Pleasantville City Zoning Code
ARTICLE VIIA
Wireless Telecommunications Facilities
§ 185-35.1 Regulations of wireless telecommunications facilities.
A.
Statement of intent and objectives.
(1)
The Village Board of Trustees has determined that establishing zoning standards for wireless telecommunications facilities is among the legislative purposes of the Zoning Code of the Village and is in accordance with the goals, objectives and policies of the Village Comprehensive Plan.
(2)
The purpose of these regulations is to control the location, construction, aesthetics, use, modification and maintenance of wireless telecommunication facilities in accordance with federal law, promote wireless telecommunications services, encourage siting wireless telecommunications facilities in nonresidential areas, minimize the number of wireless telecommunications facilities and protect, to the maximum extent practicable, the open space character of the Village, the property values of the community, the health and safety of our citizens and mitigate, to the maximum extent practicable, aesthetic impacts, while not unreasonably limiting competition among telecommunication providers.
B.
Use. Except as provided hereinafter, no wireless telecommunications facility, including small wireless facilities and non-small wireless facilities, shall be located, constructed, operated or maintained on any lot, building, structure or land within the Village, unless a special permit has been issued in conformity with the requirements of this chapter and all other applicable regulations.
C.
Eligible facility request. Notwithstanding anything to the contrary in this section, any application for a wireless telecommunications facility that does not substantially change the dimensions of a wireless telecommunications facility shall not require a small wireless permit or special use permit. In the event that a modification to, or replacement of, an existing wireless telecommunications facility does not substantially change such existing wireless telecommunications facility, all that shall be required is a building permit from the Village Building Department, provided that such facility meets the definition of eligible facility request defined in § 185-3B. The applicant shall submit a written narrative and certification report by a NYS-licensed engineer indicating compliance with all applicable provisions found within the Federal Communications Commission (FCC) regulations, the Village Code, state law and federal law. An as-built drawing of the modified facility, signed and sealed by a NYS-licensed professional engineer, shall be filed with the Building Department prior to issuance of a certificate of occupancy.
D.
Exemptions. The provisions of this article shall not apply to unlicensed wireless telecommunications facilities and equipment located wholly within a principal or accessory building, such as, but not limited to, baby monitors, heart monitors, garage door openers, burglar and fire alarm systems, and emergency communications equipment serving only that building.
E.
Wireless telecommunications facility fees.
(1)
Application fee. At the time an applicant submits an application for a wireless telecommunications facility, such applicant shall pay a nonrefundable application fee in an amount as determined by the Village Board and set forth in the Village fee schedule, in addition to any other fees required by law.
(2)
Reimbursement for use of the public right-of-way. In addition to permit application fees, every wireless telecommunications facility located in the public right-of-way is subject to the Village's right to fix annually a fair and reasonable fee to be paid for use and occupancy of the public right-of-way, set forth in the Village fee schedule.
F.
Review costs. In accordance with Chapter 91, Article III and to the extent permissible under federal law, in connection with any proposed wireless telecommunications facility, the applicant shall be required to provide funds to an escrow account held by the Village to allow the Planning Commission to retain such technical experts and other consultants as may be necessary to review the proposal, including, but not limited to, the review of financial and technical aspects of the proposal and of the financial, legal and technical practicability of alternatives which may be available to the applicant.
G.
Siting.
(1)
Subject to the Planning Commission's review and evaluation of technological, structural, safety and financial considerations associated with siting wireless telecommunications facilities, a wireless telecommunication facility shall be located, sited and erected in accordance with the following priorities, (a) being the highest priority and (e) being the lowest priority.
(a)
Co-location on i) an existing, approved wireless telecommunications facility, or; ii) on any high-voltage electric transmission tower. Co-location shall be required unless an applicant demonstrates to the satisfaction of the Planning Commission that:
[1]
No high-voltage electric transmission tower or existing wireless telecommunications facility site can accommodate the proposed wireless telecommunications facility in a financially or technologically feasible manner consistent with the wireless communications service carrier's system requirements or FCC service obligations;
[2]
No high-voltage electric transmission tower or existing wireless telecommunications facility site can accommodate the proposed wireless telecommunications facility due to structural, technical or other engineering limitation, including frequency incompatibility; or
[3]
The owner of a high-voltage electric transmission tower or existing wireless telecommunications site refuses to permit an applicant shared use of the site.
(b)
Sites, lots, buildings and structures located in business and manufacturing districts hosting a previously approved wireless telecommunications facility.
(c)
Property owned by the Village or any other municipal or educational entity.
(d)
Other lands in a business or manufacturing district.
(e)
Lands used for nonresidential purposes in an office district.
(f)
Other lands in a residential or office district.
(2)
Any new monopole, tower or structure intended to support a wireless telecommunications facility shall be located, sized and designed to accommodate future, potential co-location of other telecommunications facilities, unless otherwise permitted by the Planning Commission. Wherever possible, such facilities shall be attached to an existing building or structure. To the maximum extent practicable, existing rights-of-way shall be used to provide access to the site of a wireless telecommunications facility. Every monopole, tower or structure capable of supporting three or more wireless communication facilities shall be wired and configured to accept a secondary, redundant power supply in case of emergency.
