CHAPTER 31

WIRELESS TELECOMMUNICATIONS TOWERS AND FACILITIES

§ 31.1 Title

This Chapter shall be known and may be cited as the "Regulation of Wireless Telecommunications Towers and Facilities."

§ 31.2 Purpose and Intent

On February 8, 1996, the United States Congress enacted the Telecommunications Act of 1996 (hereinafter referred to as the "Act"). The purpose of the Act is to provide a more competitive environment for wired and wireless communication services in the United States by deregulating the telecommunications industry. The Act preserves the authority of local government to regulate the placement, construction, and modification of personal wireless services antennas, towers and accessory structures in order to protect the health, safety, and welfare of the public.

The purpose of this local law is to establish predictable and balanced regulations for the siting and screening of personal services antennas, towers, and accessory structures. The establishment of such regulations is to accommodate the growth of such systems within the Incorporated Village of Mineola (hereinafter referred to as the "Village"). Such regulations will further serve to protect the public against any adverse impacts on aesthetic resources. Additionally, the regulations will eliminate potential damage to adjacent properties from tower failure through structural standards and setback requirements. Finally, the regulations set forth in this local law will reduce the number of towers needed to service the community by maximizing the use of existing towers and structures.

This local law is intended to regulate the placement, construction, and modification of towers and telecommunications facilities in order to protect the health, safety, and welfare of the public, while at the same time not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the Village. Specifically, this local law is intended to:

(A) regulate the location of the towers and telecommunications facilities in the Village;

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(B) protect residential areas and land uses from potential adverse impacts of towers and telecommunications facilities;

(C) minimize adverse visual impacts of towers and telecommunications facilities through careful design, siting, landscaping, and innovative camouflaging techniques;

(D) promote and encourage shared use/collocation of towers and antenna support structures as a primary option rather than construction of additional single-use towers;

(E) promote and encourage utilization of technological designs that will either eliminate or reduce the need for erection of new tower structures to support antenna and telecommunications facilities;

(F) avoid potential damage to property caused by towers and telecommunications facilities by ensuring such structures are soundly and carefully designed, constructed, modified, maintained, and removed when no longer used or determined to be structurally unsound; and

(G) ensure that towers and telecommunications facilities are compatible with surrounding land uses.

The Communications Act of 1934, as amended by the Act, grants the Federal Communications Commission (FCC) exclusive jurisdiction over:

(A) The regulation of the environmental effects of "radio frequency" (RF) emission from telecommunications facilities; and

(B) The regulations of radio signal interference among users of the RF spectrum.

The Village's regulation of towers and telecommunications facilities in the Village will not have the effect of prohibiting any person from providing wireless telecommunications services in violation of the Act.

§ 31.3 Definitions

The following words, terms and phrases, when used in this local law, shall have the meaning ascribed to them in this Section,

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except where the context clearly indicates a different meaning:

A. Antenna means the actual device which transmits and/or receives radio or electromagnetic waves.

B. Antenna Support Structure means any building or structure other than a tower which can be used for location of telecommunications facilities.

C. Applicant means any person that applies for a tower development permit.

D. Application means the process by which the owner of a parcel of land within the Village submits a request to develop, construct, build, modify or erect a tower upon such parcel of land. Application includes all written documentation, verbal statements, and representations, in whatever form or forum, made by an applicant to the Village concerning such a request.

E. Accessory Structures mean accessory buildings and structures, including base stations designed and used to shelter equipment and/or to support personal wireless services. The term accessory structures does not include offices, long-term storage of vehicles or other equipment storage, or broadcast studios.

F. Engineer means any engineer licensed by the State of New York.

G. Owner means any person with fee title or a long-term (exceeding ten (10) years) leasehold to any parcel of land within the Village who desires to develop, or construct, build, modify or erect a tower upon such parcel of land.

H. Person is any natural person, firm, partnership, association, corporation, company, or other legal entity, private or public, whether for profit or not for profit.

I. Personal wireless services means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services as defined by Section 704 of the Federal Telecommunications Act.

