Muttontown City Zoning Code
ARTICLE XI
Wireless Telecommunication Services Facilities
§ 190-54 Legislative intent.
The Board of Trustees of the Village of Muttontown determines that it is in the best interest of its residents to establish regulations and standards for the siting and installation of all wireless equipment, including towers, monopoles, pole-mounted and building-attached equipment and other related devices and equipment. These regulations and standards are adopted in order to promote the safety and welfare of the residents of the Village of Muttontown to the extent reasonably permitted under federal and state laws and rules and regulations. This article will ensure that all wireless telecommunication facilities and equipment be sited, designed, built and utilized in accordance with sound use planning that will preserve and protect the aesthetic qualities of the Village and promote and protect the safety and welfare of its residents.
§ 190-55 Purpose.
The purpose of this article is to regulate, to the fullest extent reasonably permitted by law, the siting, location, construction and maintenance of wireless telecommunication services facilities in the Village in order to:
A.
Promote the safety and welfare of the residents of the Village and surrounding communities.
B.
Minimize the adverse visual effects of wireless telecommunication services facilities and protect the natural features, aesthetics and open space character of the Village by careful siting, design, buffering and screening of wireless telecommunication services facilities.
C.
Avoid potential dangers to the community, adjacent properties and the site from structural dangers pertaining to the construction and maintenance of wireless telecommunication services facilities.
D.
Limit the total number of wireless telecommunication services facilities to be constructed in the Village to the minimum number of facilities necessary to provide adequate coverage to the Village.
E.
Maximize the use of any proposed site by reducing the number of facilities to be constructed on the site and encourage co-location and multiple use of facilities to the extent reasonably permissible.
F.
Encourage the priority siting of wireless telecommunication services facilities on properties in the following order and location: large acreage lots, the Economic Development District, Village-owned property and lots exceeding 12 acres in the Residential Districts E-3 and E-5.
§ 190-56 Definitions.
As used in this article, the following terms shall be defined as follows:
Coverage for personal wireless services facilities is considered to be adequate within that area when the transmitted signal is capable of being sent or received. It is acceptable for there to be holes within the intended coverage area.
An area within the Village of Muttontown where there is not adequate coverage.
A freestanding pole having a single point of location on the ground comprising a part of a wireless telecommunication services facility. For purposes of this article, the term "monopole" shall include, in addition to the pole, all other components of the wireless telecommunication services facilities.
Non-ionizing electromagnetic radiation.
A small, supplementary and accessory bi-directional 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 primary base stations which may be attached to a structure or pole.
A small wireless telecommunication services 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. Such facility shall be limited in height and transmission power to the minimum necessary to achieve adequate coverage in the area where there is a failure of coverage.
A guide wired or self-supporting tower constructed as a freestanding structure comprising a part of a wireless telecommunication services facility. For purposes of this article, the term "tower" shall include, in addition to the tower, all other components of the wireless telecommunication services facility.
The provision of wireless telecommunication services, including those more commonly referred to as cellular telephones, which services are regulated by the Federal Communications Commission (FCC) in accordance with and as the term "personal wireless services" is defined in the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 322(c)(7)(C), or as hereafter amended. With the exception of communications for the Village of Muttontown\ and local police, fire, ambulance and other municipal emergency service, the term "wireless telecommunication services" shall specifically exclude all other services not included in the FCC definition of "personal wireless services."
Any and all equipment and structures used in connection with the commercial operation of wireless telecommunication services, as defined herein, and as the term "personal wireless services facilities" is defined in the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(C), or as hereafter amended, to transmit and/or receive frequencies, including but not limited to antennas, monopoles, secondary wireless telecommunication services facilities, repeaters and such other equipment, appurtenances and structures relating thereto.
§ 190-57 Conformity required.
Except as provided hereinafter, no wireless telecommunication services facility shall be sited, located, constructed or maintained on any lot, building, structure or land area in the Village of Muttontown, except in conformity with the requirements of this article, the applicable requirements of this chapter and all other rules and regulations governing wireless telecommunication services and facilities.
§ 190-58 Location.
