Hempstead City Zoning Code
ARTICLE XXV
Personal Wireless Service Facilities
§ 139-170 Legislative findings; purpose.
A.
The Village of Hempstead Board of Trustees finds herewith that personal wireless services and personal wireless service facilities (PWSFs) comprise a rapidly growing segment of the telecommunications sector and have merit and value for the community as a whole.
B.
The U.S. Congress adopted Section 704 as part of the Telecommunications Act that the President of the United States signed into law on February 8, 1996, such section defining personal wireless services and personal wireless service facilities and preserving local zoning authority over decisions regarding the placement, construction, and modification of personal wireless service facilities except for five limitations, including that:
(1)
A local government shall not unreasonably discriminate among providers of functionally equivalent services; and
(2)
A local government shall not prohibit or have the effect of prohibiting the provision of personal wireless services; and
(3)
A local government shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is filed; and
(4)
A local government shall put any decision to deny a PWSF into writing and support such decision by substantial evidence contained in a written record; and
(5)
A local government shall not regulate personal wireless service facilities on the basis of the environmental effects of radio frequency emission to the extent that such facilities comply with the Federal Communications Commission Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation (FCC Guidelines).
C.
The Village of Hempstead Board of Trustees is authorized, directed, and empowered to enact ordinances that implement plans made by the Village and to adopt regulations to provide standards that provide for the health, safety, and welfare of the citizens of the Village of Hempstead. The Village Board of Trustees has undertaken a deliberative public process to establish policy, standards, and procedures related to the location, siting and design of mounts and antenna arrays for personal wireless services; and has prepared a Wireless Master Plan for the regulation of personal wireless service facilities, dated August 2004, which plan is the policy foundation for this article; and has conducted workshops in the Village on deployment of proposed personal wireless service facilities and has found that alternatives to towers exist for the purpose of deploying personal wireless service facilities.
D.
The purpose and intent of this article is to establish standards for the location, siting and design of personal wireless service facilities, and the goals of this article are to:
(1)
Allow for alternative types of personal wireless service facilities in any location subject to standards;
(2)
Encourage the use of existing structures, including but not limited to rooftops, utility poles and church steeples, for deploying personal wireless service facilities;
(3)
Expedite the review process for those applications choosing the least intrusive alternative of deploying personal wireless service facilities;
(4)
Encourage users of monopoles and antennas to locate, site and design them in a way that minimizes the adverse visual impact of monopoles and antennas;
(5)
Enhance the ability of the providers of personal wireless services to provide such services to the community quickly, effectively, and efficiently; and
(6)
Promote personal wireless service facilities compatibility with surrounding land uses, and protect the attractiveness, health, safety, general welfare, and property values of the community.
E.
Therefore, the Board of Trustees of the Village of Hempstead has prepared this amendment to those provisions of the Code of the Village of Hempstead (hereinafter "Code") commonly known as the "Building Construction Code"[1] and the "Zoning Ordinance" of the Village of Hempstead, New York, to more clearly reflect the above facts.
§ 139-171 Title.
This article may be cited as the "Personal Wireless Service Facilities Article" of the Code.
§ 139-172 Permits required.
Each PWSF must have at least two permits: one building permit and one zoning permit, the latter of which shall be issued by the Village of Hempstead in accordance with this article.
§ 139-173 Definitions.
As used in this article, the following terms shall have the meanings indicated:
The actual height of the PWSF from the ground to the highest part of the mount or the antenna, whichever is higher.
A whip (omni-directional antenna), panel (direction antenna), disc (parabolic antenna) or similar device used for transmission and/or reception of radio frequency signals.
An antenna array is one or more whips, panels, discs, or similar devices used for the transmission or reception of radio frequency signals, which may include omni-directional antennas (whips), directional antennas (panels), and parabolic antennas (discs). The antenna array does not include the mount as defined herein.
A person or entity with an application before the Village for a permit for a PWSF. The applicant must be a carrier, a landowner where the facility will be located or the proposed owner of the facility. A carrier must be either the applicant or the co-applicant on each application. If the proposed PWSF is for two or more carriers, each carrier must file its own application as either the applicant or co-applicant.
A way of painting and mounting a PWSF that requires minimal changes to the host structure in order to accommodate the facility.
A company licensed by the Federal Communications Commission (FCC) to provide personal wireless services. A tower company, a tower management firm or a tower builder is not a carrier.
A mobile telephone service operating in the 800 MHz spectrum.
A person or entity that joins with an applicant in an application before the Village for a permit for a PWSF. The co-applicant can only be a carrier, a landowner where the facility will be located or the proposed owner of the facility. A carrier must be either the applicant or the co-applicant on each application. If the proposed PWSF is for two or more carriers, each carrier must file its own application as either the applicant or co-applicant.
The use of a common support structure or common site by two or more PWSFs or by one carrier for more than one type of communications technology.
Per Section 704 of the Telecommunications Act of 1996, any of several technologies using radio signals at various frequencies to send and receive voice, data and video. According to the FCC, these services are "functionally equivalent services." Section 704 of the Telecommunications Act prohibits unreasonable discrimination among functionally equivalent services.
Those services which initiate, relay or terminate a local exchange carrier's or competitive local exchange carrier's telephonic message via a wireless connection.
To enclose a PWSF within a natural or man-made feature resulting in the facility being either invisible or made part of the feature enclosing it.
The appearance of PWSFs such as their materials, colors and shape.
To design a PWSF to appear to be something other than a PWSF.
The measurement of height above sea level; also "AMSL," or above mean sea level.
Private land mobile radio with telephone services.
