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DISTRIBUTED ANTENNA SYSTEM COMING TO FLOWER HILL – Public Hearing June 3, 7:30 VILLAGE HALL

Posted On: 4th April 2019

Distributed Antenna System (DAS) Coming Soon to Flower Hill

ExteNet – a company that designs, owns and operates multi-carrier/multi-technology Distributed Networks – has filed a proposal to install a DAS network in the Village of Flower Hill. Federal law regulates all communications services through the Federal Communication Commission and has promulgated Rules and Regulations that severely restrict local government control on this issue. The Federal Rules prohibit local governments, including Flower Hill, from completely banning wireless infrastructure deployment but does allow for a modicum of control, specifically permitting local governments to:

Require that proper applications and special use permits are obtained prior to installation of communications networks within the Village;

Impose maximum height and other restrictions on any equipment installed; and

Follow locational priorities to reduce as much as possible any adverse aesthetic impact on the Village.

Although the Village can impose fee requirements on an applicant, the fee schedule has been standardized by Federal Rule. At the March 11, 2019 meeting of the Board of Trustees, a Local Law was passed to ensure that Flower Hill can require, to the extent allowable under Federal law, that ExteNet’s installations are done in a manner consistent with the needs and expectations of Village residents. It is anticipated that the Board of Trustees will hold Public Hearings on ExteNet’s application at the upcoming BOT meetings on May 6, 2019 and June 3, 2019. All residents strongly are encouraged to come to the meeting(s) to learn about this issue and have their questions answered by representatives from ExteNet. Additionally, copies of ExteNet’s proposal are available for review at Village Hall.

 

 

A LOCAL LAW AMENDING CHAPTER 209 ENTITLED “TELECOMMUNICATIONS LICENSES AND FRANCHISES” TO INCLUDE A NEW ARTICLE VIII ENTITLED “SMALL CELL WIRELESS FACILITIES”

BE IT ENACTED by the Board of Trustees as follows:

Section 1. Article VIII of Chapter 209 of the Code of the Village of Flower Hill (“Village”) entitled “Small Cell Wireless Telecommunications Facilities” is hereby created as follows:

1. Purpose, recognition of federal regulations, and definitions. The purpose of this Section is to establish uniform policies and procedures for the deployment and installation of small cell wireless telecommunication facilities (small cell facility) in the Village, which will provide a public health, safety, and welfare benefit consistent with the preservation  of the integrity, safe usage, and visual qualities in the Village. Any installation of a small cell facility shall require a special use permit from the Board of Trustees (“Board”), except as otherwise set forth within. The Board of Trustees recognizes that federal regulation has established parameters in this area.  As such, notwithstanding the following, the Board may amend the application of the below article by Resolution from time to time as it deems necessary to comply with areas in which the Board determines that federal law, rule or regulation has preempted said application.
2. Definitions:

ACCESSORY EQUIPMENT

Any equipment servicing   or being used   in   conjunction with a wireless telecommunications facility or wireless support structure. The term includes utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets and storage sheds.

ANTENNA

A system of electrical conductors -that transmits or receives electromagnetic waves or radio   frequencies signals.  Such waves shall include   but   not   be limited   to radio, television, cellular,    paging,   personal   telecommunications   services    (PCS)   and microwave telecommunications.

BASE STATION

A  structure or  equipment at  a  fixed  location   that  enables  Commission-licensed or authorized wireless  communications between  user equipment and  a communications network.  The  term  does  not  encompass a tower  as defined  in  this  subpart   or  any equipment associated  with a tower.

1. The term  includes,   but  is not  limited  to,  equipment associated  with  wireless   communications services  such  as private,  broadcast, and  public  safety  services, as  well  as  unlicensed  wireless  services   and   fixed  wireless  services   such   as microwave  backhaul.
2. The term  includes,  but  is not  limited  to, radio transceivers, antennas,  coaxial or fiber-optic cable,   regular    and   backup    power    supplies,    and   comparable equipment,  regardless   of   technological   configuration  (including   Distributed Antenna  Systems and small-cell networks).
3. The term includes  any structure other  than a tower  that, at the time the relevant application  is filed with  the Village  pursuant to this section, supports or houses  equipment described  in paragraphs  (i) through (ii) of this section that has been reviewed and approved under  the applicable  zoning  or siting process, even if the structure  was not  built for the sole or primary  purpose of providing  such support.
4. The term does not include any structure that, at the time the relevant application is filed with the Village under this section, does not support or house equipment described in paragraphs (i)-(ii) of this section.

