331-99 New Rochelle Municipal Wireless Code

§ 331-99 — Wireless telecommunications facilities. — (about 13,500 words)

[Amended 1-15-2002 by Ord. No. 21-2002]

A. Purpose and legislative intent.

(1) The Telecommunications Act of 1996 affirmed the City of New Rochelle’s authority concerning the placement, construction, and modification of wireless telecommunications facilities. The City of New Rochelle finds that wireless telecommunications facilities may pose significant concerns to [problems for] the health, safety, public welfare, character, and environment of the City and its inhabitants. The City also recognizes that facilitating the development of wireless service technology can be an economic development asset to the City and of significant benefit to the City and its residents. In order to insure that the placement, construction or modification of wireless telecommunications facilities is consistent with the City’s land use policies, the City is adopting a single, comprehensive wireless telecommunications facilities application and permit process. The intent of this chapter is to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the City of New Rochelle.

(2) In order to ensure that the placement, construction, and modification of wireless telecommunications facilities protects the City’s health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this chapter, the City hereby adopts an overall policy with respect to a special permit for wireless telecommunications facilities for the express purpose of achieving the following goals:

(a) Implementing an application process for person(s) seeking a special permit for wireless telecommunications facilities.

(b) Establishing a policy for examining an application for and issuing a special permit for wireless telecommunications facilities that is both fair and consistent.

(c) Promoting and encouraging, wherever possible, the sharing and/or collocation of wireless telecommunications facilities among service providers.

(d) Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner, including but not limited to the use of stealth technology, to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.

(e) To protect the appearance and property value of neighborhoods, minimize conflict with adjacent uses and the surrounding area and to assure the health and safety of the public.

(f) Minimize the total number and height of New Towers throughout New Rochelle.

[Amended 5-21-2003 by Ord. No. 106-2003]

(g)Provide standards and requirements for the regulation, placement, design, appearance, construction, monitoring, modification, and removal of telecommunications facilities and towers.

(h) Locate towers so that they do not have negative impacts, such as, but not limited to, attractive nuisance, noise, and falling objects.

(i) Provide a procedural basis for action within a reasonable period of time for requests for authorization to place, construct, operate or modify telecommunications facilities.

B. Definitions.

(1) For purposes of this section, and where not inconsistent with the context of a particular subsection, the defined terms, phrases, words, abbreviations, and their derivations shall have the meanings given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include the plural number. The word “shall” is always mandatory, and not merely directory.

(2) As used in this section, the following terms shall have the meanings indicated:

ACCESSORY FACILITY OR STRUCTURE

An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to, utility or transmission equipment storage sheds or cabinets.

ANTENNA

An apparatus designed for the purpose of emitting or receiving radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to Federal Communications Commission authorization, for the provision of wireless service and any commingled information services. This definition does not include antennas designed for amateur or household use.[Amended 4-21-2020 by Ord. No. 2020-46]

APPLICANT

Any person submitting an application for a special or administrative special permit for wireless telecommunications facilities.[Amended 4-21-2020 by Ord. No. 2020-46]

APPLICATION

All necessary and appropriate documentation that an applicant submits in order to request review of a special permit for wireless telecommunications facilities.

BASE STATION

The same as defined by the FCC at 47 CFR § 1.6100(b), as it may be amended from time to time. For the purpose of convenience only, this definition is stated as follows: a structure or equipment at a fixed location that enables FCC licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined herein or any equipment associated with a tower. Base Station includes, without limitation:[Added 4-21-2020 by Ord. No. 2020-46]

BOARD

The New Rochelle Planning Board.

CITY

The City of New Rochelle New York.

COLLOCATION

The mounting of one or more wireless telecommunications facilities on a preexisting structure, or modifying a structure for the purpose of mounting or installing a wireless telecommunications facility on that structure.[Amended 4-21-2020 by Ord. No. 2020-46]

COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE

The inability to perform an act on terms that are reasonable in commerce, the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be commercially impracticable and shall not render an act or the terms of an agreement commercially impracticable.

COMPLETED APPLICATION

An application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.

FAA

The Federal Aviation Administration, or its duly designated and authorized successor agency.

FALL ZONE

The area on the ground within a prescribed radius from the base of a wireless communications facility. The fall zone is the area within which there is a potential hazard from falling debris (such as ice) or collapsing material. This distance is required as a setback from an adjoining property line for a new tower or for a new antenna on an existing tower.

FCC

The Federal Communications Commission, or its duly designated and authorized successor agency.

FRONT FACADE AREA

The area of the public right-of-way directly in front of a structure, identified by drawing a perpendicular line from each corner of the structure to the public right-of-way.[Added 4-21-2020 by Ord. No. 2020-46]

HEIGHT

When referring to a tower or structure, the distance measured from the preexisting grade level to the highest point on the tower or structure, even if said highest point is an antenna or lightening protection device.

MODIFICATION; SUBSTANTIALLY CHANGE or SUBSTANTIAL CHANGE

A modification to an existing wireless telecommunications facility substantially changes the physical dimensions of a tower or base station if it meets any of the following criteria:[Amended 4-21-2020 by Ord. No. 2020-46]

NEW TOWER

A freestanding structure designed and built to support wireless telecommunications facilities, including monopoles, lattice construction, steel structures, structures that employ camouflage technology, and similar structures.[Added 5-21-2003 by Ord. No. 106-2003]

NIER

Nonionizing electromagnetic radiation.

PERSON

Any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons having a joint common interest, or any other entity.

PERSONAL WIRELESS FACILITY

See definition for “wireless telecommunications facilities.”

PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS

Shall have the same meaning as defined and used in the 1996 Telecommunications Act.

SMALL WIRELESS TELECOMMUNICATIONS FACILITY

A telecommunications facility, installed within the City’s right-of-way, that meets the following criteria:[Added 4-21-2020 by Ord. No. 2020-46]

SPECIAL PERMIT

The official document or permit by which an applicant is allowed to construct and use wireless telecommunications facilities as granted or issued by the Board.

STEALTH or STEALTH TECHNOLOGY

To minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.

STATE

The State of New York.

TELECOMMUNICATIONS

The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.

TELECOMMUNICATION SITE

See definition for “wireless telecommunications facilities.”

TELECOMMUNICATIONS STRUCTURE

A structure used in the provision of services described in the definition of “wireless telecommunications facilities.”

TEMPORARY

Temporary in relation to all aspects and components of this chapter, something intended to, or that does, exist for fewer than 90 days.

WIRELESS TELECOMMUNICATIONS FACILITIES or TELECOMMUNICATIONS TOWER or TOWER or TELECOMMUNICATIONS SITE or PERSONAL WIRELESS FACILITY or FACILITY

Includes a structure, facility or location designed or intended to be used as, or used to support, antennas or other transmitting or receiving devices. This includes but is not limited to towers of all types and kinds and structures that employ camouflage technology, including, but not limited to structures such as a multistory building, church steeple, silo, water tower, sign or other structures that can be used to mitigate the visual impact of an antenna or the functional equivalent of such, including all related facilities such as cabling, equipment shelters and other structures associated with the site. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, paging, 911, personal telecommunications services, commercial satellite services, microwave services and services not licensed by the FCC, but not expressly exempt from the City’s siting, building and permitting authority, excluding those used exclusively for the City’s fire, police or exclusively for private, noncommercial radio and television reception and private citizen’s bands, amateur radio and other similar noncommercial telecommunications where the height of the facility is below the height limits set forth in this chapter.