An enclosed structure at the base of the mount within which are housed the equipment for the PWSF, such as batteries and electrical equipment.
The area on the ground within a prescribed radius from the base of a PWSF. The fall zone is the area within which there might be a potential hazard from falling debris or collapsing material.
An independent federal agency charged with licensing and regulating wireless communications at the national level.
Cellular, PCS, enhanced specialized mobile radio, specialized mobile radio and paging. Section 704 of the Telecommunications Act prohibits unreasonable discrimination among functionally equivalent services.
A monopole or lattice tower that is anchored to the ground or to another surface by diagonal cables. This article prohibits guyed towers.
The distance measured from above ground level (AGL) to the highest point of a PWSF, including the antenna array. For purposes of measuring height, all antennas or other attachments mounted on a structure shall be included in the measurements to determine overall (i.e., combined) height.
A type of mount that is usually ground-mounted and self-supporting with multiple legs and cross-bracing of structural steel. This article prohibits lattice towers.
The area where a PWSF is located or proposed to be located.
The reduction or elimination of visual impacts by the use of one or more methods:
The changing of any portion of a PWSF from its description in a previously approved permit. This includes upgrading to different technologies such as 2.5G or 3G. The FCC definitions for "modification" are different from local government rules.
The shape of mount that is self-supporting with a single shaft of wood, steel or concrete and antennas at the top and/or along the shaft.
The structure or surface upon which antennas are mounted, e.g.:
Facility for the provision of personal wireless services, as defined by Section 704 of the Telecommunications Act of 1996. A PWSF is any unstaffed facility for the transmission and/or reception of personal wireless services, usually consisting of an antenna array, transmission cables, equipment shelter and a mount.
Any personal wireless service defined in the Federal Telecommunications Act which includes Federal Communications Commission (FCC) licensed commercial wireless communications services, including cellular, personal communications services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR) and paging, as well as unlicensed wireless services and common carrier wireless exchange access services.
The emissions from PWSFs that can, in excessive amounts, be harmful to humans. RF emissions are directly related to the power density of the RF signal.
The actual beam or radio waves sent and received by a PWSF. A signal is the deliberate product of a PWSF and an RF emission is part of the signal.
A locked, impenetrable wall, fence or berm that completely seals an area from unauthorized entry or trespass.
Alternatives to monopoles or guyed and lattice towers, such as masts or poles; for example, two poles or three masts might be an alternative to one monopole.
That portion of a subject property where a PWSF is to be placed. Any acceptable location may have several potential sites within it.
The method and form of placement of PWSFs on a specific area of a subject property.
A form of dispatch or two-way communication used by companies that rent space or time from an SMR carrier. Used primarily for data, delivery vans, truckers or taxis within a small, definable geographic area.
An authorization of a PWSF in accordance with this article and as provided for in New York State Village Law § 7-725-b.
Rules or measures by which acceptability is determined. PWSFs are measured by standards measuring visibility or safety. Wireless planning tends to regulate PWSFs on three bases: submittal of the application, performance of the PWSF and operation of the PWSF.
A term used as a modifier (e.g., tower builder) or when modified (e.g., lattice tower). A monopole is not a tower. PWSFs are not towers.
Commercial mobile services that can operate on public domain frequencies and therefore need no FCC license for their sites, including Wi-Fi and Wi-Max.
For purposes of this article, any public, semipublic or quasipublic vertical element in the Village, such as a distribution pole for electricity, a cable pole, a traffic signal stanchion or a light pole. Ideally, a utility pole would already exist and be owned by the Village of Hempstead.
Any form of signaling by wireless, including personal wireless, services that require a transmitter, a receiver and a path, sometimes straight, sometimes indirect, between them.
§ 139-174 Abbreviations.
AGL - above ground level |
AMSL - above mean sea level |
EA - Environmental Assessment |
FCC - Federal Communication Commission |
PWSF - personal wireless service facility |
RF - radio frequency |
RFR - radio frequency radiation |
§ 139-175 Purpose and intent; interpretation of provisions.
A.
Purpose and intent. The purpose and intent of this article is to establish standards for the location, siting and design of PWSFs, and the goals of this article are to:
(1)
Allow for alternative types of PWSFs in any location subject to standards;
(2)
Encourage the use of existing structures, including but not limited to, rooftops, utility poles and church steeples for deploying PWSFs;
(3)
Expedite the review process for those applications choosing the least intrusive alternative of deploying PWSFs;
(4)
Encourage users of monopoles and antennas to locate, site and design them in a way that minimizes the adverse visual impact of the monopoles and antennas;
(5)
Enhance the ability of the providers of personal wireless services to provide such services to the community quickly, effectively, and efficiently; and
(6)
Promote PWSFs' compatibility with surrounding land uses, as well as protect the attractiveness, health, safety, general welfare, and property values of the community.
B.
Land use. A PWSF should be considered a "use" whether a structure itself, on a structure or affixed to street furniture such as a utility pole.
C.
Special use permit required. All PWSFs shall require a special use permit or an administrative PWSF permit and shall be reviewed pursuant to the standards set forth in the provisions of this article.
D.
Exclusion for amateur radio facilities. This article shall not govern the installation of any amateur radio facility that is owned and operated by a federally licensed amateur radio station operator or is used exclusively for noncommercial receive-only antennas.
E.
Relationship to PWSFs not approved under this article.
