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Also attached to this agenda item: 230 Hessian Hills Road Site Plans Communication %231%3A Georg Ivanoff Communication %232%3A Signe Bergstrom Communication %233%3A Rolf Aaron LaMar Croton- Viewshed 1 Mile Croton- Viewshed 2 Miles Homeland Towers Option and Ground Lease Agreement NY307 Homeland Towers Proposal Map of Existing Facilities Public Notice re%3A Balloon Test

--- PAGE 1 --- CAMPANELLI & ASSOCIATES, P.C. ATTORNEYS AND COUNSELORS AT LAW www.campanellipe.com 1757 Merrick Avenue - Suite 204 - Merrick, New York 11566 Andrew J. Campanelti Telephone (516)746- 1600 COUNSEL Member of NY & CT Bar Facsimile (516) 746-2611 George B, McPhillips Jean M. Smyth 1930-1994 Patricia MacKreth September 15, 2022 Hon. Mayor Brian Pugh Deputy Mayor/Trustee Ann Gallelli Village of Croton-on-Hudson Village of Croton-on-Hudson 1 Van Wyck Street 1 Van Wyck Street Croton-on-Hudson, NY 10520 Croton-on-Hudson, NY 10520 Sherry Horowitz, Village Trustee Alejandro Rosales, Village Trustee Village of Croton-on-Hudson Village of Croton-on-Hudson 1 Van Wyck Street 1 Van Wyck Street _ | Croton-on-Hudson, NY 10520 Croton-ereHiidsonoNy W526 (i Wis IEEE Len Simon, Village Trustee | oe . mals Village of Croton-on-Hudson } \\\ SEP 1g 2608" 1 Van Wyck Street Wve * -on-Hudson, NY 1052 amr Croton-on-Hudson 0520 ae ro, | | all ABP OLERE ea Re: Draft of Local Wireless Ordinance to Vest the Village with Powers Preserved to it by the United States Congress Under the Federal Telecommunications Act of 1996 Dear Mayor Pugh and Village Trustees: I represent a number of your constituents who are concerned regarding whether or not the Village of Croton-on-Hudson’s local zoning code vests the Village with the authority to control the number and placement of cell towers and other wireless facilities within the Village, those being powers that were preserved to the Village by the United States Congress when it adopted the Telecommunications Act of 1996 (TCA). Although it is unknown to most local government officials, when Congress enacted the TCA in 1996, it explicitly preserved to State and local governments the “General Authority” to regulate the siting, placement, construction, and operation of cell towers and other wireless facilities within their jurisdictions. --- PAGE 2 --- Hon. Mayor Brian Pugh September 15, 2022 Page -2- To take hold of those powers preserved to them, it is critical that local governments draft local zoning code provisions which both: (a) vest them with the maximum power to grant or deny zoning applications for new cell towers and other wireless facilities, and (b) ensure that if, and when, the local municipality denies such a zoning application, it is done in a matter that does not violate any of the procedural requirements which the TCA contemporaneously imposes upon them. Armed with the general authority preserved to them by Congress for more than 25 years, sophisticated local governments across the United States have enacted and applied “Smart Planning Provisions,” designed to achieve three simultaneous objectives. They are designed to: (a) enable wireless carriers to saturate local jurisdictions with wireless coverage, so all citizens can use their cell phones as they please while (b) minimizing the number of cell towers necessary to provide that coverage and (c) avoid, to the greatest extent possible, any unnecessary adverse impacts upon residential homes and communities due to the irresponsible placement of such wireless facilities. Several of your constituents retained my firm to review your existing ordinance and, if necessary, to draft a new comprehensive provision that can achieve these same objectives for the Village of Croton-on-Hudson. I have been handling cell tower, and TCA cases in federal courts across the United States since the TCA was adopted in 1996.! I have also been drafting zoning provisions to vest local governments with the maximum authority to regulate wireless facilities for over a decade. In 2022 alone, I have drafted comprehensive wireless provisions for local governments, including, but not limited to, the Town of Fishkill, NY, the Town of Woodstock, NY, the Town of Smithtown, NY, as well as local municipalities in the States of Washington, Idaho, and California, among others. After reviewing your current ordinance, I found it to be fatally defective in that it fails to vest the Village with even the most minimal powers to control the placement of wireless facilities within the Village. Speaking quite candidly, within the context of the 5G rollout currently sweeping across the Country, any aggressive site development company would be able to exploit the weaknesses in your current code to essentially install cell towers and other wireless facilities virtually anywhere within the Village where they might choose to do so, and the Village would be powerless to stop them. 1 A list of my current Court admissions is submitted herewith. --- PAGE 3 --- Hon. Mayor Brian Pugh September 15, 2022 Page -3- Under your current code, if the Village tried to deny any application for a new wireless facility, any sophisticated site developer would be able to file a federal lawsuit to challenge any such denial and would likely win most, if not all, of such legal challenges. Given the circumstances, your constituents hired me and have paid for my services, in full, to draft an entirely new wireless provision for local code to cure all of the defects that exist in your current code. Attached is a completed first draft of the provision they hired me to draft for the Village. They have paid for my services in the hope that when you read the draft wireless provision I have prepared for the Village, and you afford me an opportunity to discuss with you any questions you may have; you will consider enacting this provision and making it part of your code, as many other local governments have done across the United States. I would greatly appreciate an opportunity to speak with you to answer any questions you might have regarding the content of this letter and the comprehensive wireless provision I have drafted for the Village and to encourage you to enact the ordinance either as drafted or as may be reasonably amended to address any concerns you may otherwise have. If you have any questions, please feel free to call me directly at (516) 746-1600 Respectfully submitted, Andrew J. Campanelli AJC: cao Attachments --- PAGE 4 --- Andrew J. Campanelli General Court Admissions United States Supreme Court United States Court of Appeals for the First Circuit United States Court of Appeals for the Second Circuit United States Court of Appeals for the Fifth Circuit United States Court of Appeals for the Sixth Circuit United States Court of Appeals for the Seventh Circuit United States Court of Appeals for the Eighth Circuit United States Court of Appeals for the Ninth Circuit United States Court of Appeals for the Eleventh Circuit United States Court of Appeals for the Federal Circuit United States District Court, Eastern District of Arkansas United States District Court, Western District of Arkansas United States District Court, District of Colorado United States District Court, Northern District of Illinois United States District Court, Central District of [linois United States District Court, Southern District of Illinois United States District Court, District of Nebraska United States District Court, Northern District of New York United States District Court, Southern District of New York United States District Court, Eastern District of New York United States District Court, Western District of New York United States District Court, District of North Dakota United States District Court, Eastern District of Wisconsin State of New York State of Connecticut (Retired) Note: Current Pro Hac Vice Admissions (current admissions in other federal and state courts) are not listed. --- PAGE 5 --- yt ad INDEX §206 Personal Wireless Service Facilities §206-1 Purpose and Legislative Intent §206-2 Definitions: Word Usage §206-3 Application Types §206-4 Shot Clock Periods §206-5 Shot Clock Tolls, Extensions & Reasonable Delay Periods §206-6 Application Requirements §206-7 Design Standards §206-8 Initial Review §206-9 Hearings and Public Notice §206-10 Factual Determinations to be Rendered by the Board of Trustees §206-11 Retention of Consultants §206-12 Setback Requirements §206-13 Height Restrictions §206-14 Use Restrictions and Variances §206-15 Environmental Impacts §206-16 Historic Site Impacts §206-17 Force Majeure §206-18 Eleventh Hour Submissions §206-19 Prohibition Against Illegally Excessive Emissions & RF Radiation Testing §206-20 Bond Requirements & Removal of Abandoned Facilities and Reclamation §206-21 ADA Accommodations §206-22 General Provisions 1 --- PAGE 6 --- - . §206 Personal Wireless Service Facilities This new Chapter §206 is intended to repeal and replace all previous versions of, and amendments to, Chapter §206 of the Code of the Village of Croton-on-Hudson (“Village Code”), all of which is hereby repealed and replaced in their entirety by this Chapter §206 et. seq., as of the effective date hereof. No Personal Wireless Service Facility (PWSF) shall be sited, constructed, reconstructed, installed, materially changed or altered, expanded, or used unless in conformity with this Chapter. For the installation, construction, erection, relocation, substantial expansion, or material alteration of any PWSF, the Village shall require a special use permit pursuant to the provisions of this Chapter, which shall be applied for in accord with the procedure set forth in Section §230-57, unless otherwise provided herein below. The performance of maintenance, routine maintenance, in-kind replacement of components, and/or repairs (as defined herein) to an existing PWSF and/or existing personal wireless service equipment shal] not require a special use permit. Each application for a special use permit under this Chapter and each individual PWSF for which an application for a special use permit is submitted shall be considered based upon the individual characteristics of each respective installation at each proposed location as an individual case. In other words, each installation, at each proposed location, shall be reviewed and considered independently for its own characteristics and potential impacts, irrespective of whether the proposed facility is designed and intended to operate independently or whether the installation is designed and/or intended to operate jointly as part of a Distributed Antenna System. §206-1 Purpose and Legislative Intent The purpose of this section is to promote the health, safety, and general welfare of the residents of the Village of Croton-on-Hudson and to preserve the scenic, historical, natural, and man-made character and appearance of the Village while simultaneously providing standards for the safe provision, monitoring, and removal of cell towers and other personal wireless service facilities consistent with applicable federal, state and local laws and regulations. Consistent with the balancing of interests which the United States Congress intended to embed with the federal Telecommunications Act of 1996 (hereinafter “the TCA”), Chapter §206 is intended to serve as a Smart Planning Provision, designed to achieve the four (4) simultaneous objectives of: (a) enabling personal wireless service providers to provide adequate personal wireless services throughout the Village so that Village residents can enjoy the benefits of same, from any FCC-licensed wireless carrier from which they choose to obtain such services, while (b) minimizing the number of cell towers. and/or other personal wireless service facilities needed to provide such coverage, (c) preventing, to the greatest extent reasonably practical, any unnecessary adverse impacts upon the Village’s communities, residential areas, and individual homes, and (d) complying with all of the legal requirements which the TCA imposes upon the Village, when the 2 --- PAGE 7 --- *- Village receives, processes and determines applications seeking approvals for the siting, construction and operation of cell towers and/or other personal wireless service facilities. The Village seeks to minimize, to the greatest extent possible, any unnecessary adverse impacts caused by the siting, placement, physical size, and/or unnecessary proliferation