Wireless telecommunication services facilities shall be located on properties meeting the below criteria in the noted order of priority. The applicant shall evaluate and demonstrate the feasibility of all available high priority locations meeting the criteria before considering a lower priority location:
A.
Private or public properties exceeding 100 acres in area where one wireless telecommunication services facility site can provide at least adequate coverage to the Village and which avoids and minimizes impacts upon adjoining residential properties by providing a separation of 1,000 feet or more from all property boundaries and/or residences.
B.
Properties or structures in the Economic Development District.
C.
Village-owned property used for municipal purposes.
D.
Properties having in excess of 12 acres in area within the Village's E-3 and E-5 Zoning Districts and which property location minimizes the economic and aesthetic impacts upon adjoining residential properties while providing adequate coverage to the Village.
E.
Location sites not meeting with the above priority criteria shall only be considered by the Zoning Board of Appeals when the applicant demonstrates to the Board's satisfaction that a priority site is not available and that the alternate site protects and preserves the aesthetic qualities, open space characteristic of the Village of Muttontown, the property value of the community and the safety and welfare of its citizens, to the maximum extent practicable.
§ 190-59 Co-location.
[Amended 10-10-2006 by L.L. No. 2-2006]
The shared use of the wireless telecommunication services facility shall be strongly encouraged. The wireless telecommunication services facility and site shall be required to be of proper size, location and design to accommodate the co-location of all other licensed wireless telecommunication service providers' facilities and the communications equipment of all local emergency services, as necessary to provide adequate coverage of the entire Village, unless otherwise approved by the Board of Trustees.
§ 190-60 Setbacks.
[Amended 10-14-2008 by L.L. No. 1-2008]
It shall be a priority of the Village to maximize the separation between wireless telecommunication services facilities and residences and residential properties. Unless otherwise modified by the Board of Trustees in an effort to accommodate co-location or other purposes of this article, a freestanding wireless telecommunication services facility shall be located from the property line and all dwelling units not less than:
A.
The height of the facility plus two times the applicable setback for principal structures for the district in which the property is located; and
B.
Such additional setbacks as shall be determined by the Board of Trustees in order that the proposed facility will not create damage or injury from a structural failure of a wireless telecommunication services facility.
§ 190-61 Freestanding structures.
[Amended 10-10-2006 by L.L. No. 2-2006]
The type and design of freestanding wireless telecommunication services facilities shall be disguised to minimize its visibility and impact to the satisfaction of the Board of Trustees. Wireless telecommunication services facilities which require the use of guy wires are prohibited.
§ 190-62 Height limitations.
A.
Notwithstanding any provision to the contrary in this chapter, the following maximum height limitation for wireless telecommunication services facilities shall apply, but under no circumstances shall the height exceed the minimum height reasonably necessary to accomplish the purpose it is proposed to serve.
B.
The height of any monopole or other freestanding structure utilized in a wireless telecommunication services facility shall not exceed 150 feet, measured from the highest point of such facility to the original grade elevation of the ground immediately adjacent to the structure.
§ 190-63 Visual mitigation.
[Amended 10-10-2006 by L.L. No. 2-2006]
A.
The applicant shall prepare a visual impact assessment of the proposed wireless telecommunication services facility based upon appropriate modeling, photography and other pertinent analytical techniques as required by the Board of Trustees, including, but not limited to, a map identifying the zone of visibility.
B.
Landscaping and/or other screening and mitigation, including, but not limited to, architectural treatment, and alternative construction, structural and transmission technologies such as antennas attached to or disguised as trees or other features or camouflaging techniques, shall be required to minimize the visual impact of such facility from public thoroughfares, important viewsheds and vantage points and surrounding properties to the extent practicable all as determined by the Board of Trustees.
C.
No signs other than as approved by the Board of Trustees for security or safety purposes shall be erected on any wireless telecommunication services facility.
D.
All ground-based equipment and structures shall be located underground.
§ 190-64 Lighting.
The wireless telecommunication services facility shall not be artificially lighted unless otherwise required by the Federal Aviation Administration (FAA).
