Amherst City Zoning Code

A maximum of two horses shall be allowed on the first two acres with an additional horse allowed for each additional two acres.

The stable and all exercise tracks shall be located at least 50 feet from any lot line; and

The manure from such stables shall be stored in tightly covered containers, which will control odor and insects.

There shall be only one attached dwelling structure per lot.

The attached dwelling shall not exceed four units per structure.

The minimum floor area shall conform to the minimum floor area requirements stated in the affected district. Alternatively, if the sum of the floor areas of all bedrooms, dining areas, recreation rooms, and other common living areas divided by the total number of bedrooms is equal to 400 square feet or more, the facility shall be permitted.

Any applicable requirements of NY Social Services Law, Chapter 55.

The land is owned by a homeowners' association or other common ownership and is maintained and used only by the members of the association or the owners in common, their families and guests;

The members of the association or common owners are residents of the subdivision within which the structure or use is located; and

All buildings shall be located at least seventy-five feet from any adjoining residential lot line and all other structures and uses shall be at least 25 feet away.

The Zoning Board of Appeals shall consider proximity to campus and residential areas, traffic impact and the availability of public transportation when reviewing a special use permit for a dormitory.

The dormitory shall meet the off-street parking requirements in § 7-1-6. Such requirements shall not be eligible for a variance.

Description. The patio home is a single-family detached dwelling unit, similar to a zero lot line home, placed on a small lot. Due to the modest area of the lot, the rear yard may be enclosed by a wall, while still preserving a narrow front yard. Where an alley is provided, all garage access shall take place from the alley.

The minimum floor area per dwelling unit shall be as follows: 400 sq ft for a zero bedroom unit; 640 sq ft for a one bedroom unit; 760 sq ft for a two bedroom unit; 1,000 sq ft for a three bedroom unit, and 1,200 sq ft for a four bedroom unit.

Parking may be shared with ground floor uses, where appropriate.

Description. The zero lot line home is a single-family detached dwelling unit positioned on one side lot line without any setback. The home has private yards on three sides of the building, including a wider side yard comprising the equivalent of two side yards for conventional detached housing. Garage access may take place from the front or the rear of the lot.

Zero Lot Line Dimensional Standards. Notwithstanding the dimensional standards for the district in which a zero lot line home is permitted, a zero lot line home shall comply with the following standards.

Maintenance Easement. An easement between the two property owners to allow for maintenance or repair of the home shall be required when the roof overhang or side wall of the house are within four feet of the adjacent property line. The easement on the adjacent property shall provide at least five feet of unobstructed space. The easement shall be recorded on the deed for the lot where the projection occurs.

Privacy. If the sidewall of the house is on the property line, or within three feet of the property line, windows or other openings that allow for visibility into the side yard of the adjacent lot are not permitted. Windows that do not allow visibility into the side yard of the adjacent lot, such as a clerestory window or a translucent window, are permitted.

Located a minimum of 250 feet from any lot in the R-R, SA, R-1, R-2, R-3, CR3-A, TR-3, R-4, MFR-4A, MFR-5, MFR-6, MFR-7, MHR-8, AG, NCD, PRD, PDD, TND, or TNB Overlay districts.

Maintained for persons enrolled in a college, university, or other educational institution and located entirely on the campus of that institution.

Operated by a nationally chartered membership organization or a locally chartered organization recognized by the educational institution on which it is located.

On-site management and security is provided 24 hours/day.

A minimum 1.25 spaces of off-street parking for each bed is required.

A cemetery shall be a minimum of 50 feet from any residential district. A mausoleum shall be a minimum of 100 feet from any residential district.

Any cemetery shall contain a single continuous area of 20 acres or more.

The minimum lot area shall be one acre and the minimum lot width shall be 200 feet.

The minimum yards for structures, parking, loading and stacking areas shall be in accordance with the following table.

Maximum building coverage shall be 25 percent.

Maximum structure height shall be 65 feet.

Schools and day-care centers are permitted as an accessory use.

The facility shall be secured.

The facility shall not be used for storage of vehicles or fuels for vehicles.

The site plan for the proposed structure shall be reviewed by the Planning Director before a hearing is held by the ZBA. The Planning Director shall submit a written report to the ZBA containing its analysis of the proposal under the standards set forth in §  8-6-6. Site plan submittal and review under §  8-7 shall not be required.

Such yard shall be permitted on a temporary basis by the Commissioner of Building for a period not to exceed the terms of the public works construction contract and restoration period or one year, whichever is less. The applicant shall submit an operation plan for the location and extent of activities to occur on the site, and a site restoration plan. The operation plan shall include any proposed changes to the drainage system. A public works construction yard may continue to be operated for a period exceeding one year upon approval of a Temporary Use Permit by the ZBA. If approved, the Temporary Use Permit shall stipulate the duration of the permit and all restrictions or conditions deemed appropriate by the ZBA.

The yard shall be maintained in such a manner that it is neither obnoxious nor offensive by reason of emission of odor, dust, smoke, gas, noise, vibration, electromagnetic disturbance, radiation or other nuisance situation as determined by the Commissioner of Building.

All noise-making activities that are audible at the property line of the public works construction yard shall be limited to the house stipulated in Chapter 138, Noise, of the Town of Amherst Code. Additionally, in the OB, NB, GB, MS, SC, RD, and ST districts, the hours of operation shall be limited to Monday through Friday from 7 A.M. to 7 P.M.

A public works construction yard shall not be located within 250 feet of a residential zoning district, a property containing a day-care center or any other occupied building.

When a public works construction yard is located within 500 feet of a residential property, fencing of the entire perimeter of the public works construction yard shall be required. The fencing shall be substantially opaque with a minimum height of seven feet a maximum height of ten feet. The point of access to the yard shall be provided with a gate that is secured when the yard is not in use.

Only one point of access to the public works construction yard shall be permitted. Such access shall be provided directly to a public right-of-way.

The storage or stockpiling of materials and supplies within the construction yard shall be limited to a maximum height of 20 feet.

The maximum area of a public works construction yard shall be one acre.

The operation for any on-site crushing of stone, concrete or similar processing shall not be conducted within 500 feet of a residential zoning district listed in Part 3 of this Zoning Ordinance. The hours of operation for any on-site crushing of stone, concrete or similar processing shall be limited to Monday through Friday from 8 A.M. to 5 P.M. Additionally, such activity shall not be conducted on any day that is a national (United States) holiday.

Any lighting placed on the site shall be oriented so as to direct glare or excessive illumination away from the public right-of-way and adjoining properties.

Unless otherwise approved by this ordinance, no signage shall be permitted on the site.

The yard shall be maintained in good condition during the time of its use. Material and construction residue and debris shall not be permitted to accumulate. Grass shall be regularly mowed and weed growth controlled.

In the event that the conditions of this section are not adhered to, the Commissioner of Building may issue a stop work order.

Upon completion of construction, all materials, supplies, equipment and debris associated with the yard's activities shall be completely removed and the area restored to its original vegetative and topographic state as stipulated in the site reclamation plan within 90 days.

Fee. The fee for the operation of a public works construction yard shall be one-hundred dollars ($100) for each year, or portion thereof, of operation. This fee shall be in addition to any fee required for the application of a Temporary Use Permit from the ZBA.

The minimum site area shall be 15 acres.

The facility owner shall provide to the Town a hold-harmless agreement signed by all owners of the facility and to remain valid throughout the existence of the club.

The minimum distance from any firing point measured in the direction of fire to the nearest property line shall be a minimum of 500 feet and a minimum of 3,000 feet from any occupied structure.

Hours of operation shall be limited to 8:00 a.m. to 9:00 p.m.

The facility shall be monitored at all times by an attendant, and no unsupervised clients shall be permitted in any of the shooting areas.

All facilities to be designed and constructed in accordance with nationally recognized guidelines for such facilities, such as the National Rifle Association's The Range Manual: A Guide to Planning and Construction.

