Manorhaven City Zoning Code
ARTICLE X
Wireless Communication Facilities
§ 155-74 Word usage; definitions.
A.
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 meanings given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural include words in the singular number and words in the singular number include the plural number. The word "shall" is always mandatory, and not merely directory.
B. ACCESSORY FACILITY OR STRUCTURE ACCESSORY WIRELESS FACILITY ANTENNAS APPLICANT APPLICATION BOARD COLLOCATION COMPLETE APPLICATION EQUIPMENT EXISTING TOWERS AND EXISTING ANTENNAS FAA FCC HEIGHT MODIFICATION NIER PERSON PERSONAL WIRELESS FACILITY PERSONAL WIRELESS-SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS PUBLIC RIGHT-OF-WAY or PUBLIC ROW PUBLIC UTILITY STRUCTURE REPEATER REVOCABLE LICENSE SECONDARY WIRELESS TELECOMMUNICATIONS SERVICE FACILITY SPECIAL USE PERMIT STATE STEALTH or STEALTH TECHNOLOGY TELECOMMUNICATIONS TELECOMMUNICATIONS SITE TELECOMMUNICATIONS STRUCTURE TEMPORARY VILLAGE WIRELESS TELECOMMUNICATIONS FACILITIES
As used in this article, the following terms shall have the meanings indicated:
An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities and located on the same property or lots as the wireless telecommunications facilities, including but not limited to, utility or transmission equipment, storage sheds or cabinets.
Any equipment, shed, pole, distributed network and small cells, fencing or structure, or combination thereof, containing any electrical components necessary for the proper operation of antennas.
Any exterior transmitting and receiving device mounted on a tower, pole, building or structure and used in communications that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communications signals. Such shall include but not be limited to radio, television, cellular, paging, personal telecommunications services (PCS), microwave telecommunications and services not licensed by the FCC, but not expressly exempt from the Village's siting, building and permitting authority.
Any wireless service provider submitting an application for a special use permit for wireless telecommunications facilities.
All the necessary and appropriate documentation that an applicant is required to submit for consideration of a special use permit for a wireless telecommunications facility as specifically set forth in this article.
The Board of Trustees of the Incorporated Village of Manorhaven, which is hereby authorized to review special use permit applications pursuant to this article.
The use of a wireless telecommunications facility or other structure to support antennas for the provision of wireless services without increasing the height of such facility or other structure.
An application that contains all the information and/or data required by this article necessary to enable an informed decision to be made with respect to an application.
Poles, wires, electrical conductors, conduits, subways, manholes, fixtures, appliances and appurtenances used to provide telecommunications services.
Any tower or antenna for which a building permit or special use permit has been properly issued prior to the effective date of this chapter, including permitted towers or antennas that have not yet been completed or constructed, provided that such approved permit(s) is current and has not expired; or any tower which is constructed and has a certificate of completion/compliance/occupancy.
The Federal Aviation Administration, or its duly designated and authorized successor agency.
The Federal Communications Commission or its duly designated and authorized successor agency.
When referring to a wireless telecommunications facility or other structure, the distance measured from the preexisting grade level to the highest point on such facility or other structure, even if said highest point is an antenna or lightning protection device.
The addition, removal, change or alteration of any of the physical and visually discernable components or aspects of a wireless telecommunications facility, such as antennas, cabling, radios, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernable components, vehicular access, parking and/or an upgrade or changeout of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a wireless telecommunications facility or telecommunications site for purposes of this article shall be deemed as a modification, except that a co-locating antenna previously approved by a special permit issued by the Board of Zoning Appeals shall not be deemed a modification whether or not such antenna has been installed. A modification shall not include the replacement of any components of a wireless telecommunications facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless telecommunications facility without adding, removing, changing, or altering the wireless telecommunications facility in any respect.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons having a joint common interest, or any other entity.
See definition for "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the Telecommunications Act of 1996.
The area on, below, or above property that has been designated for use as or is used for a public roadway, highway, street, sidewalk, alley or similar purpose, but not including an area not within the legal jurisdiction or within the legal ownership or control of the municipality.