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J. Stealth means any tower or telecommunications facility which is designed to enhance compatibility with adjacent land uses, including, but not limited to, architecturally screened roof-mounted antennas, antennas integrated into architectural elements, and towers designed to look other than like a tower such as light poles, power poles, and trees. The term stealth does not necessarily exclude the use of uncamouflaged lattice or monopole tower designs.

K. Telecommunications Facilities means any cables, wires, lines, wave guides, antennas, and any other equipment or facilities associated with the transmission or reception of communications which a person seeks to locate or has installed upon or near a tower or antenna support structure. However, telecommunications facilities shall not include:

(1) Any satellite earth station antenna two (2) meters in diameter or less which is located in an area zoned industrial or commercial; or

(2) Any satellite earth station antenna one (1) meter or less in diameter, regardless of zoning category.

(L) Tower means a self-supporting lattice or monopole structure constructed from grade which supports telecommunications facilities. The term tower shall not include amateur radio operators' equipment, as licensed by the FCC.

§ 31.4 Review Authority

A. No antenna or tower shall hereafter be used, erected, changed or altered except after obtaining a special use permit in conformity with this local law.

B. The Board of Trustees is hereby authorized to review and approve, approve with modifications, or disapprove special use permits pursuant to this local law. The Board of Trustees shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed antenna, tower and accessory structures.

C. A special use permit issued by the Board of Trustees shall be effective for a period of two (2) years which shall be renewable thereafter upon re-application by the applicant and the payment of the fee referenced herein in Section 31.29.

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§ 31.5 Procedural Requirements

The Board of Trustees shall conduct a public hearing within sixty (60) days from the day an application is received. The Board of Trustees shall issue a decision within forty (40) days after the hearing. Any denial for a permit under this law shall be in writing and shall be supported by substantial evidence.

§ 31.6 Development of Towers

No person shall build, erect, or construct a tower upon any parcel of land within any zoning district within the Village unless a special use permit shall have been issued by the Board of Trustees after approval by the Board of Trustees.

A. Towers are exempt from the maximum height restrictions of the districts where located. Towers shall be permitted to a height of one hundred and fifty (150) feet above the ground upon which the antenna is placed. Towers may be permitted in excess of one hundred and fifty (150) feet in accordance with Section 31.21 "Criteria for Site Plan Development Modifications".

B. No new tower shall be built, constructed, or erected in the Village unless the tower is capable of supporting another person's operating telecommunications facilities comparable in weight, size, and surface area to the telecommunications facilities installed by the applicant on the tower within six (6) months of the completion of the tower construction.

C. An application to develop a tower shall include:

(1) The name, address, and telephone number of the owner and lessee of the parcel of land upon which the tower is to be situated. If the applicant is not the owner of the parcel of land upon which the tower is to be situated, the written consent of the owner shall be evidenced in the application.

(2) The legal description and address of the parcel of land upon which the tower is to be situated.

(3) The names, addresses, and telephone numbers of all owners of other towers or usable antenna support structures within a one-half (1/2) mile radius of the proposed new tower site, including Village-owned property.

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(4) A description of the design plan proposed by the applicant in the Village. Applicant must identify its utilization of the most recent technological design, including microcell design, as part of the design plan. The applicant must demonstrate the need for towers and why design alternatives, such as the use of microcell, cannot be utilized to accomplish the provision of the applicant's telecommunication services.

(5) An affidavit attesting to the fact that the applicant made diligent, but unsuccessful, efforts to obtain permission to install or collocate the applicant's telecommunications facilities on Village-owned towers or usable antenna support structures located within a one-half (1/2) mile radius of the proposed tower site.

(6) An affidavit attesting to the fact that the applicant made diligent, but unsuccessful, efforts to install or collocate the applicant's telecommunications facilities on towers or usable antenna support structures owned by other persons located within a one-half (1/2) mile radius of the proposed tower site.

(7) Written technical evidence from an engineer that the proposed tower or telecommunications facilities cannot be installed or collocated on another person's tower or usable antenna support structures owned by other persons located within a one-half (1/2) mile radius of the proposed tower site.

(8) A written statement from an engineer that the construction and placement of the tower will not interfere with public safety communications and the usual and customary transmission or reception of radio, television, or other communications services enjoyed by adjacent residential and non-residential properties.

(9) Written technical evidence from an engineer that the proposed structure meets the standards set forth in Section 31.9, "Structural requirements" of this local law.