§ 190-65 Operational characteristics.
[Amended 10-10-2006 by L.L. No. 2-2006]
A.
Unless otherwise superseded by the Federal Communications Commission (FCC), the design and use of the proposed wireless telecommunication services facility, including its cumulative impact with other existing and approved facilities, shall be certified to conform to the maximum NIER exposure standards promulgated by the FCC, as amended. Said certification shall include a report prepared in accordance with FCC Office of Engineering and Technology Bulletin 65, as amended.
B.
The Board of Trustees shall require annual certification of conformance with the applicable emissions standards and the requirements and conditions of approval.
C.
Certification shall also be required prior to any modification of the wireless telecommunication services facility, at any time the Building Inspector suspects such modification has been made or upon modification of the FCC standards.
D.
The Board of Trustees shall hire a qualified professional of its choice to review and confirm such initial and annual certification report, the cost of which shall be reimbursed by the applicant.
E.
Any violation of the emissions standards shall require immediate discontinuation and correction of the use responsible for the violation. Any such violation of these requirements of this chapter or the conditions of the special permit approval shall be deemed to be an offense punishable by fine and/or imprisonment in accordance with this chapter.
§ 190-66 Noise.
Noise-producing equipment shall be sited and/or insulated to minimize, to the maximum extent practicable, any increase in noise above ambient levels as measured at the property line.
§ 190-67 Utility service.
All utility device lines extended to the wireless telecommunication services facility site shall be installed underground.
§ 190-68 Safety provisions.
A wireless telecommunication services facility shall be designed and erected so that in the event of structural failure it will fall within the required setback area and, to the maximum extent possible, away from adjacent development. No new structure shall be permitted which would be classified by the FAA regulations as an obstruction or hazard.
§ 190-69 Insurance and indemnification.
A.
The owner and applicant shall indemnify, defend, protect and hold harmless the Village, its Board members, officers, employees and agents from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, all costs and cleanup actions of any kind and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and the costs of defense, directly or proximately resulting from activities undertaken pursuant to the use and operation of any approved wireless telecommunication services facility.
B.
The owner and applicant shall obtain and maintain at all times insurance of an appropriate type and amount from an insurer licensed and authorized in the State of New York meeting the requirement of the Zoning Board of Appeals, the Village Board of Trustees and the Village Attorney.
§ 190-70 Security provisions.
[Amended 10-10-2006 by L.L. No. 2-2006]
A security program shall be formulated and implemented for the site of a wireless telecommunication services facility. Such program shall include physical features such as fencing, anti-climbing devices or elevating ladders on monopoles or other approved structure and/or monitoring either by staff or electronic devices to prevent unauthorized access and vandalism as required by the Board of Trustees.
§ 190-71 Structural inspection and report.
An approved wireless telecommunication services facility shall be inspected at the expense of the service provider in accordance with Chapter 67, Fees and Deposits, adopted by the Village by a licensed professional engineer every five years or at any time upon a determination by the Building Inspector that an approved structure may have sustained structural damage or is in violation of the conditions of approval. A copy of the inspection report shall be submitted to the Building Inspector.
§ 190-72 Emergency plan.
[Amended 10-10-2006 by L.L. No. 2-2006]
An emergency action plan shall be formulated and implemented for the site of a wireless telecommunication services facility, to the satisfaction of the Board of Trustees and local emergency services to the Village of Muttontown. Such plan shall include identification of all appropriate features and considerations of each facility, appropriate training of local police, fire and ambulance service providers and appropriate provisions for notification of the public in the event of an emergency, to the satisfaction of the Board of Trustees and the local providers of emergency services to the Village of Muttontown.
§ 190-73 Lease agreement.
[Amended 10-10-2006 by L.L. No. 2-2006]
In the case of an application for approval of a wireless telecommunication services facility to be located on lands owned by a party other than the applicant or the Village, a copy of the lease agreement with the property owner, together with any subsequent modifications thereof, shall be provided to the Board of Trustees and a copy shall be filed with the Village Clerk.
A.