(3)
If the proposed site is not proposed for the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a special use permit should be granted for the proposed site and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.
(4)
Notwithstanding the above, the Village may approve any site located within the Village, provided that the Village finds that the proposed site is in the best interest of the safety, public welfare, character and environment of the Village and will not have a deleterious effect on the nature and character of the community and surrounding properties.
H.
Small wireless facility permit required.
(1)
In order to ensure compliance with all applicable provisions of the Village Code, state law and federal law, all small wireless facilities shall require a small wireless facility permit from the Planning Commission.
(2)
An application submitted for a small wireless facility permit shall comply with the applicable provisions of this section. However, notwithstanding anything to the contrary, where appropriate, the Planning Commission shall have the authority to waive any application or substantive requirements set forth in this section relating to an application for, or approval of, a small wireless facility permit, unless otherwise set forth herein.
(3)
The Planning Commission may attach such conditions and safeguards to any small wireless facility permit and site development plan as are, in its opinion, necessary to ensure initial and continued conformance to all applicable standards and requirements.
(4)
Unless otherwise set forth in this chapter, a DAS facility, microcell facility or other type of wireless telecommunications facility not meeting the definition of small wireless facility shall require a special use permit from the Planning Commission.
I.
Application requirements for small wireless facilities.
(1)
Upon receipt of an application for a small wireless facility, the Planning Commission shall review said application and plans in accordance with the standards and requirements set forth in this section.
(2)
An application for approval of a small wireless facility shall be submitted on the pertinent forms provided for that purpose by the Village and shall be jointly filed by the operator of the small wireless telecommunications facility and the owner of the property on which such facility is proposed to be located. The application and documents accompanying the application shall also be submitted in an electronic file format.
(3)
The applicant shall submit a site plan describing any new proposed structure and antenna and all related fixtures, accessory equipment, appurtenances and apparatus, including, but not limited to, height above preexisting grade, materials, color and lighting.
(4)
An application for a small wireless facility permit 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 Planning Commission, any false statement in the application may subject the applicant to denial of the application.
(5)
The applicant must provide documentation to verify it has a legal interest in the site if not within the public right-of-way. Said documentation may be in the form of a deed, contract for sale or lease for the property, depending on whether the applicant is the property owner, contract vendee or lessee.
(6)
If proposing a new structure for the purpose of supporting a small wireless facility, the application shall be accompanied by a map which shows the applicant's existing and proposed area of coverage. Such map shall locate all existing wireless telecommunications facility sites, including small wireless facilities and non-small wireless facilities, within 1/2 mile of the proposed small wireless facility.
(7)
In addition to the small wireless facility permit application requirements set forth herein, all applications for the construction or installation of a new small wireless facility or modification of an existing small wireless facility shall contain the following information:
(a)
A descriptive statement of the objective(s) for the new facility or modification, including and expanding on a need such as coverage and/or capacity requirements, densifying a wireless network, introducing new services or improving service capabilities;
(b)
The postal address and tax map parcel number of the property;
(c)
The location, size, and height of all existing and proposed structures on the property which is the subject of the application;
(d)
Documentation justifying the total height of any proposed antenna and structure and the basis therefor;
(e)
The applicant's name, address, telephone number and email address;
(f)
The name, address, phone number and email of the property owner, if different than the applicant;
(g)
The size of the property, stated both in square feet and lot line dimensions, and a survey prepared by a licensed professional surveyor showing the location of all lot lines, if the proposed small wireless facility is located outside the public right-of-way;
(h)
The location of the nearest residential structure;
(i)
The type, locations and dimensions of all proposed and existing landscaping and fencing, if the proposed small wireless facility is located outside the public right-of-way.
(j)
The number, type and model of the antenna(s) proposed, with a copy of the specification sheet;
(k)
Identify and disclose the number and locations of any small wireless facility that the applicant has installed in the Village;
(l)
A description of the anticipated maintenance needs, including frequency of service, personnel needs and equipment needs, and the potential traffic safety and noise impact of such maintenance;
(m)
A copy of the FCC license applicable for the intended use of the small wireless facility; and
(n)
Information relating to the expected useful life of the proposed small wireless facility.
(8)
The applicant shall furnish written certification that the small wireless facility and attachments are designed and will be constructed to meet all local, county, state and federal structural requirements for loads, including wind and ice loads. If the wireless facility is subsequently approved and constructed, as-built certification indicating that the facility has been constructed in accordance with all standards shall be furnished to the Village prior to issuance of any certificate of occupancy.
(9)
The application shall include an environmental assessment form (EAF), including a visual addendum, assessing the visual impact of the proposed small wireless facility and provide appropriate modeling and photographic simulations. The application shall include a demonstration that the facility will be sited so as to minimize visual intrusion as much as possible given the facts and circumstances involved with the proposed site and facility, will employ stealth technologies, where appropriate, and will thereby have the least adverse visual effect on the environment, the character of the community, surrounding properties and on the residences in the area of the wireless telecommunications facility.
J.
Approval procedures for small wireless facility permits.
(1)
For small wireless facility applications, the Planning Commission may, at its discretion, require a public hearing.