(1)
A PWSF for which a permit has been issued prior to the effective date of this article shall be deemed a permitted use, subject to the conditions of that permit. When an unpermitted PWSF is identified by the Village of Hempstead to be attached to a mount approved for another use or PWSF, the attached PWSF must apply for a separate permit, even when sharing a legal mount, already in operation, and duly licensed by the FCC. The issuance of permit renewals or other new permits for such facilities shall be in accordance with the provisions of this article. Unpermitted PWSFs will be considered out of compliance with this article and subject to abatement.
(2)
Damaged or destroyed facilities may be rebuilt and all such facilities may be replaced by facilities of the same type and height at the same location, provided that guyed or lattice towers may be changed to mounts of lesser visual intensity.
(3)
Placement of an attached array or a microcell on a legally nonconforming structure shall not be considered an expansion of the nonconforming structure. However, placement of any attached array, microcell or any other portions of a PWSF on an existing structure, whether legally nonconforming or in, as well as out of, compliance, shall require a permit to be obtained for the PWSF under the terms of this article.
(4)
Any carrier with at least one preexisting PWSF in the Village of Hempstead that is out of compliance with the Village of Hempstead building and zoning requirements prior to the adoption of this article shall not be eligible for any new approvals of PWSFs by the Village until the preexisting PWSF or PWSFs are brought into compliance with this article.
(5)
No issuance of any permit under this article shall occur for a request to collocate, attach, or share an existing PWSF site, mount or facility, when such existing site, mount or facility is found to have one or more PWSFs without permits and/or any structure, mount or facility is found to lack one or more building, electrical or any other permits required by the Village of Hempstead Building Official and the laws the Building Official is authorized to implement and enforce.
(6)
No application by a wireless carrier or other entity shall be accepted by the Village of Hempstead if that wireless carrier has a preexisting PWSF on, or the other entity owns, a mount, rooftop or tower on which there is any unpermitted PWSF, until that PWSF is brought into compliance with this article.
F.
Relationship to other chapters. This article shall supersede conflicting requirements contained in the Village of Hempstead Code regarding the regulation and permitting of PWSFs, antennas and towers.
G.
Jurisdiction. This article shall apply only within the Village limits of the Village of Hempstead.
§ 139-176 Unacceptable applications for PWSFs.
A.
No application for a special use permit for a PWSF shall be accepted by the Building Official or any other representative of the Village of Hempstead if:
(1)
The applicant owns any other use, structure or facility in the Village of Hempstead that has been shown by the Village Assessor to be in arrears from the most recent property tax bill.
(2)
The owner of the property or the owner of the structure to which the PWSF is proposed for attachment has been shown by the Tax Assessor to be in arrears from the most recent property tax bill.
(3)
The applicant owns any other use, structure or facility in the Village of Hempstead that has not received proper zoning and/or building permits in accordance with this article.
(4)
The owner of the property or the owner of the structure to which the PWSF is proposed for attachment has not received proper zoning permits or building permits in accordance with this article for any other property or structure of which one of more PWSFs is lawfully or unlawfully attached.
B.
No such application shall be accepted by the Village until outstanding property taxes or permit violations are satisfied.
§ 139-177 Specification of land use classifications.
PWSFs shall be eligible for a special use permit in all land use districts on the Official Zoning Map of the Village of Hempstead Zoning Ordinance, provided that such PWSFs comply with the standards of this article and the permits under which PWSFs are regulated. A Tier One PWSF may be eligible for approval anywhere on Village of Hempstead property, including the right-of-way, provided that use of the right-of-way will not be impeded per findings by the Hempstead Director of Public Works.
§ 139-178 Location, siting, design and safety standards.
The approval of PWSFs shall be subject to meeting or exceeding the following standards.
A.
Location standards.
(3)
These location standards shall be considered directory but not mandatory. Interpretation of opportunity sites and avoidance areas shall be based on United States Government maps as well as aerial photographs provided by the applicant.
(4)
PWSFs may also be permitted in areas that are not opportunity sites subject to the following siting, design and safety standards and permitted in avoidance areas subject to the following siting, design and safety standards.
(5)
These standards apply regardless of radio frequency (RF) engineering considerations.
B.
Siting standards. PWSFs should meet the following siting standards. These standards are directory, not mandatory.
(1)
To the greatest extent possible, PWSFs should be concealed within existing structures or where camouflaged conditions surround them, or on inconspicuous mounts.
(2)
Placement within trees should be encouraged, but no antennas should extend higher than the average tree height.
(3)
Placement on existing roofs or nonwireless structures should be favored over ground-mounted PWSFs.
(4)
Roof-mounted PWSFs should not project more than 10 additional feet above the height of a legal building, but in no way above the height limit of the zoning district within which the PWSF is located.
(5)
No portion of a roof-mounted PWSF should be visible from the street below within a one-block distance of the building to which the roof is attached.
(6)
Side-mounted PWSFs should not project more than 20 inches from the face of the mounting structure.
(7)
These standards apply regardless of RF engineering considerations.
C.
Design standards. PWSFs should meet the following design standards. These standards are directory, not mandatory.
(1)
Color. All PWSFs should be painted or complementary with natural tones (including trees and sky).
(2)
Size. The silhouette of the PWSF should be reduced to the minimum visual impact.
(5)
Height should be kept to a minimum.
(a)
Heights of PWSFs should be no higher than the height of the uppermost height of nearby structures (within 300 horizontal feet, when measured along the ground, of the proposed PWSF), regardless of prevailing height limits in the zoning district.
(b)
In the event there are no nearby buildings (within 300 horizontal feet, when measured on the ground, of the proposed site of the PWSF), the following should apply:
[1]
All ground-mounted PWSFs (including the security barrier) should be surrounded by nearby dense tree growth for a radius of 20 horizontal feet (when trunk center lines are measured on the ground) from the PWSF in any direction. These trees can be existing on the subject property or installed to meet the twenty-foot requirement as part of the proposed PWSF, or they can be a combination of both.