C. Special permit application and other requirements.

(1)
All applicants for a special permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this section. The Board is the officially designated agency or body of the City to whom applications for a special permit for wireless telecommunications facilities must be made, and as such is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking special permits for wireless telecommunications facilities. The City may, at its discretion, delegate or designate other official agencies of the City to accept, review, analyze, evaluate and make recommendations to the Board with respect to the granting or not granting, recertifying or not recertifying or revoking special permits for wireless telecommunications facilities.

(2)
An application for a special permit for wireless telecommunications facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application and shall agree to remove any existing violations and make all existing telecommunications facilities compliant, in terms of safety issues, with all applicable local, state and federal telecommunications codes prior to issuance of any certificate of occupancy or compliance for a new facility. At the discretion of the Board, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.

[Amended 5-21-2003 by Ord. No. 106-2003]

(3) Applications not meeting the requirements stated herein or which are otherwise incomplete, may be rejected by the Board.

(4) The applicant shall include a statement in writing:

(a) That the applicant’s proposed wireless telecommunications facilities shall be maintained in a safe manner, and in compliance with all conditions of the special permit, without exception, unless specifically granted relief by the Board in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable City, state and federal laws, rules, and regulations.

(b) That the construction of the wireless telecommunications facilities is legally permissible, including, but not limited to the fact that the applicant is authorized to do business in the state.

(5) No wireless telecommunications facilities shall be installed or constructed until the application is reviewed and approved by the Board, and the special permit has been issued.

(6) All applications for the construction or installation of new wireless telecommunications facilities shall contain the information hereinafter set forth. The application shall be signed by an authorized individual on behalf of the applicant. The application shall include the following information:

[Amended 5-23-2002 by Ord. No. 106-2002; 5-21-2003 by Ord. No. 106-2003]

(a) Documentation that demonstrates the need for the wireless telecommunications facility to provide service primarily and essentially within the City, with service to adjacent municipalities to not exceed 40% of the total area to be covered by the proposed facility. Such documentation shall include propagation studies and maps of the proposed site and all other planned, proposed, in-service or existing sites in the City and in all contiguous municipalities. If the applicant is addressing a capacity issue, documentation must be submitted to include but not be limited to the following: usage and forecasted or present blockage; call volume, drive-test data and results, including date of test, locations of tests, and signal strength results; and any other technical pertinent information;

(b) The name, address and phone number of the person preparing the report;

(c) The name, address, and phone number of the property owner, operator, and applicant, and to include the legal form of the applicant;

(d) The postal address and tax map parcel number of the property;

(e) The Zoning District or designation in which the property is situated;

(f) Size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines;

(g) The location of nearest residential structure;

(h) The location, size and height of all structures on the property which is the subject of the application;

(i) The location, size and height of all proposed and existing antennas and all appurtenant structures;

(j) The type, locations and dimensions of all proposed and existing landscaping, and fencing for a New Tower;

(k) The number, type and design of the New Tower(s) and antenna(s) proposed and the basis for the calculations of the New Tower’s capacity to accommodate multiple users;

(l) The make, model and manufacturer of the New Tower and antenna(s);

(m) A description of the New Tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above preexisting grade, materials, color and lighting;

(n) The frequency, modulation and class of service of radio or other transmitting equipment;

(o) The actual intended transmission and the maximum effective radiated power of the antenna(s);

(p) Direction of maximum lobes and associated radiation of the antenna(s);

(q) Certification that the NIER levels at the proposed site are within the threshold levels adopted by the FCC. Information will include but not be limited to requirements under OET-65 or other pertinent information;

(r) Certification that the proposed antenna(s) will not cause interference with other telecommunications devices;

(s) A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities;

(t) Certification that a topographic and geomorphologic study and analysis has been conducted for the New Tower, and that taking into account the subsurface and substrata, and the proposed drainage plan, that the site is adequate to assure the stability of the New Tower on the proposed site; and

(u) Any other documentation required by the Board and/or its expert necessary to review the application.

(v) Where a certification is called for, such certification shall bear the signature and seal of a professional engineer licensed in the state.

(7) In the case of a New Tower, the applicant shall be required to submit a written report demonstrating its meaningful efforts to secure shared use of existing tower(s) or the use of alternative buildings or other structures within the City. Copies of written requests and responses for shared use shall be provided to the Board in the application, along with any letters of rejection stating the reason for rejection.

[Amended 5-21-2003 by Ord. No. 106-2003]

(8) The applicant shall certify that the telecommunication facility, foundation and attachments are designed and will be constructed to meet all local, City, state and federal structural requirements for loads, including wind and ice loads.

(9) The applicant shall certify that the wireless telecommunications facilities will be effectively grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.

(10) An applicant shall be required to submit a long-form environmental assessment form and a visual addendum in compliance with the State Environmental Quality Review Act. Based on the results of the analysis, including the visual addendum, the City may require submission of a more detailed analysis. The scope of the required environmental and visual assessment will be reviewed at the preapplication meeting.

[Amended 5-21-2003 by Ord. No. 106-2003]

(11) The applicant shall furnish a visual impact assessment, which shall include:

(a) A zone of visibility map which shall be provided in order to determine locations from which the tower may be seen.

(b) Pictorial representations of before and after views from key viewpoints both inside and outside of the City as may be appropriate, including but not limited to state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers or residents. Guidance will be provided concerning the appropriate key sites at a preapplication meeting.

(c) An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets as relates to the need or appropriateness of screening.

(12) The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related facilities and structures of the proposed wireless telecommunications facilities.

(13) Any and all representations made by the applicant to the Board on the record during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Board.

(14) All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, ordinances, rules and regulations of the City, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate.

(15) All wireless telecommunications facilities shall contain a demonstration that the facility be sited so as to be the least visually intrusive as reasonably possible and thereby have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area of the wireless telecommunications facility.

(16) Both the wireless telecommunications facility and any and all accessory or associated facilities shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings, this shall include the utilization of stealth or concealment technology as may required by the Board.

(17) At a site of a New Tower, an access road, turnaround space and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.

[Amended 5-21-2003 by Ord. No. 106-2003]

(18) A person who holds a special permit for wireless telecommunications facilities shall construct, operate, maintain, repair, provide for removal of, modify or restore the permitted wireless telecommunications facilities in strict compliance with all current applicable technical, safety and safety-related codes adopted by the City, state, or United States, including but not limited to the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health, and land use codes. In the event of a conflict between or among any of the preceding, the more stringent shall apply.

(19) A holder of a special permit granted under this section shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or code, and must maintain the same, in full force and effect, for as long as required by the City or other governmental entity or agency having jurisdiction over the applicant.