Any structure erected for the purposes of providing a public utility service, including, but not limited to, water towers, electric transmission tower/poles and telephone poles.
A small, supplementary and accessory bidirectional amplifier facility designed and limited in height and transmission power to provide service only where there is a failure of coverage and to minimize visual impacts and the need for the primary base stations which may be attached to a structure or pole.
An initial authorization or renewal thereof, issued by the Village in accordance with the provisions of this chapter, which authorizes the limited occupation and use of specifically identified streets and poles, provided that a revocable license shall be issued only in the limited circumstances set forth in this chapter.
A small wireless telecommunications service facility that is intended, designed and limited in its implementation to provide service only in and for an area where there is a failure of coverage that does not involve the construction of a new tower or increase the height of any existing structure to which it is attached. A secondary wireless telecommunications service facility must meet both of the following qualifications: each wireless provider's antenna (including, without limitation, any strand-mounted antenna) could fit within an enclosure of no more than three cubic feet in volume; and all other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated, ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for connection of power and other services.
The required permit issued by the Board pursuant to which an applicant is permitted to construct, maintain and use a wireless telecommunications facility as granted or issued pursuant to this article. The Board is hereby authorized to review and approve, approve with modifications, or disapprove special use permits and site plans consistent with Village Law §§ 7-725 and 7-725(b).
The State of New York.
The use of innovative design technology to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities located adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities.
The transmission and/or reception of audio, video, data, and other information by wire, radio, frequency, light, and other electronic or electromagnetic systems.
See definition for "wireless telecommunications facilities."
A structure used in the provision of services described in the definition of "wireless telecommunications facilities."
Temporary in relation to all aspects and components of this article, something intended to or that does exist for less than 90 days.
The Incorporated Village of Manorhaven.
Include personal wireless facilities and antennas and associated equipment and/or a structure, tower, facility or location designed, or intended to be used as or used to support antennas or other transmitting or receiving devices. This includes, without limitation, all kinds of structures, such as a multistory building, church steeple, silo, water tower, sign or other structures that can be used to mitigate the visual impact of an antenna or the functional equivalent of such, including all related facilities, such as cabling, equipment shelters and other structures associated with the site. It includes towers of all types intended to accommodate wireless telecommunications facilities and secondary wireless telecommunications service facilities and repeaters, as well as fixtures, cabinets and other equipment that are affixed to existing structures including utility poles or other public utility structures.
§ 155-75 Special use permit application and other requirements.
No person shall build, erect, or construct a wireless telecommunications facility upon any parcel of land within any zoning district within the Village or upon the public right-of-way unless a special use permit shall have been issued in accordance with this article. The Village Board of Trustees is hereby authorized to review special use permit applications submitted pursuant to this section as set forth herein. All applicants for a special permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this section.
A.
Applications for a special use permit for wireless telecommunications facilities shall be made to the Board of Trustees. The Village may, at its discretion, delegate or designate other official agencies of the Village to accept, review, analyze, evaluate and make recommendations to the Board with respect to the granting or not granting special use permits for wireless telecommunications facilities.
B.
An application for a special use permit for wireless telecommunications facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the Board any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.
C.
Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the Board.
D.
The applicant shall include with the application a written certification, attesting to the following: that the applicant's proposed wireless telecommunications facilities will be maintained in a safe manner, and in compliance with all conditions of the special use permit, without exception, as well as with all applicable and permissible local codes, ordinances, and regulations, including any and all applicable Village, state and federal laws, rules and regulations; that the applicant is authorized to do business in the State of New York and duly licensed by the Federal Communications Commission.
E.