All construction of such facilities shall comply with all codes including the Town fire code and building code.

The entire perimeter of all hunting and shooting clubs shall be fenced and signed to reduce the potential for trespassing into firing zones. Warning signs identifying the range shall be posted around the perimeter of the parcel on which the shooting range is located at minimum intervals of 75 feet.

No sales or consumption of alcoholic beverages shall be permitted on the property.

A bed and breakfast shall only be established in a single-family detached dwelling.

A maximum of four guestrooms and a maximum of 10 overnight guests at any time shall be permitted in any one bed and breakfast establishment.

No food preparation, except beverages, is allowed within individual guestrooms. Meal service may only be provided to overnight guests.

All parking areas on property (except driveways) shall be behind the required building setback line and shall be screened from the view of adjacent residences to a height of six feet by a solid screening fence, or dense shrubs and vegetation.

The bed and breakfast shall be located adjacent to and take access from a collector or arterial street only, as defined by the Town and this ordinance.

The operator of the bed and breakfast shall be a full-time resident of the dwelling in which the bed and breakfast establishment is housed.

No exterior evidence of the bed and breakfast establishment shall be allowed, except for parking and one attached sign no larger than eight square feet. No additional advertising of any kind is allowed on site. The Zoning Board of Appeals shall have discretion regarding the location of the attached sign.

Guests for events or similar functions shall be limited to a total of 15 (including overnight guests).

The Zoning Board of Appeals shall have the authority to impose additional reasonable conditions and restrictions as are directly related to and incidental to the proposed bed and breakfast establishment.

Appurtenances including but not limited to vacuums, above grade tanks, vent piping and utility structures shall not be within a required front yard, and be effectively screened with landscaping when visible from adjacent public roadways.

No vehicle storage, display or parking shall be permitted between the principal structure and front lot line.

No service bay or garage doors shall face the street.

Display vehicles shall be arranged in an orderly fashion and provide reasonable room for pedestrian and vehicular maneuvering.

The sexually explicit media is kept in a separate room from the rest of the inventory of the store;

Access to the separate room is available only to persons 18 years or older;

Access to the room is through a solid door, accessed by an electronic control device monitored by the clerk or manager on duty through direct visual control; and

Customers and activities in the room are visible at all times to management or the clerk on duty through a video system located at the clerk's or manager's counter.

The parcel served by such facilities shall be located within 250 feet of the nearest point of the parking facilities. For developments greater than 60,000 square feet, the parking facilities shall be located within 500 feet.

When the private parking facilities are being used to meet the minimum required parking requirements for a building, the use of the private parking facilities shall be provided at all times that the building is in use.

A minimum of five feet of clear walkway along the curb and leading to the entrance of the establishment shall be free of tables and other impediments.

Adequate trash receptacles shall be provided in the outdoor dining area.

Where 24 or less seats are located in the outdoor dining area, such seats need not be included in calculating the minimum parking requirement for the restaurant.

Outdoor dining shall be permitted between the hours of:

Patrons shall be permitted to remain outdoors to complete meals and beverages served before the latest hours indicated above. Outdoor dining shall be prohibited at any other time.

Outdoor dining may be permitted after the hours listed in §  6-4-9D, provided a special use permit is granted in accordance with §  8-6.

Any designated seating area shall be within a hardscaped area. A lawn picnic area may be established if hardscaped accessible elements are incorporated. All seating/tables shall be a minimum of 10 feet from any rear or interior property line.

All Permitted Districts. Unenclosed parking of motor vehicles at service stations shall be limited to four vehicles, and no vehicle shall remain so parked in excess of 24 hours. Unenclosed overnight parking of motor vehicles at motor vehicle washing establishments is prohibited.

Vehicles shall be serviced only with parts bought on-site.

Space for servicing vehicles shall be limited to 15 percent of the retail space floor area and shall not exceed 15,000 square feet.

All Permitted Districts. A vehicles sales, rental or leasing establishment is permitted in accordance with the district use tables in Part 4, subject to the following standards.

TNB Overlay District

Dogs may be groomed, trained, exercised and socialized, but not boarded overnight, bred or sold.

All activities related to the dog day care facility shall be undertaken indoors with the exception of short-term outdoor periods for the dogs to relieve themselves. Outdoor areas shall be located a minimum of 250 feet from the nearest residential district boundary and shall be screened by solid wood, vinyl or masonry fencing that is eight (8) feet high.

Dog day care facilities may include as an accessory use the retail sale of products related to the operation of the facility.

The operator of the facility will be required to maintain all required licenses and permits.

All animal waste must be placed in closed waste disposal containers and collected and disposed of by a qualified waste disposal company at least weekly.

A building for a dog day care facility shall be soundproofed to maintain a noise level that is less than 35 dBA as measured at the property line or common wall if within a multi-tenant building.

The hours of operation of a dog day care facility shall begin no earlier than 6:00 AM and shall end no later than 9:00 pm.

Any retail sales area shall be limited to 15% of the gross floor area of the principal structure.

Vehicle maintenance or repair facilities must maintain a minimum distance separation of 150 feet to any residential dwelling building. Such distance may be increased during site plan review approval by the Planning Board or Planning Director as applicable, but not to exceed 300 feet to mitigate for potential noise and odor.

Overhead doors shall not face a residential district and doors will be closed except for entry and exit of vehicles.

The following uses and activities are not allowed:

All on-site vehicle parking, loading, stacking, and circulation areas shall be paved, curbed, screened, follow the standards established in Part 7, and comply with the following additional standards.

Concurrently with a major revision to this Zoning Ordinance, the Town of Amherst retained Eric Damian Kelly, Ph.D., FAICP, and Connie B. Cooper, FAICP, working under Duncan Associates, to study the issues related to sexually oriented businesses in the Town and in the surrounding region. In a report entitled "Findings and Recommendations, Sexually Oriented Entertainment and Related Businesses," dated August 2005, Kelly and Cooper summarized studies from other communities, including several in New York State, documenting the negative secondary effects that sexually oriented businesses may have on property values and the negative effects that such businesses may have on the community through increases in crime around them. As part of their work, Cooper and Kelly provided to the Town copies of major studies from other communities, which have also been made available to the Town Board. Based on Kelly and Cooper's report and on these other studies, the Town Board has made specific findings regarding such secondary effects and has concluded that the regulations contained in this Article provide an appropriate and narrowly tailored approach to limiting the negative secondary effects of such businesses while allowing the types of communication protected by the First Amendment to occur in Amherst, limited only by appropriate regulations on the place and context of such communications.

The Constitution and laws of the State of New York grant to the Town of Amherst powers, especially police power, to enact reasonable legislation and measures to regulate and supervise sexually oriented entertainment establishments in order to protect the public health, safety and welfare.

It is not the intent of the Town of Amherst in enacting this Ordinance to deny to any person rights to speech protected by the United States and/or State Constitutions, nor is it the intent of the Town of Amherst to impose any additional limitations or restrictions on the contents of any communicative materials, including sexually oriented films, video tapes, books and/or other materials. Further, by enacting this Ordinance, the Town of Amherst does not intend to deny or restrict the rights of any adult to obtain and/or view any sexually oriented materials protected by the United States and/or State Constitutions, nor does it intend to restrict or deny any constitutionally protected rights that distributors or exhibitors of such sexually oriented materials may have.

Sexually oriented media stores, sex shops, and other sexually oriented businesses to which this section may be applicable by cross-reference, shall be permitted uses in the zoning districts in which they are listed as such only if they also comply with the following locational standards:

Sexually oriented cabarets, sexually oriented theaters, and sexually oriented motion picture theaters shall be subject to the following standards:

A person who knowingly owns, manages, operates, conducts or maintains any of the uses governed by these provisions in any way which is contrary to these regulations shall be subject to prosecution under § 8-16 of this Ordinance.