(2)
All decisions of the Planning Commission involving applications for a small wireless facility permit shall be in writing and supported by substantial evidence contained in a written record.
(3)
No application shall be accepted and no permit shall be issued for a small wireless facility on a property where the Building Inspector has found, or there exists, a violation of the Village Code and where such violation has not been corrected.
(4)
Time frames for approval.
(a)
Within 60 calendar days of receipt of a complete application for the co-location of a small wireless facility on a preexisting utility pole, monopole or other existing support structure, the Planning Commission shall make a final decision on whether to approve the application and shall notify the applicant, in writing, of such decision.
(b)
Within 90 calendar days of receipt of a complete application for a small wireless facility on a new utility pole, monopole or other new support structure, the Planning Commission shall make a final decision on whether to approve the application and shall notify the applicant, in writing, of such decision.
(c)
Within 10 calendar days of receipt of an incomplete application for a small wireless facility, the Village shall notify the applicant, in writing, of any supplemental information required to complete the application. Upon receipt of an applicant's supplemental information in response to the initial notification of incompleteness by the Village, the applicable shot clock will reset to zero, and the Village shall have the full 60 calendar days or 90 calendar days permitted by law to act on the completed application.
(d)
For any subsequent determinations of incompleteness beyond the initial, the Village shall notify the applicant of any required supplemental information within 10 days of receipt of the supplemental submission, and such notice shall toll the applicable shot clock until the applicant submits the required supplemental information.
K.
Requirements for small wireless facilities.
(1)
General requirements for small wireless facilities.
(a)
A small wireless facility shall be designed, constructed, operated, repaired, modified and removed in strict compliance with all current applicable technical, safety and safety-related codes, including, but not limited to, the American National Standards Institute (ANSI) Code, National Electrical Safety Code, and National Electrical Code.
(b)
A small wireless facility shall at all times be kept and maintained in good condition, order and repair by qualified maintenance and construction personnel, so that the same shall not endanger the life of any person or any property in the Village.
(c)
A small wireless facility shall not interfere with public safety communications or the reception of broadband, television, radio or other communications services enjoyed by occupants of nearby properties.
(d)
A small wireless facility shall not, by itself or in conjunction with other wireless telecommunications facilities, generate radio frequency emissions in excess of the standards and regulations of the FCC. When a small wireless facility is complete, as-built readings shall be taken and submitted to the Village.
(e)
The Village reserves the right to inspect any small wireless facility to ensure compliance with the provisions of this subsection and any other provisions found within the Federal Communications Commission regulations, the Village Code, state and federal law. The Village and/or its agents shall have the authority to enter the property upon which a small wireless facility is located at any time, upon reasonable notice to the operator and property owner, to ensure such compliance.
(f)
All antennas and other supporting structures shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or collided with.
(g)
The owner and/or user of the small wireless facility, after construction thereof, shall annually submit a report to the Village Engineer prepared by a qualified professional engineer or engineers.
[1]
Such report shall provide an analysis of the nonionizing electrical radiation emitted by the facility and shall be accompanied by sufficient underlying data so that the analysis can be reviewed for accuracy and completeness by a person expert in the field, at the owner's expense.
[2]
If the owner and/or user demonstrate that an acceptable comparable report is routinely made to another agency in satisfactory intervals, the approving authority may authorize the submission of such comparable report to the Village Engineer in lieu of the annual report required above. In the event that the report is not submitted as required, the Village may, in its discretion, obtain its own report at the owner's expense.
[3]
If the owner fails to pay for the report within 30 days after a demand has been made by the Village, the cost shall constitute a lien against the property involved and may be levied, assessed and collected in the same manner as Village taxes.
(2)
Specific requirements for small wireless facilities.
(a)
Setback. All wireless telecommunications support structures for any small wireless facility located outside the public right-of-way shall be set back not less than two times the setback requirements for principal structures for the district in which the property is located, or the height of the facility plus the otherwise applicable setback requirements for a principal structure for the district in which the property is located, whichever is greater. The Planning Commission may reduce such setback requirements based upon consideration of lot size, topographic conditions, adjoining land uses, landscaping, other forms of screening and/or structural characteristic of the proposed support structure. However, in no case shall the Planning Commission reduce the setback required to less than the applicable setback requirements for principal structures in the district in which the property is located.
(b)
Height. In no case shall a wireless telecommunications facility exceed the minimum height reasonably necessary to provide reliable signal coverage. The proposed height, which may be in excess of the maximum height permitted for other structures in the applicable zoning district, shall address any additional height necessary to accommodate co-location by additional antenna arrays, but under no circumstances is the height to be in excess of what is permitted for a small wireless facility, as defined in this chapter.
(c)
Visual mitigation.
[1]
A small wireless facility shall be sited so as to have the least adverse visual effect on the environment and its character, on existing vegetation and on the residents in the area of the wireless telecommunications facilities sites. 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 federal, state and local laws, statutes, codes, rules or regulations.
[2]
Antennas and antenna accessory equipment shall be of colors that are harmonious with the exterior of the support structure.
[3]
Both the small wireless facility and any and all accessory equipment shall maximize 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.