of, personal wireless service facilities, including, but not limited to, adverse aesthetic impacts, adverse impacts upon property values, adverse impacts upon the character of any surrounding properties and communities, adverse impacts upon historical and/or scenic properties and districts, and the exposure of persons and property to potential dangers such as structural failures, ice fall, debris fall, and fire. The Village also seeks to ensure that, in applying this section, the Board of Trustees (“Board”) is vested with sufficient authority to require applicants to provide sufficient, accurate, and truthful probative evidence, to enable the Board to render factual determinations consistent with both the provisions set forth herein below and the requirements of the TCA when rendering decisions upon such applications. To achieve the objectives stated herein, the Village seeks to employ the “General Authority” preserved to it under Section 47 U.S.C.A. §332(c)(7)(A) of the TCA to the greatest extent which the United States Congress intended to preserve those powers to the Village, while simultaneously complying with each of the substantive and procedural requirements set forth within the subsection 47 U.S.C.A. §332(c)(7)(B) of the TCA. §206-2 Definitions; Word Usage For purposes of this Chapter, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations, shall have the meaning 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. The definitions set forth herein shall supersede any definitions set forth within the Village’s Zoning ordinance, and the definitions set forth herein below shall control and apply to §206 and all subsections herein. ACCESSORY FACILITY OR ACCESSORY STRUCTURE A facility or structure serving or being used in conjunction with a personal wireless services facility or complex and located on the same property or lot as the personal wireless services facility or complex, or an immediately adjacent lot including, but not limited to, utility or transmission equipment storage sheds or cabinets. ACHP The Federal Advisory Council on Historic Preservation. 3 --- PAGE 8 --- * ADEQUATE COVERAGE As determined by the Board of Trustees, adequate coverage means that a specific wireless carrier’s personal wireless service coverage is such that the vast majority of its customers can successfully use the carrier’s personal wireless service to use their wireless telephones to connect to landlines, the vast majority of the time, in the vast majority of the geographic locations within the Village, and that the success rate of using their wireless telephones exceeds 97%, or that any success rates lower that 97% have not been proven to be attributable to gaps in service within Village, but may be due to failures of service of the other parties to such communications. Adequate Coverage shall also mean that any physical geographic gaps in an identified wireless carrier’s personal wireless services are not “significant gaps,” based upon such factors including, but not limited to, lack of significant physical size of the gap, whether the gap is located upon a lightly traveled or lightly occupied area, whether only a small number of customers are affected by the gap, and/or whether or not the carrier’s customers are affected for only limited periods of time. A wireless carrier’s coverage shall not be deemed inadequate simply because the frequency or frequencies at which its customers are using its services are not the most preferred frequency of the wireless carrier. So long as the carrier’s customers are capable of using the carrier’s service to connect to a landline, at any frequency or combination of frequencies at which that carrier is providing wireless services to its customers, then adequate coverage shall be found to exist. ANTENNA An apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location, for the provision of personal wireless service. APPLICANT Any individual, corporation, limited liability company, general partnership, limited partnership, estate, trust, joint-stock company, association of two or more persons having a joint common interest, or any other entity submitting an application for a special use permit, site plan approval, variance, building permit, and/or any other related approval, for the installation, operation and/or maintaining of one or more personal wireless service facilities. APPLICATION Refers to all necessary and required documentation and evidence that an applicant must submit to receive a special use permit, building permit, or other approval for personal wireless service facilities from the Village. BOARD The Board of Trustees of the Village of Croton-on-Hudson, or its designee pursuant to the Zoning Ordinance. CELL TOWER A free-standing, guy-wired, or otherwise supported pole, tower, or other structure designed to support or employed to support, equipment and/or antennas used to provide personal wireless services, including, but not limited to, a pole, monopole, monopine, slim stick, lattice tower or other types of standing structures. 4 --- PAGE 9 --- % CEQ The Council on Environmental Quality was established under NEPA. CFR The Code of Federal Regulations COLOCATION and/or CO-LOCATE To install, mount or add new or additional equipment to be used for the provision of personal wireless services to a pre-existing structure, facility, or complex which is already built and is currently being used to provide personal wireless services, by a different provider of such services, wireless carrier or site developer. COMPLETE APPLICATION, COMPLETED APPLICATION An application that contains all the necessary and required information, records, evidence, reports, and/or data necessary to enable an informed decision to be made with respect to an application. Where any information is provided pursuant to the terms of this Chapter and the Village Engineer, Planning Board or the Village’s expert or consultant or the Board determines, based upon information provided, that any additional, further or clanfying information is needed as to one or more aspects, then the application will be deemed incomplete until that further or clarifying information is provided to the satisfaction of the Village Engineer, Board of Trustees, Planning Board or the Village’s expert or consultant of the Board. COMPLEX The entire site or facility, including ail structures and equipment, located at the site. DBM (dBm) DBM stands for decibel milliwatts, which is a concrete measurement of the wireless signal strength of wireless networks. Signal strengths are recorded in negative numbers, and can range from approximately -30 dBm to -110 dBm. The closer the number is to 0, the stronger the cell signal. DEPLOYMENT The placement, construction, or substantial modification of a personal wireless service facility. DISTRIBUTED ANTENNA SYSTEM, DAS A network of spatially separated antenna nodes connected to a common source via a transport medium that provides personal wireless service within a geographic area. EFFECTIVE PROHIBITION A finding by the Board that, based upon an applicant’s submission of sufficient probative, relevant, and sufficiently reliable evidence, and the appropriate weight which the Board deems appropriate to afford same, an applicant has established that an identified wireless carrier does not have adequate coverage as defined hereinabove, but suffers from a significant gap in its personal wireless services within the Village and that a proposed installation by that applicant would be the least intrusive means of remedying that gap, such that a denial of the application to install such facility would effectively prohibit the carrier from providing personal wireless 5 --- PAGE 10 --- services within the Village. Any determination of whether an applicant has established, or failed to establish, both the existence of a significant gap and whether its proposed installation is the least intrusive means of remedying such gap, shall be based upon substantial evidence, as is hereinafter defined. ELEVENTH HOUR SUBMISSIONS An applicant’s submission of new and/or additional materials in support of an application within 48 hours of the expiration of an applicable shot clock, or at an otherwise unreasonably short period of time before the expiration of the shot clock, making it impracticable for the Board of Trustees, or its designees, to adequately review and consider such submissions due to their complexity, volume, or other factors, before the expiration of the shot clock. ENURE To operate or take effect. To serve to the use, benefit, or advantage of a person or party. EPA The United States Environmental Protection Agency. FAA The Federal Aviation Administration, or its duly designated and authorized successor agency. FACILITY A set of wireless transmitting and/or receiving equipment, including any associated electronics and electronics shelter or cabinet and generator. FCC The Federal Communications Commission. GENERAL POPULATION/UNCONTROLLED EXPOSURE LIMITS The applicable radiofrequency radiation exposure limits set forth within 47 CFR §1.1310(e)(1), Table 1 Section (ii), made applicable pursuant to 47 CFR §1.1310(e)(3). HEIGHT When referring to a tower, personal wireless service facility, or personal wireless service facility structure, the height shal] mean the distance measured from the pre-existing grade level to the highest point on the tower, facility, or structure, including, but not limited to, any accessory, fitting, fitment, extension, addition, add-on, antenna, whip antenna, lightning rod or other types of lightning-protection devices attached to the top of the structure. HISTORIC STRUCTURE Any structure that is either listed on the National Register of Historic Places, or is eligible for inclusion in the National Register of Historic Places under 36 CFR §63.1. 6 --- PAGE 11 --- 4 ILLEGALLY EXCESSIVE RF RADIATION or ILLEGALLY EXCESSIVE RADIATION RF radiation emissions at levels that exceed the legally permissible limits set forth within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). IN-KIND REPLACEMENT The replacement of a malfunctioning component(s) with a properly functioning component of substantially the same weight, dimensions, and outward appearance. MACROCELL A cellular base station that typically sends and receives radio signals from large towers and antennas. These include traditionally recognized cell towers, which typically range from 50 to 199 feet in height. MAINTENANCE or ROUTINE MAINTENANCE Plumbing, electrical or mechanical work that may require a building permit but that does not constitute a modification to the personal wireless service facility. It is work necessary to assure that a wireless facility and/or telecommunications structure exists and operates: reliably and in a safe manner, presents no threat to persons or property, and remains compliant with the provisions of this chapter and FCC requirements. NECESSARY or NECESSITY or NEED What is technologically required for the equipment to function as designed by the manufacturer, and that anything less will result in prohibiting the provision of service as intended and described in the narrative of the application. “Necessary” or “need” does not mean what may be desired, preferred, or the most cost-efficient approach and is not related to an applicant’s specific chosen design standards. Any situation involving a workable choice between or among alternatives or options is not a need or a necessity. NEPA The National Environmental Policy Act, 42 U.S.C. §4321 et seq. NHPA The National Historic Preservation Act, 54 U.S.C. 300101 et seq, and 36 CFR Part 800 et seq. NODE, DAS NODE A fixed antenna and related equipment installation that operates as part of a system of spatially separated antennas, all of which are connected through a medium through which they work collectively to provide personal wireless services, as opposed to other types of personal wireless facilities, such as macrocells, which operate independently. NOTICE ADDRESS An address, which is required to be provided by an applicant at the time it submits an application for a special use permit, at which the Village, Board of Trustees, Planning Board and/or Village Engineer can mail notice, and the mailing of any notice to such address by first-class mail shall constitute sufficient notice to any and all applicants, co-applicants, and/or their attorneys, to 4 --- PAGE 12 --- 4 