(20) An applicant shall submit to the Board the number of completed applications determined to be needed at a preapplication meeting.

[Amended 5-21-2003 by Ord. No. 106-2003]

(21) The applicant shall examine the feasibility of designing the New Tower to accommodate future demand for at least five additional commercial applications, for possible future collocations. The New Tower shall be structurally designed to accommodate at least five additional antenna arrays equal to those of the applicant, and located as close to the applicant’s antenna as possible without causing interference. This requirement may be waived, by the Board, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the New Tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:

[Amended 5-21-2003 by Ord. No. 106-2003]

(a) The foreseeable number of FCC licenses available for the area;

(b) The kind of wireless telecommunications facilities site and structure proposed;

(c) The number of existing and potential licenses without wireless telecommunications facilities spaces/sites;

(d) Available space on existing and approved towers.

(22) Shared use.

[Amended 5-21-2003 by Ord. No. 106-2003]

(a) The owner of the proposed New Tower, and his/her successors in interest, shall negotiate in good faith for the shared use of the New Tower by other wireless service providers in the future, and shall:

[1] Respond within 60 days 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 telecommunications providers;

[3] Allow shared use of the New Tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are 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, less depreciation, and all of the costs of adapting the New Tower or equipment to accommodate a shared user without causing electromagnetic interference.

(b) Failure to abide by the conditions outlined above may be grounds for revocation of the special permit for the New Tower.

(23) There shall be a preapplication meeting. The purpose of the preapplication meeting will be to address issues which will help to expedite the review and permitting process. A preapplication meeting shall also include a site visit if there has not been a prior site visit for the requested site. Costs of the City’s consultants to prepare for and attend the preapplication meeting will be borne by the applicant.

(24) The holder of a special permit shall notify the City of any intended modification of a wireless telecommunication facility and shall apply to the City to modify, relocate or rebuild a wireless telecommunications facility.

(25) In order to better inform the public, in the case of a New Tower, the applicant shall, prior to the public hearing on the application, hold a balloon test. The applicant shall arrange to fly, or raise upon a temporary mast, a minimum of a three feet in diameter brightly colored balloon at the maximum height of the proposed New Tower. The dates (including a second date, in case of poor visibility on the initial date), times and location of this balloon test shall be advertised by the applicant seven and 14 days in advance of the first test date in a newspaper with a general circulation in the City. The applicant shall inform the City, in writing, of the dates and times of the test, at least 14 days in advance. The balloon shall be flown for at least four consecutive hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen. The primary date shall be on a weekend, but in case of poor weather on the initial date, the secondary date may be on a weekday.

[Amended 5-21-2003 by Ord. No. 106-2003]

(26) The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the New Tower or existing structure intended to support wireless facilities requires lighting under Federal Aviation Administration Regulation Part 77. This requirement shall be for any New Tower or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines that the FAA must be contacted, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided in a timely manner.

[Amended 5-21-2003 by Ord. No. 106-2003]

(27) Small Wireless Telecommunications Facilities shall obtain an administrative special permit from the City Commissioner of Development solely in accordance with the requirements of § 331-99AA.

[Added 4-21-2020 by Ord. No. 2020-46]

D. Location of wireless telecommunications facilities.

(1) Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, provided the setbacks set forth in Subsection J below are met, Subsection D(1)(a) being the highest priority and Subsection D(1)(h) being the lowest priority.

[Amended 5-21-2003 by Ord. No. 106-2003; 10-19-2005 by Ord. No. 236-2005]

(a) On existing towers and existing buildings on City owned property, other than public parks;

(b) On existing towers and existing buildings with existing wireless telecommunications facilities in commercially and industrially zoned districts without increasing the height of the tower or building;

(c) On existing towers and existing buildings with existing wireless telecommunications facilities in mixed-use, college-related, and residentially zoned districts in that order of sub-priority without increasing the height of the tower or building;

(d) On existing buildings without existing wireless telecommunications facilities in industrial, commercial, mixed-use, college- and college-related, and residentially zoned districts in that order of sub-priority without increasing the height of the building;

(e)On New Towers in industrially and commercially zoned districts where the New Tower can be sited in such a way as to be set back at least 250 feet from the nearest property line of a lot zoned and used for residential purposes and where visual mitigation will be provided;

(f) On New Towers on City-owned property other than public parks;

(g) On New Towers on country clubs, cemeteries, public utility sites, open space preserves (other than public parks), government owned properties, nurseries or vacant property under single ownership, where such sites are at least eight acres in area, where the New Tower can be sited in such a way as to be set back at least 250 feet from the nearest property line of a lot zoned and used for residential purposes and where visual mitigation will be provided; and

(h) On New Towers on railroad, highway or other public rights-of-way where the proposed tower can be sited in such a way as to be set back at least 250 feet from the nearest property line of a lot zoned and used for residential purposes and where visual mitigation will be provided.

(2) 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 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.

(3) An applicant may not bypass sites of higher priority by stating the site proposed is the only site leased or selected. An application shall address collocation as an option. If such option is not proposed, the applicant must explain to the reasonable satisfaction of the Board why collocation is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting collocation shall not be a valid basis for any claim of commercial impracticability or hardship.

(4) Notwithstanding the above, the Board may approve any site located within an area in the above list of priorities, provided that the Board finds that the proposed site is in the best interest of the health, safety and welfare of the City and its inhabitants and will not have a deleterious effect on the nature and character of the community and neighborhood.

(5) The applicant shall submit a written report demonstrating the applicant’s review of the above locations in order of priority and demonstrating the technological reason for the site selection. If appropriate, based on selecting a site of lower priority, a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.

(6) Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Board may disapprove an application for any of the following reasons.

(a) Conflict with safety and safety-related codes and requirements;

(b) Conflict with the historic nature or character of a neighborhood or historical district;

(c) The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;

(d) The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the reasonable probability of such, to residents, the public, employees and agents of the City, or employees of the service provider or other service providers;

(e) Conflicts with the provisions of this chapter.

(7) If a site is proposed for other than one of the locations on the list provided in Subsection D(1) above, in their respective order, then the applicant must demonstrate by competent evidence to the satisfaction of the Board that the preferred locations on such list within the service range established by the Board were thoroughly investigated and that such locations are not feasible and cannot provide the applicant adequate coverage.

E. Shared use of wireless telecommunications facilities and other structures.

(1) Locating on existing towers or other structures without increasing the height shall be preferred by the Board, as opposed to the construction of a New Tower. The applicant shall submit a comprehensive report inventorying existing towers and other suitable structures within four miles of the location of any proposed new tower, unless the applicant can show that some other distance is more reasonable and demonstrate conclusively why an exiting tower or other suitable structure cannot be used.

[Amended 5-21-2003 by Ord. No. 106-2003]

(2) An applicant intending to locate on an existing tower or other suitable structure shall be required to document the intent of the existing owner to permit its use by the applicant.

(3) Such shared use shall consist only of the minimum antenna array technologically required to provide service primarily and essentially within the City, to the extent practicable, unless good cause is shown.