No person, firm, corporation or other entity shall lease, rent, maintain, operate, use or allow to be operated or used any business or establishment, any part of which contains a sexually oriented use, without first complying with the provisions of this part of the Zoning Ordinance as set forth below.

In addition to any and all other necessary licenses and permits, no form of sexually oriented use shall be allowed to operate or continue to operate until a certificate of registration is filed with the Town Clerk containing:

If there occurs any change in the information required for the information of registration or the certification of registration, the Town Clerk shall be notified of such change and a new or amended certificate filed within 30 days of such change.

No certificate of registration issued under the provisions of this part of the Zoning Ordinance shall be transferable to any person other than the registrant, nor shall a certificate of registration be transferable for use at any premises, building or location other than stated in the certificate of registration. Relocation of the business requires a new registration, in accordance with the provisions of this section.

The owner, manager or agent of any sexually oriented use shall cause a copy of the certificate of registration issued under the provisions of this part of the Zoning Ordinance to be displayed at eye level in a portion of the premises that is regularly open to customers of the business.

Any knowingly false statement or any statement which the registrant or petitioner should reasonably have known to be false which is provided in the certificate of registration or any document or information supplied therewith shall be grounds for denial, rejection, suspension or revocation of the certificate of registration.

It is a violation of this part of the Zoning Ordinance for the owner or person in control of any property to establish or operate thereon or to permit a sexually oriented use without having in force a certificate of registration complying with this subsection.

Upon receipt of an application for a certificate of registration under this part, the Town Clerk shall review it for completeness. If the application is incomplete, the Town Clerk shall, within five business days of receiving such application, return it to the petitioner, with a form or letter indicating that it is incomplete, identifying the item(s) that are missing, and stating that the incomplete application will not be processed.

If the application is complete, the Town Clerk shall, no later than the end of the fifth day after receipt of the application, forward it to the Commissioner of Building and the Chief of Police for review and comment determination regarding compliance with § 6-6-5. The Town Clerk shall request that each of these officials provide a written review determination of compliance or non-compliance within 14 days of receiving the application; if either official fails to act within that time, such official shall be deemed to have recommended approval. Upon receipt of the reviews determinations from these officials, but no later than the 21st business day after receiving the application, the Town Clerk shall act in accordance with the following sub-section.

If the Town Clerk, after receiving the determinations of the Chief of Police and Commissioner of Building, indicating that the application shows that the proposed business application will conforms with the standards set out in § 6-6-5, then the Clerk shall approve the application on or before the end of the 21st day after receipt of the complete application.

If the Town Clerk receives a determination from the Chief of Police or the Commissioner of Building that the application shows that the business fails or will fail in any way to conform to the standards set out in § 6-6-5, then the Clerk shall disapprove the application, acting within such time, and shall, in writing, notify the petitioner that the application has been denied and shall specify the standards with which the business would not conform. In making their determination, the Chief of Police and the Commissioner of Building shall identify those standards set out in § 6-6-5 which the application fails or will fail in any way.

Notification of denial shall be by certified mail and shall be sent to the address on the registration application, which shall be considered to be the correct address.

Personal. The Chief of Police shall determine that the application fails to conform to the code if an investigation indicates that any owner, officer, director, general partner or managing partner of the proposed establishment:

Physical Location and Design. The Zoning Enforcement Officer shall determine that the application fails to conform to the code if a review of the application indicates that the proposed location of the business or, in the case of a sexually oriented cabaret, sexually oriented motion picture theater or sexually oriented theater, that the proposed location does not meet the required setbacks for sexually oriented business or the layout of the proposed business does not conform with the requirements of § 6-6-2A.

Application. The Clerk shall deny the application if either the Chief of Police or Commissioner of Building finds that any statement in the application is materially false and that the petitioner knew, or should have known, that it was false or that the provisions of § 6-6-5 have not met the requirements of the code.

Other. Unless the Clerk makes one of the negative findings set forth in sub-sections A, B and C of this section, the Clerk shall approve the license, conditioned only on payment of the required fee.

Appeal. Any person aggrieved by a decision of the Clerk hereunder may appeal the decision to the Zoning Board of Appeals in accordance with § 8-13.

All registrations issued under this part of this Zoning Ordinance shall be classified as annual registrations which shall be paid for on or before October 1 and shall expire on September 30 of the following year. A registration beginning business after October 1 and before April 1 may obtain a new registration upon application and the payment of the appropriate annual registration fee, and such registration shall expire on the following September 30. A registrant beginning business after March 31 and before October 1 may obtain a new registration upon application and the payment of 1/2 of the appropriate annual registration fee required by the Town Board. Such registration shall expire on September 30 of the same year. The provisions of this subsection shall not affect any other provisions of this part of the Zoning Ordinance.

A registrant under this Section shall be entitled to a renewal of his, her or its annual registration from year to year, as a matter of course, on or before October 1, by presenting the registration for the previous year or satisfactory evidence of its loss or destruction to the Town Clerk and by paying the appropriate registration fee.

The registration issued under this part of this Zoning Ordinance may be revoked if the owner, general partner, managing partner, officer or director of the registrant is convicted of a criminal act which would have been the basis for denial of the application under §  6-6-5A. If the Chief of Police learns of such a conviction, the Chief of Police shall notify the Town Clerk. Upon notification, the Town Clerk shall send Notice of Proposed Revocation to the registrant at the establishment address. Such notice shall provide that the registration will be revoked unless it is appealed to the Zoning Board of Appeals in accordance with §  8-13. If a timely appeal is not filed with the Zoning Board of Appeals, the registration shall be automatically revoked without further action by the Town Clerk, and the establishment will thereafter be considered an unlawful use, subject to the enforcement actions provided in this Ordinance.

If the Commissioner of Building learns of a violation of the provisions of this ordinance, the Commissioner of Building shall so notify the Town Clerk. Upon notification, the Town Clerk shall send Notice of Proposed Revocation to the registrant at the establishment address. Such notice shall provide that the registration will be revoked unless it is appealed to the Zoning Board of Appeals in accordance with §  8-13. If a timely appeal is not filed with the Zoning Board of Appeals, the registration shall be automatically revoked without further action by the Town Clerk, and the establishment will thereafter be considered an unlawful use, subject to the enforcement actions provided in this Ordinance.

The Board may reverse or affirm a decision of the Town Clerk to approve or deny registration or a proposal by the Town Clerk to revoke a registration but shall not have any other authority to modify the action of the Town Clerk; and

The matter shall be considered at a public meeting, with the opportunity for the petitioner, the appellant if not the petitioner, and the Town Clerk and their witnesses to be heard, but it shall not be subject to a public hearing as otherwise defined herein;

The time limit for action by the Board under §  8-13-5B shall be reduced to 45 days after the filing of the appeal; and

If the Board fails to act within said 45-day period, the petitioner may at any time request from the Town Clerk a "certificate of deemed denial," and the Town Clerk shall forthwith issue such a certificate; the applicant may rely on such certificate as a final action by the Town which may then be appealed to a court of competent jurisdiction.

The following businesses are specifically prohibited in the Town:

Implement an application process for persons seeking a special use permit for WTFs;

Establish a policy for examining an application for and issuing a special use permit for WTF that is both fair and consistent.

Promote and encourage, wherever possible, the sharing and/or co-location of facilities-WTF among service providers;

Promote and encourage, wherever possible, the placement, height, appearance and quantity of WTFs in such a manner, including but not limited to the use of stealth technology, to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such WTFs, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances. Stealth technology will be strongly encouraged to ensure that WTFs are compatible with surrounding land use.

Promote and encourage the site development standards which preserve the character of residential areas and which ensure that adequate screening and stealth technology is used.

Ensure that WTFs are limited to those for which the petitioner has demonstrated a need for service essentially within the Town of Amherst.

