such situations, verbal notification, delivered personally or telephonically, shall be deemed sufficient notice.
(1)
For violation of any safety-related requirement: $1,000 per day per occurrence.
(2)
For failure to maintain the permitted site in a safe condition and as required, $500 per day per occurrence.
(3)
For undertaking any change or modification in or to a communications tower or personal wireless facility without the express written permission of the Village: $500 per day per occurrence.
(4)
For failure to comply with any applicable Village, county, state or federal laws, ordinances, rules, regulations or requirements: $100 per day per occurrence.
D.
Notwithstanding anything in this section or any other section of this article, the holder of the special use permit for a communications tower or personal wireless facility may not use the payment of fines, liquidated damages or other penalties as may permitted and assessed to evade or avoid compliance with this article or any section of this article. An attempt to do so shall subject the holder of the special use permit to termination and revocation of the special use permit.
§ 211-85 Relief.
Any applicant desiring relief or exemption from any aspect or requirement of this article may request such from the Planning Board, 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 Planning Board. However, the burden of proving the need for the requested relief or exemption and its lack of significant effect on the Village or its residents or other service providers is solely on the applicant to prove to the satisfaction of the Planning Board. The applicant shall bear all costs of the Planning 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 tower or facilities without the specific written permission of the Planning Board.