F. Height of New Tower(s).

[Amended 5-21-2003 by Ord. No. 106-2003]

(1) The applicant shall submit documentation justifying the total height of any tower, facility and/or antenna and the basis therefor. Such documentation will be analyzed in the context of the justification of the height needed to provide service primarily and essentially within the City, to the extent practicable, unless good cause is shown.

(2) The maximum height of a New Tower shall be the minimum height necessary to provide service to locations within the City of New Rochelle, but in no case shall the height exceed 80 feet above average grade level, unless the applicant can demonstrate to the satisfaction of the Board that a greater height is necessary.

(3) Omnidirectional or whip antennas shall not exceed 20 feet in height or seven inches in diameter and shall be of a material or color which matches the exterior of the tower or tall building.

(4) Directional or panel antennas shall not exceed six feet in height or two feet in width and shall be of a material or color which matches either the exterior of the tower or tall building on the sky tone above and beyond.

(5) Satellite and microwave dish antennas shall not exceed six feet in diameter and, when building- or rooftop-mounted, shall be located or screened so as not to be easily visible from abutting public streets.

(6) Building-mounted antennas should be located and designed to be an integral part of the building and shall be secured or camouflaged, as necessary or as required by the Board, to minimize visual intrusion to surrounding properties. Any wall-mounted antenna should not extend more than four feet out from the wall.

(7) No New Tower constructed after the effective date of this section, including allowing for all attachments, shall exceed that height which shall permit operation without required artificial lighting of any kind in accordance with City, state, and/or any federal statute, law, local law, ordinance, code, rule or regulation.

G. Appearance and visibility of wireless telecommunications facilities.

(1) Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.

(2) New Towers shall be galvanized and painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained in accordance with the requirements of this chapter.

[Amended 5-21-2003 by Ord. No. 106-2003]

(3) 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 state and federal regulations.

H. Security and noise of wireless telecommunications facilities.

All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner that prevents unauthorized access. Specifically:

(1) All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to unauthorized individuals and constructed or shielded in such a manner that they cannot be climbed or collided with; and

(2) Transmitters and telecommunications control points shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them;

(3) Equipment shelters in connection with facilities on existing buildings shall be constructed either within the building or on the rooftop in a location secured from the public;

(4) Noise-producing equipment shall be sited and insulated to guarantee there is no increase in noise above allowable ambient levels measured at the property line, pursuant to the Noise Ordinance.

Editor’s Note: See Ch. 213, Noise.

I. Signage.

Wireless telecommunications facilities shall contain a sign no larger than four square feet in order to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities and shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be on the equipment shelter or cabinet of the applicant and be visible from the access point of the site and must identify the equipment owner of the shelter or cabinet. The sign shall not be lighted, unless lighting is required by applicable law, rule or regulation. No other signage, including advertising, shall be permitted, unless otherwise required by federal law.

[Amended 7-16-2002 by Ord. No. 139-2002]

J. Setbacks.

[Amended 5-23-2002 by Ord. No. 106-2002; 5-21-2003 by Ord. No. 106-2003]

(1) No telecommunications facility or New Tower, including guy-wire anchors and protective fencing, if any, shall be located closer than 500 feet horizontally to any property line of any public, private and/or state chartered preschool, elementary school, or secondary school.

(2) No telecommunications facility or New Tower, including guy-wire anchors and protective fencing, if any, shall be located closer than 500 feet horizontally to any property line of any nursing home.

(3) The fall zones for guy wire towers shall be at least four times the tower height. For non-guyed towers, the fall zones shall be one and one-half times the tower height. The Board may allow the fall zones to extend within a neighboring property if it finds that a substantially better design will result from such a reduction. Such neighboring property shall not be developed and will be subject to a legally binding agreement, secured by the applicant, preventing development during the time that New Tower is in place.

(4) All New Towers and any other proposed wireless telecommunications facility structures shall be set back by the greater of the following distances: the school setback in Subsection J(1) above, the nursing home setback in Subsection J(2) above, the fall zone in Subsection J(3) above, the distance equal to the height of the New Tower or wireless telecommunications facility structure plus 50% of the height of the New Tower or structure, and the existing setback requirement of the underlying zoning district. Any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.

K. Retention of expert assistance and reimbursement by applicant.

(1) The Board and City may hire any consultant and/or expert necessary to assist the Board and City in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any requests for recertification.

(2) An applicant shall deposit with the City funds sufficient to reimburse the Board and City for all reasonable costs of consultant and expert evaluation and consultation to the Board and City in connection with the review of any application and recertification, including the construction and modification of the site, once permitted. The initial deposit shall be $5,000. The placement of the $5,000 with the City shall precede the preapplication meeting. The City will maintain a separate escrow account for all such funds. The Board’s and City’s consultants/experts shall invoice the City for its services in reviewing the application or recertification, including the construction and modification of the site, once permitted. If at any time during the process this escrow account has a balance less than $2,500, the applicant shall immediately, upon notification by the City, replenish said escrow account so that it has a balance of at least $5,000. Such additional escrow funds shall be deposited with the City before any further action or consideration is taken on the application or recertification. In the event that the amount held in escrow by the City is more than the amount of the actual invoicing for work performed through the date of issuance of a certificate of occupancy or compliance for the project, the remaining balance shall be promptly refunded to the applicant.

[Amended 5-21-2003 by Ord. No. 106-2003; 2-15-2011 by Ord. No. 43-2011]

(3) The total amount of the funds needed as set forth in Subsection K(2) of this section may vary with the scope and complexity of the project, the completeness of the application or certification and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.

L. Requirement to obtain a special permit for wireless telecommunications facilities.

[Amended 5-21-2003 by Ord. No. 106-2003]

(1) No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this section without having first obtained a special permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special permit shall be required for those noncommercial exceptions noted in the definition of wireless telecommunications facilities.

M. Public hearing and notification requirements.

(1) Prior to the approval of any application for a special permit for wireless telecommunications facilities, a public hearing shall be held by the Board, notice of which shall be given pursuant to the requirements set forth in § 331-88B(4) of this chapter.

(2) The Board shall schedule the public hearing referred to in Subsection M(1) of this section once it finds the application is substantially complete. The Board, at any stage prior to issuing a special permit, may require such additional information as it deems necessary.

[Amended 5-21-2003 by Ord. No. 106-2003]

(3) In addition, an applicant other than the City shall post a sign on the property proposed for the special permit on or before 15 days prior to the first date of public hearing and shall remove such sign within two days following such hearing. The sign shall be obtained from the Department of Development and shall be at least 30 inches by 20 inches, consist of sturdy and serviceable material containing a white background with black letters and shall be placed in a location plainly visible from the most commonly traveled street upon which the property fronts but in no case more than 20 feet back from the front lot line. Such sign shall not be more than three feet above the ground and shall read as follows, in legible lettering at least two inches high:

[Amended 2-15-2011 by Ord. No. 43-2011]

“THIS SITE IS PROPOSED FOR ISSUANCE OF A SPECIAL PERMIT AS FOLLOWS (DESCRIBE PROPOSED SPECIAL PERMIT). THIS MATTER IS SUBJECT TO A PUBLIC HEARING BEFORE THE PLANNING BOARD ON (GIVE DATE) AT 7:30 P.M.”