COLLOCATION

The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/ or receiving radio frequency signals for communications purposes.

DISTRIBUTED ANTENNA SYSTEM (DAS)

A network of spatially separated antenna nodes connected to a common source via a transport medium that provides wireless service within a geographic area or structure.

ELIGIBLE FACILITIES REQUEST

Any request  for modification of an existing tower or base station  that does  not substantially  change  the physical dimensions of such tower or base station,  involving (i) collocation of new transmission equipment; (ii) removal  of transmission equipment; or (iii) replacement of transmission equipment.

ELIGIBLE SUPPORT STRUCTURE.

Any tower or base station as defined in this section, provided that it is existing at the time the relevant application is filed with the Village.

MONOPOLE

A tower which consists of a single pole structure, designed and erected on the ground or on top of a structure, to support communications antennas and connect appurtenances.

SMALL CELL WIRELESS TELECOMMUNICATIONS FACILITY OR SMALL CELL FACILITY

Small cells are low-powered wireless base stations that function like cells in a mobile wireless network, typically covering targeted indoor  or localized outdoor areas ranging in   size   from   homes    and   offices   to   stadiums,   shopping  malls,   hospitals,   and metropolitan  outdoor   spaces.   A   small   cell   facility  meets    both    the   following qualifications:   (i) each  antenna  is  located  inside  an  enclosure   of  no  more  than  six cubic  feet  in  volume  or,  in  the  case  of  an  antenna   that  has  exposed   element,  the Antenna and all of its exposed  elements could  fit within an imaginary enclosure  of no more  than  six  cubic feet; and  (ii) all other  wireless  equipment associated  with  the facility is cumulatively  no more  than  17 cubic feet in volume.  The  following  types of associated   ancillary  equipment  are  not   included   in  the  calculation   of  equipment volume:  electric  meter,  concealment elements,  telecommunications demarcation box, ground-based   enclosures,    grounding  equipment,  power   transfer    switch,   cut-off switch, and vertical cable runs  for the connection of power  and other  services.

SUBSTANTIAL CHANGE

A modification substantially changes the physical dimensions of an eligible support structure (tower or base station) if it meets any of the following  criteria:

1. The mounting of the proposed antenna  on existing towers,  other  than towers in the  public  rights-of-way,   would  increase   the  existing  height  of  the  tower  by more  than 10%, or by the height  of one additional  antenna  array with separation from  the nearest existing antenna  not to exceed 20 feet, whichever  is greater; for other  eligible support structures, it increases  the height of the structure by more than 10% or more  than 10 feet, whichever  is greater.
2. The mounting of the  proposed antenna  would  involve  the installation  of  more than   the  standards   number   of  new  equipment  cabinets   for  the  technology involved, not  to exceed four, or more  than one  new equipment shelter;
3. The mounting of the proposed antenna would  involve  adding  an appurtenance to  the  body  of  existing  towers,  other  than  towers  in  the  public  rights-of-way, that  would  protrude from  the  edge  of  the  towers  more  than  20 feet, or  more than   the   width   of   the   tower   structure  at   the   level   of   the   appurtenance, whichever is greater;  for  other  eligible support structures, it involves  adding  an appurtenance to the body of the structure that would  protrude from  the edge of the  structure by more  than  six feet, except  that  the  mounting

the proposed  antenna  may  exceed  the  size  limits  herein  if  necessary  to  shelter  the  antenna from  inclement weather or to connect the antenna  to the tower via cable;

1. The mounting of  the  proposed antenna  would  involve  excavation  outside  the current existing structure site, defined  as the current  boundaries of the leased or owned   property  surrounding  the  ex1st1ng structure  and  any  access  or  utility easements  currently  related  to the site;
2. The modification defeats concealment and/ or stealth elements of the support structure, or;
3. The modification does  not comply with prior conditions of the approval  for the existing  structure  and/ or  site; provided,  however,  that  this limitation  does  not apply to any modification that is noncompliant only in a manner  that would  not exceed the thresholds identified  above.

TOWER

Any structure built for the sole or primary purpose of supporting any licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services, including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.

UTILITY POLE

A pole or similar structure that is used in whole or in part for the purpose of carrying electric distribution lines or cables or wires for telecommunications, cable or electric service, or for lighting, traffic control,  signage, or a similar function  regardless  of ownership, including  Village-owned  poles. Such term shall not include structures supporting only Wireless Telecommunication Service Facilities. Any pole in excess of

50 feet shall be deemed a tower.