No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of, WTFs as of the effective date of this Section without having first obtained a special use permit for a WTF, or alternatively, in the case of a modification to an existing WTF, an "Eligible Facilities Request" pursuant to section 6409, of 47 U.S.C. § 1455, a Zoning Authorization shall first be obtained from the Town Planning Department. Notwithstanding anything to the contrary in this Section, no special use permit shall be required for those non-commercial exceptions noted in the definition of WTFs.

All petitioners for a special use permit for a WTF or any modification of such facility shall comply with the requirements set forth in this Section. The ZBA is the officially designated agency or body of the Town to whom applications for a special use permit for a WTF must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking special use permits for a WTF. The Town may at its discretion delegate or designate other official agencies of the Town to accept, review, analyze, evaluate and make recommendations to the ZBA with respect to the granting or not granting, recertifying or not recertifying or revoking special use permits for a WTF.

An application for a special use permit for WTFs shall be signed on behalf of the petitioner by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different than the petitioner, shall also sign the application. At the discretion of the Town, any false or misleading statement in the application may subject the petitioner to denial of the application without further consideration or opportunity for correction.

Applications not meeting the requirements stated herein or which are otherwise incomplete, may be rejected by the Town.

The petitioner shall include a statement in writing:

No WTF shall be installed or constructed until the application is reviewed and approved by the ZBA, and the special use permit and all appropriate building, electrical, plumbing and fire prevention permits have been issued.

All applications for the construction or installation of new WTFs shall contain the information hereinafter set forth. The application shall be signed by an authorized individual on behalf of the petitioner. Where a certification is called for, such certification shall bear the signature and seal of a professional engineer licensed in the State of New York. The application shall include the following information:

In the case of a new tower, the petitioner shall be required to submit a written report demonstrating its efforts to secure shared use of existing tower(s) or the use of alternative buildings or other structures within the Town. Such report shall include an investigation of every Tower and every structure with a height exceeding 60 feet from finished grade within two miles of the proposed location of the new tower. Copies of written requests and responses for shared use shall be provided to the Town in the application, along with any letters of rejection stating the reason for rejection.

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

The petitioner shall certify that the WTFs will be effectively grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.

A petitioner shall be required to submit a written report identifying buried conductors within 50 feet of any non-building mounted WTF.

A petitioner may be required to submit an environmental assessment analysis and a visual addendum. Based on the results of the analysis, including the visual addendum, the Town may require submission of a more detailed visual analysis. The scope of the required environmental and visual assessment will be reviewed at the pre-application meeting.

The petitioner shall furnish a visual impact assessment, which shall include:

The petitioner shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related facilities and structures of the proposed WTFs.

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

All utilities at a WTF site shall be installed underground and in compliance with all laws, ordinances, rules and regulations of the Town, including specifically, but not limited to, the applicable building, plumbing, electrical and fire codes of the Town, the National Electrical Safety Code and the National Electrical Code where appropriate.

All WTFs shall be sited so as to be the least visually intrusive reasonably possible and thereby have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area of the WTF.

Both the WTF and any accessory structure that are higher than or not contained within fencing, walls or other visual screening shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings. This shall include the utilization of stealth or concealment technology as may required by the Town.

At a telecommunications site, an access road, turnaround space and parking shall be provided to assure adequate emergency and service access. Access road construction shall be suitable for the weight of vehicles that will use the road during construction and maintenance activities, as approved by the Building Department. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.

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

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

An applicant shall submit to the ZBA one original and nine copies of the completed application. The Town of Amherst reserves the right to request additional copies of the completed application if deemed necessary by the Town. Written notification of the application shall be provided in accordance with the provisions of the Zoning Ordinance of the Town of Amherst and applicable NYS laws. The Town Planning Department shall be provided with a copy of the application.

The petitioner shall examine the feasibility of designing a proposed tower to accommodate future demand for a minimum of five additional commercial applications, for example, future co-locations. The tower shall be structurally designed to accommodate a minimum of five additional antenna arrays equal to those of the petitioner, and located as close to the petitioner's antenna as possible without causing interference. This requirement may be waived, provided that the petitioner, in writing, demonstrates that the provisions of future shared usage of the Tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:

The owner of the proposed new tower, and his or her successors in interest, shall negotiate in good faith for the shared use of the proposed tower by other wireless service providers in the future, and shall:

There shall be a pre-application meeting with the Building Department, the Planning Department and the Town's designated consultant. The purpose of the pre-application meeting will be to address issues which will help to expedite the review and permitting process. A pre-application meeting, at the discretion of the Building Department, may also include a site visit. Costs of the Town's consultants to prepare for and attend the pre-application meeting will be borne by the petitioner.

The holder of a special use permit shall notify the Town of any intended modification of a WTF and shall apply to the Town to modify, relocate or rebuild a WTF.

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

All information necessary to satisfy SEQRA requirements.

Petitioners for WTFs shall locate, site and erect said WTFs in accordance with the following priorities, one being the highest priority and seven being the lowest priority.

If the proposed site is not proposed for the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected.

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

Notwithstanding the above, the ZBA may approve any site located within an area in the above list of priorities, provided that the ZBA finds that the proposed site is in the best interest of the health, safety and welfare of the Town and will further the policies and goals set forth in §  6-7-2.

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

Locating on existing towers or other structures without increasing the height, shall be preferred by the Town, as opposed to the construction of a new tower. The petitioner shall submit a comprehensive report inventorying existing towers and other suitable structures within two miles of the location of any proposed new tower, unless the petitioner can show that some other distance is more reasonable and demonstrate conclusively why an existing tower or other suitable structure can not be used.

A petitioner intending to locate on an existing tower or other suitable structure shall be required to document the intent of the existing owner to permit its use by the petitioner.

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

Tower structures existing prior to the effective date of this ordinance, in compliance with all of the Town's ordinances prior to the effective date of this ordinance, but which are not in compliance with the current ordinance, are legally non-conforming structures and may continue in existence as legally non-conforming structures.

The maximum permitted height of a new WTF shall be 100 feet. The maximum permitted height of the WTF may be exceeded if the petitioner provides satisfactory technical justification to the ZBA.

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

WTFs shall not be artificially lighted or marked, except as required by law.

Towers shall be galvanized or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained in accordance with the requirements established by the Building Department of the Town of Amherst.

If lighting is required, the petitioner shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under applicable regulations.

No freestanding lattice towers or guyed towers shall be permitted.

Visual screening, including but not limited to landscaping, walls and fences, shall be approved by the ZBA. The Town's landscape architect and consultant shall provide recommendations to the ZBA regarding visual screening.

No outside storage of vehicles, materials or waste shall be allowed, except for limited periods when the facility is undergoing additions, repair, renovations, modifications or servicing.

The facility shall be maintained in good order and repair at all times in accordance with applicable Town regulations.

All antennae, towers and other supporting structures, including guy wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or collided with. Transmitters and telecommunications control points shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them.

All antennae, towers and auxiliary structures shall be properly bonded and grounded to protect the facility and surrounding properties from lightning discharges.

All towers and accessory structures shall be surrounded by a fence or wall that completely provides visual screening of all accessory structures associated with the WTF. This Section shall not apply to signage as required in §  6-7-9.

There shall be no permanent climbing pegs within 20 feet of the ground adjacent to the tower.

Towers shall have a fenced, restricted zone, equal in distance to 1/4 of the tower height in each direction surrounding the tower to ensure safety from ice/debris fall. This area may be reduced by the Town for structures with flush-mounted antennae. The restricted zone will not apply to facilities with antennae mounted inside the structure or facilities mounted on existing utility poles or structures.