(10) Written technical evidence from a qualified engineer acceptable to the Fire Marshall and the Building Inspector that the proposed site of the tower or

(11)

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telecommunications facilities does not pose a risk of explosion, fire, or other danger to life or property due to its proximity to volatile, flammable, explosive, or hazardous materials such as LP gas, propane, gasoline, natural gas, or corrosive or other dangerous chemicals.

(11) In order to assist Village staff and the Board of Trustees in evaluating visual impact, the applicant shall submit color photo simulations showing the proposed site of the tower with a photo-realistic representation of the proposed tower as it would appear viewed from the closest residential property and from adjacent roadways.

(12) The Act gives the FCC sole jurisdiction of the field of regulation of RF emissions and does not allow the Village to condition or deny on the basis of RF impacts the approval of any telecommunications facilities (whether mounted on towers or antenna support structures) which meet FCC standards. Antennas and towers shall be subject to state and federal regulations pertaining to non-ionizing radiation and other health hazards related to such facilities. In order to provide information to its citizens, the Village shall make available, upon request, copies of ongoing FCC information and RF emission standards for telecommunications facilities transmitting from towers and antenna support structures. Applicants shall be required to submit information on the proposed power density of their proposed telecommunications facilities and demonstrate how this meets FCC standards. Applicants shall submit evidence of compliance with FCC standards on a yearly basis to the Village. If new more restrictive standards are adopted, the antennas shall be made to comply or continued operations may be restricted by the Board of Trustees. The cost of verification of compliance shall be borne by the owner and operator of the tower.

D. The use of guyed towers is prohibited. Towers must be self-supporting without the use of wires, cables, beams or other means. The design should utilize an open framework or monopole configuration. Permanent platforms or structures exclusive of antennas that serve to increase off-site visibility are prohibited.

E. The base of the tower shall occupy not more than five hundred

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(500) square feet and the top of the tower shall ne no longer than the base.

F. Minimum spacing between tower locations is one-quarter (1/4) of a mile.

G. The Board of Trustees may require an applicant to supplement any information that the Board of Trustees considers inadequate or that the applicant has failed to supply. The Board of Trustees may deny an application on the basis that the applicant has not satisfactorily supplied the information required in this subsection.

§ 31.7 Collocation Requirements

All towers erected,or located within the Village, shall comply with the following requirements:

A. A proposal for a tower shall not be approved unless the Board of Trustees finds that the antenna planned for the proposed tower cannot be accommodated on an existing or approved tower or building within a one-mile search radius (one half mile search radius for towers under 120 feet in height, one quarter mile search radius for towers under 80 feet in height) of the proposed tower due to one or more of the following reasons:

(1) The antenna would exceed the structural capacity of the existing or approved tower or building, as documented by a qualified professional engineer, and the existing or approved tower cannot be reinforced, modified, or replaced to accommodate the planned or equivalent antenna at a reasonable cost.

(2) The antenna would cause interference materially impacting the usability of other existing or planned antenna at the tower or building as documented by a qualified professional engineer and the interference cannot be prevented at a reasonable cost.

(3) Existing or approved towers and buildings within the search radius cannot accommodate the antenna at a height necessary to function reasonably as documented by a qualified professional engineer.

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(4) Other foreseen reasons that make it infeasible to locate the antenna upon an existing or approved tower or building.

B. Any proposed tower shall be designed, structurally, electrically, and in all respects, to accommodate both the applicant's antennas and comparable antennas for at least two additional users if the tower is over 100 feet in height or for at least one additional user if the tower is over 60 feet in height. Towers must be designed to allow for future rearrangement of antennas upon the tower and to accept antennas mounted at varying heights.

The applicant shall submit to the Board of Trustees a letter of intent committing the applicant, and his/her successors in interest, to negotiate in good faith for shared use of the proposed tower by other personal wireless service providers in the future. The issuance of a special use permit (assuming the tower is approved according to this section), shall commit the new tower owner and his/her successors in interest to:

(1) Respond in a timely comprehensive manner to a request for information from a potential shared-use applicant.

(2) Negotiate in good faith concerning future requests for shared use of the new tower, by other personal wireless service providers.