WIRELESS TELECOMMUNICATION SERVICES FACILITY

A structure, facility or location designed or intended to be used as, or used to support, antennas. It  includes,  without  limit,  freestanding towers,  guyed  towers,  monopoles, small  cell telecommunication facilities on  utility  poles  in  the  public  right-of-way  or property of the Village of Beacon  or of another municipal  corporation within the Village of Beacon  and  similar structures that employ  camouflage  technology,  including but  not limited  to structures such  as a multistory  building,  church  steeple,  silo, water  tower, sign or other  similar structures intended to mitigate the visual impact  of an antenna  or the  functional equivalent  of  such.  It is a structure intended for  transmitting and/ or receiving radio,  television,  cellular, personal  telecommunications services, commercial satellite  services  or microwave  telecommunications, but  excluding  those  used exclusively  for  dispatch   telecommunications,  or  exclusively  for private   radio  and television reception and private citizen’s bands, amateur radio and other  similar telecommunications.

WIRELESS TELECOMMUNICATIONS PROVIDER

A wireless telecommunications infrastructure provider or a wireless telecommunications services provider.

1. Notwithstanding any other provision of this Code, special use permit approval by the Board of Trustees is also required under this Article for the following uses.

(1)    A substantial change to an existing tower or base station.

(2)   Any other application for placement, installation, collocation or construction of transmission equipment that does not constitute an Eligible Facilities Request.

(3)    Installation of a new tower over 50 feet in height.

(4)    Placement of new antenna on an existing tower or base station that results in a substantial change  to the tower or base station.

(5)     Installation of equipment located on a sidewalk.

(6)   Installation of  equipment on  a pole  located  at  an  elevation  less  than  15  feet from  the ground.

(7)   Installation of a small cell facility on a pole located within 20 feet of a dwelling unit.

1. Small Cell Permit from the Board of Trustees.

(1)    No person shall install a small cell facility without first filing a small cell facility application and obtaining a small cell permit in the form of a special use permit from the Board of Trustees (Board).

(2)    The  Board shall approve  a small cell permit  application  concerning any eligible  facilities  request  for  modification of  an  eligible support  structure that does  not  substantially change  the  physical  dimensions of  such  structure.   An applicant shall assert in writing that its request is considered an eligible facilities request. The    Board    may    require     the    applicant     to    provide documentation or   information to   the   extent   reasonably    related   to determine whether the request meets the requirements of an eligible facilities request.

(3)    The Board may issue a permit for the following:

(a)    Collocation of  a small cell facility or  DAS  facility on  an  existing  tower, utility  pole  or  streetlight   not  exceeding  50’ on  public  or private  property.

(b)    Collocation on existing buildings within the Village.

(c)    Installation of a monopole or utility pole for small cell or DAS facility in the public right-of-way that does  not exceed 50 feet in height.

(4)    Small cell permit application for Board approval.

(a) The small cell permit application shall be made by the wireless telecommunications provider or its duly authorized representative and shall contain the following:

(b)    The applicant’s name, address, telephone number, and e-mail address;

(c)    The   names,   addresses,   telephone  numbers,  and  email  address   of  all consultants,  if any, acting  on  behalf  of  the applicant  with  respect  to  the filing of the application.

(d)    A general description of the proposed work and the purpose of the work proposed.

(e)    The application shall identify  and disclose the number  and locations  of any small cells that the applicant   has  installed  or  locations   the  applicant  has  considered in  the past year for small cell infrastructure within  the Village and those submitted or anticipated to be submitted within a one-year  period.

(f)    A description of the anticipated maintenance needs, including frequency of service,   personnel needs   and equipment needs, and   the potential traffic safety and noise impact of such maintenance.

(g)    Any   amendment to   information   contained in   a   small   cell permit            application shall be submitted in writing to the Village within 30 days after the change necessitating the amendment.

(5)    A wireless telecommunications provider shall pay to the Village an application fee and administrative fee as set forth in this section.

(6)    A  wireless  telecommunications  provider   is  authorized,  after  30  days  written notice  to the Village Building Inspector, to remove  its facility at any time from  the rights-of-way  and cease paying the Village administrative fee.

1. Location of small cell facility approved by the Board

(1)    The  following  locational  priorities  shall apply in the order  specified,  consistent with the Village’s obligation  to create  the least amount  of adverse  aesthetic impact and to preserve  the scenic values of the Village.