[4]
A small wireless facility shall not be artificially lighted or marked, except as required by law.
[5]
Electrical and land-based telephone lines extended to serve the wireless telecommunications facility sites shall be installed underground.
[6]
Stealth technologies shall be required to be employed in an effort to blend into the surrounding environment and minimize aesthetic impact.
[7]
Landscaping shall be provided, if appropriate.
[a]
In determining the most appropriate landscaping to be provided, the approving authority shall consider the visual impact of the small wireless facility in its setting with regard to immediate proximity of observers and the sight lines from major viewing points. The area surrounding the small wireless facility or attached wireless facility shall be landscaped and maintained with trees, shrubs and ground cover consistent with the surrounding community character and satisfactory to the approving authority.
[b]
When a fence is required, the outside of such fencing shall be landscaped with trees, shrubs or other appropriate planting material satisfactory to the approving authority.
[c]
An existing natural vegetative buffer which meets or exceeds the above requirements may be retained to meet the landscape requirements set forth above.
[8]
Small wireless facilities and any accessory equipment shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, or to otherwise create safety hazards to pedestrians and/or motorists.
L.
Regulations applicable to small wireless facility permits in the public right-of-way. In addition to the applicable small wireless facility permit requirements set forth in this section, all small wireless facilities located in the public right-of-way shall be required to comply with the following regulations:
(1)
In no case shall ground-mounted accessory equipment, walls, or landscaping be located within 18 inches of the face of the curb, or within an easement extending onto a privately owned lot.
(2)
To the extent feasible, accessory equipment shall be placed underground. Ground-mounted accessory equipment that cannot be placed underground is permitted when placed in conjunction with a new stealth pole and concealed in a ground-mounted cabinet. The maximum acceptable dimensions of a ground-mounted cabinet is 30 inches wide by 30 inches deep by four feet high and must be square in shape. Ground-mounted equipment on sidewalks must not interfere with the flow of pedestrian traffic and must conform to the American's with Disabilities Act (ADA)[1] in regards to appropriate sidewalk spacing. Ground-mounted equipment must otherwise be screened from surrounding views to the fullest extent possible through the use of landscaping or other decorative features to the satisfaction of the Village. Ground-mounted accessory equipment shall be screened, when possible, by utilizing existing structures. If screening by utilizing existing structures is not possible, ground-mounted accessory equipment shall be made architecturally and aesthetically compatible with the surrounding area through the use of coatings, landscaping, and/or screening walls, enclosures or other stealth technology to the satisfaction of the Village.
[1]
Editor's Note: See 42 U.S.C.A. § 12101 et seq.
(3)
Any graffiti on any small wireless facility support structure or any accessory equipment shall be removed within 30 days upon notification by the Village, at the sole expense of the owner.
(4)
Accessory equipment attached to a small wireless facility support structure shall have such vertical clearance as the Planning Commission may determine is reasonable.
(5)
Any new pole and/or equipment and other improvements associated with a new pole or an existing pole must not obstruct:
(a)
Access to any aboveground or below-ground infrastructure for traffic control, streetlight or public transportation, including without limitation any curb control sign, parking meter, vehicular traffic sign or signal, pedestrian traffic sign or signal;
(b)
Access to any public transportation vehicles, shelters, street furniture or other improvements at any public transportation stop;
(c)
Access to aboveground or underground infrastructure owned or operated by any public or private utility agency;
(d)
Fire hydrant access;
(e)
Access to any doors, gates, sidewalk doors, passage doors, stoops or other ingress and egress points to any building appurtenant to the right-of-way; and/or
(f)
Access to any fire escapes.
M.
Non-small wireless facility special use permit required.
(1)
A non-small wireless facility shall require a special permit to be issued by the Planning Commission.
(2)
All applications for a non-small wireless facility permit shall comply with the applicable provisions of this section. However, notwithstanding anything to the contrary, where appropriate, the Planning Commission shall have the authority to waive any application or substantive requirements set forth in this section relating to an application for, or approval of, a special permit, unless otherwise set forth herein.
N.
Application requirements for non-small wireless facilities.
(1)
An application for approval of a non-small wireless facility special permit shall be submitted on the pertinent forms provided for that purpose by the Village and shall be jointly filed by the operator of the non-small wireless facility and the owner of the property on which such facility is proposed to be located. The application and documents accompanying the application shall also be submitted in an electronic file format.
(2)
The applicant shall provide documentation to verify it has a legal interest in the site where the non-small wireless facility is to be located. Said documentation may be in the form of a deed, contract for sale or lease of the property, depending on whether the applicant is the property owner, contract vendee or lessee.
(3)
The applicant shall submit a site plan describing any new proposed structure and antenna and all related fixtures, accessory equipment, appurtenances and apparatus, including, but not limited to, height above preexisting grade, materials, color and lighting.
(4)
An application for a non-small wireless facility permit 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 Planning Commission, any false statement in the application may subject the applicant to denial of the application.
(5)
If proposing a new structure for the purpose of supporting a non-small wireless facility, the application shall be accompanied by a map which shows the applicant's existing and proposed area of coverage. Such map shall locate all existing wireless telecommunications facility sites, including small wireless facilities and non-small wireless facilities, within 1/2 mile of the proposed non-small wireless facility.