satisfy any notice requirements under this Chapter, as well as any notice requirements of any other local, state and/or federal law. NOTICE OF INCOMPLETENESS, NOTICE OF INCOMPLETE APPLICATION A written notice, mailed by first class mail, to an applicant seeking an approval for the installation of a PWSF, wherein the sender advises the applicant that its application is either incomplete, the wrong type of application, or is otherwise defective, and setting for the reason or reasons why the application is incomplete and/or defective. NOTICE OF EFFECTIVE PROHIBITION CONDITIONS A written notice which is required to be provided to the Village at the time of the filing of any application, by all applicants at seeking any approval, of any type, for the siting, installation and/or construction of a PWSF, wherein the respective applicant asserts, claims or intends to assert or claim, that a denial of their respective application, by any agent, employee, board or body of the Village, would constitute an “effective prohibition” within the meaning of the TCA, .and concomitantly, that a denial of their respective application or request would violate Section 47 U.S.C. §332(c)(7)(B)G)d) of the TCA. OCCUPATIONAL/CONTROLLED EXPOSURE LIMITS The applicable radiofrequency radiation exposure limits set forth within 47 CFR §1.1310(e)(1), Table 1 Section (i), made applicable pursuant to 47 CFR §1.1310(e)(2). PERSONAL WIRELESS SERVICE/PERSONAL WIRELESS SERVICES Commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, within the meaning of 47 U.S.C. §332(c)(7)(c)(i), and as defined therein. PERSONAL WIRELESS SERVICE FACILITY, PERSONAL WIRELESS SERVICES FACILITY or PWSF A facility or facilities used for the provision of personal wireless services, within the meaning of 47 U.S.C. §332(c)(7)(c)(i1). It means a specific location at which a structure that is designed or intended to be used to house or accommodate antennas or other transmitting or receiving equipment is located. This includes, without limitation, towers of all types and all kinds of support structures, including but not limited to buildings, church steeples, silos, water towers, signs, utility poles, or any other structure that is used or is proposed to be used as a telecommunications structure for the placement, installation and/or attachment of antennas or the functional equivalent of such. It expressly includes all related facilities and equipment such as cabling, radios and other electronic equipment, equipment shelters and enclosures, cabinets, and other structures enabling the complex to provide personal wireless services. PLANNING BOARD The Planning Board of the Village of Croton-on-Hudson which reviews all applications for special use permits and submits its recommendations to the Board of Trustees pursuant to §230- 58. PROBATIVE EVIDENCE 8 --- PAGE 13 --- 4 Evidence which tends to prove facts, and the more a piece of evidence or testimony proves a fact, the greater its probative value, as shall be determined by the Board of Trustees, as the finder-of-fact in determining whether to grant or deny applications for special use permits under this provision of the Village Code. REPAIRS The replacement or repair of any components of a wireless facility or complex where the replacement is substantially identical to the component or components being replaced, or for any matters that involve the normal repair and maintenance of a wireless facility or complex without the addition, removal, or change of any of the physical or visually discernible components or aspects of a wireless facility or complex that will impose new visible intrusions of the facility or complex as originally permitted. RF Radiofrequency. RF RADIATION Radiofrequency radiation, that being electromagnetic radiation which is a combination of electric and magnetic fields that move through space as waves, and which can include both Non-lIonizing radiation and Ionizing radiation. SECTION 106 REVIEW A review under Section 106 of the National Historic Preservation Act. SETBACK For purposes of special use permit applications, a setback shall mean the distance between (a) any portion of a personal wireless facility and/or complex, including but not limited to any and all accessory facilities and/or structures, and (b) the exterior line of any parcel of real property or part thereof which is owned by, or leased by, an applicant seeking a special use permit to construct or install a personal wireless facility upon such real property or portion thereof. In the event that an applicant leases only a portion of real property owned by a landlord, the setback shail be measured from the facility to the line of that portion of the real property which is actually leased by the applicant, as opposed to the exterior lot line of the non-leased portion of the property owned by the landlord. SEQRA The New York State Environmental Quality Review Act, 6 NYCRR Part 617 et seq. SHOT CLOCK The applicable period which is presumed to be a reasonable period within which the Village is generally required to issue a final decision upon an application seeking special use permit approval for the installation or substantial modification of a personal wireless services facility or structure, to comply with Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA. SHPO The New York State Historic Preservation Office 9 --- PAGE 14 --- SITE DEVELOPER or SITE DEVELOPERS Individuals and/or entities engaged in the business of constructing wireless facilities and wireless facility infrastructure and leasing space and/or capacity upon, or use of, their facilities and/or infrastructure to wireless carriers. Unlike wireless carriers, site developers generally do not provide personal wireless services to end-use consumers. SMALL CELL A fixed cellular base station that typically sends and receives radio signals and which are mounted upon poles or support structures at substantially lower elevations than macrocell facilities. SMALL WIRELESS FACILITY (SWF) A personal wireless service facility that meets all of the following criteria (a) The facility does not extend the height of an existing structure to a total cumulative height of more than fifty (50) feet, from ground level to the top of the structure and any equipment affixed thereto; (b) Each antenna associated with the deployment is no more than three (3) cubic feet in volume; (c) All wireless equipment associated with the facility, including any pre-existing equipment and any proposed new equipment, cumulatively total no more than twenty-eight (28) cubic feet in volume; (d) The facility is not located on tribal land; and (e) The facility will not result in human exposure to radiofrequency radiation in excess of the applicable FCC safety standards set forth within Table 1 of 47 CFR §1.1310(E)(1). SPECIAL USE PERMIT The official document or permit granted by the Board of Trustees pursuant to which an applicant is allowed to file for and obtain a building permit to construct and use a personal wireless services facility, personal wireless service equipment, and/or any associated structures and/or equipment which are used to house, or be a part of, any such facility or complex, or to be used to provide personal wireless services. STATE The State of New York. STEALTH or STEALTH TECHNOLOGY A design or treatment that minimizes adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and generally m the same area as the requested location of such personal wireless service facilities. This shall mean building the least visually and physically intrusive facility and complex under the facts and circumstances. STRUCTURE A pole, tower, base station, or other building, physical support of any form used for, or to be used for, the provision of personal wireless service. 10 --- PAGE 15 --- 4 SUBSTANTIAL EVIDENCE Substantial Evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. TCA The Telecommunications Act of 1996, 47 U.S.C. §332(c). TOLLING or TOLLED The pausing of the running of the time period permitted under the applicable shot clock for the respective Type of application for a personal wireless services facility. Where a shot clock is tolled because an application has been deemed incomplete and timely notice of incompleteness was mailed to the applicant, the submission of additional materials by the applicant to complete the application will end the tolling, thus causing the shot clock period to resume running, or, in the case of Type III applications, shall cause the shot clock to reset, and begin running anew. TOWER, TELECOMMUNICATIONS TOWER Any structure designed primarily to support one or more antennas and/or equipment used or designed for receiving and/or transmitting a wireless signal. VILLAGE The Village of Croton-on-Hudson. VILLAGE CODE The Code of the Village of Croton-on-Hudson, as the term has been codified in Article I, §1-1. UNDERTAKING Any application for a special use permit seeking Board approval for the installation of a personal wireless services facility licensed under the authority of the FCC shall constitute an undertaking -within the meaning of NEPA, in accord with 42 CFR §137.289 and 36 CFR §800.16. WIRELESS CARRIERS or CARRIER Companies that provide Personal Wireless Services to end-use consumers. ZBA The Zoning Board of Appeals for the Village of Croton-on-Hudson. ZONING LAW, A/K/A THE ZONING ORDINANCE The 1979 Village of Croton-on-Hudson Zoning Law, as entitled under Article I, §230-1. ll --- PAGE 16 --- §206-3 Application Types There shall be four (4) specific types of applications for special use permits under this section, which shall include Type I, Type II, Type Il, and Type IV applications. It shall be the obligation of any applicant to explicitly and correctly identify which type of application they are filing. 1. Type 1 Applications Colocations of Small Wireless Facilities Type I applications shall be limited to applications wherein an applicant seeks to co-locate a new small wireless facility, as defined in this chapter, by installing new personal wireless service equipment upon an already existing small personal wireless services facility structure. If the completed facility would still meet the physical limits and requirements to meet the definition of a small wireless facility after the installation of the new equipment, then the application to install such new equipment is a Type I application. Type I applications for co-location of a small wireless facility in all districts delineated in Section §230-5 of the Zoning Ordinance shall require an applicant to obtain a special use permit from the Board. 2. Type H Applications Co-locations which do not meet the definition of a Small Wireless Facility. Type II applications shall be limited to applications wherein an applicant is seeking to co-locate new personal wireless service equipment by installing such new wireless equipment upon an already existing personal wireless services facility structure, tower, or complex, which does not meet the definition of a small wireless facility or which will not meet the definition of a small wireless facility if and when the proposed new personal wireless service equipment is installed upon the existing facility and/or structure. Type II applications for co-location of personal wireless service facility equipment in in all districts delineated in Section §230-5 of the Zoning Ordinance shall either be a permitted use with a building permit, or a special use permit, as set forth below. The co-location of personal wireless service facility equipment on an approved PWSF tower or PWSF structure on property within districts O-1, O-2, C-1, C-2, LI, MDU is a permitted use subject to the issuance of a building permit, provided that the Village Engineer determines that the proposed co-location will not: (a) Increase the approved height of the supporting structure by more than 15%; (b) Cause the original approved number of antennas to be exceeded by more than 50%; (c) Increase the original approved square footage of accessory buildings by more than 200 square feet; (d) | Add new or additional microwave antenna dishes; (e) expand the footprint of said support structure; or (f) potentially cause significant adverse impacts on the existing support structure or the surrounding area. 12 --- PAGE 17 --- If the Village Engineer cannot make the findings above, special use permit and site plan approvals will be required in accord with the provisions of the Zoning Ordinance, and the Village Engineer shall refer the application to the Board, where it will be subject to the terms and conditions specified in the requirements and standards in this section as part of the special use permit and site plan review process. 