(a)      On  the  roof  of  any  Village  owned  or  federal,  state  or  local       government owned  buildings or structures;

(b)    Location on privately-owned buildings;

(c)    Location on an existing Village owned utility poles

(d)    Location on Village-owned infrastructure on private poles;

(e)    Location on Village-owned property, where there is no existing pole;

(f)    Location on privately owned utility poles.

(2)    If the  proposed site  is  not  the  highest  priority  listed  above,  then  a  detailed explanation  must   be  provided   as  to  why  a  site  of  higher   priority  was  not selected. The  person  seeking such an exemption 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 use.

1. Small cell facility permit fees

(1)    In  order   to  ensure   that  the  limited   private   use  of  the  public  right  of  way authorized herein does not become  an additional  cost to the Village, it is hereby determined by the Board of Trustees  that  the following fees shall be charged  to small cell permit  applicants  and small cell permit  holders.

(2) Annual Small Cell Permit Fees:

500. a) $500.00 for non-recurring fees, including a single application for up to five small wireless facilities, with an additional $100.00 for each small wireless facility beyond five,
501. b) $1,000.00 or less for non-recurring fees for a new pole intended to support one or more small wireless facilities, and
502. c) $270.00 per small wireless facility per year for all recurring fees, including any right-of-way access and/or attachment to municipal infrastructure in the right of

(d)    Fee start date: The annual permit fee shall be payable January 2 of the year following installation.  Failure to pay the annual   permit   fee shall result in the imposition of a 5% penalty fee, additional collection fees if necessary, and suspension or revocation of the permit.

(e)    The above fees may be changed by Resolution of the Board of Trustees as deemed necessary in accord with the Board’s reasonable approximation of the Village’s direct cost relative to the processing of a permit application for a small cell installation.

1. Board of Trustees’ requirements as to aesthetics and neighborhood impact mitigation for small cell permits.

(1)    In order to preserve the character and integrity of Village neighborhoods the Village Board of Trustees finds that the following requirements are essential to protect the public health, safety and welfare, and scenic preservation.

(a)    New small cell facilities shall not be located in settings and location that have been designated as landmarks or as historic sites by a local, State or Federal agency unless   the   applicant   demonstrates to   the Board’s satisfaction that the selected site is necessary to provide adequate service.

(b)   New  small cell facilities shall include  stealth  technology  designs,  unless the Board  makes  a written  determination that  such  designs  are not feasible

(c)    The Board may consider alternative locations   for equipment, whether pole mounted or ground mounted.

(d)    All small cells placed  on  any roof  shall be setback  at least 15 feet  from the edge of the roof  along any street  frontage,  unless the Board makes a written  determination waiving the setback  requirement.

(e)    The Board shall consider all impacts to site lines and aesthetic views.

(f)    Except within   the   public   right   of   way,   all proposed poles,   pole equipment and enclosures shall comply with the designated setback requirements.

(g)    Up  to  three  (3) small cells will be  allowed  per  utility pole if technically feasible  and if in the  determination of  the  Board  there  are no safety or  aesthetic  concerns. Small cells must  be designed  and  placed in an esthetically  pleasing  manner   to  the  reasonable  satisfaction   of  the Board.

(h)   No small cell placement shall be allowed on ornamental street lighting poles unless permitted by the Board.

(i)     No small cell facilities shall obstruct pedestrian or vehicular traffic in any way.

j) In  no event  shall any utility pole  or wireless  telecommunication support structure  installed  in  the  public  right  of  way exceed  50 feet in height  unless the Board waives this requirement during the consideration of the permit. A shorter pole may be required if the   initial   proposal is   deemed    out   of   character    of   with   the neighborhood as determined by the

(k)    Each   new  small  cell  facility,  including   antennas   or  other   associated equipment, installed  in  the  public  right-of-way   shall  not  exceed  more than           ten    (10)    feet    above    the    existing    utility   pole    or    wireless telecommunications support  structure  on   which   it  is  being   located, unless the Board waives this requirement during the consideration of the permit.