All applications for the construction or installation of new wireless telecommunications facilities shall contain the information set forth hereafter. The application shall be signed by an authorized individual on behalf of the applicant. Where a certification is called for, such certification shall bear the signature and seal of a professional engineer licensed in this state. The application shall include, at a minimum, the following information:
(1)
Documentation demonstrating the public necessity of the wireless telecommunications facility at the location proposed to provide service primarily and essentially within the Village. Such documentation shall include, without limitation, propagation studies, in sufficient detail as determined by the Board, of the proposed site and all adjoining planned, proposed, in-service or existing sites and any alternative site or sites proposed by the Village;
(2)
The name, address and phone number of the person preparing the report;
(3)
The name, address and phone number of the property owner, operator and applicant, and to include documentation of the legal formation of the applicant;
(4)
The postal address and tax map designation of the property;
(5)
The zoning district or designation in which the property is situated;
(6)
The size of the property, stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines;
(7)
The location of the nearest residential structure(s);
(8)
The location, size and height of all structures on the property which is the subject of the application;
(9)
The location, size and height of all proposed and existing antennas and all appurtenant structures;
(10)
The type, locations and dimensions of all proposed and existing landscaping and fencing;
(11)
The number, type and design of the wireless telecommunications facility and antenna(s) proposed and the basis for the calculations of the facilities capacity to accommodate multiple users;
(12)
The make, model and manufacturer of the wireless telecommunications facility and antenna(s);
(13)
A description of the proposed wireless telecommunications facility and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above existing grade, materials, color and lighting;
(14)
The frequency modulation and class of service of radio or other transmitting equipment;
(15)
The actual intended transmission and the maximum effective radiated power of the antenna(s);
(16)
Direction of maximum lobes and associated radiation of the antenna(s);
(17)
Certification that the NIER levels at the proposed site are within the permissible threshold levels adopted by the FCC;
(18)
Certification that the proposed antenna(s) will not cause interference with other telecommunications devices;
(19)
A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities;
(20)
Certification that a topographic and geomorphologic study and analysis has been conducted, and, taking into account the subsurface and substrata and the proposed drainage plan, that the site is adequate to assure the stability of the proposed wireless telecommunications facilities on the proposed site;
(21)
A radius map, certified by its preparer, showing the name, address, section, block and lot number on all property located within 1,000 feet of any property line or the lot or parcel on which the new wireless telecommunications facilities are proposed to be located;
(22)
Site plan. An applicant shall be required to submit a site plan as follows:
(a)
The site plan shall show all existing and proposed structures and improvements.
(b)
The site plan shall also include documentation on the proposed intent and capacity of use as well as a justification for the height of any tower or antennas and justification for any land or vegetation clearing required.
(c)
A visual environmental assessment form ("visual EAF") and landscaping plan addressing other standards listed within this section, with particular attention to visibility from key viewpoints within and outside of the municipality as identified in the visual EAF. The Board may require submission of a more detailed visual analysis based on the results of the visual EAF.
F.
In the case of a new wireless telecommunications facility, the applicant shall be required to submit a written report demonstrating its meaningful efforts to secure shared use of existing wireless telecommunications facilities, or the use of alternative buildings or other structures within or adjoining the Village.
G.
The applicant shall certify that the wireless telecommunications facility, foundation and attachments, are designated and will be constructed to meet all local, Village, state and federal structural requirements for loads, including wind and ice loads.
H.
The applicant shall certify that the wireless telecommunications facilities will be effectively grounded and bonded so as to protect persons and property, and installed with appropriate surge protectors.
I.
The applicant shall furnish a visual impact assessment which shall include:
(1)
A zone of visibility map which shall be provided in order to determine locations from which the wireless telecommunications facility may be seen.
(2)
Pictorial representations of before and after views from key viewpoints both inside and outside of the Village as may be appropriate.
(3)
An assessment of the visual impact of the wireless telecommunications facility base and accessory buildings from abutting and adjacent properties and streets which will demonstrate the need or appropriateness of screening of said structures.
(4)
The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related facilities and structures of the proposed wireless telecommunications facilities/structures.
J.
Any and all representations made by the applicant or its counsel to the Board, on the record or otherwise, during the application process; whether written or oral, shall be deemed a part of the application and may be relied upon in good faith by the Board.
K.
All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, ordinances, rules and regulations of the Village, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate.
L.
All applications for wireless telecommunications facilities shall demonstrate that the facility has been sited to minimize the adverse visual and physical impacts and effect on the environment, the adjacent neighborhood, and the Village and its character.
M.