[2]
Ground-mounted PWSFs should not project more than the average tree height.
(6)
These standards apply regardless of RF engineering considerations.
D.
Safety standards. PWSFs should meet the following safety standards. These standards are directory, not mandatory.
§ 139-179 Fall zone and setback requirements.
A.
Fall zone.
(1)
Except for Tier One utility poles, no habitable structure or outdoor area where people congregate should be within a fall zone of a radius two times the height of the PWSF or its mount.
(2)
Except for Tier One utility poles, no adjoining property line may be within the fall zone of a radius equal to the height of the PWSF or its mount.
B.
Setback.
(1)
All PWSFs, except for Tier One utility poles, including mounts and equipment shelters or cabinets, shall comply with the most stringent (e.g., 25 feet) setback requirements of the applicable zoning district as set forth in the Village of Hempstead Zoning Ordinance.
(2)
The antenna array for a PWSF attached to any structure is exempt from the setback requirements of this article and from the setback for the zoning district in which they are located, provided that no such antenna array shall extend more than five feet horizontally from the attachment structure at the point of attachment.
(3)
On parcels with a principal building housing a primary use, all components of the PWSF shall be located behind the main building line.
§ 139-180 Submittal requirements.
An applicant shall submit the following information as part of an application for a PWSF.
A.
Application information:
(1)
Name, address and telephone number of applicant and all co-applicants as well as any agents for the applicant or co-applicants.
(2)
A carrier must either be an applicant or a co-applicant and no more than one carrier is allowed in one application. If the proposed PWSF is for two or more carriers, each carrier must file its own application as either the applicant or co-applicant.
(3)
A collocation can only be applied for with separate applications from each carrier proposed for collocation. Each application for the collocation must show a mount with a designed position for the other carriers that are applying for collocation.
(4)
A copy of the lease with the property owner and/or the structure owner of the proposed PWSF must be submitted, whichever or both that apply.
(5)
Original signatures for the applicant and all co-applicants applying for the PWSF must be submitted. If an agent will represent the applicant or co-applicant, original signature authorizing the agent to represent the applicant and/or co-applicant must be submitted. Photoreproductions of signatures are not acceptable.
B.
Location information:
(1)
Identify the subject property by including the name of the nearest road or roads, and street address, if any.
(2)
Tax parcel number of subject property.
(3)
Zoning district designation for the subject parcel and for all parcels within 1,000 feet of the property lines of the subject parcel.
(4)
A line map, to scale, showing the subject property and all properties within 1,000 feet and the location of all buildings, including accessory structures, on all properties shown.
(5)
A Village-wide map showing the other existing PWSFs in the Village and outside the Village within one mile of its corporate limits.
(6)
The specific locations for this carrier of all existing and future PWSFs in the Village on a Village-wide map.
C.
Siting information:
(1)
All site plans required in this section shall be processed consistent with New York State Village Law, § 7-725-a (Site plan review) et seq.
(2)
A one-inch-equals-forty-feet vicinity plan showing the following:
(a)
Property lines for the subject property.
(b)
Property lines of all properties adjacent to the subject property.
(c)
Tree cover on the subject property and all properties adjacent to the subject property, by species and average height, as measured by or available from a verifiable source.
(d)
Outline of all existing buildings, including purpose (e.g., residential buildings, garages, accessory structures, etc.) on subject property and all properties adjacent to the subject property.
(e)
Proposed location of antenna, mount and equipment shelter(s).
(f)
Location of all roads, public and private, on the subject property and on all properties adjacent to the subject property, including driveways proposed to serve the PWSF.
(g)
Distances, at grade, from the proposed PWSF to each building on the vicinity plan.
(h)
Contours at each foot AMSL (above mean sea level).
(3)
Sight lines and photographs as described below:
(a)
Sight line representation. A sight line representation shall be drawn from the closest facade of each residential building (viewpoint) included on the vicinity plan to the highest point (visible point) of the PWSF. Each sight line shall be depicted in profile, drawn at one inch equals 40 feet. The profiles shall show all intervening trees and buildings. In the event there is only one (or more) residential building on the vicinity plan, there shall be at least two sight lines from the closest habitable structures, if any.
(b)
Existing (before condition) photographs. Each sight line shall be illustrated by one four-inch-by-six-inch color photograph of what can currently be seen from the residential building.
(c)
Proposed (after condition) photosimulation. Each of the existing condition photographs shall have the proposed PWSF superimposed on it to show what will be seen from residential buildings if the proposed PWSF is built. All photosimulations shall be positioned to show maximum exposure of any proposed roadway, such roadway to be represented in its proposed, graded appearance.
(4)
A one-inch-equals-twenty-feet site plan showing the following:
(a)
The entire subject property, including property lines and roads (public and private) adjacent to the subject property.
(b)
All existing buildings, including accessory structures.
(c)
All existing vegetation, by mass or individually by diameter (four feet from the ground) of each stand-alone tree or shrub. Tree masses or individual stand-alone trees shall be identified by specie(s).
(d)
Proposed security barrier for a ground mount, indicating type and extent as well as point of controlled entry.
(e)
All proposed changes to the existing property, including grading, vegetation removal and temporary or permanent roads and driveways.
(f)
Representations, dimensioned and to scale, of the proposed mount, antennas, equipment shelters, cable runs, parking areas and any other construction or development attendant to the PWSF.