(6)
In addition to all other required information as stated in this section, all applications for the construction or installation of new non-small wireless facilities, or any substantial change to an existing non-small wireless facility, shall contain the following information:
(a)
A descriptive statement of the objective(s) for the new facility or modification, including and expanding on a need such as coverage and/or capacity requirements, densifying a wireless network, introducing new services or improving service capabilities;
(b)
The postal address and tax map parcel number of the property;
(c)
The location, size, and height of all existing and proposed structures on the property which is the subject of the application;
(d)
Documentation justifying the total height of any proposed antenna and structure and the basis therefor;
(e)
The applicant's name, address, telephone number and email address;
(f)
The name, address, telephone number and email of the property owner;
(g)
The names, addresses, telephone numbers, and email addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application;
(h)
The size of the property, stated both in square feet and lot line dimensions, and a survey prepared by a licensed professional surveyor showing the location of all lot lines, if the proposed non-small wireless facility is located outside the public right-of-way;
(i)
The location of the nearest residential structure;
(j)
The type, locations and dimensions of all proposed and existing landscaping and fencing, if the proposed non-small wireless facility is located outside the public right-of-way.
(k)
The number, type and model of the antenna(s) proposed, with a copy of the specification sheet;
(l)
Identify and disclose the number and locations of any wireless telecommunication facility the applicant has installed in the Village or locations the applicant has considered in the past year for wireless telecommunication facilities in the Village, including small wireless facilities and non-small wireless facilities, and those sites submitted or anticipated to be submitted within a one-year period;
(m)
A description of the anticipated maintenance needs, including frequency of service, personnel needs and equipment needs, and the potential traffic safety and noise impact of such maintenance;
(n)
A copy of the FCC license applicable for the intended use of the non-small wireless facility;
(o)
Information relating to the expected useful life of the proposed non-small wireless facility;
(p)
The applicant shall furnish written certification that the non-small wireless facility, structure, foundation, attachments and accessory equipment are designed and will be constructed to meet all local, county, state and federal structural requirements for loads, including wind and ice loads. If the wireless facility is subsequently approved and constructed, as-built certification indicating that the facility has been constructed in accordance with all standards shall be furnished to the Village prior to issuance of any certificate of occupancy; and
(q)
A proposed non-small wireless facility shall contain a demonstration that the facility will be sited so as to minimize visual intrusion as much as possible given the facts and circumstances involved with the proposed site and facility, will employ stealth technologies as directed by the Planning Commission, where appropriate, and will thereby have the least-adverse visual effect on the environment, the character of the community, surrounding properties and on the residences in the area of the wireless telecommunications facility.
(7)
Each applicant for a special permit under this article shall prepare a full environmental assessment form (EAF), including a visual addendum, assessing the visual impact of the proposed wireless telecommunications facility and provide appropriate modeling, photographic simulations and such other analytical tools as the Planning Commission in its discretion may require. The Planning Commission may, in its discretion, select the viewpoints for photo simulations and require an applicant perform a "balloon test" for a new wireless facility and may require alternative stealth technologies be employed to address aesthetic impacts.
(8)
As a condition of special permit approval, the applicant shall be required to provide a written agreement, in recordable form suitable for filing and prepared to the satisfaction of Village Counsel, acknowledging that it shall be required to allow the co-location of other future non-small wireless facilities on its own facility unless otherwise unreasonably limited by technological, structural or other engineering considerations.
(9)
Where Co-location of a wireless telecommunications facility is proposed, the added wireless telecommunications facility shall be permitted as an amendment to the existing site plan or special use permit for the site containing such facility by submission of an application for a building permit and without the need for an application for an amended site plan or special permit approval, provided that such facility meets all of the otherwise applicable requirements of this chapter and no physical modification other than the attachment of the antennas and the installation of associated equipment to be located on the ground is required. An amended written narrative and certification report indicating conformance with all of the pertinent requirements of this chapter shall be provided in addition to all required information in support of the required building permit. An as-built drawing of the modified facility shall be filed with the Village Building Department as a condition of the continued validity of such building permit. The Village Building Department shall provide written notification to the Planning Commission of the submission of the application for building permit upon its receipt.
O.
Approval procedures for non-small wireless facilities.
(1)
The special permit may be granted by the Planning Commission in accordance with the procedure set forth in § 185-56, which includes the conduct of a public hearing.
(2)
All decisions of the Planning Commission involving applications for a small wireless facility permit shall be in writing and supported by substantial evidence contained in a written record.
(3)
No application shall be accepted and no special permit shall be issued for a non-small wireless facility on a property where the Building Inspector has found, or there exists, a violation of the Village Code and where such violation has not been corrected.
(4)
Time frames for approval.
(a)
Within 30 calendar days of receipt of any application for a non-small wireless facility, the Village shall notify the applicant, in writing, of any supplemental information required to complete the application. Such notification shall toll the applicable shot clock until the applicant submits the required supplemental information.