Both the wireless telecommunications facility and any and all accessory or associated facilities shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed, and/or to harmonize with the natural surroundings, which shall include the utilization of stealth or concealment technology as may be required by the Board.
N.
A holder of a special use permit granted under this article shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or code, and must maintain the same, in full force and effect, for as long as required by the Village or other governmental entity or agency having jurisdiction over the permittee.
O.
With respect to the application process, the Board will seek lead agency status pursuant to SEQRA. The Board shall conduct an environmental review of the proposed project pursuant to SEQRA in combination with its review of the application pursuant to this article.
P.
An applicant shall submit to the Village the number of completed applications determined by the Village Clerk to be necessary for the Village's review.
Q.
The applicant shall examine the feasibility of designing a proposed wireless telecommunications facility to accommodate future demand for at least five additional commercial applications, for future collocations.
R.
The holder of a special use permit shall notify the Village of any intended modification of a wireless telecommunications facility and shall apply to the Board to modify, relocate or rebuild a wireless telecommunications facility.
§ 155-75.1 Location.
A.
The Village may approve an application for any site, provided that the Village finds that the proposed site is in the best interest of the health, safety and welfare of the Village and its inhabitants and will not have a deleterious effect on the aesthetic nature and character of the community, the neighborhood and all nearby property values.
B.
The applicant shall submit a written report demonstrating the applicant's review of the proposed site locations, demonstrating the reason(s) for the specific site selection.
C.
Notwithstanding the findings of the applicant's report regarding site selection, the Village may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with the historic nature or aesthetic character of a neighborhood or historical district;
(3)
The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the reasonable probability of such, to residents, the public, employees and agents of the Village, or employees of the service provider or other service providers; and/or
(4)
Conflicts with the provisions of this article.
§ 155-75.2 Height.
A.
The applicant shall submit documentation justifying the total height of any wireless telecommunications facility, structure and/or antenna and the basis therefor. Such documentation will be analyzed in the context of the justification of the height needed to provide service primarily and essentially within the Village.
B.
If the need for a new wireless telecommunications facility can be proven, the maximum permitted height of a wireless telecommunications facility shall be no higher than the minimum height necessary to eliminate substantial gaps in service within the Village, whether in whole or in part. In no event shall a tower be higher than 50 feet.
§ 155-75.3 Visual impacts.
A.
All wireless telecommunications facilities shall employ stealth design technology as determined by the Board.
B.
Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.
C.
Wireless telecommunications facilities shall be galvanized or, if deemed necessary, painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained in accordance with the requirements of this article.
D.
If lighting is required, the applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under applicable regulations.
§ 155-75.4 Visual mitigation.
A.
Landscaping and/or other screening and visual mitigation treatments, including but not limited to, the use of camouflage, stealth or concealment technologies or treatments shall be required to minimize the visual and aesthetic impact of such facility.
B.
All ground-based equipment and structures shall either be located underground or placed so as not to be directly or easily visible from any property line.
C.
Accessory facilities shall maximize use of building materials, colors and textures designed to blend with the natural surroundings.
§ 155-75.5 Noise.
Noise-producing equipment shall be sited and/or insulated to minimize any increase in noise above ambient levels as measured at the property line.
§ 155-76 Retention of experts.
A.
The Board may retain any attorney, consultant and/or expert necessary to assist it in reviewing and evaluating the application, including the construction, modification and inspection of the site, once permitted, and any requests for recertification.
B.
An applicant shall deposit with the Village funds sufficient to reimburse the Village for all reasonable costs of such attorney, consultant and expert evaluation and consultation to the Board in connection with the review of any application, including the construction and modification of the site, once permitted. The initial deposit shall be $7,500. The Village will maintain a separate escrow account for all such funds. In reviewing the application, the Village's consultants/experts shall invoice the Village for their services at the consultant's/expert's standard rates, including the construction and modification of the site, once permitted. If at any time during the process this escrow account has a balance of less than $2,500, the applicant shall immediately, upon notification by the Village, replenish said escrow account so that it has a balance of at least $7,500 as determined by the Village. Such additional escrow funds shall be deposited with the Village before any further action or consideration is taken on the application. In the event that the amount held in escrow by the Village is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall be promptly refunded to the applicant. In the event the amount deposited by the applicant is insufficient to pay the actual cost of the Village consultants, the applicant shall pay any additional amount due prior to the issuance or denial of the special use permit.