(3) Allow shared use of the new tower if another personal wireless service provider agrees in writing to pay charges.

(4) Make no more than a reasonable charge for shared use, based on generally accepted accounting principles. The charge may include, but is not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, and depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.

C. In order to keep neighboring municipalities informed, and to facilitate the possibility of directing that an existing tall structure or existing tower in a neighboring municipality be

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considered for shared use, the Board of Trustees shall require that:

(1) An applicant who proposes a new tower shall notify in writing the legislative body of each municipality that borders the Village and the County Planning Commission. Notification shall include the exact location of the proposed tower, and a general description of the project including, but not limited to, the height of the tower and its capacity for future shared use.

(2) Documentation of this modification shall be submitted to the Board of Trustees at the time of application.

§ 31.8 Setbacks

Towers and all accessory structures shall conform with each of the following minimum setback requirements:

A. All towers up to one-hundred (100) feet in height shall be set back on all sides a distance equal to the underlying setback requirement in the applicable zoning district. Towers in excess of one hundred (100) feet in height shall be set back one (1) additional foot per each foot of tower height in excess of one hundred (100) feet.

B. Setback requirements for towers shall be measured from the base of the tower to the property line of the parcel of land on which it is located.

C. Setback requirements may be modified, as provided in Section 31.21(B)(1), when placement of a tower in a location which will reduce the visual impact can be accomplished. For example, adjacent to trees which may visually hide the tower.

D. The minimum setbacks of the underlying zoning district shall be met with the exception of industrial zoning districts, where towers and accessory structures may encroach into the rear setback area, provided that the real property line abuts another industrially zoned property and the tower does not encroach upon any easements.

E. Towers and accessory structures shall be set back from the planned public rights of way as shown on the most recently adopted plan or map of the Village showing such rights of way, by a minimum

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distance equal to one half of the height of the tower including all antennas and attachments.

F. A tower's setback may be reduced in the sole discretion of the Board of Trustees to allow the integration of a tower into an existing or proposed structure such as a church steeple, light pole, power line, or similar structure.

§ 31.9 Structural Requirements

All towers must be designed and certified by an engineer to be structurally sound and, at minimum, in conformance with the Village Code, and any other standards outlined in this local law. All towers in operation shall be affixed to land.

§ 31.10 Separation or Buffer Requirements

For the purpose of this local law, the separation distances between towers shall be measured by drawing or following a straight line between the base of the existing or approved structure and the proposed base, pursuant to a site plan, of the proposed tower. Tower separation distances from residentially zoned lands shall be measured from the base of a tower to the closest point of residentially zoned property. The minimum tower separation distances from residentially zoned land and from other towers shall be calculated and applied irrespective of Village jurisdictional boundaries.

A. Towers shall be separated from all residentially zoned lands by a minimum of two hundred (200) feet or two hundred (200) percent of the height of the proposed tower, whichever is greater.

B. Proposed towers must meet the following minimum separation requirements from existing towers or towers which have a special use permit but are not yet constructed at the time a special use permit is granted pursuant to this local law:

(1) Monopole tower structures shall be separated from all other towers, whether monopole or self-supporting lattice by a minimum of seven hundred and fifty (750) feet.

(2) Self-supporting lattice towers by a minimum of fifteen hundred (1,500) feet.

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(3) Self-supporting lattice tower structures shall be separated from all monopole towers by a minimum of seven hundred and fifty (750) feet.

§ 31.11 Method of Determining Tower Height

Measurement of tower height for the purpose of determining compliance with all requirements of this local law shall include the tower structure itself, the base pad, and any other telecommunications facilities attached thereto which extend more than twenty (20) feet over the top of the tower structure itself. Tower height shall be measured from grade.

§ 31.12 Illumination

Towers shall not be artificially lighted except as required by the Federal Aviation Administration or other federal or state authority for a particular tower. Upon commencement of construction of a tower, in cases where there are residential uses located within a distance which is three hundred (300) percent of the height of the tower from the tower and when required by federal law, dual mode lighting shall be requested from the Federal Aviation Administration.