(b)
Within 90 calendar days of receipt of an application for a co-located non-small wireless facility or 150 days of receipt of an application for a new non-small wireless facility with accompanying support structure, including such technical information from the applicant as may be required by the Planning Commission for a special use permit under the provisions of this section, the Village shall make a final decision on whether to approve the application and shall notify the applicant, in writing, of such decision.
P.
Requirements for non-small wireless facilities.
(1)
General requirements.
(a)
A non-small wireless facility shall be designed, constructed, operated, repaired, modified and removed in strict compliance with all current applicable technical, safety and safety-related codes, including, but not limited to, the American National Standards Institute (ANSI) Code, National Electrical Safety Code, and National Electrical Code.
(b)
A non-small wireless facility shall at all times be kept and maintained in good condition, order and repair by qualified maintenance and construction personnel, so that the same shall not endanger the life of any person or any property in the Village.
(c)
A non-small wireless facility shall not interfere with public safety communications or the reception of broadband, television, radio or other communications services enjoyed by occupants of nearby properties.
(d)
A non-small wireless facility shall not, by itself or in conjunction with other wireless telecommunications facilities, generate radio frequency emissions in excess of the standards and regulations of the FCC. When a non-small wireless facility is complete, as-built readings shall be taken and submitted to the Village.
(e)
The owner and/or user of the small wireless, after construction thereof, shall annually submit a report to the Village Engineer prepared by a qualified professional engineer or engineers.
[1]
Such report shall provide an analysis of the nonionizing electrical radiation emitted by the facility and shall be accompanied by sufficient underlying data so that the analysis can be reviewed for accuracy and completeness by a person expert in the field, at the owner's expense.
[2]
If the owner and/or user demonstrate that an acceptable comparable report is routinely made to another agency in satisfactory intervals, the approving authority may authorize the submission of such comparable report to the Village Engineer in lieu of the annual report required above. In the event that the report is not submitted as required, the Village may, in its discretion, obtain its own report at the owner's expense.
[3]
If the owner fails to pay for the report within 30 days after a demand has been made by the Village, the cost shall constitute a lien against the property involved and may be levied, assessed and collected in the same manner as Village taxes.
(2)
Specific requirements.
(a)
Setbacks. Non-small wireless facilities, except those mounted to an existing building or structure, shall be set back not less than two times the setback requirements for principal structures for the district in which the property is located, or the height of the facility plus the otherwise applicable setback requirements for a principal structure for the district in which the property is located, whichever is greater. All antennas mounted on a roof shall be located so that visibility of the antenna is limited to the greatest extent practicable, consistent with the need to transmit an unobstructed signal. Antennas wall-mounted on a roof-mount mechanical enclosure or similar appurtenance shall not exceed the height of the appurtenance by more than 15 feet.
(b)
Height limitations. Notwithstanding the following height limitations, in no case shall a non-small wireless facility exceed the minimum height reasonably necessary to provide reliable signal coverage.
[1]
The height of any antenna, or other associated equipment, structurally mounted as part of a wireless telecommunications facility shall not exceed the highest point of the existing structure on which such antennas or equipment are affixed by more than 15 feet.
[2]
The height of any monopole or tower utilized in connection with providing wireless telecommunications services shall not exceed 150 feet in height measured from the highest point of such facility, including any appurtenances, to the finished grade immediately surrounding the structure.
(c)
Materials. All visible components of a non-small wireless facility shall be colored and finished as appropriate for the proposed location of such facility in the reasonable judgment of the Planning Commission. The mountings of wireless telecommunications antennas shall be nonreflective and colored to blend with the background.
(d)
Lighting. The non-small wireless facility shall not be artificially lighted unless otherwise required by the Federal Aviation Administration or other federal, state or local authority. Security and safety lighting on all ground equipment shall be low glare and activated by motion sensor.
(e)
Noise. Noise-producing equipment shall be sited and/or insulated to prevent any unreasonable, unreasonably loud, disturbing or unnecessary noise above ambient levels as measured at the property line. This noise limitation shall not apply to noise associated with a generator operated to supply power on a temporary, emergency basis, provided the wireless telecommunications facility is located in a nonresidential district and does not abut a residential district.
(f)
Operational characteristics. Unless otherwise superseded by the Federal Communications Commission (FCC), the design and use of the proposed wireless telecommunications facility, including its cumulative impact with other existing and approved facilities, shall be certified to conform with the maximum NIER exposure standards promulgated by the FCC. Said certification shall include a report by a licensed professional electrical engineer with expertise in radio communication facilities and/or health physicist acceptable to the Planning Commission. A copy of such certification report shall be submitted to the Planning Commission prior to commencing operation of any facility and a copy shall be filed with the Building Inspector. Except as otherwise provided by law, the Planning Commission may require annual certification of conformance with the applicable emission standards. Additionally, copies of certification reports shall be submitted to the Planning Commission whenever they are required to be submitted to the FCC. The Planning Commission may hire a qualified professional of its choosing to review and confirm such initial and subsequent certification report(s), the cost of which shall be reimbursed by the applicant in accordance with the escrow account procedures established for the reimbursement of professional review fees for subdivision, site plan and special permit applications as set forth in the Master Fee Schedule as same may be amended. Any violation of the emissions standards shall require immediate discontinuation and correction of the use responsible for the violation.