C.
The applicant shall also reimburse the Village for the actual and necessary charges for legal fees which have been incurred by the Village in connection with the application.
§ 155-76.1 Exceptions from special use permit requirement.
All wireless telecommunications facilities legally existing on or before the effective date of this article shall be allowed to continue as they presently exist; provided, however, that any modifications of an existing wireless telecommunications facility must comply with the provisions of this article.
§ 155-77 Public hearing.
A.
Prior to the approval of any application for a special use permit or revocable license for wireless telecommunications facilities, a public hearing shall be held by the Board, notice of which shall be published in the official newspaper of the Village no less than 10 calendar days prior to the scheduled date of the public hearing. The applicant shall notify all landowners, in writing, whose property is located within 1,000 feet of any property line of the lot or parcel on which the new wireless telecommunications facilities are proposed to be located, and any property owner or organization directly impacted by the proposed facility as determined by the Board, by certified mail, return receipt requested, no less than 10 calendar days and no more than 20 calendar days prior to the scheduled date of the public hearing.
B.
The Board shall schedule the public hearing referred to in Subsection A of this section once it determines that the application is complete. The Village, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary. The Board may waive any part or item to be contained in the application upon request of that applicant for good cause shown as determined by the Board.
§ 155-78 Action on a special permit application.
A.
The Board will undertake a review of an application pursuant to this article in a timely manner; consistent with its responsibilities under SEQRA, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public's interest.
B.
The Board may refer any application or part thereof to any advisory or other committee for a nonbinding recommendation.
C.
After the public hearing and after formally considering the application, the Board may approve, approve with conditions, or deny a special use permit. The Board's decision shall be in writing and shall be supported by substantial evidence contained in the record. The burden of proof for the grant of the permit shall be upon the applicant.
D.
Construction of a wireless telecommunications facility permitted under this article shall be started within 90 days of the date of the grant of the special use permit and be completed, obtain a certificate of completion, and provide service within 180 days of the date of the grant of the special use permit. If the requirements of this Subsection D are not complied with, the wireless telecommunications facility shall be deemed to have been abandoned.
§ 155-79 Limitations of special permit.
A.
Such special use permit shall be nonexclusive;
B.
Such special use permit shall not be assigned, transferred or conveyed without the express prior written notification of the Village of Manorhaven;
C.
Such special use permit may be revoked, canceled, or terminated for a violation of the conditions, and provisions, if any, of the special use permit, or for material violation of this article.
§ 155-80 Application fee.
At the time of submission of an application for a special use permit for a wireless telecommunications facility, a nonrefundable application fee of $3,000 shall be paid to the Village.
§ 155-80.1 Performance security.
The applicant and the property owner of record of any wireless telecommunications facilities site shall, at its cost and expense, be jointly required to execute and file with the Village a bond or other form of security acceptable to the Village, in an amount of $50,000 and with such sureties as are deemed sufficient by the Village, to assure the faithful performance of the terms and conditions of this article, and conditions of any special use permit issued pursuant to this article.
§ 155-80.2 Indemnification.
Any application for wireless telecommunication facilities that is proposed for property located within the Village pursuant to this article shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by the law, to at all times defend, indemnify, protect, save, and hold harmless, and exempt the Village and its officers, boards, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said facility. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included in those costs that are recoverable by the Village. Said indemnity shall be signed by a duly authorized corporate officer or representative of the applicant.
§ 155-81 Conflict with other provisions.
Where this article differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by state or federal law, this article shall apply.
§ 155-81.1 Penalties for offenses.
§ 155-81.2 Severability.
If any section or subsection, paragraph, clause, phrase or portion of this article shall be judged invalid or held unconstitutional by a court or competent jurisdiction, any judgment made thereby shall not affect the validity of this chapter as a whole or any part thereof other than the part or provision so adjudged to be invalid or unconstitutional.