(4) In addition, an applicant for a new facility on an existing building shall post a copy of the notice of public hearing at least 10 days prior to public hearing in the lobby of the building.

(5) Prior to the first public hearing on the application, the applicant shall submit a notarized statement to the Clerk of the Planning Board certifying full compliance with the requirements set forth above.

N. Action on an application for a special permit for wireless telecommunications facilities, commencement and completion of construction.

(1) The Board shall undertake a review of an application pursuant to this chapter in a timely fashion, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public’s interest and need to be involved, and the applicant’s desire for a timely resolution.

(2) After the public hearing and after formally considering the application, the Board may approve, approve with conditions, or deny a special permit. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.

(3) If the Board approves the special permit for wireless telecommunications facilities, then the applicant shall be notified of such approval by resolution of the Board within 10 calendar days of the Board’s action. Except for necessary building permits, and subsequent certificates of compliance or occupancy, once a special permit has been approved hereunder, no additional permits or approvals from the City, such as site plan or zoning approvals, shall be required by the City for the wireless telecommunications facilities covered by the special permit. However, the applicant shall submit site plan documents with the standard title-block language for signatures of City officials, prior to application for a building permit.

[Amended 5-21-2003 by Ord. No. 106-2003]

(4) If the Board denies the special permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within 10 calendar days of the Board’s action.

(5) The applicant shall apply for a building permit for construction pursuant to the special permit and a certificate of occupancy evidencing completion of such construction within 90 and 270 days, respectively, of issuance of the special permit. On a showing of hardship to the Board, such deadline(s) may be extended by the Board but in no event for longer than an additional ninety-day period.

[Amended 5-21-2003 by Ord. No. 106-2003; 9-16-2003 by Ord. No. 204-2003]

O. Recertification of a special permit for wireless telecommunications facilities.

(1) Between 12 months and six months prior to the five-year anniversary date after the effective date of the special permit and all subsequent five-year anniversaries of the effective date of the original special permit for wireless telecommunications facilities, the holder of a special permit for such wireless telecommunications facilities shall provide for an extension of any performance security given pursuant to Subsection R herein and shall submit a signed written request to the City’s Building Official for recertification. In the written request for recertification, the holder of such special permit shall note the following:

[Amended 5-21-2003 by Ord. No. 106-2003; 9-16-2003 by Ord. No. 204-2003]

(a) The name of the holder of the special permit for the wireless telecommunications facilities;

(b) If applicable, the number of the special permit;

[Amended 5-21-2003 by Ord. No. 106-2003]

(c) The date of the original granting of the special permit;

(d) Whether the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise visibly modified since the issuance of the special permit and, if so, in what manner;

(e) If the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise visibly modified, then whether the Board approved such action, and under what terms and conditions, and whether those terms and conditions were complied with;

(f) That the wireless telecommunications facilities are in compliance with the special permit and compliance with all applicable codes, laws, rules and regulations; and

(g) Recertification that the tower and attachments both are designed and constructed and continue to meet all City, state and federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a professional engineer licensed in the state, the cost of which shall be borne by the applicant.

(2) If, after such review, the Building Official determines that the permitted wireless telecommunications facilities are in compliance with the special permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the Building Official shall issue a recertification of the special permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon or that are required by applicable statutes, laws, ordinances, codes, rules or regulations. If, after such review, it is determined that the permitted wireless telecommunications facilities are not in compliance with the special permit and all applicable statutes, laws, ordinances, codes, rules and regulations, then the Building Official may refuse to issue a recertification special permit for the wireless telecommunications facilities, and in such event, such wireless telecommunications facilities shall not be used after the date that the applicant receives written notice of the decision by the Building Official until such time as the facility is brought into compliance. Any decision requiring the cessation of use of the facility or imposing a penalty shall be in writing and supported by substantial evidence contained in a written record and shall be promptly provided to the owner of the facility.

(3) If the applicant has submitted all of the information requested and required by this chapter, and if the review is not completed, as noted in Subsection O(2) of this section, prior to the five-year anniversary date of the special permit, or subsequent five-year anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special permit for up to six months, for the completion of the review.

(4) If the holder of a special permit for wireless telecommunications facilities does not submit a request for recertification of such special permit within the time frame noted in Subsection O(1) of this section, then such special permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special permit, or subsequent five-year anniversaries, as the case may be, unless the holder of the special permit adequately demonstrates that extenuating circumstances prevented a timely recertification request. If the Building Official agrees that there were legitimately extenuating circumstances, then the holder of the special permit may submit a late recertification request or application for a new special permit.

P. Extent and parameters of special permit for wireless telecommunications facilities.

The extent and parameters of a special permit for wireless telecommunications facilities shall be as follows:

(1) Such special permit shall be nonexclusive;

(2) Such special permit shall not be assigned, transferred or conveyed without the express written approval of the Board, which shall not be unreasonably withheld. The applicant shall submit an executed assignment and assumption agreement to the Board prior to obtaining such approval by which the assignee or transferee agrees to all requirements of this chapter and the special permit.

[Amended 5-23-2002 by Ord. No. 106-2002]

(3) Such special permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled, or terminated for a violation of the conditions and provisions of the special permit, or for a material violation of this chapter after prior written notice to the holder of the special permit.

Q. Application fee.

[Amended 5-23-2002 by Ord. No. 106-2002; 5-21-2003 by Ord. No. 106-2003; 6-15-2004 by Ord. No. 137-2004; 12-14-2004 by Ord. No. 284-2004]

(1) At the time that a person submits an application for a special permit for a New Tower or to increase the height of a tower or structure, such person shall pay a nonrefundable application fee of $5,000 to the City. If the application is for a special permit for collocating on an existing tower or other suitable existing building, where no increase in height of the tower or structure is required, the nonrefundable fee shall be $1,500.

[Amended 2-15-2011 by Ord. No. 43-2011]

(2) In reference to Subsection N(5) of this section, if the applicant has not obtained a building permit for construction pursuant to the special permit approved by the Planning Board by the deadline established in this ordinance, as may be extended by the Planning Board in accordance with Subsection N(5), the applicant shall be able to make application for reapproval of the special permit for the wireless telecommunications facility. Where the applicant can demonstrate a) that the special permit application is totally consistent with the previously approved wireless telecommunications facility; b) that there has been no wireless telecommunications facility additions or changes on the lot where such facility has been approved; c) that no changes have been made in this ordinance that would require a modification of said approved facility; and d) that the application is made within two years of the original date of special permit approval, an application for reapproval may be made to the Planning Board, which application shall not be denied unless it is found that the aforesaid conditions are not correct. For such application for reapproval, the nonrefundable fee shall be $525. In the case of any modification to the original approved application, the fees provided in Subsection Q(l) shall apply.

(3) In reference to Subsection O(1) of this section, regarding recertification of a special permit for wireless telecommunications facilities, in order for the Building Official to be able to make a determination that the permitted wireless telecommunications facilities are in compliance with the special permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, a nonrefundable fee shall be paid for the review of the submitted materials and building card information, before a recertification of the special permit for the wireless telecommunications facilities shall be issued. Such fee for review and recertification shall be $1,000 for the first and any subsequent five-year anniversary date after the effective date of the special permit.