(g)
Safety provisions. Every wireless telecommunications facility shall be designed, erected and maintained so that in the event of structural failure, the facility or any component or appurtenance will fall within the required setback area and, to the maximum extent possible, away from adjacent development. Every tower or monopole over 50 feet shall have a break point to ensure the fall zone is minimized to the extent practicable in the event of structural failure. All connections, fasteners, joints and attachments shall be affixed in accordance with prevailing industry standards. Where the Building Inspector has reasonable cause to believe a condition exists which may threaten the environment or human health or safety, he may require an inspection and analysis of the condition be performed by a licensed professional engineer on five days' notice at the expense of the facility owner. A written copy of the inspection and analysis shall be submitted to the Building Inspector within five days of a written request. Whenever the Building Inspector requires a safety report pursuant to this subsection, the facility owner shall establish an escrow pursuant to Chapter 91, Article III of this Code, to fund an independent review of the analysis and findings submitted.
(h)
Security provisions. Each wireless telecommunications facility shall be constructed so as to prevent unauthorized tampering and vandalism. Security shall include, but not be limited to, fencing, anticlimbing devices, locks on all cabinets, elevated ladders on monopoles and towers and/or monitoring by staff or electronic surveillance devices. Where a wireless facility is enclosed by fencing, the facility owner shall install a Knox-Box® to allow for emergency access in accordance with § 185-56F(1).
(3)
Visual mitigation.
(a)
The applicant shall prepare a visual impact assessment of the proposed non-small wireless facility based upon appropriate modeling, photography and other pertinent analytical techniques, taking into account worst case seasonal conditions.
(b)
Landscaping and/or other screening, including but not limited to architectural treatment, stealth design, use of neutral or compatible coloring and materials, or alternative technologies, shall be required to minimize the visual impact of such facility from public thoroughfares, important viewsheds and vantage points and surrounding properties to the maximum extent practicable.
[1]
In determining the most appropriate landscaping to be provided, the approving authority shall consider the visual impact of the wireless telecommunications facility or attached wireless telecommunications facility in its setting with regard to immediate proximity of observers and the sight lines from major viewing points. The area surrounding the wireless telecommunications facility or attached wireless telecommunications facility shall be landscaped and maintained with trees, shrubs and ground cover consistent with the surrounding community character and satisfactory to the approving authority.
[2]
When a fence is required, the outside of such fencing shall be landscaped with trees, shrubs or other appropriate planting material satisfactory to the approving authority.
[3]
An existing natural vegetative buffer which meets or exceeds the above requirements may be retained to meet the landscape requirements set forth above.
(c)
No signs, other than exempt signs, shall be erected on any non-small wireless facility.
(d)
A non-small wireless facility shall be sited so as to have the least adverse visual effect on the environment and its character, on existing vegetation and on the residents in the area of the wireless telecommunication services facility.
(e)
All equipment enclosures and storage buildings associated with the wireless telecommunication facility shall be consistent or compatible with adjacent buildings in terms of design, materials and colors and shall be appropriately landscaped.
Q.
Regulations applicable to non-small wireless facilities in the public right-of-way. In addition to the applicable special permit provisions and requirements listed in this section, all non-small wireless facilities located in the public right-of-way shall be required to comply with the following regulations:
(1)
A non-small wireless facility in the public right-of-way shall be co-located on an existing wireless telecommunications facility whenever possible. If co-location is not technologically feasible, the applicant shall locate its non-small wireless facility on existing utility poles, monopoles or other structures that do not already act as wireless telecommunications facility support structures.
(2)
All accessory equipment shall be the smallest and least visibly intrusive equipment feasible.
(3)
Antennas and accessory equipment shall be treated to match the supporting structure and may be required to be painted or otherwise coated to be visually compatible with the support structure upon which they are mounted.
(4)
A non-small wireless facility, which includes wireless telecommunications support structures and accessory equipment in the public right-of-way, shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, or to otherwise create safety hazards to pedestrians and/or motorists, or to otherwise inconvenience public use of the right-of-way as determined by the Village.
(5)
In no case shall ground-mounted accessory equipment, walls, or landscaping be located within 18 inches of the face of the curb, within four feet of the edge of the cartway, or within an easement extending onto a privately owned lot.
(6)
To the extent feasible, accessory equipment shall be placed underground. Ground-mounted accessory equipment that cannot be placed underground is permitted when placed in conjunction with a new stealth pole and concealed in a ground-mounted cabinet. The maximum acceptable dimensions of ground-mounted cabinet is 30 inches wide by 30 inches deep by four feet high and must be square in shape. Ground-mounted equipment on sidewalks must not interfere with the flow of pedestrian traffic and must conform to the American's with Disabilities Act (ADA)[2] in regards to appropriate sidewalk spacing. Ground-mounted equipment must otherwise be screened from surrounding views to the fullest extent possible through the use of landscaping or other decorative features to the satisfaction of the Village. Ground-mounted accessory equipment shall be screened, when possible, by utilizing existing structures. If screening by utilizing existing structures is not possible, ground-mounted accessory equipment shall be made architecturally and aesthetically compatible with the surrounding area through the use of coatings, landscaping, and/or screening walls, enclosures or other stealth technology to the satisfaction of the Village.