1. The Village Administrator shall maintain records of all Board decisions granting any applications under the within Chapter.
2. Duration. Construction  pursuant to  a small  cell  permit  issued  by  the  Board under  this  section  must  be  commenced within  twelve  (12) months of  issuance  of  the small cell permit  and diligently pursued  thereafter, or such small cell permit  shall expire.
3. Routine Maintenance and Replacement.  An  application  shall  not  be  required   for:  (i) routine   maintenance; and  (ii)  the  replacement or  upgrade  of  a small  cell  facility with another  small  cell  facility  that  is  same  as  or  smaller  in  size  and  height  at  the  same location.
4. Information Updates. Any   amendment  to   information  contained    in   a   small   cell building/work permit  application shall be submitted in writing  to  the  Village within  thirty (30) days after  the change  necessitating the amendment. On an annual basis, the wireless telecommunication provider  shall provide  a list of existing small cell locations within  the Village.
5. Removal, re-location or modification of small cell facility in the public right-of-way.

(1)    Notice.  Within  ninety  (90) days  following  written   notice  from  the  Village,  the wireless provider shall, at its own expense,  protect, support, temporarily  or permanently disconnect, remove,  relocate,  change  or  alter  the  position  of  any small facilities within  the public right-of-way  whenever  the Village has determined that   such   removal,    relocation,    change   or   alteration,   is  necessary   for   the construction, repair,  maintenance, or installation of any Village improvement in or upon,  or the operations of the Village in or upon, the public right-of-way.

(2)    Abandonment of Facilities.  Upon abandonment of a small cell facility within the public rights-of-way of the Village, the wireless provider  shall notify the Village within ninety  (90)  days.  Following   receipt   of  such   notice   the  Village  may  direct   the wireless  provider to  remove  all or  any  portion of  the  small  cell facility if  the Village, or any of its departments determines that  such removal  will be in the best interest  of the public  health, safety and welfare.

1. Public Hearing and Notification Requirements.
2. A) Prior to the approval of any Application for a Special Use Permit for Wireless Telecommunications Facilities and small cell installation, a Public Hearing shall be held by the Village, notice of which shall be published in the Village’s official newspaper designated for publishing such notices and in a newspaper of general circulation in the Village no less than ten (10) calendar days prior to the scheduled date of the Public Hearing. In order that the Village may notify nearby landowners, the Application shall contain the names and address of all landowners whose property is located within fifteen hundred (1,500) feet of any property line of the lot or parcel on which the new Wireless Telecommunications Facilities are proposed to be located.
3. B) There shall be no Public Hearing required for an Application to co-locate on an existing Tower or other structure or a modification at an existing site, as long as there is no proposed increase in the height of the Tower or structure, including attachments thereto.
4. C) The Village shall schedule the Public Hearing referred to in Subsection (A) of this section once it finds the Application is complete, although the Village may at any stage prior to issuing a Special Use Permit, may require such additional information as it deems necessary.
5. RECERTIFICATION OF SPECIAL PERMIT.
6. A) All special use permits approved pursuant to this article shall expire five years from the date of issuance, unless between 12 months and six months prior to the five-year anniversary date of the special use permit being issued, and all subsequent five-year anniversaries of the issuance of the original special use permit, the holder of a special use permit for such facility shall submit a signed, written request to the Board for recertification. In the written request for recertification, the holder of such special use permit shall include the following: (1) The name of the holder of the special use permit; (2) If applicable, the number or title of the special use permit; (3) The date of the original granting of the special use permit; (4) Whether the wireless facility (facility) or small cell installation (installation) has been moved, relocated, rebuilt, or otherwise modified since the issuance of the special use permit and if so, in what manner; (5) A representation that facility or installation is in compliance with the special use permit and compliance with all applicable laws, rules and regulations; (6) Recertification that the facility or installation and attachments are designed and constructed and continue to meet all local, Village, state and federal structural requirements for loads, including wind and ice loads. Such recertification shall be made by a professional engineer, licensed in the State, the cost of which shall be borne by the applicant. (7) A representation that the facility or installation cannot be replaced by improved stealth technology which will reduce the visual impact of such existing facility.
7. B) After such review, if the Board determines that the permitted facility or installation is in compliance with the special use permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations currently in effect, then the Board shall issue a recertification of the special use permit, which may include any new provisions or conditions that are required by applicable statutes, laws, ordinances, codes, rules or regulations. If, after such review, it is determined that the facility or installation is not in compliance with the special use permit and all applicable statutes, laws, ordinances, codes, rules and regulations, then the Board may refuse to issue a recertification of the special use permit. The applicant for recertification shall be notified of the Board’s refusal to recertify in writing. The facility or installation shall thereafter be brought into compliance within thirty (30) days. In the event the facility or installation is not brought into compliance within thirty (30) days from the date of the decision of the Board, it shall be subject to a new special use permit application, which shall be promptly filed, or the structure and/or facility shall be removed by the permittee in accordance with the provisions of this Article.
8. C) If the applicant represents that the facility or installation can be replaced by a facility of improved visual appearance through the use of stealth technology, the special use permit shall be renewed on the condition that the same is replaced with improved stealth technology as approved by the Board prior to the expiration of the conditional renewal.
9. D) If the applicant has submitted all of the information requested and required by this Article, and if the review is not completed, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent five year anniversaries, then the applicant for the permitted facility or installation shall receive an extension of the special use permit for up to six months, in order to complete the recertification review.
10. E) If the holder of a special use permit does not submit a request for recertification of such special use permit within the timeframe noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent five-year anniversaries.
11. Extent and Parameters of Special Use Permit.
12. Such Special Use Permit shall not be assigned, transferred or conveyed without the express prior written notification to the Village.
13. Such Special Use 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 Use Permit, or for a material violation of this Ordinance after prior written notice to the holder of the Special Use Permit.
14. Liability Insurance.
15. A) A holder of a Special Use Permit shall maintain and provide proof of maintaining:

1) Commercial General Liability covering personal injuries, death and property damage: $1,000,000 per occurrence/$2,000,000 aggregate;

2) Automobile Coverage: $1,000,000 per occurrence/ $2,000,000 aggregate;

3) Workers Compensation and Disability: Statutory amounts

1. B) For a Wireless Telecommunications Facility on Village property, the Commercial General Liability insurance policy shall specifically include the Village and its officers, board members, employees, committee members, attorneys, agents and consultants as additional insureds.
2. C) 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.
3. D) The insurance policies shall contain an endorsement obligating the insurance company to furnish the Village with at least thirty (30) days prior written notice in advance of the cancellation of the insurance.
4. E) Renewal or replacement policies or certificates shall be delivered to the Village at least fifteen (15) days before the expiration of the insurance that such policies are to renew or replace.
5. F) Before construction is initiated, but in no case later than fifteen (15) days after the granting of the Special Use Permit, the holder of the Special Use Permit shall deliver to the Village a copy of each of the policies or certificates representing the insurance in the required amounts.
6. Indemnification. A) Any application that is proposed for Village property, pursuant to this Article, shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by the Law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the Village, and its officers, 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 Village, 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 Village. B) Notwithstanding the requirements noted in subsection (A) of this section, an indemnification provision will not be required in those instances where the Village itself applies for and secures a Special Use Permit.

 

1. Fines. A) In the event of a violation of this Article or any Special Use Permit issued pursuant to this Article, the Village may impose and collect, and the holder of the Special Use Permit for Wireless Telecommunications Facilities shall pay to the Village, fines or penalties as set forth below. B) In the event of a violation of this Article or any special use permit issued pursuant to this article, the Village may impose and collect, from the property owner and/or holder of a special use permit the fines or penalties as set forth below. C) The failure to comply with the provisions of this Article shall subject the applicant, property owner, or lessee to the code enforcement provisions and procedures set forth in Chapter 1, General Provisions, Article 1, of the Village Code. D) Notwithstanding anything in this Article, the holder of the Special Use Permit may not use the payment of fines, liquidated damages or other penalties, to evade or avoid compliance with this Article or any section of this Article. An attempt to do so shall subject the holder of the Special Use Permit to termination and revocation of the Special Use Permit. The Village may also seek injunctive relief to prevent the continued violation of this Ordinance, without limiting other remedies available to the Village. (E) Default and/or Revocation. If a facility or installation is repaired, rebuilt, placed, moved, re-located, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this Article or of the Special Use Permit, then the Village shall notify the holder of the Special Use Permit in writing of such violation. A holder of a Special Use Permit in violation may be considered in default and subject to fines as set forth above and if a violation is not corrected to the satisfaction of the Village in a reasonable period of time the Special Use Permit is subject to revocation.

 

1. Removal. A) Under the following circumstances, the Village may determine that the health, safety, and welfare interests of the Village warrant and require the removal of facilities or installations if the same have. 1)  been abandoned (i.e. not  used for a period exceeding ninety consecutive (90) days or a total of one hundred-eighty (180) days in any three hundred-sixty five (365) day period, except for periods caused by force majeure or Acts of God, in which case, repair or removal shall commence within 90 days; 2)  fallen into such a state of disrepair that it creates a health or safety hazard; and/or 3) have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required Special Use Permit, or any other necessary authorization and the Special Permit may be revoked. B) If the Village makes such a determination as noted in subsection (A) of this Section, then the Village shall notify the holder of the Special Use Permit within forty-eight (48) hours that said facility or installation is  to be removed, the Village may approve an interim temporary use agreement/permit, such as to enable the sale of the same. C) The holder of the Special Use Permit, or its successors or assigns, shall dismantle and remove such facility or installation, 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 ninety (90) days of receipt of written notice from the Village. However, if the owner of the property upon which the facility or installation is located wishes to retain any access roadway to the, the owner may do so with the approval of the Village. D) If the facility or installation are not removed or substantial progress has not been made to remove it within ninety (90) days after the Permit holder has received notice, then the Village may order officials or representatives of the Village to remove the it at at the sole expense of the owner or Special Use Permit holder. E) If, the Village removes, or causes to be removed, a facility or installation, and the owner  does not claim and remove it from the site to a lawful location within ten (10) days, then the Village may take steps to declare the it abandoned, and sell it and its components. F) Notwithstanding anything in this Section to the contrary, the Village may approve a temporary use permit/agreement for a facility or installation, for no more ninety (90) days, during which time a suitable plan for removal, conversion, or re-location of the affected facility or installation shall be developed by the holder of the Special Use Permit, subject to the approval of the Village, and an agreement to such plan shall be executed by the holder of the Special Use Permit and the Village. If such a plan is not developed, approved and executed within the ninety (90) day time period, then the Village may take possession of and dispose of the affected facility or installation in the manner provided in this Section.

Section  2. Ratification, Re-adoption and Confirmation

Except as specifically  modified   by  the  amendments contained herein,  Chapter  209 is otherwise to remain in full force  and effect and is otherwise  ratified, readopted and confirmed.

Section  3. Numbering for Codification

It is the intention of the Village  and it is hereby  enacted  that  the provisions  of this Local  Law  shall  be  included   in  the  Code  of  the  Village;  that  the  sections   and subsections  of  this  Local  Law  may  be  re-numbered  or  re-lettered   by  the  Codifier   to accomplish such intention; that  the Codifier  shall make no substantive changes  to this Local Law;  that   the  word   “Local   Law”   shall  be  changed   to  “Chapter,”  “Section” or   other appropriate  word   as  required   for   codification;  and   that   any  such   rearranging   of   the numbering and editing shall not  affect the validity of this Local Law or the provisions  of the Code  affected  thereby.

Section  4. Severability

The   provisions  of  this  Local  Law  are  separable   and  if  any  prov1s1on, clause,  sentence, subsection, word  or part thereof  is held illegal, invalid or unconstitutional, or inapplicable  to any person  or circumstance, such illegality, invalidity or unconstitutionality, or inapplicability shall  not  affect  or  impair  any  of  the  remaining  provisions, clauses,  sentences,  subsections, words  or  parts  of  this Local  Law  or  their  petition  to  other  persons  or  circumstances. It is hereby  declared  to  be the  legislative intent  that  this Local  law would  have  been  adopted  if such  illegal, invalid or unconstitutional provision,  clause, sentence,  subsection, word  or part had  not  been  included  therein,  and if such  person  or circumstance to which  the Local Law or part hereof is held inapplicable had been specifically exempt  there from.

Section  6. Effective  Date

This  local  law shall take effect  immediately  upon  filing with  the  Office  of  the Secretary  of State.

VILLAGE HALL

Posted On: 5th September 2017

Playground Expanded

Posted On: 5th September 2017

Village Receives an “A” Rating for Transparency

Posted On: 22nd March 2017

North Shore villages scored below average in a Press Club of Long Island audit that graded Long Island municipalities and government agencies on New York State Freedom of Information Law requirements.

The audit, which was conducted over 16 months and graded the responsiveness of 195 municipalities on a 0 to 100 scale, found that villages on the North Shore averaged a 66.2 or D rating, lower than the C average for all governments and agencies.

Three North Shore villages, Flower Hill, Thomaston and Roslyn Estates, all received A grades, while seven received Fs.

Twenty-four percent of the governments and agencies “failed to maintain their own FOIL policies required by law,” the audit found, while 64 percent failed to respond to the Press Club’s request within the legal deadline.

The audit was conducted by Timothy Bolger, managing editor of the Long Island Press and  freedom of information chair for the Press Club, the Long Island chapter of the Society of Professional Journalists.

“If the Long Island governments and agencies we tested were high school students with a cumulative grade of a C, they would not be getting into the college of their choice,” Bolger said in the report.

The Press Club based its grading on several criteria, including meeting the five-day legal deadline to acknowledge the FOIL request; providing a list of employees, including names, titles, offices and salaries; providing a subject matter listing, which lists the types of records kept on file; providing a copy of the policy regarding protocol for responding to records requests; and providing minutes of the five most recent legislative meetings.

Governments and agencies gained points when the Press Club did not have to follow up on requests or appeal a denial of a FOIL request. If they required an appeal, governments got points for issuing a denial explaining why the request was rejected and stating to whom the Press Club could appeal.

Points were also given for turning over documents “well before” the legal deadline, sending documents municipalities are not required to maintain, emailing copies of documents listed on their websites website and not charging money for electronic copies, or charging the permitted 25 cents per page.

Points were subtracted if governments failed to respond to appeals within 10 days, charged excessive fees or made the Press Club follow up multiple times on a request.

The Press Club also recorded the number of days governments and agencies took to send all of the requested documents.

The Village of Sands Point was the only government to violate the law that prevents municipalities and agencies from charging excessive fees, charging the Press Club $150 for a copy of its payroll, according to the audit.

Sands Point received a 35, or an F, and took 112 days to send all of the requested documents.

The Village Attorney, Michael Sahn, defended the village clerk, Liz Gaynor, saying she was “very responsive.”

“If you deem it in your view that the village was not responsive, that is your view; that’s not our view,” Sahn wrote in response to the Press Club.

Governments and agencies also lost a point for denying a request because the request was “burdensome or the agency lacks sufficient staffing,” for requiring the Press Club to provide identification or pick the documents up in person, and for asking why a document was requested.

The report said the Village of Roslyn Harbor, which received a 35 or F, was the “most hostile government encountered in the audit process.”

“We might not have time to entertain every whim that comes across our desk,” Valerie Onorato, the village clerk-treasurer, told Bolger after requiring him to go to village hall to fulfill the request for the village’s payroll.

The report said Onorato, who is no longer the village clerk-treasurer, repeatedly said, “Nothing good will come of this.”

“I’m not sure that, in some government agencies, officials are as receptive to the public and the news media as they should be,” Robert Freeman, executive director of the state Department of State’s Committee on Open Government, said in the report. “I think the public has the right to expect that government will do the right thing. Unfortunately, that does not happen as frequently or as routinely as it should.”

Two other Port Washington villages, Baxter Estates and Manorhaven, received Fs.

The Press Club gave Baxter Estates, which sent all of the information in 106 days, a 55, and Manorhaven,which sent it in 99 days, a 35.

The Village of Kings Point received a 5 or F, the lowest score on the North Shore. The village took 151 days to send all the information.

The Village of Flower Hill, which encompasses sections of Port Washington, Roslyn and Manhasset, received a 95 for an A grade, sending all requested documents within two days.

Roslyn Estates and Thomaston also received A grades of 95.

The Nassau County government received a 68, which is good for a D+ rating, and the average grade for county agencies was a D+.

Nassau County Executive Edward Mangano’s office received a 22 or F.

The Press Club was told to contact the county attorney’s office once it followed up when Mangano’s media representatives did not confirm the request, the report says.

After receiving a portion of the documents, the Press Club followed up with the attorney’s office five more times but received no response.

Mangano’s office did not respond to the Press Club’s request for comment on the grade.

Nassau County Community College scored 100 — the highest grade for any agency or government in Nassau County.

The Town of North Hempstead received a C or 75 and took 153 days to provide all of the requested documents.

In response to the town’s grade, Carole Trottere, a town spokeswoman, told the Press Club “that the town turned over more than 10,000 pages of digitized documents in response to our request and has since modernized its website to make accessing government records easier for the public.”

Doug Kellogg, a spokesman for the conservative-leaning good-government group Reclaim New York, said the Press Club’s report card gives North Shore residents another tool to better understand the transparency they should demand from local governments.

Reclaim New York on Monday unveiled its own checklist of criteria for residents to evaluate transparency. It has also pushed municipalities to make more records available online, which can save time and money spent processing routine FOIL requests, Kellogg said.

“The government can’t be keeping those records behind closed doors and failing to respond to these requests,” Kellogg said. “Push needs to come to shove here.”

Barbara Donno, mayor of the Village of Plandome Manor and the former president of the Nassau County Village Officials Association, did not respond to a request for comment on the Press Club’s findings.