[Added 3-17-2009 by Ord. No. 53-2009; amended 2-15-2011 by Ord. No. 43-2011]

R. Performance security.

The applicant for any proposed wireless telecommunications facilities property site shall, at its cost and expense, be required to execute and file with the City a performance bond for a minimum of six years, which bond may be submitted as a one-year bond accompanied by an affidavit from a corporate officer of the applicant attesting that such bond shall be renewed annually during the six-year period, and if such bond is not so renewed or cancelled at any time during such period, a replacement bond shall be immediately delivered to the City on the same terms as the original bond, or other form of security acceptable to the Corporation Counsel of the City as to type of security and the form and manner of execution, in an amount of at least $15,000 for other than a New Tower and of at least $75,000 for a New Tower and with such sureties as are deemed sufficient by the City to assure the faithful performance of the terms and conditions of this chapter and conditions of any special permit issued pursuant to this chapter. The full amount of the bond or security shall remain in full force and effect throughout the term of the special permit and/or until any necessary site restoration is completed to restore the site to a condition comparable to that which existed prior to the issuance of the original special permit. Upon recertification of a special permit for wireless telecommunications facilities, prior to the five-year anniversary date after the effective date of the special permit, and in accordance with § 331-99O, a new performance bond or other form of security acceptable to the Corporation Counsel of the City shall be given to assure the faithful performance of the terms and conditions of this chapter and conditions of any special permit recertified pursuant to this chapter.

[Amended 5-21-2003 by Ord. No. 106-2003; 9-16-2003 by Ord. No. 204-2003]

S. Reservation of authority to inspect wireless telecommunications facilities.

In order to verify that the holder of a special permit for wireless telecommunications facilities and any and all lessees, renters, and/or licensees of wireless telecommunications facilities, place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building, and zoning codes, laws, ordinances and regulations and other applicable requirements, the City may inspect all facets of said permit holder’s, renter’s, lessee’s or licensee’s placement, construction, modification and maintenance of such facilities, including, but not limited to, towers, antennas and buildings or other structures constructed or located on the permitted site.

T. Annual certifications.

[Amended 5-23-2002 by Ord. No. 106-2002]

(1) The holder of the special permit shall annually submit certification of a professional engineer certifying to the City with identified protocol that NIER levels at the site are within the threshold levels adopted by the FCC.

(2) The holder of the special permit shall annually submit certification of a professional engineer certifying to the City with identified protocol that its wireless telecommunications facilities meet City, state, and federal standards, including but not limited to all requirements of this chapter and the special permit

U. Liability insurance.

(1) A holder of a special permit for wireless telecommunications facilities shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage, for the duration of the special permit in amounts as set forth below.

(a) Commercial general liability covering personal injuries, death and property damage: $1,000,000 per occurrence/$2,000,000 aggregate;

(b) Automobile coverage: $1,000,000 per occurrence/ $2,000,000 aggregate; and

(c) Workers compensation and disability: statutory amounts.

(2) The commercial general liability insurance policy shall specifically include the City and its officers, boards, employees, committee members, attorneys, agents and consultants as additional named insureds.

(3) The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a Best’s rating of at least A.

(4) The insurance policies shall contain an endorsement obligating the insurance company to furnish the City with at least 30 days’ prior written notice in advance of the cancellation of the insurance.

(5) Renewal or replacement policies or certificates shall be delivered to the City at least 15 days before the expiration of the insurance that such policies are to renew or replace.

(6) Before construction of a permitted wireless telecommunications facilities is initiated, the holder of the special permit shall deliver to the City a copy of each of the policies or certificates representing the insurance in the required amounts.

V. Defense and indemnification.

(1) Any application for wireless telecommunication facilities that is proposed for City property, pursuant to this chapter, shall contain a provision with respect to defense and indemnification. Such provision shall require the applicant, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the City, and its officers, boards, employees, committee members, attorneys, agents, and consultants, from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products, performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said facility, excepting, however, any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the City, or its servants or agents. With respect to the penalties, damages or charges referenced herein, reasonable attorneys’ fees, consultants’ fees, and expert witness fees are included in those costs that are recoverable by the City.

(2) Notwithstanding the requirements noted in Subsection V(1) of this section, an indemnification provision shall not be required in those instances where the City itself applies for and secures a special permit for wireless telecommunications facilities.

W. Fines.

(1) In the event of a violation of this section or any special permit issued pursuant to this section, the City may impose and collect, and the holder of the special permit for wireless telecommunications facilities shall pay to the City, fines or penalties as set forth below.

(2) A violation of this local section is hereby declared to be a violation, punishable by a fine not exceeding $1,000 per day per occurrence or imprisonment for a period not to exceed 15 days. Each day’s continued violation shall constitute a separate additional violation.

(3) Notwithstanding anything in this section, the holder of the special permit for wireless telecommunications facilities may not use the payment of fines, liquidated damages or other penalties to evade or avoid compliance with this section or any section of this chapter. An attempt to do so shall subject the holder of the special permit to termination and revocation of the special permit. The City may also seek injunctive relief to prevent the continued violation of this section, without limiting other remedies available to the City.

X. Default and/or revocation.

(1) If wireless telecommunications facilities are 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 the special permit, then the City shall notify the holder of the special permit in writing of such violation. Such notice shall specify the nature of the violation or noncompliance and that 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 subsection or any other section of this chapter, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the City may, at its sole discretion, order the violation remedied within 24 hours.

(2) If, within the period set forth in Subsection X(1) above, the wireless telecommunications facilities are not brought into compliance with the provisions of this chapter, or of the special permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the City may revoke such special permit for wireless telecommunications facilities, and shall notify the holder of the special permit within 48 hours of such action.

Y. Removal of wireless telecommunications facilities.

(1) Under the following circumstances, the City may determine that the health, safety, and welfare interests of the City warrant and require the removal of wireless telecommunications facilities.

(a) Wireless telecommunications facilities with a permit have been abandoned (i.e., not used as wireless telecommunications facilities) for a period exceeding 90 days or a total of 180 days in any three-hundred-sixty-five-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) Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard;

(c) Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required special permit, or any other necessary authorization.

(2) If the City makes such a determination as noted in Subsection Y(1) of this section, then the City shall notify the holder of the special permit for the wireless telecommunications facilities and the record owner of the property by certified mail return receipt requested within 48 hours that said wireless telecommunications facilities are to be removed. The City may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.

[Amended 9-16-2003 by Ord. No. 204-2003]

(3) The holder of the special permit, its successors or assigns, or the record owner of the property shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within 90 days of receipt of written notice from the City. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the City.

[Amended 9-16-2003 by Ord. No. 204-2003]

(4) If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the permit holder and the record owner of the property have received notice, then the City may order officials or representatives of the City to remove the wireless telecommunications facilities at the sole expense of the owner or special permit holder.