The Board of Trustees, at its discretion and in cooperation with the involved parties, shall allow certain proprietary information contained in such lease which is unrelated to the requirements of this article or the conditions of the approvals for said facility to be omitted or kept confidential.
B.
The Board of Trustees shall not approve the application unless it finds that the lease agreement is in conformance with and properly reflects the purposes and requirements of this article and the conditions of approval.
§ 190-74 Removal.
[Amended 10-10-2006 by L.L. No. 2-2006]
A.
A wireless telecommunication services facility, or any portion thereof, including any portion of the antenna, shall be dismantled and removed from the property on which it is located when it has been inoperative or abandoned for a period of 180 days from the date on which it ceased operation or no longer has a valid approval, permit or license or is otherwise no longer necessary for the provision of adequate coverage and adequate capacity in the Village of Muttontown.
B.
The applicant shall provide to the Village written notification of the date the use of the facility was discontinued or abandoned or no longer has a valid approval, permit or license or is otherwise no longer necessary for the provision of adequate coverage and adequate capacity in the Village of Muttontown by one or more of the service providers. The applicant will also acknowledge in this notification the requirement to remove the facility and set forth the plans for its removal.
C.
The owner and/or applicant shall provide to the satisfaction of the Village of Muttontown a written agreement suitable for filing with the Nassau County Clerk to ensure the dismantling, removal and restoration of an abandoned wireless telecommunication services facility or portion thereof. Compliance with the requirements of removal as set forth herein shall be secured by a bond or cash deposit posted by the applicant in an amount and for a duration determined to be adequate by the Board of Trustees.
D.
In the event that such facility or portion thereof is not completely removed from the property within the required time, the Village shall be authorized to cause such removal and be reimbursed for all expenses incurred, including reasonable attorneys' fees from said bond.
§ 190-75 Application procedures.
[Amended 10-10-2006 by L.L. No. 2-2006]
No wireless telecommunication services facility shall be sited, erected, constructed and maintained or permitted or allowed to be sited, erected, constructed and maintained within the Village unless and until a written application shall have been made to the Board of Trustees for a special use permit pursuant to this article and the provisions of this chapter and thereafter approved by the Board of Trustees. The applicant shall comply with all procedural rules and regulations as set forth in the rules and regulations adopted by the Board of Trustees for the hearing of a special use permit.
§ 190-76 Application fees.
The applicant is responsible for the payment to the Village of a permit fee of $5,000 for each application for a single wireless telecommunication services facility and an additional $5,000 for each co-located licensed wireless telecommunication services provider for each site requested in the application.
§ 190-77 Hearing charges.
[Amended 10-10-2006 by L.L. No. 2-2006]
In addition to the required filing fees of § 190-76, the applicant shall be liable for, and shall pay, the actual and necessary charges which have been incurred by the Village in connection with the application, and an initial hearing deposit of $7,500 must accompany the filing fee.
B.
Each applicant shall pay the application fees and hearing charges required above prior to the hearing and meeting for which the fees are required and the charges are incurred to the extent that the latter are then determined. To the extent that hearing charges are subsequently determined to exceed the funds on hand, the applicant shall pay the same prior to the next stage (after such charges are determined) in connection with the application, or approval, including the filing of a final decision.
C.
No hearing shall be held and no consideration shall be given by the Board of Trustees on any application unless all required fees and charges, to the extent that the latter are then determined, shall have been paid.
§ 190-78 Decisions.
[Amended 10-10-2006 by L.L. No. 2-2006]
All decisions of the Board of Trustees involving applications for wireless telecommunication services shall be in writing and filed within 62 days of the close of the public hearing and filing of required information and documentation requested.
§ 190-79 Waiver or modification of standards.
[Amended 10-10-2006 by L.L. No. 2-2006]
In order to further the purposes of this article, the Board of Trustees may, upon just cause shown, waive or modify any of the special permit standards and criteria contained herein. For telecommunication services facilities that are known to be presently existing within the Village on a New York State right-of-way, the Board of Trustees may waive or modify the special permit standards and criteria contained herein as it deems necessary and appropriate.