(5)
Siting elevations or views at-grade from the north, south, east and west for a fifty-foot radius around the proposed PWSF, plus from all existing public and private roads that serve the subject property. Elevations shall be at a scale of either 1/4 inch equals one foot or 1/8 inch equals one foot and shall show the following:
(a)
Antennas, mounts and equipment shelter(s), with total elevation dimensions and AGL of the highest point.
(b)
Security barrier. If the security barrier will block views of the PWSF, the barrier drawing shall be cut away to show the view behind the barrier.
(c)
Any and all structures on the subject property.
(d)
Existing trees and shrubs at current height and proposed trees and shrubs at proposed height at time of installation, with approximate elevations dimensioned.
(e)
Grade changes, or cuts and fills, to be shown as original grade and new grade line, with two-foot contours AMSL.
D.
Design information:
(1)
Equipment brochures for the proposed PWSF such as manufacturer's specifications or trade journal reprints. These shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any.
(2)
Materials of the proposed PWSF specified by generic type and specific treatment (e.g., anodized aluminum, stained wood, painted fiberglass, etc.). These shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any.
(3)
Colors of the proposed PWSF represented by a color board showing actual colors proposed. Colors shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any.
(4)
Dimensions of the PWSF specified for all three directions: height, width and breadth. These shall be provided for the antennas, mounts, equipment shelters and security barrier, if any.
(5)
Appearance shown by at least two photographic photosimulations of the PWSF within the subject property. The photosimulations shall show the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any, for the total height, width and breadth.
(6)
Landscape plan including existing trees and shrubs and those proposed to be added, identified by size of specimen at installation and species.
F.
G.
Fees. The Village shall have the right to properly plan for and evaluate applications for PWSFs and to charge reasonable fees for such services to the applicant. Such fees may include, but shall not be limited to, the following:
[Amended 10-4-2005 by L.L. No. 5-2005]
(1)
Application fee. The application fee shall be $4,000 for Tier One applications, $5,000 for Tier Two applications, and $5,000 for Tier Three applications.
(2)
Special fee. The Village shall have the right to retain independent consultants and experts that it deems necessary to review and evaluate applications for individual PWSFs. The special fee shall be applied to those applications that the Village determines require special review or evaluation.
(3)
General fee. The Village has retained independent consultants and experts on wireless planning and may retain future independent consultants and experts to assist the Zoning Officer with proper planning for PWSFs. The general fee shall include, but shall not be limited to, the prorated share for each applicant of such costs for the independent consultants and experts and for the Zoning Officer. The general fee shall be prorated among all applications on an equal basis.
§ 139-181 Alternatives analysis and comparison.
Each application for a PWSF should also contain at least two alternatives that differ from the PWSF proposed in the application.
A.
Differences. The alternatives need not be totally different from the proposed PWSF; however, the alternatives should contain measurable differences, such as:
(1)
Height. An alternative can be identical to the proposed PWSF except to be for a shorter height.
(2)
Number. An alternative could be for two or more PWSFs that are shorter than the proposed PWSF.
(3)
Location. An alternative could be located on a different property from the proposed PWSF.
(4)
Siting. An alternative could be in a different place on the same property as the proposed PWSF.
(5)
Design. An alternative could be of the same height, location and siting as the proposed PWSF, but be designed to appear differently.
B.
Submittal requirements for alternatives. The materials submitted for each alternative should show only the differences between each of the alternatives and the proposed PWSF.
D.
Comparison of proposed PWSF and alternatives. The Special Board shall compare the proposed PWSF to the alternatives on the basis of the following:
(1)
Change in community scale, as exhibited in relative height, mass or proportion of the PWSF within its proposed surroundings.
(2)
New visible elements proposed on a contrasting background.
(3)
Different colors and textures proposed against a contrasting background.
(4)
Use of materials that are foreign to the existing built environment.
(5)
Conservation of opportunities to maintain community scale, not compromising buffering areas and low-lying buildings so as to start a trend away from the existing community scale.
(6)
Amount and diversity of landscaping and/or natural vegetation.
(7)
Preservation of view corridors, vistas, and viewsheds.
(8)
Continuation of existing colors, textures and materials.
E.
Ranking of proposed PWSF and alternatives. The Zoning Officer shall rank the proposed PWSF and each alternative based on the criteria listed in Subsection D above. The ranking of the proposed PWSF and each alternative shall be submitted to the Special Board along with each application for review by the Special Board. The Special Board shall consider the alternatives along with the proposed PWSF.
§ 139-182 Tiered applications.
A.
Building Department. The Village of Hempstead Zoning Officer shall receive all PWSF applications and assign each application to one of the following three "tiers":
(1)
Tier One. This tier is limited to applications that:
(a)
Place PWSFs on new utility poles to be dedicated to the Village of Hempstead when the carrier specifies a utility pole that meets the Village of Hempstead specifications.
(b)
Meet all location standards, design standards and safety standards in this article. In the event any of the standards in this article are in conflict for a particular application, one or the other conflicting standard shall be met.
(2)
Tier Two. This tier is limited to applications that:
(a)
Attach a PWSF to an existing structure or existing utility pole (as described in this article in § 139-173).
(b)
Meet all location standards, design standards and safety standards in this article. In the event any of the standards in this article are in conflict for a particular application, one or the other conflicting standard shall be met.
(3)
Tier Three. All applications that do not qualify as either Tier One or Tier Two status shall be considered Tier Three applications.
§ 139-183 Application procedures.
Applicants and the PWSF Zoning Officer shall use the following procedures when submitting and processing PWSF applications, although the PWSF Zoning Officer may waive some steps if they are redundant.