[Amended 9-16-2003 by Ord. No. 204-2003]

(5) If the City removes, or causes to be removed, wireless telecommunications facilities, and the owners of the wireless telecommunications facilities or the record owner of the property do not claim and remove them from the site to a lawful location within 10 days, then the City may take steps to declare the wireless telecommunications facilities abandoned and sell them and their components. Any costs incurred by the City in connection with this section shall be assessed as a lien against the property with an additional 10% administrative fee, pursuant to § 200 of the City Charter.

[Amended 9-16-2003 by Ord. No. 204-2003]

(6) Notwithstanding anything in this chapter to the contrary, the City may approve a temporary use permit/agreement for the wireless telecommunications facilities for no more than 90 days, during which time a suitable plan for removal, conversion, or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the special permit or the record owner of the property, subject to the approval of the City, and an agreement to such plan shall be executed by the holder of the special permit or the record owner of the property and the City. If such a plan is not developed, approved and executed within the ninety-day time period, then the City may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.

[Amended 9-16-2003 by Ord. No. 204-2003]

Z. Relief.

Any applicant desiring relief, waiver or exemption from any aspect or requirement of this chapter may request such at the preapplication meeting, provided that the relief or exemption is contained in the original application for either a special permit, or in the case of an existing or previously granted special permit a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete. However, the burden of proving the need for the requested relief, waiver or exemption is solely on the applicant to prove. The applicant shall bear all costs of the Board and City in considering the request and the relief, waiver or exemption. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief, waiver or exemption will have no significant affect on the health, safety and welfare of the City, its residents and other service providers.

AA. Small Wireless Telecommunications Facilities.

The following regulations shall apply to all Small Wireless Telecommunications Facilities:

[Added 4-21-2020 by Ord. No. 2020-46[2]]

(1) Location of Small Wireless Telecommunications Facilities. Small Wireless Telecommunications Facilities are permitted in all zoning districts and are subject to the requirements of § 331-99.

(a) To the extent technically feasible, no Small Wireless Telecommunications Facility requiring the installation of a new pole shall be located closer than 500 feet horizontally to any property line of any public, private and/or state-chartered preschool, elementary school, or secondary school.

(b) To the extent technically feasible, no Small Wireless Telecommunications Facility requiring the installation of a new pole shall be located closer than 500 feet horizontally to any property line of any nursing home.

(c) No Small Wireless Telecommunications Facilities shall be located in the Front Facade Area of a residential structure or use but rather, if required, such facilities shall be located at the intersecting point of the front and side property lines. When located within 250 feet of a residential use or structure, the applicant shall notify the owners of property located within such 250 feet of the proposed facility. Such notice shall be sent by certified mail within five days of filing for approval from the City.

(d) Where possible, Small Wireless Telecommunications Facilities shall be installed with stealth technology and or installed behind existing traffic or other municipal signage or other such camouflaging methods as defined in The City of New Rochelle Small Telecommunications Facility Design Manual.

(2) Franchise required. Prior to the consideration of any application for an administrative special permit for a Small Wireless Telecommunications Facility, the applicant shall obtain a Telecommunications Franchise from the City Council in accordance with Chapter 292 of the City Code.

(3) Administrative special permit required. All applicants for a proposed Small Wireless Telecommunications Facility shall be required to obtain an administrative special permit from the City Commissioner of Development, subject to the requirements of this § 331-99AA. Prior to filing an application for an administrative special permit, all applicants for a Small Wireless Telecommunications Facilities may request a preapplication meeting with the City Commissioner of Development and Commissioner of Public Works in order to address any concerns the City may have specific to the proposed site. This preapplication meeting may be conducted in person or via teleconference at the discretion of the City.

(4) All applications for the construction or installation of new Small Wireless Telecommunications Facilities shall contain the information hereinafter set forth. The application shall be signed by an authorized individual on behalf of the applicant. The application shall include the following information:

(a) The name, address and phone number of the person preparing the application;

(b) The name, address, and phone number of the property owner, operator, and applicant, and to include the legal form of the applicant;

(c) The coordinates and closest street address/intersection of the proposed Small Wireless Telecommunications Facility;

(d) The Zoning District or designation in which the property is situated or through which the right-of-way traverses;

(e) If the proposed Small Wireless Telecommunications Facility requires the installation of a new pole, a diagram showing the location of the pole and all lot lines, prepared by a licensed land surveyor or engineer;

(f) The location of all residential structures within a 250-foot radius and the location of schools and nursing homes within a 500-foot radius;

(g) The location, size and height of all structures on the property to the extent the Small Wireless Telecommunication Facility is not in a right-of-way;

(h) The location, size and height of all proposed and existing antennas and all appurtenant structures;

(i) The type, locations and dimensions of all proposed and existing landscaping, and fencing for a Small Wireless Telecommunications Facility requiring a new utility pole, if applicable;

(j) The number, type and design of the Small Wireless Telecommunications Facilities proposed and, if a utility pole is installed, the basis for the calculations of the utility pole’s capacity to accommodate multiple users;

(k) The make, model and manufacturer of any new utility pole and Antenna(s) being installed;

(l) A description of the utility pole and Antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above preexisting grade, materials, color and lighting;

(m) The frequency, modulation and class of service of radio or other transmitting equipment;

(n) The actual intended transmission and the maximum effective radiated power of the antenna(s);

(o) Direction of maximum lobes and associated radiation of the antenna(s);

(p) Certification that the NIER levels at the proposed site are within the threshold levels adopted by the FCC. Information will include but not be limited to requirements under OET-65 or other pertinent information;

(q) A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities;

(r) Any other documentation timely and reasonably required by the Commissioner of Development and/or any third-party expert retained by the City to review the application;

(s) Where a certification is called for, such certification shall bear the signature and seal of a professional engineer licensed in the state or a radio-frequency engineer; and

(t) Proof that the applicant has notified the property owners of residence within the 250-foot radius.

(5) Preapplication meeting. Unless waived by the Commissioner of Development, there shall be a preapplication meeting. The purpose of the preapplication meeting will be to address issues which will help to expedite the review and permitting process and ensure compliance with the applicable federal timeframe for review. A preapplication meeting may also include a site visit if there has not been a prior site visit for the requested site.

(6) Rejection. Applications not meeting the requirements stated herein or which are otherwise incomplete may be the subject of a notice of incompleteness issued by the City Commissioner of Development.

(7) General permitting. A holder of an administrative special permit granted under this section shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or code, and must maintain the same, in full force and effect, for as long as required by the City or other governmental entity or agency having jurisdiction over the applicant.

(8) Standard of care. Any Small Wireless Telecommunications Facility shall be designed, constructed, operated, maintained, repaired, modified and removed in strict compliance with all current applicable technical, safety and safety-related codes, including but not limited to the most recent editions of the American National Standards Institute (ANSI) Code, National Electrical Safety Code, National Electrical Code, as per the New York State Building Code, current edition. Any Small Wireless Telecommunications 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 damage any property in the City.

(9) Wind and ice. The applicant shall certify that the Small Wireless Telecommunications Facility, foundation and attachments are designed and will be constructed to meet all local, City, state and federal structural requirements for loads, including wind and ice loads.