§ 31.13 Design of Antennas, Towers and Accessory Structures

Antennas, towers and accessory structure shall be designed to blend into the surrounding environment through the use of color and camouflaging architectural treatment, except in instances where the color is indicated by federal or state authorities such as the Federal Aviation Administration. Every antenna, tower and accessory structures shall be of neutral colors that are harmonious with, and that blend with, the natural features, buildings and structures surrounding such antenna and structure, provided however, that directional or panel antenna and omnidirectional or whip antennas located on the exterior of a building that will also serve as an antenna tower shall be of colors that match, and cause the antenna to blend with, the exterior of the building. Accessory structures will be designed to be architecturally compatible with principal structures on the site.

§ 31.14 Landscaping and Security of Structures

All landscaping on a parcel of land containing towers, antenna support structures, or telecommunications facilities shall be in

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accordance with the applicable landscaping requirements in the zoning district where the tower, antenna support structure, or telecommunications facilities are located. The Village may require landscaping in excess of the requirements in the Village Code in order to enhance compatibility with adjacent land uses. Landscaping shall be installed on the outside of any fencing. Existing on-site vegetation shall be preserved to the maximum extent practicable. The base of the tower and any accessory structure shall be landscaped. Towers and accessory structures shall be provided with security fencing to prevent unauthorized entry.

§ 31.15 Access

A parcel of land upon which a tower is located must provide access to at least one (1) paved vehicular parking space on site. A road and parking will be provided to assure adequate emergency and service access. Maximum use of existing roads, public or private, shall be made.

§ 31.16 Stealth Design

All towers shall be of stealth design.

§ 31.17 Telecommunications Facilities on Antenna Support

Structures

Any telecommunications facilities which are not attached to a tower may be permitted on any antenna support structure at least fifty (50) feet tall, regardless of the zoning restrictions applicable to the zoning district where the structure is located. Telecommunications facilities are prohibited on all other structures. The owner of such structure shall, by written certification to the Board of Trustees, establish the following at the time plans are submitted for a special use permit.

A. That the height from grade of the telecommunications facilities shall not exceed the height from grade of the antenna support structure by more than twenty (20) feet;

B. That any telecommunications facilities and their appurtenances, located above the primary roof of an antenna support structure, are set back one (1) foot from the edge of the primary roof for each one (1) foot in height above the primary roof the telecommunications facilities. This setback requirement shall not

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apply to telecommunications facilities and their appurtenances, located above the primary roof of an antenna support structure, if such facilities are appropriately screened from view through the use of panels, walls, fences, or other screening techniques approved by the Village. Setback requirements shall not apply to stealth antennas which are mounted to the exterior of antenna support structures below the primary roof, but which do not protrude more than eighteen (18) inches from the side of such an antenna support structure.

§ 31.18 Modification of Towers

A. A tower existing prior to the effective date of this local law, which was in compliance with the Village's Code immediately prior to the effective date of this local law, may continue in existence as a nonconforming structure. Such non-conforming structure may be modified or demolished and rebuilt without complying with any of the additional requirements of this local law, except for Sections 31.10, "Separation or Buffer Requirements", 31.19, "Certification and Inspections", and 31.20, "Maintenance", provided:

(1) The tower is being modified or demolished and rebuilt for the sole purpose of accommodating, within six (6) months of the completion of the modification or rebuild, additional telecommunications facilities comparable in weight, size, and surface area to the discrete operating telecommunications facilities of any person currently installed on the tower.

(2) An application for a special use permit is made to the Board of Trustees which shall have the authority to issue a special use permit without further approval. The grant of a special use permit pursuant to this section allowing the modification or demolition and rebuild of an existing nonconforming tower shall not be considered a determination that the modified or demolished and rebuilt tower is conforming.

(3) The height of the modified or rebuilt tower and telecommunications facilities attached thereto do not exceed the maximum height allowed under this local law.

B. Except as provided in this local law, a nonconforming structure or use may not be enlarged, increased in size, or

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discontinued in use for a period of more than one hundred eighty (180) days. This local law shall not be interpreted to legalize any structure or use existing at the time this local law is adopted which structure or use is in violation of the Village Code prior to enactment of this local law.

§ 31.19 Certifications and Inspections

A. All towers shall be certified by an engineer to be structurally sound and in conformance with the requirements of the Building Code and all other construction stand