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

A petitioner shall deposit with the Town funds sufficient to reimburse the Town for all reasonable costs of consultant and expert evaluation and consultation to the Town in connection with the review of any application including the construction and modification of the site, once permitted. The initial deposit shall be $5,000. The placement of the $5,000 with the Town shall precede the pre-application meeting. The Town will maintain a separate escrow account for all such funds. The Town's consultants/experts shall invoice the Town for its services in reviewing the application, including the construction and modification of the site, once permitted. If at any time during the process this escrow account has a balance less than $1,000, the petitioner shall immediately, upon notification by the Town, replenish said escrow account so that it has a minimum balance of $5,000 or a lesser amount if stipulated by the Town. Such additional escrow funds shall be deposited with the Town before any further action or consideration is taken on the application. In the event that the amount held in escrow by the Town is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall be promptly refunded to the petitioner.

The total amount of the funds needed as set forth in subsection B of this Section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.

The Building Department and the Planning Department of the Town of Amherst and the designated consultant will undertake a review of an application pursuant to this local law in a timely fashion, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public's interest and the petitioner's desire for a timely resolution.

The Building Department of the Town of Amherst and/or the designated consultant may refer any application or part thereof to any advisory or other committee for a non-binding recommendation.

The site plan for the proposed WTF shall be reviewed by the Planning Department before a hearing is held by the ZBA. The Planning Department shall submit a written report to the ZBA containing its analysis of the proposal under the standards set forth in the applicable sections of this Zoning Ordinance. The Planning Department analysis is advisory in nature and is not binding on the ZBA. This review of the site plan by the Planning Department shall supersede all other site plan review requirements as established in the Zoning Ordinance.

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

If the ZBA denies the special use permit for WTFs, then the petitioner shall be notified of such denial in writing within 10 calendar days of the Town's action.

The timeframe for action on special use permit applications for WTFs shall be consistent with all applicable FCC regulations.

Between 12 months and six months prior to the five-year anniversary date after the effective date of the special use permit and all subsequent five-year anniversaries of the effective date of the original special use permit for WTFs, the holder of a special use permit for such WTFs shall submit a signed written request to the Town for recertification. In the written request for recertification, the holder of such special use permit shall note the following:

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

If the petitioner has submitted all of the information requested and required by this local law, and if the review is not completed, as noted in subsection B of this Section, prior to the five-year anniversary date of the special use permit, or subsequent five-year anniversaries, then the petitioner for the permitted WTFs shall receive an extension of the special use permit for up to six months, in order for the completion of the review.

If the holder of a special use permit for WTFs does not submit a request for recertification of such special use permit within the time-frame noted in subsection A of this Section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent five-year anniversaries, unless the holder of the special use permit adequately demonstrates that extenuating circumstances prevented a timely recertification request. If the Town agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.

Such special use permit shall be non-exclusive.

Such special use permit shall not be assigned, transferred or conveyed without the express prior written notification to the Town within 30 days of such assignment, transfer, or conveyance.

Such special use permit may, following a hearing upon due prior notice to the petitioner, be revoked, canceled, or terminated for a violation of the conditions and provisions of the special use permit, or for a material violation of this local law after prior written notice to the holder of the special use permit.

At the time that a person submits an application for a special use permit for a new WTF or for a co-location on an existing WTF, such person shall pay a non-refundable application fee of $1,500 to the Town.

No application fee is required in order to rectify a special use permit for WTFs unless there has been a visible modification of the WTF since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in subsection A shall apply.

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

Notwithstanding the requirements noted in subsection A of this Section, an indemnification provision will not be required in those instances where the Town itself applies for and secures a special use permit for WTFs.

If WTFs are repaired, rebuilt, placed, moved, re-located, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this local law or of the special use permit, then the Town shall notify the holder of the special use permit in writing of such violation. Such notice shall specify the nature of the violation or non-compliance and that the violations must be corrected within 30 days of the date of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this subsection or any other Section of this local law, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the Town may, at its sole discretion, order the violation remedied within 24 hours.

If within the period set forth in subsection A above the WTFs are not brought into compliance with the provisions of this ordinance, or of the special use permit, or substantial steps are not taken in order to bring the affected WTFs into compliance, then the Town may revoke such special use permit for WTFs, and shall notify the holder of the special use permit within 48 hours of such action.

Under any of the following circumstances, the Town may determine that the health, safety and welfare interests of the Town warrant and require the removal of WTFs.

If the Town makes such a determination as noted in subsection A of this Section, then the Town shall notify the holder of the special use permit for the WTFs within 48 hours that said WTFs are to be removed.

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

If WTFs are not removed or substantial progress has not been made to remove the WTFs within 90 days after the permit holder has received notice, then the Town may order officials or representatives of the Town to remove the WTFs at the sole expense of the owner or special use permit holder.

If, the Town removes, or causes to be removed, WTFs, and the owner of the WTFs does not claim and remove it from the site to a lawful location within 30 days, then the Town may take steps to declare the WTFs abandoned, and sell all equipment and components thereof.

Notwithstanding anything in this Section to the contrary, the Town may approve a temporary use permit/agreement for the WTFs, for no more 90 days, during which time a suitable plan for sale, lease, sub-lease, removal, conversion, or re-location of the affected WTFs shall be developed by the holder of the special use permit, subject to the approval of the Town, and an agreement to such plan shall be executed by the holder of the special use permit and the Town. If such a plan is not developed, approved and executed within the 90-day time period, then the Town may take possession of and dispose of the affected WTFs in the manner provided in this Section.

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

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

Any accessory use may be permitted provided that it is customarily associated with a primary use that may be permitted by right consistent with the district use tables in Parts 3, 4, and 5. The establishment of such accessory uses shall be consistent with the following standards.

The total floor area of all accessory structures and the floor area of attached or built-in garages shall not exceed 75 percent of the floor area of the principal structure, except as permitted by the ZBA in accordance with the provisions of §  8-13 of this Ordinance.

In the R-R and AG districts, the total floor area of all accessory structures shall not exceed 200 percent of the floor area of the principal structure, except as permitted by the ZBA in accordance with the provisions of §  8-13 of this Ordinance.

General Standards for Accessory Dwelling Units.

Standards for Detached Accessory Dwelling Units in the RR, R-1, SA and AG Zoning Districts.

The Special Use Permit for an accessory dwelling unit shall be valid for a period not exceeding two years. Thereafter the Building Commissioner, with concurrence from the Zoning Enforcement Officer, may renew a Special Use Permit upon satisfactory proof of compliance with the standards listed in § 6-8-2 above and any conditions placed by the Zoning Board of Appeals on the original permit.

In the MFR-7 district, the facility shall be designed to serve the needs of the residents of the project and have no signs outside the building. The total gross floor area of such facility shall not exceed five square feet per dwelling unit within the project.

In the MHR-8 district, the facility shall be designed to serve the needs of the residents of the manufactured home park. One identification sign not exceeding two square feet in area shall be permitted. Pole signs shall not be permitted. The total floor area shall not exceed 30 square feet per lot within the manufactured home park. Automobile drive-in restaurants shall not be permitted.

In the RD district, the convenience retail and service facility shall be designed to serve the needs of the employees of the industrial park and meet the following standards:

The minimum district size shall be 25 acres.

One conference center shall be permitted per district.

Home Occupation Types. Home occupations shall be separated into two categories and permitted subject to the following provisions.

Exclusions to Home Occupations. No home occupation shall be permitted that has any of the following characteristics:

Prohibited Home Occupations. The following are prohibited as Home Occupations:

Kennels or any outdoor runs shall have a minimum front yard of 200 feet and a minimum side and rear yard of 100 feet.

Outdoor runs shall be visually screened from adjacent properties and public right-of-way with an opaque material, which may include shrubs, walls, fences or berms, and which are a minimum of six feet in height. Where vegetative material is used, said material shall form an opaque screen within two years from the time of first planting.

One identification sign per use not exceeding two square feet in area shall be permitted. Pole signs shall not be permitted.

The total floor area shall not exceed 30 square feet per lot within the manufactured home park.