3. Type II] Applications New Small Wireless Facilities Type III applications shall be limited to applications seeking to install and/or construct a new small wireless facility as defined in Section §206-2 hereinabove. Type III applications shall require applicants to obtain a special use permit and site plan approvals from the Board. 4. Type IV Applications New Towers and All Other Wireless Facilities Type IV applications shall include applications for the installation of a new telecommunications tower, personal wireless service facility, complex, structure, or equipment, which does not meet the criteria for Type I, Type II, or Type III applications. Type IV applications shall require applicants to obtain a special use permit and site plan approvals from the Board. §206-4 Shot Clock Periods To comply with the requirements of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, the following shot clock periods set forth herein below shall be presumed to be reasonable periods within which the Board shall render determinations upon special use permit applications for personal wireless service facilities. The Board shall render determinations upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period list below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Board and/or Village’s controls, as addressed within subsections §206-15, §206-16, §206-17 and §206-18 herein below. 1. Type I Applications Colocations of Small Wireless Facilities Sixty (60) Days Unless extended-by agreement, tolled, or subject to reasonable delays, the Board shail issue a written decision upon a Type I application within sixty (60) days from the date when the Village receives a Type I application. Upon receipt of a Type I application, the Village Engineer shall review the application for completeness. If the Village Engineer determines the application is: (a) incomplete, (b) 13 --- PAGE 18 --- missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within ten (10) days of the Village’s receipt of the application, the Village Engineer, or his designee, shall mail the applicant a Notice of Incompleteness by first class mail, to the Notice Address provided by the applicant. Within such Notice of Incompleteness, the Village Engineer shall advise the applicant, with reasonable clarity, the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or defective. The mailing of a Notice of Incomplete Application by the Village Engineer shall toll the 60-day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Village Engineer to remedy the issues the Village Engineer identified in the Notice of Incomplete Application, which he had mailed to the applicant. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running. If upon receipt of any additional materials from the applicant, the Village Engineer determines that the application is still incomplete and/or defective, then the Village Engineer shall, once again, mail a Notice of Incompleteness within ten (10) days of the applicant having filed its supplemental or corrected materials to the Village and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated. 2. Type II Applications Colocations on existing Towers, Structures or other Facilities which do not meet the definition of a Small Wireless Facility. Ninety (90) Days Unless extended by agreement, tolled, or subject to reasonable delays, the Board shall issue a written decision upon a Type II application within ninety (90) days from the date when the Village receives a Type II application. Upon receipt of a Type II application, the Village Engineer shall review the application for completeness. If the Village Engineer determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within thirty (30) days of the Village’s receipt of the application, the Village Engineer, or his designee, shall mail the applicant a Notice of Incompleteness by first class mail, to the Notice Address provided by the applicant. Within such Notice of Incompleteness, the Village Engineer shall advise the applicant, with reasonable clarity of the defects within its application, including a description of such matters as what items are missing from the application and/or why the-application is incomplete and/or defective. The mailing of a Notice of Incomplete Application by the Village Engineer shall toll the 90-day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Village Engineer to remedy the issues the 14 --- PAGE 19 --- Village Engineer identified in the Notice of Incomplete Application, which he had mailed to the applicant. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running. If upon receipt of any additional materials from the applicant, the Village Engineer determines that the application is still incomplete and/or defective, then the Village Engineer shall, once again, mail a Notice of Incompleteness within ten (10) days of the applicant having filed its supplemental or corrected materials to the Village. The shot clock shall once again be tolled, and the same procedure provided hereinabove shall be repeated. 3. Type I Applications New Small Wireless Facilities Ninety (90) Days Unless extended by agreement, tolled, or subject to reasonable delays, the Board shall issue a written decision upon a Type III application within ninety (90) days from the date when the Village receives a Type III application. Upon receipt of a Type III application, the Village Engineer shall review the application for completeness. If the Village Engineer determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within ten (10) days of the Village’s receipt of the application, the Village Engineer, or his designee, shall mail the applicant a Notice of Incompleteness by first class mail, to the Notice Address which the applicant has provided. Within such Notice of Incompleteness, the Village Engineer shall advise the applicant, with reasonable clarity, the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or defective. The mailing of a Notice of Incomplete Application by the Building Inspector shall reset the 90-day shot clock, which shall start running anew, if and when the applicant tenders an additional submission to the Building Inspector to remedy the issues the Building Inspector identified in the Notice of Incomplete Application, which he had mailed to the applicant. If upon receipt of any additional materials from the applicant, the Village Engineer determines that the application is still incomplete and/or defective, then the Village Engineer shall, once again, mail a Notice of Incompleteness within ten (10) days of the applicant having filed its supplemental or corrected materials to the Village and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated. 15 --- PAGE 20 --- 4. Type IV Applications New Towers and All Other Wireless Facilities One Hundred Fifty (150) Days Unless extended by agreement, tolled, or subject to reasonable delays, the Board of Appeals shall issue a written decision upon a Type IV application within one bundred fifty (150) days from the date when the Village receives a Type IV application. Upon receipt of a Type IV application, the Village Engineer shall review the application for completeness. If the Village Engineer determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within thirty (30) days of the Village’s receipt of the application, the Village Engineer, or his designee, shall mail the applicant a Notice of Incompleteness by first class mail, to the Notice Address provided by the applicant. Within such Notice of Incompleteness, the Village Engineer shall advise the applicant, with reasonable clarity, the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or defective. The mailing of a Notice of Incomplete Application by the Village Engineer shall toll the 150-day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Village Engineer to remedy the issues the Village Engineer identified in the Notice of Incomplete Application, which he had mailed to the applicant. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running. If upon receipt of any additional materials from the applicant, the Village Engineer determines that the application is still incomplete and/or defective, then the Village Engineer shall, once again, mail a Notice of Incompleteness within ten (10) days of the applicant having filed its supplemental or corrected materials to the Village and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated. §206-5 Shot Clock Tolls, Extensions & Reasonable Delay Periods Consistent with the letter and intent of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, each of the shot clock periods set forth within Section §206-4 hereinabove shall generally be presumed to be sufficient periods within which the Board shall render decisions upon special use permit applications. Notwithstanding same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Board, and the Board shall not be required to render its determination within the shot clock period presumed to be reasonable for each type of application, where the processing of such application is reasonably delayed, as described hereinbelow. 16 --- PAGE 21 --- 1. Tolling of the Applicable Shot Clock Due to Incompleteness and/or Applicant Error As provided for within Section §206-4 hereinabove, in the event that the Village Engineer deems an application incomplete, the Village Engineer shall send a Notice of Incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application. If the Village Engineer mails a Notice of Incompleteness as described hereinabove, the applicable shot clock shall automatically be tolled, meaning that the applicable shot clock period within which the Board is required to render a final decision upon the application shall immediately cease running, and shall not resume running, unless and until the Village receives a responsive submission from the applicant. If and when the applicant thereafter submits additional information in an effort to complete its application, or cure any identified defect(s), then the shot clock shall automatically resume running, but shall not be deemed to start running anew. The applicable shot clock period shall, once again, be tolled if the Village Engineer thereafter provides a second notice that the application is still incomplete or defective, despite any additional submissions which have been received by the Village, from the applicant, up to that point. 2. Shot Clock Extension by Mutual Agreement The Board, in its sole discretion, shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Board shall include the Board’s authority to request, at any time, and for any period of time the Board may deem reasonable or appropriate under the circumstances, consent from a respective applicant, to extend the applicable shot clock period, to enable the Board, the applicant, or any relevant third party, to complete any type of Undertaking or task related to the review, analysis, processing, and determination of the particular application, which is then pending before the Board, to the extent that any such Undertaking, task, or review is consistent with, or reasonably related to, compliance with any federal, state, or local law, and/or the requirements of any provision of the Village Code, including but not limited to this Chapter. In response to any request by the Board, the applicant, by. its principal, agent, attorney, site acquisition agent, or other authorized representative can consent to any extension of any applicable shot clock, by affirmatively indicating its consent either in writing or by affirmatively indicating its consent on the record at any public hearing or public meeting. The Board shall be permitted to reasonably rely upon a representative of the applicant indicating that they are authorized to grant such consent on behalf of the respective applicant, on whose behalf they have been addressing the Board within the hearing process. 17 --- PAGE 22 --- 3. Reasonable Delay Extensions of Shot Clock Periods The Village recognizes that there may be situations wherein, due to circumstances beyond the control of the Village and/or the Board, the review and issuance of a final decision upon a special use permit application for a personal wireless facility cannot reasonably be completed within the application shot clock periods delineated within Section §206-4 hereinabove. If, despite the exercise of due diligence by the Village and the Board, the determination regarding a specific application cannot reasonably be completed within the applicable shot clock period, the Board shall be permitted to continue and complete its review, and issue its determination at a date beyond the expiration of the applicable period, if the delay of such final decision is due to circumstances including, but not limited to, those enumerated hereinbelow, each of which shall serve as a reasonable basis for a reasonable delay of the applicable shot clock period. Reasonable delays which may constitute proper grounds for extending the presumed sufficient periods for rendering determinations under the applicable shot clock periods may include, but are not necessarily limited to, those set forth within Sections §206-15, §206-16, 206-17 and §206-18 herein below. §206-6 Application Requirements Applications for special use permits under this section shall be made to the Village Engineer, who shall initially determine whether or not the application is complete and/or free of defects upon receipt of the same. If the Village Engineer determines that the application is defective or incomplete, they shall promptly mail a Notice of Incompleteness to the applicant, in accord with §206-4 to toll the applicable shot clock, to ensure that the Village and the Board are afforded sufficient time to Teview and determine each respective application. Each application shall include the following materials, the absence of any one of which listed hereinbelow, shall render the respective application incomplete: 1. Special Use Permit and Site Plan Applications Completed applications for a special use permit and site plan that shall identify all applicants, co-applicants, site developer(s), and wireless carrier(s) on whose behalf the application is being submitted, as well as the property owner of the proposed site. 2. Filing Fees The appropriate filing fees then being charged by the Village for applications for special use permit applications, site plan applications, and other related applications. 3. A “Notice Address” 18 --- PAGE 23 --- A “Notice Address,” that being a specific address to which the Village, Board, Planning Board and/or Village Engineer may mail any type of notice, and that the mailing of same to such address shall constitute sufficient notice to any applicant, co-applicant, and/or their attorney, to comply with any requirement under this section as well as any local, state and/or federal law 4. Proof of Authorization for Site Occupancy Where an applicant is not the owner of the real property upon which it seeks to install its equipment or facility, they shal] submit proof of authorization to occupy the site at issue. If the applicant is leasing all or a portion of real property upon which it intends to install its new facility or equipment, then the applicant shall provide a written copy of its lease with the owner of such property. The applicant may redact any financial terms contained within the lease, but it shall not redact any portion of the lease which details the amount of area leased nor the specific portion of the real property to which the applicant has obtained the night to occupy, access, or preclude others from entering. Where an applicant is seeking to Co-Locate new equipment into an existing facility, it shall provide a copy of its written co-location agreement with the owner of such pre-existing facility, from which it may redact any financial terms. 5. A Drawn-To-Scale Depiction The applicant shall submit drawn-to-scale depictions of its proposed wireless support structure and all associated equipment to be mounted thereon, or to be installed as part of such facility, which shall clearly and concisely depict all equipment and the measurements of same, to enable the Village Engineer to ascertain whether the proposed facility would qualify as a small wireless facility as defined under this Chapter. If the applicant claims that its proposed installation qualifies as a small wireless facility within this Chapter, the drawn-to-scale depiction shall include complete calculations for all of the antennas and equipment of which the facility will be comprised, depicting that, when completed, the installation and equipment will meet the physical size limitations which enable the facility to qualify as a small wireless facility. 6. Site plan The applicant shall submit a site plan and site plan application in accordance with Article XI, §230-66, et seq. of the Zoning Ordinance. The site plan shall show all existing and proposed structures and improvements, including antennas, roads, buildings, guy wires and anchors, parking, and landscaping, and shall include grading plans for new Facilities and roads. Any methods used to conceal the modification of the existing facility shall be indicated on the site plan. 7. Engineer’s Report 19 --- PAGE 24 --- To the extent that an application proposes the co-location of new equipment onto an existing tower or facility, the applicant shall provide an engineer's report certifying that the proposed shared use will not diminish the structural integrity and safety of the existing structure and explaining what modifications, if any, will be required in order to certify to the above. 8. Environmental Assessment Form A completed environmental assessment form (EAF) and a completed visual EAF addendum. 9. Visual Impact Analysis A completed visual impact analysis, which, at a minimum, shall include the following: (a) Small Wireless Facilities For applications seeking approval for the installation of a small wireless facility, the applicant shall provide a visual impact analysis which shall include photographic images taken from the perspectives of the properties situated in closest proximity to the location being proposed for the siting of the facility, as well as those properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a “clear line of sight” between the tower location and their location. (b) | Telecommunications Towers and Personal Wireless Service Facilities which do not meet the definition of a Small Wireless Facility For applications seeking approval for the installation of a tetecommunications tower or a personal wireless service facility that does not meet the definition of a small wireless facility, the applicant shall provide: (i) A “Zone of Visibility Map” to determine locations from where the new facility will be seen. (ii) A visual impact analysis which shall include photographic images taken from the perspectives of the properties situated in closest proximity to the location being proposed for the siting of the facility, as well as those properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a “clear line of sight” between the tower location and their location. 20 --- PAGE 25 --- The photographic images shall depict the height at which the proposed facility shall stand when completed, including all portions and proposed attachments to the facility, including, but not limited to, the main support structure, all antennas, transmitters, whip antennas, lightning rods, t-bars, crossbars, and cantilever attachments which shall, in whole or in part, be affixed to it, any and all surrounding equipment compound(s), fencing, cellular equipment cabinets, transformers, transformer vaults and/or cabinets, sector distribution boxes, ice bridges, backup generators, including but not limited to equipment boxes, switch boxes, backup : generators, ice bridges, etc., to the extent that any of such compound and/or equipment will be visible from properties other than the property upon which the proposed tower and compound are to be installed. The visual impact analysis shall include an assessment of alternative designs and color schemes, as well as an assessment of the visual impact of the proposed facility, taking into consideration any supporting structure which is to be constructed, as well as its base, guy wires, accessory structures, buildings, and overhead utility lines from abutting properties and streets. 10. Alternative Site Analysis A completed alternative site analysis of all potential less intrusive alternative sites which the applicant has considered, setting forth their respective locations, elevations, and suitability or unsuitability for remedying whatever specific wireless coverage needs the respective applicant or a specific Wireless Carrier is seeking to remedy by the installation of the new facility which is the subject of the respective application for a special use permit. If, and to the extent that an applicant claims that a particular alternative site is unavailable, in that the owner of an alternative site is unwilling or unable to accommodate a wireless facility upon such potential alternative site, the applicant shall provide probative evidence of such unavailability, whether in the form of communications or such other form of evidence that reasonably establishes same. The alternative site analysis shall contain: (a) an inventory of all existing tall structures and existing or approved communications towers within a two-mile radius of the proposed site. (b) | amap showing the exact location of each site inventoried, including latitude and longitude (degrees, minutes, seconds), ground elevation above sea level, the height of the structure and/or tower, and accessory buildings on the site of the inventoried location. (c) an outline of opportunities for shared use of an existing wireless facility as opposed to the installation of an entirely new facility. (d) a demonstration of good-faith efforts to secure shared use from the owner of each potential existing tall structure and existing or approved communications tower, 21 --- PAGE 26 --- as well as documentation of the physical, technical, and/or financial reasons why shared usage is not practical in each case. 11. FCC Compliance Report An FCC compliance report, prepared by a licensed engineer, and certified under penalties of perjury, that the content thereof is true and accurate, wherein the licensed engineer shall certify that the proposed facility will be FCC compliant as of the time of its installation, meaning that the facility will not expose members of the general public to radiation levels that exceed the permissible radiation limits which the FCC has set. If it is anticipated that more than one carrier and/or user is to instal] transmitters into the facility that the FCC compliance report shall take into account anticipated exposure from all users on the facility and shall indicate whether or not the combined exposure levels will, or will not exceed the permissible General Population Exposure Limits, or alternatively, the occupational Exposure Limits, where applicable. Such FCC Compliance Report shall provide the calculation or calculations with which the Engineer determined the levels of RF radiation and/or emissions to which the facility will expose members of the general public. On the cover page of the report, the report shall explicitly specify: (2) Whether the applicant and their engineer are claiming that the appliable FCC limits based upon which they are claiming FCC compliance are the General Population Exposure Limits or the Occupational Exposure Limits. If the applicant and/or their engineer are asserting that the Occupational Exposure Limits apply to the proposed installation, they shall detail a factual basis as to why they claim that the higher set of limits is applicable, (b) The exact minimum distance factor, measured in feet, which the applicant’s engineer used to calculate the level of radiation emissions to which the proposed facility will expose members of the general public. The minimum distance factor is the closest distance (i.e., the minimum distance) to which a member of the general public shall be able to gain access to the transmitting antennas mounted upon, or which shall be a part of, the proposed facility. 12. FCC License A copy of any applicable Federal Communications Commission license possessed by any carrier named as an applicant, co-applicant, or whose equipment is proposed for installation as of the time the application is being filed with the Village. 13. Effective Prohibition Claims The Village is aware that applicants seeking approvals for the installation of new wireless Facilities often assert that federal law, and more specifically the TCA, prohibits the local government from denying their respective applications. 22 --- PAGE 27 --- In doing so, they assert that their desired facility is “necessary” to remedy one or more significant gaps in a carrier’s personal wireless service, and they proffer computer- generated propagation maps to establish the existence of such purported gaps. The Village is additionally aware that, in August 2020, driven by a concern that propagation maps created and submitted to the FCC by wireless carriers were inaccurate, the FCC caused its staff to perform actual drive tests, wherein the FCC staff performed 24,649 tests, driving nearly ten thousand (10,000) miles through nine (9) states, with an additional 5,916 stationary tests conducted at 42 locations situated in nine (9) states. At the conclusion of such testing, the FCC Staff determined that the accuracy of the propagation maps submitted to the FCC by the wireless carriers had ranged from as little as 16.2% accuracy to a maximum of 64.3% accuracy. As a result, the FCC Staff recommended that the FCC no longer accept propagation maps from wireless carriers without supporting drive test data to establish their accuracy. A copy of the FCC Staff's 66-page report is made a part of this Chapter as Appendix 1. The Village considers it of critical import that applicants provide truthful, accurate, complete, and sufficiently reliable data to enable the Board to render determinations upon applications for new wireless Facilities consistent with both the requirements of this Chapter and the statutory requirements of the TCA. Consistent with same, if, at the time of filing an application under this Chapter, an applicant intends to assert before the Board or the Village that: (a) an identified wireless carrier suffers from a significant gap in its personal wireless services within the Village, (b) that the applicant’s proposed installation is the least intrusive means of remedying such gap in services, and/or (c) that under the circumstances pertaining to the application, a denial of the application by the Board would constitute an “effective prohibition” under Section 47 U.S.C. §332 the TCA, then, at the time of filing such application, the applicant shall be required to file a written statement which shall be entitled: “Notice of Effective Prohibition Conditions” If an applicant files a Notice of Effective Prohibition Conditions, then the applicant shall be required to submit Probative Evidence to enable the Board to reasonably determine: (a) whether or not the conditions alleged by the respective applicant exist, (b) whether there exists a significant gap or gaps in an identified wireless carrier’s personal wireless services within the Village, (c) the geographic locations of any such gaps, and (d) the geographic boundaries of such gaps, to enable the Board to determine whether granting the respective application would be consistent with the requirements of this Chapter and the legislative intent behind same, and whether or not federal law would require the Board to grant the respective application, even if it would otherwise violate the Village Code, including, but not limited to, this Chapter. The additional materials which the applicant shall then be required to provide shall include the following: 23 --- PAGE 28 --- (a) Drive Test Data and Maps If, and to the extent that an applicant claims that a specific wireless carrier suffers from a significant gap in its personal wireless services within the Village, the applicant shall conduct or cause to be conducted drive tests within the specific geographic areas within which the applicant is claiming such gap or gaps exist, for each frequency at which the carrier provides personal wireless services. The applicant shall provide the Village and the Board with the actual drive test data recorded during such drive test, in a simple format which shall include, in table format: (i) the date and time for the test or test, (ii) the location, in longitude and latitude of each point at which signal strength was recorded and (iii) each signal strength recorded, measured in DBM, for each frequency. Such data is to be provided in a separate table for each frequency at which the respective carrier provides personal wireless services to any of its end-use customers. (iv) the applicant shall also submit drive test maps, depicting the actual signal strengths recorded during the actual drive test, for each frequency at which the carrier provides personal wireless services to its end-use customers. If an applicant claims that it needs a “minimum” signal strength (measured in DBM) to remedy its gap or gaps in service, then for each frequency, the applicant shall provide three (3) signal strength coverage maps reflecting actual signal strengths in three (3) DBM bins, the first being at the alleged minimum signal strength, and two (2) additional three (3) DBM bin maps depicting signal strengths immediately below the alleged minimum signal strength claimed to be required. By way of example, if the applicant claims that it needs a minimum signal strength of - 95 DBM to remedy its alleged gap in service, then the applicant shall provide maps depicting the geographic area where the gap is alleged to exist, showing the carrier’s coverage at — 95 to -98 DBM, -99 to -101 DBM and -102 to -104 DBM, for each frequency at which the carrier provides personal wireless services to its end-use customers. (b) Denial of Service and/or Dropped Call Records If and to the extent that an applicant claims that a specific wireless carrier suffers from a capacity deficiency, or a gap in service that renders the carrier incapable of providing adequate coverage of its personal wireless services within the Village, then the applicant shall provide dropped call records and denial of service records evidencing the number and percentage of calls within which the carrier’s customers were unable to initiate, 24 --- PAGE 29 --- maintain and conclude the use of the carrier’s personal wireless services without actual loss of service, or interruption of service. 14. —_ Estimate for Cost of Removal of Facility A written estimate for the cost of the decommissioning, removal of the facility, including all equipment that comprises any portion or part of the facility, compound, and/or complex, as well as any accessory facility or structure, including the cost of the full restoration and reclamation of the site, to the extent practicable, to its condition before development in accord with the decommissioning and reclamation plan required herein. 15. Property Owner Consent & Liability Acknowledgement A signed written consent from each owner of the subject real property upon which the respective applicant is seeking installation of its proposed personal wireless service facility, wherein the owner or owners, both authorize the applicant to file and pursue its special use permit application and acknowledge the potential landowner’s responsibility, under section §206-11 for engineering, legal and other consulting fees incurred by the Village. §206-7 Design Standards The following design standards shall apply to all applications for the siting, construction, maintenance, use, erection, movement, reconstruction, expansion, material change, or structural alteration of a personal wireless service facility. 1. Small Wireless Facilities Small Wireless Facilities (SWF) shall be sited to inflict the minimum adverse impacts upon individual residential properties, and specifically, to minimize, to the greatest extent reasonably feasible, adverse aesthetic impacts upon residential homes or reductions in the property values of same. SWFs attached to pre-existing wooden and non-wooden poles shall conform to the following criteria: (a) Proposed antenna and related equipment shall meet: (i) design standards which the Village may maintain and update as needed, provided that the Village makes its designed standards publicly available for review by any potential applicant seeking approval for the installation of an SWF within the Village, and (ii) National Electric Safety Code (NESC) standards; and Gili) National Electrical Code (NEC) standards. 25 --- PAGE 30 --- (b) Antennas and antenna equipment, including but not limited to radios, cables, associated shrouding, disconnect boxes, meters, microwaves, and conduit, which are mounted on poles, shall be mounted as close to the pole as technically feasible. They shall not be illuminated except as required by municipal, federal, or state authority, provided this shall not preclude deployment on a new or replacement street light. (c) Antennas and associated equipment enclosures must be camouflaged to appear as an integral part of the pole or be mounted as close to the pole as feasible. Conduits and cabinets shall cover all cables and wiring to the extent that it is technically feasible if allowed by the pole owner. The number of conduits shall be minimized to the extent technically feasible. To the extent technically feasible, antennas, equipment enclosures, and all ancillary equipment, boxes, and conduits shall match the approximate material and design of the surface of the pole or existing equipment on which they are attached. SWFs attached to replacement poles and new poles shall conform to the criteria set forth herein above for SWF’s attached to pre-existing wooden and non-wooden poles, but shall additionally conform to the following criteria: (a) The Village prefers that wireless providers and site developers install SWF’s on existing or replacement poles instead of installing new poles, and accordingly, to obtain approval for the installation of a new pole, the provider shall be required to document that installation on an existing or replacement pole is not technically feasible. (b) To the extent technically feasible, all replacement poles and new poles and pole- mounted antennas and equipment shall substantially conform to the material and design of the pole being replaced,-or in the case of a new pole, it shall conform to the nearest adjacent pole or poles. (c) The height of replacement poles and new poles shall conform with the height limitations applicable to the district within which the applicant seeks to install their proposed SWF unless the applicant obtains a variance to obtain relief from any such limitation(s). 2. Telecommunications Towers and Personal Wireless Service Facilities which do not meet the definition of a Small Wireless Facility The-design of a proposed new telecommunications tower-or personal wireless service facility shall comply with the following: (a) The choice of design for installing a new personal wireless service facility or the substantial modification of an existing personal wireless service facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, inflict upon nearby properties. 26 --- PAGE 31 --- (b) Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. (c) Unless specifically required by other regulations, a telecommunications tower shall have a finish (either painted or unpainted) that minimizes its degree of visual impact. (d) Notwithstanding the height restrictions listed elsewhere in this chapter, the maximum height of any new telecommunications tower shall not exceed that which shall permit operation without artificial lighting of any kind or nature, in accordance with municipal, state, and/or federal law and/or regulation. (e) Accessory Structures (i) Accessory structures shall maximize the use of building materials, colors, and textures designed to blend with the natural surroundings. The use of camouflage communications towers may be required by the Board to blend the communications tower and/or its accessory structures further into the natural surroundings. "Camouflage" is defined as the use of materials incorporated into the communications tower design that give communications towers the appearance of tree branches and bark coatings, church steeples and crosses, sign structures, lighting structures, or other similar structures. (ii) | Accessory structures shall be designed to be architecturally similar and compatible with each other and shall be no more than 12 feet high. The buildings shall be used only for housing equipment related to the particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one building. Gii) No portion of any telecommunications tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to the company name, phone numbers, banners, and streamers, except the following. A sign of no greater than two square feet indicating the name of the facility owner(s) and a twenty-four-hour emergency telephone shall be posted adjacent to any entry gate. In addition, "no trespassing" or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of the Village. (f) Towers must be placed to minimize visual impacts. Applicants shall place towers on the side slope of the terrain so that, as much as possible, the top of the tower does not protrude over the ridgeline, as seen from public ways. (g) Existing vegetation. Existing on-site vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this Chapter prior to the approval of the special use permit. (h) Screening. 27 --- PAGE 32 --- (a) Deciduous or evergreen tree plantings may be required to screen portions of the telecommunications tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas. (ii) | Where a site adjoins a residential property or public property, including streets, screening suitable in type, size and quantity shall be required by the Board. (iii) | The applicant shall demonstrate to the approving board that adequate measures have been taken to screen and abate site noises such as heating and ventilating units, air conditioners, and emergency power generators. Telecommunications towers shall comply with all applicable sections of this chapter as it pertains to noise control and abatement. (i) Lighting. Telecommunications towers shall not be lighted except where | FAA/FCC required lighting of the telecommunications towers necessary. No exterior lighting shall spill from the site in an unnecessary manner. (j) Access. (a) | Adequate emergency and service access shall be provided and maintained. Maximum use of existing roads, public or private, shall be made. Road construction shall, at all times, minimize ground disturbance and vegetation cutting to the top of fill, the top of cuts, or no more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential. (b) To the extent feasible, all network interconnections to and from the telecommunications site and all power to the site shall be installed underground. At the initial construction of the access road to the site, sufficient conduit shall be laid to accommodate the maximum possible number of telecommunications providers that might use the facility. (k) Parking. Parking shall be provided to assure adequate emergency and service access. The Board shall determine the number of required spaces, but in no case shall the number of parking spaces be less than two spaces. (1) Fencing. The telecommunications tower and any accessory structures shall be adequately enclosed by a fence, the design of which shall be approved by the Board. The Board may waive this requirement if the applicant demonstrates that such measures are unnecessary to ensure the security of the facility. §206-8 Planning Board Initial Review 1. Initial Review 28 --- PAGE 33 --- Upon the acceptance of an application that appears to be complete, the Village Engineer shall transmit the application to the Planning Board for initial review which shall submit its recommendations to the Board of Trustees pursuant to §230-58. The Board, or its designee, shal] then conduct an initial review to consider whether or not to establish itself as Lead Agency pursuant to SEQRA and/or NEPA and whether or not a use or area variance is required for the proposed application such that a referral for such an application to the ZBA will be required to be made after the Board has declared itself to serve as Lead Agency and during the process of the Board considering a SEQRA determination of environmental significance. That consideration of granting any required variances by the ZBA is done concurrently with the Board’s review and consideration of special use permit and site plan approval. The Board shall then conduct a public hearing upon each application, and render its determinations in accord with Sections §206-9 and §206-10 herein below, and shall ultimately determine whether or not to grant each applicant a special use permit and/or site plan approval. §206-9 Hearings and Public Notice 1. Public Hearings The Board shall conduct a public hearing upon each special use permit application, consistent with the procedures in §230-60, except the Board shall have authority to schedule such additional or more frequent public hearings as may be necessary to comply with the applicable shot clocks imposed upon the Village and the Board under the requirements of the TCA. 2. Required Public Notices The Board of Appeals shall ensure that both the public and property owners whose properties might be adversely impacted by the installation of a wireless facility receive Notice of any public hearing pertaining to same and shall ensure that they are afforded an opportunity to be heard concerning same. Before the date scheduled for the public hearing, the Board of Appeals shall cause to be published a “NOTICE OF PUBLIC HEARING FOR NEW WIRELESS FACILITY” Each “Notice of Public Hearing for New Wireless Facility shall state the name or names of the respective applicant or co-applicants, provide a brief description of the personal wireless facility for which the applicant seeks.a special use permit, and the date, time, and location of the hearing. Each “Notice of Public Hearing for New Wireless Facility” shall be published both: (a) once per week for two successive weeks in the official newspaper of the Village of 29 --- PAGE 34 --- Croton-on-Hudson as provided in §36-1; and (b) by mailing copies of such notice to property owners, as provided for herein below. The face of each envelope containing the notices of the public hearing shall state, in all bold typeface, in all capital letters, in a font size no smaller than 12 point, the words: “NOTICE OF PUBLIC HEARING FOR NEW WIRELESS FACILITY” For Type J and Type III applications, notices of public hearing shall be mailed to all property owners whose real properties are situated within 300 feet of any property line of the real property upon which the applicant seeks to install its new wireless facility. If the site for the proposed facility is situated on, or adjacent to, a residential street containing twelve (12) houses or less, the Board shall additionally mail a copy of such notices to all homeowners on that street, even if their home is situated more than 300 feet from any property line of the property upon which the applicant proposes to install its facility. For Type II and Type [V applications, the applicant shall mail such notices of public hearing to all property owners whose real properties are situated within 1,500 feet of any property line of the real property upon which the applicant seeks to install its new wireless facility. The applicant shall additionally post a notice upon the proposed site advising the public of the public hearing. Prior to the date of the hearing, the respective applicant shall file an Affidavit of Mailing, attesting to whom such notices were mailed by the applicant, and the content of the notices which were mailed to such recipients. §206-10 Factual Determinations to be Rendered by the Board of Trustees 1. Evidentiary Standards In determining special use permit applications for personal wireless service facilities, the Board shall have sole discretion to determine what probative evidence it shall require each applicant to produce in support of its application to enable the Board to make each of the factual determinations enumerated below. By way of common examples of the types of evidence which the Board may require an applicant to produce, are the following: (a) where an applicant is not the owner of the real property upon which it proposes to install a new wireless facility, the Board can require the applicant to provide a copy of the applicant’s lease with the property owner (including any schedules, property descriptions, appendices or other attachments), from which the applicant may censor or delete any financial terms which would be irrelevant to the factual issues which the Board is required to determine; 30 --- PAGE 35 --- 4 4 (b) — where the Board deems it appropriate, the Board can require the applicant to perform what is commonly known as a “balloon test” and to require the applicant to publish reasonably sufficient advance public notice of same, to enable the Board, property owners, and the community, an opportunity to assess the actual adverse aesthetic impact which the proposed facility is likely to inflict upon the nearby properties and surrounding community; (c) where the applicant asserts a claim that a proposed facility is necessary to remedy one or more existing significant gaps in an identified wireless carrier’s personal wireless services, the Board may require the applicant to provide drive-test generated coverage maps, as opposed to computer-generated coverage maps, for each frequency at which the carrier provides personal wireless services, to show signal strengths in bins of three (3) DBM each, to enable the Board to assess the existence of such significant gaps accurately, and/or whether the carrier possesses adequate coverage within the geographic area which is the subject of the respective application. (d) where the applicant asserts that a potential less intrusive alternative location for a proposed facility is unavailable because the owner of the potential alternative site is incapable or unwilling to lease space upon such site to the applicant, the Board may require the applicant to provide proof of such unwillingness in the form of communications to and from such property owner, and/or a sworn affidavit wherein a representative of the applicant affirms, under penalty of perjury, that they attempted to negotiate a lease with the property owner, what the material terms of any such offer to the property owner were, when the offer was tendered, and how, if at all, the property owner responded to such offer. The Board shall have sole discretion to determine, among other things, the relevance of any evidence presented, the probative value of any evidence presented, the credibility of any testimony provided, whether expert or otherwise, and the adequacy of any evidence presented. The Board shall not be required to accept, at face value, any unsupported factual claims asserted by an applicant but may require the production of evidence reasonably necessary to enable the Board to determine the accuracy of any factual allegations asserted by each respective applicant. Conclusory factual assertions by an applicant shall not be accepted as evidence by the Board. 2. Factual Determinations To decide applications for special use permits under this Section, the Board shall render factual determinations, which shall include two (2) specific types of factual determinations, as applicable. 