(10) NIER levels. A Small Wireless Telecommunications Facility shall not, by itself or in conjunction with other Wireless Telecommunications Facilities, generate radiofrequency emissions in excess of the standards and regulations of the Federal Communications Commission, including but not limited to the Federal Communications Commission Office of Engineering Technology Bulletin 65 entitled “Evaluating Compliance with Federal Communications Commission Guidelines for Human Exposure to Radio Frequency Electromagnetic Fields,” as amended. The owner of a Small Wireless Telecommunications Facility shall provide certification of the Small Wireless Telecommunications Facility’s compliance with the NIER standards and regulations of the Federal Communications Commission by a radio frequency engineer or licensed engineer to the City’s Commissioner of Development upon initial construction of the Small Wireless Telecommunications Facility and once every three years thereafter. If the Small Wireless Telecommunications Facility is modified at any time following issuance of the initial permits by the City, the owners of the Small Wireless Telecommunications Facility shall submit recertification of compliance with the standards and regulations of the Federal Communications Commission to the City Commissioner of Development following such modification.

(11) Grounding. The applicant shall certify that the Small Wireless Telecommunications Facility will be effectively grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.

(12) Supplemental statements. Any and all representations made by the applicant to the City Commissioner of Development on the record during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the City Commissioner of Development.

(13) Time, place and manner. The City Commissioner of Development shall determine the time, place and manner of construction, maintenance, repair and/or removal of all Small Wireless Telecommunications Facilities in the Right-of-Way (ROW) based on public safety, traffic management, physical burden on the ROW and related considerations in accordance with law and/or the Franchise Agreement.

(14) Accessory equipment.

(a) Small Wireless Telecommunications Facilities and Accessory Equipment shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, create safety hazards to pedestrians and/or motorists, or to otherwise inconvenience public use of the ROW as determined by the City.

(b) To the extent utilities are already underground, all utilities at a Small Wireless Telecommunications Facility site shall be installed underground in compliance with all laws, ordinances, rules and regulations of the City, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate.

(c) The owner of a Small Wireless Telecommunications Facility shall repair any damaged Accessory Equipment within 10 days of receipt of notice from the City.

(15) Collocation efforts. An applicant for a Small Wireless Telecommunications Facility requiring the installation of a new utility pole shall be required to submit a written report demonstrating the Applicant’s meaningful efforts to secure shared use of existing utility poles and other structures on which collocation is feasible. Copies of written requests and responses for shared use shall be provided to the Commissioner of Development in the application, along with any letters of rejection stating the reason for rejection.

(16) Graffiti. Any graffiti on the Small Wireless Telecommunications Facility or on any Accessory Equipment shall be removed at the sole expense of the owner within 30 days of notification by the City.

(17) Modification. To the extent required by federal and state law, the holder of an administrative special permit shall notify the City of any intended initial modification of a Small Wireless Telecommunications Facility and the holder shall apply to the City to substantially modify, relocate or rebuild a Small Wireless Telecommunications Facility. Substantial modification as defined herein shall require an amended administrative special permit.

(18) Design regulations. All Small Wireless Telecommunications Facilities shall be designed to meet the requirements of the City Small Wireless Telecommunications Facility Design Manual, a copy of which is kept on file at the City Bureau of Buildings. All Small Wireless Telecommunications Facilities shall be maintained in compliance with such requirements for the duration of their operation.

(19) Timing of approval.

(a) Within 60 days of receipt of a complete application for Collocation of a Small Wireless Telecommunications Facility on a preexisting utility pole, the City Commissioner of Development shall make a final decision on whether to approve the application and shall notify the Applicant in writing of such decision.

(b) Within 90 days of receipt of an application for a Small Wireless Telecommunications Facility requiring the installation of a new utility pole, the City Commissioner of Development 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 the date that an application for a Small Wireless Telecommunications Facility is filed with the City Commissioner of Development, the Commissioner of Development shall notify the Applicant in writing of any information that may be required to complete such application.

(20) Relocation or removal of facilities. Within 90 days following written notice from the City, or such longer period as the City determines is reasonably necessary or such shorter period in the case of an emergency, an owner of a Small Wireless Telecommunications Facility in the ROW shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any Small Wireless Telecommunications Facility when the City, consistent with its police powers, shall determine that such removal, relocation, change or alteration is reasonably necessary under the following circumstances:

(a) The construction, repair, maintenance or installation of any City or other public improvement in the right-of-way;

(b) The operations of the City or other governmental entity in the Right-of-Way;

(c) Vacation of a street or road or the release of a utility easement; or

(d) An emergency as determined by the City.

(21) Removal. In the event that use of a Small Wireless Telecommunications Facility is to be discontinued, the owner shall provide written notice to the City of its intent to discontinue use and the date when the use shall be discontinued. Unused or abandoned Wireless Telecommunications Facilities, or portions of Wireless Telecommunications Facilities, shall be removed as follows:

(a) All abandoned or unused Wireless Telecommunications Facilities and Accessory Equipment shall be removed within 60 days of the cessation of operations at the site unless a time extension is approved by the City.

(b) If the Wireless Telecommunications Facility or Accessory Equipment is not removed within 60 days of the cessation of operations at a site, or within any longer period approved by the City, the Wireless Telecommunications Facility and/or associated facilities and equipment may be removed by the City and the cost of removal assessed against the owner of the Wireless Telecommunications Facility.

(22) Reimbursement for Right-of-Way use. In addition to permit fees as described in this section, every Small Wireless Telecommunications Facility in the Right-of-Way is subject to the City’s right to require a franchise agreement which provides for an annual fee for use and occupancy of the Right-of-Way. Such compensation for Right-of-Way use shall be directly related to the City’s actual Right-of-Way management costs including, but not limited to, the costs of the administration and performance of all reviewing, inspecting, permitting, supervising and other Right-of-Way management activities by the City. The owner of each Small Wireless Telecommunications Facility shall pay an annual fee to the City to compensate the City for the City’s costs incurred in connection with the activities described above as set forth in the franchise agreement.

[2]Editor’s Note: This ordinance also redesignated former Subsections AA and BB as Subsections BB and CC, respectively.

BB.Adherence to state and/or federal rules and regulations.

[Amended 4-21-2020 by Ord. No. 2020-46]

(1) To the extent that the holder of a special permit or administrative special permit for wireless telecommunications facilities has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules or regulations, then the holder of such a special permit or administrative special permit shall adhere to, and comply with, all applicable rules, regulations, standards, and provisions of any state or federal agency, including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical and RF emission standards.

(2) To the extent that applicable rules, regulations, standards, and provisions of any state or federal agency, including but not limited to, the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting, and security are changed and/or are modified during the duration of a special permit or administrative special permit for wireless telecommunications facilities, then the holder of such a special permit shall conform the permitted wireless telecommunications facilities to the applicable changed and/or modified rule, regulation, standard, or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard, or provision, or sooner as may be required by the issuing entity.

CC. Conflict with other laws.

Where this section differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the City, state or federal government, this section shall control.