Where permitted as an accessory use in the S-A district, the raising of livestock, except for chickens as regulated in Chapter 203 § 6-8-9(B), for noncommercial purpose shall be subject to the following standards:

In the SA, R-R, R-1, R-2, R-3 and R-4 districts, chickens may be raised in compliance with the following minimum regulations:

In the RD district, the restaurant shall be designed to serve the needs of the employees of the industrial park and meet the following standards:

Preparation for Moving. One storage container may be utilized if situated on a driveway for a period not to exceed 45 consecutive days for purposes of packing household goods associated with a dwelling unit in preparation of a household move.

Homeowner construction renovations. One storage container may be utilized if situated on a driveway for a period not to exceed 90 consecutive days for purposes of storing building materials and/or supplies during a residential alteration project which is part of an approved building permit.

Purpose. This section is intended to provide standards to promote the safe, effective and efficient use of small wind energy systems designed for home, farm and small commercial use and that are primarily used to reduce the on-site consumption of utility supplied electricity.

Development Standards. A small wind energy system is permitted in accordance with the district use tables in Part 3, Part 4 or Part 5, subject to the following standards.

Developments consistent with a site plan or subdivision preliminary plat approved prior to (effective date of PUD)

Site plan modifications approved prior to (effective date of PUD) that result in changes to 50% or less of the total area of the lot.

Permitted Criteria, Standards and Regulations. Criteria, standards and regulations are hereby established with respect to planning of land and the arrangements of buildings and open spaces for those areas which are included in a PUD and which require development and site plan approval. The application of the criteria, standards and regulations set forth in this Section are intended to result in the optimum development and use of land in the Town. They are intended to insure full consideration of every planning element pertinent to the objectives of this Section and the Comprehensive Plan. Conditions placed on individual use areas of a PUD shall supersede regulations elsewhere in this Ordinance, unless otherwise noted.

Minimum District Size. The minimum area required to qualify for a PUD shall be 30 contiguous acres of land. For purposes of this paragraph, lands separated by streams or drainage courses, highways, streets or other public or private rights of way shall be deemed contiguous. Boundaries should assume reasonably regular configurations, taking advantage of natural features, public rights of way and other clearly defined features as outer perimeters in order to facilitate buffering between the PUD and adjacent areas and in order to minimize the development obstacles created by sharply irregular boundaries resulting from noncontiguous ownership patterns.

Permitted Uses. All uses permitted in the underlying zoning district shall be permitted in a PUD as provided in this Section.

Off-Street Parking and Loading. The design criteria set forth in this Section are intended to provide desirable latitude and freedom to encourage variety in the location and arrangement of uses, to encourage convenience in accessibility to these uses through provision of pedestrian and bicycle pathways and public transportation services and to achieve the efficient sharing of parking and loading facilities by multiple uses. Therefore, in lieu of specific minimum parking and loading requirements and other similar considerations, the following performance standards shall apply:

Topography and Site Appearance. PUD's shall be designed to take advantage of the topography of the land in order to utilize the natural contours, to provide for water storage and control of water runoff, to protect natural drainage courses, to economize in the construction of utilities, to reduce the amount of grading and to maximize the conservation of trees and topsoil. Significant natural features and other characteristics of the site shall be preserved and incorporated as distinctive features of the development.

Utilities. New public and private utilities and those relocated or replaced shall be generally underground.

Taking advantage of a safe, abundant, renewable, and non-polluting energy resource;

Decreasing the cost of energy to the owners of commercial and residential properties, including single-family houses;

Increasing employment and business development in the region by furthering the installation of Solar Energy Systems;

Minimizing adverse impacts on neighboring properties through thoughtful design and installation of Solar Energy Systems;

Insure solar developments conform to the existing community character as defined in the Comprehensive Plan and are compatible with the Focal Area Plan for North Amherst; and

To protect prime farmland and promote dual use/colocation of solar energy developments to protect active farming and agricultural land.

Building permits are required for all solar energy systems.

Qualified Installer. All solar energy systems must be installed by a qualified solar installer and, prior to issuance of a Certificate of Compliance, must be inspected by a Town Building Inspector. In addition, any connection to the public utility grid must be approved by the appropriate public utility.

Storage Batteries. When storage batteries are included as part of the system, they must be placed in a secure container or enclosure meeting the requirements of the New York State Uniform Fire Prevention and Building Code when in use and when no longer used shall be disposed of in accordance with the laws and regulations of Erie County and other applicable laws and regulations. Such battery storage structures shall be located within the solar compound.

Notice of Intent. The developer of a proposed Tier III solar energy system shall provide any required written notice of intent to the Town Supervisor, the Town Attorney and the Town Planning Director. All required notice of intent communications shall be by mail.

Permitted in all zoning districts.

No size thresholds, except as limited by the applicable edition of the New York State Uniform Fire Prevention and Building Code.

Site plan approval:

Roof-mounted solar panels facing a public right-of-way (front yard or side yard on a corner lot) must be mounted at the same angle as the roof's surface with a maximum distance of 18 inches between the roof and highest edge of the system.

Roof-mounted solar energy systems mounted on detached accessory structures (i.e. sheds, covered porches, carports) shall not exceed the maximum height restrictions for accessory structures of the underlying zoning district.

Glare. Solar energy systems shall be designed and located in order to limit reflective glare within the airport's approach zones, as well as towards roads or any habitable or occupiable building on adjacent properties.

Safety. No roof-mounted solar-thermal energy system shall be located in a manner that would cause the shedding of ice or snow from the roof into an open porch, stairwell or pedestrian travel area. If no other alternative is available, the Building Commissioner may approve such installation with the addition of necessary safety features, such as snow guards and diverters.

Height. The maximum height for all ground-mounted systems is 20 feet when the system is oriented at maximum vertical tilt.

Setbacks. Ground-mounted solar energy systems shall adhere to the setback requirements as outlined in Section 7B. below.

Siting on the Lot. All such systems shall be installed in the side or rear yards and shall not be permitted in the front of the building line in any yard facing a public street.

Maintenance. The owner or operator shall maintain the facility in good condition. Maintenance shall include, but not limited to, structural repairs and integrity of security measures.

Abandonment. If a solar energy system ceases to perform its originally intended function for more than 12 consecutive months, the property owner shall remove the collectors, plates, piping, mounts and associated equipment and facilities by no later than 150 days after the end of the twelve-month period.

Ground-mounted solar energy systems are divided into three size categories, as follows

Standards applicable to ground-mounted solar energy systems based on scale size.

To establish reasonable and uniform standards and procedures for SC-PWSF deployment, construction, installation, design, co-location, modification, operation, relocation and removal within or outside the PROW when mounted on buildings or other approved structures, consistent with and to the extent permitted under federal and New York State law;

To balance the provision of PWS that meet the community's needs while promoting and protecting public health, safety, welfare and community and neighborhood character, by requiring that PCS carriers utilize careful siting, state-of-the-art technology, advanced design, innovative concealment, camouflage, or stealth techniques, sufficient screening and buffering, and adequate setbacks from residential uses;

To ensure that the Town's current and ongoing costs of granting and regulating private access to and use of the PROW are fairly and fully compensated by the petitioners seeking such access;

To conserve the limited physical capacity of those PROW held in trust by the Town by assuring that SC-PWSFs in the PROW are limited to those for which the petitioner has demonstrated, by substantial evidence in a written record, a need for service primarily within the Town;

To encourage the use of Town-owned infrastructure for co-location opportunities as a siting priority, and to provide an administrative review for those facilities that will pose fewer aesthetic impacts to the community; and

To recognize that the Town cannot deny any request for authorization to place, construct or modify SC-PWSFs on the basis of environmental effects of radio frequency emissions so long as such facilities comply with the Federal Communication Commission's regulations concerning such emissions.