31 --- PAGE 36 --- First, the Board shall render local zoning determinations according to Section (a) hereinbelow. Then, if, and only if, an applicant asserts claims that: (a) its proposed wireless facility or installation is necessary to remedy a significant gap in personal wireless services for an explicitly identified wireless carrier, and (b) that its proposed installation is the least intrusive means of remedying a specifically identified significant gap or gaps, the Board shall additionally render TCA determinations, in accord with Section (b) hereinbelow. The Board shall separately record each factual determination it makes in a written decision and shall reference, or make note of, the evidence based upon which it rendered each of its factual determinations. Each factual determination made by the Board shall be based upon Substantial Evidence. For purposes of this provision, “Substantial Evidence” shall mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. Evidence which the Board may consider shall include any evidence submitted in support of an application, and any evidence submitted by anyone opposing a respective application, whether such evidence is in written or photographic form, or whether it is in the form of testimony by any expert, or any person who has personal knowledge of the subject of their testimony. The Board may, of course, additionally consider as evidence any information or knowledge which they, themselves, personally possess, and any documents, records or other evidence which is a matter of public record, irrespective of whether such public record is a record of the Village, or is a record of or is maintained by, another federal, state and/or other governmental entity and/or agency which maintains records which are available for, or subject to, public review. The requirements for specific factual determinations set forth below are intended to enure to the benefit of the Village, its residents, and property owners, and not applicants. Lf, and to the extent that the Board fails to render one or more of such determinations, that omission shall not constitute grounds upon which the respective applicant can seek to annul, reverse or modify any decision of the Board. (a) Local Zoning Determinations The Board shall make the following factual determinations as to whether the application meets the requirements for granting a special use permit under this Chapter. (i) Compliance with Article X, §230-55, et seq. 32 --- PAGE 37 --- Whether the proposed installation will meet each of the conditions and standards set forth within Article X, §230-55, et seq. in the absence of which the Board is not authorized to grant a special use permit. Gi) Potential Adverse Aesthetic Impacts Whether the proposed installation will inflict a significant adverse aesthetic impact upon properties that are located adjacent to, or in close proximity to, the proposed site, or any other properties situated in a manner that would sustain significant adverse aesthetic impacts by the installation of the proposed facility. (iii) | Potential Adverse Impacts Upon Real Estate Values Whether the proposed installation will inflict a significant adverse impact upon the property values of properties that are located adjacent to, or in close proximity to the proposed site, or properties that are otherwise situated in a manner that would cause the proposed installation to inflict a significant adverse impact upon their value. (iv) Potential Adverse Impact Upon the Character of the Surrounding Community Whether the proposed installation will be incompatible with the use and/or character of properties located adjacent to or in close proximity to the proposed site or other properties situated in a manner that would cause the proposed installation to be incompatible with their respective use. (v) Potential Adverse Impacts Upon Historic Properties or Historic Districts Whether the proposed installation will be incempatible with and/or would have an adverse impact upon, or detract from the use and enjoyment of, and/or character of a historic property, historic site, and/or historic district, including but not limited to historic structures, properties and/or districts which are listed on, or are eligible for listing on, the National Register of Historic Places. (vi) Potential Adverse Impacts Upon Ridgelines or Other Aesthetic Resources of The Village Whether the proposed installation will be incompatible with and/or would have an adverse aesthetic impact upon or detract from the use and enjoyment of, and/or character of, recognized aesthetic assets of the Village including, but not limited to, scenic areas and/or scenic ridgelines, scenic areas, public parks, and/or any other traditionally or historically recognized valuable scenic assets of the Village. (vii) Sufficient Fall Zones 33 --- PAGE 38 --- Whether the proposed installation shall have a sufficient fall zone and/or safe zone around the facility to afford the general public safety against the potential dangers of structural failure, icefall, debris fall, and fire. (viii) Mitigation Whether the applicant has mitigated the potential adverse impacts of the proposed facility to the greatest extent reasonably feasible. To determine mitigation efforts on the part of the applicant, the mere fact that a less intrusive site, location, or design would cause an applicant to incur additional expense is not a reasonable justification for an application to have failed to propose reasonable mitigation measures. If when applying the evidentiary standards set forth in subparagraph (a) hereinabove, the Board determines that the proposed facility would not meet the standards set forth within Article X, §230-55, et seq., or that the proposed facility would inflict one or more of the adverse impacts described hereinabove to such a substantial extent that granting the respective application would inflict upon the Village and/or its citizens and/or property owners the types of adverse impacts which this provision was enacted to prevent, the Board shall deny the respective application for a special use permit unless the Board additionally finds that a denial of the application would constitute an Effective Prohibition, as provided for in Sections (b) and (c) immediately hereinbelow. (b) TCA Determinations In cases within which an applicant has filed a “Notice of Effective Prohibition Conditions,” the Board shall make three (3) additional factual determinations, as listed herein below: (i) Adequate Personal Wireless Services Coverage Whether the specific wireless carrier has adequate personal wireless services coverage within the geographic areas for which the applicant claims a significant gap exists in such coverage. (ii) | Significant Gap in Personal Wireless Services of an Identified Carrier Whether the applicant has established, based upon probative evidence provided by the applicant and/or its representative, that a specific wireless carrier suffers from a significant gap in its personal wireless services within the Village. In rendering such determination, the Board shall consider factors including, but not necessarily limited to (a) whether the identified wireless carrier which is alleged to suffer from any significant gap in their personal wireless services has adequate service in its personal wireless services at any frequency being used by the carrier to provide personal wireless services to its end-use customers, (b) 34 --- PAGE 39 --- whether any such alleged gap is relatively large or small in geographic size, (c) whether the number of the carrier’s customers affected by the gap is relatively small or large, (d) whether or not the location of the gap is situated on a lightly traveled road, or sparsely or densely occupied area, and/or (d) overall, whether the gap is relatively insignificant or otherwise relatively de minimis. A significant gap cannot be established simply because the carrier’s customers are currently using the carrier’s personal wireless services, but the frequency at which the customers are using such services is not the frequency most desired by the carrier. (iii) | Least Intrusive Means of Remedying Gap(s) in Service Whether the applicant has established based upon probative evidence provided by the applicant and/or its representative, that the installation of the proposed facility, at the specific site proposed by the applicant, and the specific portion of the site proposed by the applicant, and at the specific height proposed by the applicant is the least intrusive means of remedying whatever significant gap or gaps which the applicant has contemporaneously proved to exist as determined by the Board based upon any evidence in support of, and/or in opposition to, the subject application. In rendering such determination, the Board shall consider factors including, but not necessarily limited to: (a) whether the proposed site is the least intrusive location at which a facility to remedy an identified significant gap may be located, and the applicant has reasonably established a lack of potential alternative less intrusive sites and lack of sites available for co-location, (b) whether the specific location on the proposed portion of the selected site is the least intrusive portion of the site for the proposed installation (c) whether the height proposed for the facility is the minimum height actually necessary to remedy an established significant gap in service, (d) whether or not a pre-existing structure can be used to camouflage the facility and/or its antennas, (e) whether or not, as proposed, the installation mitigates adverse impacts to the greatest extent reasonably feasible, through the employ of Stealth design, screening, use of color, noise mitigation measures, etc., and/or (f) overall whether or not there is a feasible alternative to remedy the gap through alternative, less intrusive substitute installations, such as the installation of multiple shorter installation, instead of a single microcell facility. (c) Finding of Effective Prohibition or Lack of Effective Prohibition If, when applying the evidentiary standards set forth in subparagraph (a) hereinabove, the Board affirmatively determines that the applicant has failed to establish either: (i) that an identified wireless carrier suffers from a significant gap(s) in its personal wireless services within the Village, and/or (ii) that the applicant has failed to establish that the proposed installation is the least intrusive means of remedying any such gap or gaps, then 35 --- PAGE 40 --- the Board may deny the application pursuant to Section (b) hereinabove, and such denial shall not constitute an “Effective Prohibition.” If when applying the evidentiary standards set forth in subparagraph (a) hereinabove, the Board affirmatively determines that the applicant has established both: (i) that an identified wireless carrier suffers from a significant gap in personal wireless services within the Village, and (ii) that the proposed installation is the least intrusive means of remedying such significant gap or gaps, then the Board shall grant the application, irrespective of any determinations the Board may make pursuant to Section (b) hereinabove, because any such denial would constitute an “effective prohibition.” §206-11 Retention of Consultants Ie Use of Consultants Where deemed reasonably necessary by the Board and/or the Village, the Board and/or the Village may retain the services of professional consultants to assist the Board in carrying out its duties in deciding special use permit applications for personal wireless service facilities. Where the Board uses the services of private engineers, attorneys, or other consultants for purposes of engineering, scientific, land use planning, environmental, legal, or similar professional reviews of the adequacy or substantive aspects of applications, or of issues raised during the course of review of applications for special use permit approvals of personal wireless service facilities, the applicant and landowner, if different, shall be jointly and severally responsible for payment of all the reasonable and necessary costs incurred by the Village for such services. In no event shall that responsibility be greater than the actual cost to the Village of such engineering, legal, or other consulting services. 2. Advance Deposits for Consultant Costs The Village and/or Board may require advance periodic monetary deposits held by the Village on account of the applicant or landowner to secure the reimbursement of the Village's consultant expenses. The Board shall establish policies and procedures for the fixing of escrow deposits and the management of payment from them. After audit and approval of itemized vouchers by the Village Treasurer as to reasonableness and necessity of the consultant charges, the Village may make payments from the deposited funds for engineering, legal or consultant services. Upon receiving a request by the _ applicant or landowner, the Village shall supply copies of such vouchers to the applicant and/or landowner reasonably in advance of audit and approval, appropriately redacted where necessary to shield legally privileged communications between Village officers or employees and the Village's consultant. When it appears that there may be insufficient funds in the account established for the applicant or landowner by the Village to pay current or anticipated vouchers, the Village shall cause the applicant or landowner to deposit additional sums to meet such expenses or anticipated expenses in accordance with policies and procedures established by the Board. Consultants shall undertake no review on any matter scheduled before the Board until the initial escrow deposit has been made 36 [truncated at 40 pages of 51]