A.
Preapplication conference. Applicants shall meet with the PWSF Zoning Officer prior to submitting an application for a PWSF. At the preapplication conference:
B.
Application form. The applicant shall submit the Village's application form and all required items and information as specified in this article to the PWSF Zoning Officer when applying for PWSFs.
C.
Letter of completion.
(1)
Within 30 days of receipt of an application for a PWSF, the PWSF Zoning Officer shall determine if the application form has been completed and if all required items and information have been submitted.
(2)
If the PWSF Zoning Officer determines that the application form is not complete and/or if all required items and information have not been submitted, the PWSF Zoning Officer shall send the applicant a letter of incompletion. The letter of incompletion shall list those items that are incomplete or missing and provide the applicant 60 days to complete the application.
(3)
If the applicant does not complete the application form and all required items and information after 60 days, the PWSF Zoning Officer shall send the applicant a letter asking the applicant to withdraw the application within 30 days.
(4)
If the applicant neither completes the application and all required items and information nor withdraws the application within 90 days, the PWSF Zoning Officer shall notify the applicant that the application is incomplete and cannot be considered by the Village.
(5)
When the application form is complete and all required items and information have been submitted, the PWSF Zoning Officer should send the applicant a letter of completion.
E.
Tier One review.
(1)
The PWSF Zoning Officer shall notify or cause to be notified all property owners within 300 feet of the proposed site. Notice shall be given by first-class mail, to the address shown on the roll of the Village of Hempstead Assessor's office. The property owners shall be informed that an application has been filed and that they have the right to inspect the application and comment thereon. Additionally, they shall be informed that comments should be directed toward the standards contained in this article. The applicants shall have the right to respond to any comments received. The PWSF Zoning Officer may reassign the application to a Tier Two or Three review, if comments are received justifying such reassignment.
(2)
The PWSF Zoning Officer shall forward all Tier One applications to the Director of Public Works for review for an administrative PWSF permit. The Director of Public Works may, in advance of performing such reviews, waive any requirements of § 139-180 of this article.
(3)
The Director of Public Works shall have 90 days to review the completed application. Following review, the Director of Public Works shall either approve or deny the application. Such approval or denial shall be in writing and supported by substantial evidence contained in the written record. If there is no approval of a Tier One application by the Director of Public Works within 90 days, the application is deemed approved.
(4)
Either party, applicant or opposition, may appeal a Director of Public Works decision to the Board of Trustees.
(5)
If the Director of Public Works determines that the application meets the requirements for a Tier One application in this article, the Building Department shall issue two permits to the applicant: (a) an administrative PWSF permit, which is a prerequisite for; (b) a building permit.
F.
Tier Two review.
(1)
The PWSF Zoning Officer shall review Tier Two applications for a special use permit.
(2)
(3)
The staff report shall be transmitted to the PWSF Board for a public hearing before the PWSF Board.
(4)
The PWSF Board shall conduct a public hearing and take any testimony or additional evidence provided by either the applicant or other persons.
(a)
Following the close of the hearing, the PWSF Board shall approve the application, deny the application or approve with conditions.
(b)
Any conditions attached to the approval shall be designed to mitigate any adverse impacts of the proposed PWSF. Such decision shall be in writing and supported by findings of fact based on competent and substantial evidence contained in a written record.
(5)
If the application is approved, the Village of Hempstead shall issue two permits to the applicant: (a) The PWSF Board shall issue a special use permit, which is a prerequisite for (b) the Building Department to issue a building permit, provided all sections of the Building and Construction Code are met.[1]
(6)
If the application is denied, the applicant must be informed by written letter with a description of all reasons for the denial.
G.
Tier Three review.
(1)
The PWSF Zoning Officer shall review Tier Three applications for a special use permit.
(3)
The staff report shall be transmitted to the PWSF Board for a public hearing before the PWSF Board.
(4)
The PWSF Board shall thereafter conduct a public hearing and take any testimony or additional evidence provided by either the applicant or other persons.
(a)
Following the close of the hearing, the PWSF Board shall approve the application, deny the application or approve with conditions.
(b)
Any conditions attached to the approval shall be designed to mitigate any adverse impacts of the proposed PWSF. Such decision shall be in writing and supported by findings of fact based on competent and substantial evidence contained in a written record.
(5)
If the application is approved, the Village of Hempstead shall issue two permits to the applicant: (a) The PWSF Board shall issue a special use permit, which is a prerequisite for (b) the Building Department to issue a building permit, provided all sections of the Building and Construction Code are met.[2]
(6)
If the application is denied, the applicant must be informed by written letter with a description of all reasons for the denial.
§ 139-184 Staff reports.
A.
Tier One applications. Tier One applications do not need staff reports.
B.
Tier Two and Tier Three applications. The PWSF Zoning Officer shall prepare staff reports for Tier Two and Tier Three applications. The staff report shall contain the following:
(6)
Description of narrative attachments.
(7)
Recommendation of either approval or denial, in writing, and supported by substantial evidence contained in the written record. The recommendation may contain proposed conditions intended to mitigate any adverse impacts of the proposed PWSF.
§ 139-185 Modifications.
The Village of Hempstead shall require the review and approval of all modifications to PWSFs.
A.
Types of modification. A modification of a PWSF is any of the following:
(1)
Change of ownership of the PWSF or of the subject property.
(3)
Addition or replacement of any equipment in the PWSF, excluding only direct, identical substitutions. Any substitution that is indirect, e.g., an identical piece of equipment in a new location, is a modification.
(4)
Change in design of the PWSF.
(5)
Addition to any PWSF for the purposes of collocation, provided that the previously approved collocation identified the future positions or nature (e.g., network sharing) of the requested modification.
(6)
Addition to any PWSF for purposes of collocation. When the PWSF has not been approved as a collocation with future positions, the applicant must apply for a new PWSF.
§ 139-186 Collocations; public sites.
A.
Tall mounts discouraged. Tall mounts are discouraged in the Village of Hempstead, and proliferation of short mounts is considered preferable to collocation.
B.
Collocation discouraged. Collocations are discouraged for all PWSF applications.
C.
Worst-case review. The Village of Hempstead shall review applications for collocations on the basis of all positions on the mount, i.e., the cumulative, worst-case condition.
D.
Collocations previously approved. Applications for collocations on mounts previously approved for collocation, in the position applied for, require review of only the equipment to be added above and on the ground, including new contents of the previously existing equipment shelter or previously approved equipment cabinet.
E.
Collocations not previously approved. Applications for collocations on mounts not previously approved for collocation, in the position applied for, require review of the existing mount as well as collocation under the requirements of this article.
F.
Public sites. The Village of Hempstead shall work with carriers to facilitate the siting of a proposed PWSF on Village-owned right-of-way or property, by identifying existing structures, the appropriate contact persons, and the appropriate leasing procedures.
§ 139-187 Registry; monitoring; inspection; abandonment; obsolescence.
A.
Registry. Each carrier shall file the following information with the Village on an annual basis, beginning with the date of approval:
(1)
Owner/lessee/intermediary/agent and carrier(s) at the site.
(2)
Location by latitude and longitude, addresses and parcel numbers.
(3)
Height, AGL.
(4)
Collocation status and capability (including if a former collocation has been removed).
(5)
Last date at which site was modified and the nature of the modification.
(6)
A list of toxic/hazardous materials at the PWSF (including in the equipment shelter).
(7)
Instructions for emergency personnel on the approach action to be taken in case of an emergency involving any toxic/hazardous substances.
(8)
The name and telephone number of a representative of the carrier to be contacted in the event of any emergency at the PWSF site. The contact representative is to be available on a twenty-four-hours a day, seven-days-a-week basis.
(9)
A site monitoring schedule indicating how often the site is inspected and monitored by the carrier.
(10)
A ground maintenance schedule indicating how often the grounds are maintained and the name and telephone number of a representative of the carrier to be contacted in the event the grounds require service before the next scheduled maintenance.
B.
Inspection. The owner or operator of PWSF shall provide for and conduct an inspection of mounts at least once every five years in conjunction with the review of the special use permit or administrative PWSF permit and building permit required in §§ 139-172 and 139-175C. A report shall be provided to the Village of Hempstead Building Department verifying structural integrity and tenants on the mounts as a part of the requirements provided for in §§ 139-178D(1) and 139-185A(6) of this article.
C.
Abandonment and removal. Any PWSF that is not operated for a continuous period of 18 months shall be considered abandoned, and the owner of such PWSF shall remove same within 90 days of notice to the Village of Hempstead Building Department that the PWSF is abandoned. If such PWSF is not removed within said 90 days, the Village of Hempstead may have the PWSF removed at the PWSF owner's expense.
D.
Hazardous materials. PWSF shall be registered as a hazardous facility if petroleum products are used to fuel power supplies or any toxins are contained in equipment cabinets or shelters or alternative power sources.
§ 139-188 Environmental compliance.
A.
Federal environmental assessment requirements for Tiers One, Two and Three.
(1)
The National Environmental Policy Act (NEPA) applies to all applications for PWSFs. NEPA is administered by the FCC via procedures adopted as Subpart 1, Section 1.1301 et seq. (47 CFR Ch. I). The FCC requires that an environmental assessment (EA) be filed with the FCC prior to beginning operations for any PWSF proposed in or involving any of the following:
(2)
At the time of application filing, an EA that meets FCC requirements shall be submitted to the Village of Hempstead for each PWSF site that requires such an EA to be submitted to the FCC.
B.
Radio frequency radiation emissions requirements.
(1)
FCC Guidelines. Each application for a PWSF shall be accompanied by a statement by a professional engineer certifying that, as proposed, the PWSF complies with the FCC Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation (FCC Guidelines) concerning radio frequency radiation and emissions.
(2)
No contravention of FCC Guidelines. A PWSF that meets the FCC guidelines shall not be conditioned or denied on the basis of radio frequency impacts.
(3)
Radio frequency radiation (RFR) report for Tier Two and Tier Three. The PWSF Board may require applicants for a Tier Two or Tier Three PWSF to submit a report containing the following information on the existing and maximum future projected measurements of RFR from the proposed PWSF, for the following situations:
(a)
Existing, or ambient: the measurement of existing RFR.
(b)
Existing plus proposed wireless facility: maximum estimate of RFR from the proposed personal wireless facility plus the existing RFR environment.
(c)
Existing plus proposed wireless facilities plus cumulative: maximum estimate of RFR from the proposed wireless facility plus the maximum estimate of RFR from the total addition of collocated wireless facilities plus the existing RFR environment.
(d)
Certification, signed by a professional engineer, stating that the RFR measurements are accurate and meet the requirements for radio frequency radiation reports in this article.
(4)
The PWSF Board may require as part of conditions of approval for Tier Two or Tier Three applications that a radio frequency radiation report as described in this section be submitted every five years and every time a modification or a collocation is proposed for the PWSF.
C.
Noise requirements.
(1)
In emergency situations requiring the use of a backup generator, where the noise standards may be exceeded on a temporary basis until such emergency has passed, the application shall be allowed to operate for no longer than a twenty-four-hour period.
(2)
In all instances except emergency situations, the applicable noise standard shall be 50 dBA at the property line.
(3)
Noise filing requirements. The PWSF Board may require applicants for a Tier Two or Tier Three PWSF to submit a report containing the following information on the existing and maximum future projected measurements of noise from the proposed PWSFs, measured in decibels Ldn (logarithmic scale, accounting for greater sensitivity at night), for the following situations:
(a)
Existing, or ambient: the measurements of existing noise.
(b)
Existing plus proposed PWSF: maximum estimate of noise from the proposed PWSF plus the existing noise environment.
(c)
Existing plus proposed wireless facilities plus cumulative: maximum estimate of noise from the proposed wireless facility plus the maximum estimate of noise from the total addition of collocated wireless facilities plus the existing noise environment.
(4)
The PWSF Board may require as part of conditions of approval for Tier Two or Tier Three applications that a noise report as described in this section be submitted every five years and every time a modification or a collocation is proposed for the PWSF.
§ 139-189 Lighting and security for Tiers Two and Three.
A.
Lighting. A PWSF shall not be artificially lighted, except for:
(1)
Security and safety lighting of equipment buildings if such lighting is appropriately down-shielded to keep light within the boundaries of the site; and
(2)
Such lighting of the PWSF as may be required by the Federal Communications Commission, Federal Aviation Administration (FAA) or other applicable authority installed in a manner to minimize impacts on adjacent residences. Only red lighting shall be utilized unless otherwise recommended by FAA guidelines.
B.
Security barriers. A security barrier shall be required around the perimeter of ground mounts including equipment shelters and/or cabinets. The security barrier shall be maintained by the operator of the PWSF or mount for the life of the installation. No security barrier is needed around roof-mounted or side-mounted PWSFs, but distances from windows and balconies should conform to Subsection C(2) below.
C.
Security barriers for certain populations. The security barriers around all PWSFs shall be reviewed by the PWSF Board and found to be acceptable for:
(1)
Controlled population: those persons who are trained in procedures for working near or around radio frequency radiation.
(2)
General population: all other persons, some of whom have no concept of what radio frequency radiation is or how it can cause harm. Members of the general population should not be allowed nearer than 10 meters to the nearest part below an antenna.
§ 139-190 Signs; identification plaques.
No signage shall be permitted on any PWSF other than that required for public safety purposes or by the FCC or FAA, except that each PWSF shall have a weather-proof plaque mounted at eye level identifying the carrier, frequency and date of approval of zoning permit.
§ 139-191 Screening and landscaping for Tiers Two and Three.
A.
Natural vegetation. Existing natural vegetation shall be undisturbed to the greatest extent practicable.
B.
Landscaping. Landscaping of disturbed ground areas of the PWSF site and security barriers shall be required as follows:
(1)
At least one row of evergreen shrubs capable of forming a continuous hedge at least five feet in height within two years of planting shall be spaced not more than five feet apart within 15 feet of the site boundary; and
(2)
At least one row of evergreen trees or shrubs, at least four feet in height when planted and spaced not more than 15 feet apart, located interior to the perimeter of the shrubs required in Subsection B(1) above; and
(3)
Existing vegetation, topography, walls and fences combined with shrubs, or other features may be substituted for the required buffers if the Board of Trustees finds they:
(4)
Landscaping materials shall consist of xeric or drought-resistant native species and shall be maintained by the operator of the PWSF for the life of the installation.
C.
Tier One PWSFs require no lighting or landscaping.
§ 139-192 Access and parking for Tiers Two and Three.
A.
Parking. Areas sufficient for the temporary off-street parking of at least two vehicles shall be provided for mounts. The type and configuration of parking may be approved by the PWSF Board.
B.
Private access. A copy shall be provided to the Village of Hempstead Building Department of any road maintenance agreement for any site accessed by private easement.
C.
Tier One PWSFs. No parking areas are required.
§ 139-193 Review of permit.
Special use permits issued under the terms of this article shall be reviewed by the Village of Hempstead Building Department every five years from the date of issuance for compliance with this article and any special terms or conditions of approval. Such permits are subject to suspension or revocation at any time if it is determined that the terms of the permit and any conditions contained therein, or any rules or regulations adopted by the state or federal government concerning the use of such facilities, are being violated.
§ 139-194 Procedures for public hearings.
Public hearings required by this article shall be noticed and conducted pursuant to the New York State Village Law, the Public Officers Law, Section 7, and the requirements of the Hempstead Zoning Ordinance, pertaining to meetings of the Hempstead Board of Zoning Appeals.
§ 139-195 Effect of approval.
Any application approved pursuant to this article shall result in a written approval letter. The approval letter shall state the terms of the approval, including any conditions of approval, and shall authorize the applicant to apply for a building permit for the approved facilities.
§ 139-196 Building permit.
An applicant shall apply for a building permit within 60 days of receiving an administrative PWSF permit or a special use permit for its PWSF. The building permit is to be based on drawings identical to:
A.
Those submitted for approval under this article, or reflecting conditions of approval granted under this article.
B.
The actual construction of the approved PWSF.
C.
The construction shall be governed by the New York State Building Code, if applicable, or be certified by a professional engineer licensed by the State of New York, that the design meets or exceeds the design standards for the use for which it is intended.
§ 139-197 Miscellaneous.
§ 139-198 Severability.
Should any portion of this article be found by a court of competent jurisdiction to be illegal or unconstitutional, then such portion shall be severed and the remaining portions of this article shall be unaffected thereby.