This Code applies to all SC-PWSFs within the PROW of the Town's territorial boundaries, and all applications and requests for approval to construct, install, substantially modify, co-locate, relocate, or otherwise deploy SC-PWSFs within the Town's territorial boundaries, unless exempted pursuant to § 6-11-3(B).

Notwithstanding § 6-11-3(A), the provisions in this Chapter will not be applicable to:

All application requests for approval submitted pursuant to Section 6409(a) will be first evaluated pursuant to the zoning provisions of Chapter 203 of the Town Code to confirm that such request is an eligible facility request.

No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of a SC-PWSF as of the effective date of the Code without having first obtained a special use permit (SUP) and/or Zoning Authorization as provided herein, and for proposed SC-PWSF in the PROW or on Town-owned land and/or Town-owned facility, a License Agreement.

The Town has jurisdiction and exercises regulatory control over all PROWs:

The Town shall have the right to limit the placement of new or additional equipment in its PROW if there is insufficient space to reasonably accommodate all requests to occupy and use the PROW.

No person may occupy or encroach on a PROW without the permission of the Town. The Town grants permission to use its PROW by permits and license agreements, which shall be in the general form as developed by the Town.

The Zoning Board of Appeals (ZBA) shall issue a Special Use Permit (SUP) prior to the installation of all new SC-PWSFs. Applications for SUPs shall be filed with the Planning Department and shall meet the minimum application requirements listed in § 6-11-6. The fee for a SUP shall be in an amount to be determined by the Town Board by resolution which may be amended from time to time.

Exemptions to the SUP requirement: Upon compliance with the substantive requirements of this Chapter, the following activities shall not require the issuance of a SUP, but shall require a Zoning Authorization from the Planning Department, the fee for which review shall be in an amount to be determined by the Town Board by resolution which may be amended from time to time:

A holder of a SUP or Zoning Authorization for a SC-PWSF shall construct, operate, maintain, repair, remove, modify or restore the permitted SC-PWSF in strict compliance with all applicable technical, safety and safety-related codes adopted by the Town, New York State and/or any nationally recognized standards.

A holder of a SUP or Zoning Authorization granted under this ordinance shall obtain, at its own expense, all construction permits and licenses required by applicable law, rule, regulation or code, and must maintain the same, in full force and effect, for as long as required by the Town or other governmental agency having jurisdiction over the petitioner.

A SUP or Zoning Authorization shall not be granted for a tower or utility pole to be built on speculation. If the petitioner is not installing a SC-PWSF on a tower or utility pole already existing or under construction, it shall provide:

Petitioner shall commence installation no later than two (2) years after the issuance of an applicable SUP or Zoning Authorization, and shall commence operation no later than six (6) months after installation. These dates may be extended by mutual written agreement of the parties in the event of force majeure events. If petitioner fails to commence installation and operation of any applicable SC-PWSF, after providing 30 days' notice and opportunity to cure, the Town may terminate the SUP or Zoning Authorization.

Applications for both SUPs and Zoning Authorizations shall be directed to the Planning Director and provide the information set forth in subsections (B) through (L) below. Applications that do not provide required information shall be treated as incomplete until such required information is provided.

License Agreement. If the installation will be in the Town PROW, the applicant must first obtain a non-exclusive, revocable license agreement with the Town by making a written request with the Town Attorney to enter into a License Agreement.

Written Statement. The petitioner's application shall include a statement in writing that includes the following:

Radio Frequency Analysis (RF Study). All applications for a SUP or Zoning Authorization shall provide a RF analysis. Such analysis shall be prepared by a radio frequency engineer and shall demonstrate the necessity for the proposed service and the desired coverage objective. The analysis shall include:

RF Exposure Compliance. A RF compliance report shall be prepared by a NYS licensed engineer expert in the field of RF emissions that states that the proposed SC-PWSF, as well as any co-located SC-PWSF(s), will comply with applicable federal RF threshold levels, exposure standards, and exposure limits.

Site plan. A site plan shall be provided that shows the dimensioned location of the proposed or existing SC-PWSF structure, any support equipment, the geographic coordinates of the proposed facility, adjacent buildings labeled by use, existing above and below grade improvements, easements of record, trees to be impacted and any other existing PWSFs within the area of disturbance.

Elevation Drawing. An elevation drawing to scale, showing the support structure; the proposed antenna, remote radio units, support cabinets, AC power connections, electric meter sockets, backup power supply, mounting hardware, cable runs, cable shrouds, antennas shrouds or other concealment/camouflage elements; maximum height of the antenna; and the lowest mounting height of any equipment. All elements shown must identify make and manufacturer, the actual color of each component, the actual frequency, and class of service radio or other transmitting equipment. If utilizing an existing utility pole, the utility pole number, installation date of the utility pole, estimated remaining service life of the utility pole, and the material type of the utility pole.

Visual Assessment. The applicant shall furnish information to conduct a visual impact assessment, and which shall include at minimum:

SEQRA. The applicant shall submit, with the application or at a voluntary pre-application meeting, all information necessary to satisfy the State Environmental Quality Review Act (SEQRA), including but not limited to a complete Full Environmental Assessment Form.

12-month build-out plan required. The applicant shall submit a buildout plan which shall include a description, maps, and data of the carrier's existing PWSFs within the Town and all PWSFs within 500 feet of the Town's boundary, together with the carrier's intentions for additional facilities within the Town for the ensuing twelve (12) months; indicating whether each proposed facility is for initial coverage or capacity building purposes, showing proposed general locations or areas in which additional facilities are expected to be needed, and shall also certify whether any existing PWSFs of the petitioner are in active use and necessary for its telecommunications operations. Such build out plan shall reflect changes as new installations are installed. In the event a Freedom of Information (FOIL) request is made for the 12-month plan, the applicant will be notified of the same so that appropriate objections to disclosure can be lodged consistent with Chapter 22 of the Town Code.

Acoustic Analysis. The Applicant must provide a written report that analyzes acoustic levels for the proposed SWF and all associated equipment. The acoustic analysis must be prepared and certified by an engineer and include an analysis of the manufacturer's specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines. This requirement may be satisfied by providing manufacturer's specifications demonstrating that the equipment does not generate noise, or generates noise at an imperceptible level.

Alternatives Analysis. The petitioner must list all existing structures considered as alternatives to the proposed location, together with a general description of the site design considered at each location. The petitioner must also provide a written explanation for why the alternatives considered were not chosen. This explanation must include a comparative analysis and such technical information and factual justification as are necessary to document the reasons why each alternative not feasible, unavailable, or not as consistent with the design standards in this Section as the proposed location. This would include an analysis of the siting preferences set forth in this Section.

To minimize visual impacts, the Town establishes siting priorities for SC-PWSFs. The following site location types ranked from most preferred to least preferred shall be considered by carriers when seeking the establishment of a SC-PWSF.

Locations Requiring Mitigation. The Town discourages new support structures and siting in residential zoning districts, although siting in residential districts may be necessary if no alternatives are available. Where technically feasible, efforts should be made to co-locate or to locate in manufacturing or business zoning districts. If location in a residential zoning district is necessary, techniques to minimize aesthetic impacts are mandatory, including Camouflage and/or Concealment.

Prohibited locations. The Town prohibits any structures or parts of structures associated with SWF placement from obstructing access to above- or underground traffic control infrastructure, public transportation vehicles, shelters, street furniture, or other improvements, above- or underground utility infrastructure, fire hydrants, doors, gates, or other ingress and egress points to any building appurtenant to the PROW, or any fire escape. Ground-mounted equipment shall not be closer than twelve (12) feet from any existing lawful encroachment in the PROW and driveway aprons.