[2]
Editor's Note: See 42 U.S.C.A. § 12101 et seq.
(7)
Required electrical meter cabinets shall be screened to blend in with the surrounding area to the satisfaction of the Village.
(8)
Any graffiti on any non-small wireless facility support structure, base station or any accessory equipment shall be removed within 30 days upon notification by the Village, at the sole expense of the owner.
(9)
Any proposed underground vault related to the non-small wireless facility shall be reviewed and approved by the Village.
(10)
Accessory equipment attached to a non-small wireless facility support structure shall have such vertical clearance as the Planning Commission may determine.
R.
Proof of insurance. The applicant and the owner of the property where the wireless telecommunications facility is to be located, if different, shall provide the Planning Commission with proof of insurance in a sufficient dollar amount in the reasonable judgment of the Planning Commission to cover potential personal and property damage associated with construction and operation of such facility.
S.
Revocation of small wireless facility or non-small wireless facilities permit.
(1)
If any wireless telecommunications facility is constructed, repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this section or of its permit conditions and requirements, or it is determined conclusively that the applicant made materially false statements during the application process, then the Building Inspector or his or her designee shall notify the holder of the permit, in writing, of such violation. Such notice shall specify the nature of the violation or noncompliance, and the violations must be corrected within seven days of the date of the postmark of the notice or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this section or any other provision of this section, if the violation or noncompliance causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the Building Inspector may, at their sole discretion, order the violation remedied within 24 hours.
(2)
If the wireless telecommunication facility is not brought into compliance with the provisions of this section, or of the permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facility into compliance, then the Building Inspector may revoke such permit and require removal of such wireless telecommunication facility.
T.
Removal.
(1)
The Village Building Inspector or Village Planning Commission may determine that the safety, public welfare, character and environment of the Village warrant and require the removal of a wireless telecommunications facility under the following circumstances:
(a)
The wireless telecommunications facility has been abandoned (i.e., not used as a wireless telecommunications facility) for a period exceeding 90 consecutive days or a total of 180 days in any 365-day period, except for periods caused by force majeure or acts of God, in which case repair or removal shall commence within 90 days;
(b)
A permitted wireless telecommunications facility falls into such a state of disrepair that it creates a safety hazard;
(c)
The wireless telecommunications facility has been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required special use permit, building permit, or any other necessary authorization; or
(d)
Any wireless telecommunications facility is determined to be in violation pursuant to this chapter and fails to cure such violation within the applicable time period.
(2)
If the Building Inspector or Planning Commission makes a determination pursuant to § 185-35.1T(1) that the wireless telecommunications facility must be removed, it shall notify the holder of the wireless telecommunications facility and the owner of the property, in writing, that said wireless telecommunications facility is to be removed.
(3)
The holder of the wireless telecommunications facility permit or the owner of the property shall be required to dismantle and remove such wireless telecommunications facility and all accessory equipment and associated structures from the site and return the site to its original condition and certify through soils or other testing that no contamination has been created by the facility, such restoration being completed, limited only by physical or commercial impracticability, within 90 days of receipt of written notice from the Village to remove such non-small wireless facility. However, if the owner of the property upon which the wireless telecommunications facility is located wishes to retain any access roadway to the wireless telecommunications facility, the owner may do so with the approval of the Village.
(4)
If the wireless telecommunications facility is not removed or substantial progress has not been made to remove the wireless telecommunications facility within 90 days after the permit holder has received such written notice of removal, then the Planning Commission may order officials or representatives of the Village to remove the wireless telecommunications facility at the sole expense of the property owner and/or permit holder.
(5)
If the Village removes or causes to be removed the wireless telecommunications facility, and the owner of the wireless telecommunications facility does not claim and remove them to a lawful location within 10 days, then the Village may take steps to declare the wireless telecommunications facility abandoned and dispose of or sell them and their components and retain the proceeds therefrom. The Village may also cause the costs associated with the removal and disposal of the wireless telecommunications facility to be assessed on the property in the same manner as a tax lien or other assessment.
(6)
Each special permit holder for a wireless telecommunications facility shall post a bond in an amount to be determined by the Village Engineer, based on actual estimates supplied by the applicant, ensuring removal of the facility upon expiration or termination of the special permit, cessation of the facility or in the event a determination is made that the facility must be removed. Each special permit holder shall provide the Village written notification whenever any wireless telecommunication facility is discontinued, terminated or abandoned by one or more service providers. Such notice shall include an acknowledgment of the requirement to remove the facility and plans for future use of the facility. The failure to remove a wireless telecommunications facility that has been inoperative or abandoned for a period of one year or more shall be deemed a violation.
U.
Violations. Any violation of this article, the Zoning Law or the conditions of a special permit shall be deemed to be an offense punishable by fine and/or imprisonment in accordance with Article XII of this chapter. The Village may seek enforcement of this article by initiating a civil and/or criminal action. Where the Village seeks to temporarily or preliminarily enjoin a violation of this article, there shall be no need for the Village to demonstrate irreparable injury.