Concealment/Camouflage. All new SC-PWSFs and substantial changes/modifications to SC-PWSFs shall maximize the use of concealment or camouflaging techniques to blend the equipment and other improvements with the support structure, and to blend into the surrounding environment in a manner consistent with the uses within the adjacent zoning district(s) and immediate vicinity. The use of state-of-the-art technology and best practices shall be required to ensure high quality design. Economic considerations alone are not justification for failing to employ such techniques. Concealment/camouflaging techniques include, but are not limited to:

Antennas. The antenna shall be the smallest possible volume but in no case greater than three cubic feet. Antenna installations on existing/replacement utility poles or traffic signal standards/traffic signage sign support masts shall be located at the top of the pole unless the petitioner demonstrates that such location is not feasible or practical. The antenna should not increase the height of the existing structure by more than ten percent or ten feet, whichever is greater, in no event shall the installation exceed 50 feet in height. Antennas shall be fully enclosed in a non-reflective radome, cap, cantenna, or other RF-transparent panel covering or shield of a diameter no more than fifty percent (50%) greater than that of the pole. Antennas shall be painted, coated, and/or textured using non-reflective materials and color to match the predominant color of the support structure. When mounted on top of wooden utility pole, such cap shall also extend to the pole top, covering any antenna mounting hardware.

Utility Pole-Mounted Accessory Equipment. All utility pole-mounted equipment, mast arms, electric meters, and other facilities shall be sized to minimize visual clutter and be installed as close to the utility pole as technically feasible to minimize visibility from the public view to the greatest extent feasible. All pole-mounted accessory equipment shall maximize the use of RF-transparent screening, building materials in a neutral, non-reflective color consistent in color and texture with other new and existing poles and equipment in the general geographic area so as to reduce visual intrusiveness. This shall include the utilization of concealment or stealth techniques as required by the Town. No accessory equipment associated with any SC-PWSF shall impair pedestrian use of sidewalks, pathways, or public or private trail systems. The accessory equipment shall not be located in a manner that violates the current or proposed Americans with Disabilities Act Accessibility Guidelines. This equipment must be high enough that the equipment boxes cannot be reached from the ground so as to prevent vandalism.

Underground Accessory Equipment. When existing utility infrastructure is currently underground, or when approved but not yet constructed development will require the installation of utilities underground, petitioners for a proposed SC-PWSF within a PROW, or within a private street in Town's Retrofit Districts, shall, to the maximum extent practicable, conceal all electric service, cable runs, remote radio units and other support equipment either within the support structure itself, or within underground vaults/distribution boxes. All new SC-PWSF shall be designed to match the existing street infrastructure or infrastructure that will be proposed (see Appendix D[4]).

Ground-Mounted Accessory Equipment. Ground mounted equipment may be installed when associated with a building mounted application, and when not visible from a public view shed. Such equipment installations shall be consistent in color with the adjacent building and shall be screened with landscaping if deemed necessary to further mitigate aesthetic impacts. Applications shall include proposed camouflage techniques for ground-mounted equipment, which may include, but are not limited to: strategic choice of color, paint, and/or materials, landscaping, placement in less visible locations, and placement within existing or replacement street furniture.

Lighting. SC-PWSFs in the PROW shall not be illuminated by artificial means, except when mounted on an existing light pole or where the illumination is specifically required by the Federal Aviation Administration or other federal, state or local regulations. Any permitted lighting shall be consistent in design and bulb type with other lighting fixtures in the vicinity.

Utilities. Where other utility infrastructure is underground, all utilities at a SC-PWSF site shall also be installed underground to the extent technologically feasible and to the extent other utility providers located within the same PROW have installed or are required to install their infrastructure underground. The Town shall not approve new overhead utility lines or service drops merely because compliance with the undergrounding requirements would increase the project cost.

Signage. All SC-PWSFs must include signage that accurately identifies the equipment owner/operator, the owner/operator's site name or identification number and a toll-free number to the owner/operator's network operations center. SC-PWSFs may not bear any other signage or advertisements unless expressly approved by the Town, required by law or recommended under FCC or other federal agencies for compliance with RF emissions regulations. The sign shall not be lighted, unless lighting is required by applicable law, rule or regulation. Signage shall be maintained in legible condition at all times.

Improving Technologies. In the event that improving technologies permit the installation of smaller or lower antennas without degradation of their capabilities and without excessive replacement cost, the SC-PWSF carrier shall use the smallest equipment that is necessary when modifying or replacing an existing SC-PWSF.

Siting. All SC-PWSFs shall be sited to avoid or minimize obstruction of views from public vantage points, to minimize the negative aesthetic impacts of the PROW, and to be the least visually intrusive as practicable.

NIER Certification. (Nonionizing Electromagnetic Radiation). Prior to installation and upon any modification to a SC-PWSF, the PCS carrier/owner of the SC-PWSF shall provide to the Town Building Commissioner a NIER certification report prepared by a third party inspection firm affirming that the facility is in compliance with the FCC maximum allowable exposure limits. Failure to provide a NIER Certification report shall be considered a violation and subject to the penalties for violations as specified in § 8-16-1 of this chapter.

Engineering Requirements. The proposed SC-PWSF shall be designed by a NYS Licensed Professional Engineer. The design must include calculations that demonstrate sufficient strength of the pole to be used.

Emergency Power. The Town strongly disfavors backup power sources mounted on the ground or on poles in the PROW. The use of battery and other alternative backup power sources adds to the size of the facility, thus adding to the aesthetic impact within a right of way. The need for emergency power on a facility within a PROW shall be clearly demonstrated by an applicant. Any proposed backup power source shall be shown on the elevation drawing and in the photo renderings, and shall meet the minimum requirements of the International Fire Code (IFC).

Security. All sites shall be reasonably protected against unauthorized climbing. The bottom of the tower, measured from ground level to twelve (12) feet AGL, shall be designed in a manner to discourage unauthorized climbing.

The maximum permitted height of a new SC-PWSF in the PROW including the antenna, lightening rod or other extensions shall be limited to the height necessary to deliver the desired service to the area, as demonstrated by the petitioner, but in no case shall exceed fifty (50) feet AGL.

The petitioner shall submit to the Town sufficient technical evidence and documentation justifying the total height of any proposed SC-PWSF. Such evidence and documentation will be analyzed in the context of the height needed to provide service primarily and essentially within the Town, to the extent practicable, unless good cause is shown.

Where antennas are moved to lower heights on an existing SC-PWSF and the full height is no longer needed, the overall height of the structure shall be reduced. No antenna support structure shall remain at a height that is taller than that required by installed and operational antennas.

The Planning Department will review all SUP and Zoning Authorization applications for SC-PWSFs, consistent with the timeframes permitted by the FCC. Except for qualified Eligible Facilities applications, the Planning Department may reject:

The Planning Department shall provide an advisory report to the ZBA prior the ZBA rendering a decision. The Planning Department may rely on experts to assist in a review and evaluation of PWS facilities. RF analysis is highly specialized and confirming the accuracy of an applicant's demonstration of need for the proposed SC-PWSF cannot ordinarily be done by Town staff. Therefore, the Town may hire any consultant, attorney and/or expert necessary to assist the Town in reviewing and evaluating the application, including the construction and modification of the site, technical aspects of the proposed facility or modification of an existing facility. The review shall address the following:

The petitioner shall deposit with the Town in escrow funds sufficient to reimburse the Town for all reasonable costs of consultant, attorney and expert services in connection with the review of any application, including the construction and modification of the site once permitted. The initial deposit shall be determined by the Town's fee schedule, as may be amended time to time by resolution of the Town Board. The placement of the initial deposit with the Town shall be submitted with the application. If there is a question regarding the necessity of an escrow deposit, the petitioner may seek clarification at a voluntary pre-application meeting.

The ZBA shall conduct a public hearing and render a decision within the time frames prescribed by the FCC. The time within which the decision shall be rendered may be extended by mutual consent of the petitioner and the Board. Such agreement shall be in writing and approved by resolution of the ZBA, and may be requested on behalf of the ZBA by the Planning Director.

In rendering its decision the ZBA shall consider: