Brookhaven City Zoning Code
Article
XXX Wireless Communications Towers and Antennas
§ 85-784 Legislative intent.
In recognition of advancing technology and the increasing demand for the installation of wireless communications towers and/or facilities within the Town, the Town Board of the Town of Brookhaven hereby determines that it is in the public interest to specifically regulate the siting and installation of such facilities within the Town in order to protect the public health, safety and welfare. Therefore, the Board hereby determines to establish general guidelines for the siting of wireless communications towers and antennas in order to:
A.
Protect residential areas and land uses from potential adverse impacts of towers and antennas;
B.
Encourage the location of towers in nonresidential areas;
C.
Minimize the total number of towers throughout the Town;
D.
Encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers;
E.
Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the surrounding community is minimal;
F.
Encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impacts of the towers and antennas through careful design, siting, landscape screening, and innovative camouflaging techniques;
G.
Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently;
H.
Consider the impacts upon the public health and safety of communication towers; and
I.
Avoid potential damage to adjacent and/or nearby properties from tower failure through appropriate engineering and careful siting of tower structures and/or facilities. In furtherance of the aforementioned objectives, the permitting board or Commissioner shall give due consideration to the Town's Comprehensive Plan, existing land uses and development, and environmentally sensitive areas, and other appropriate factors in approving sites for the location of towers and antennas and/or facilities.
§ 85-785 Applicability.
A.
No transmission tower shall hereafter be used, erected, moved, or reconstructed, changed, altered or modified to serve as a transmission tower except after administrative approval by the Commissioner of the Department of Planning, Environment and Land Management or upon the issuance of a special use permit(s) by the Zoning Board of Appeals in conformity with the requirements of this article.
B.
Except as otherwise provided herein, towers shall only be permitted within the following zoning classification districts: CR, J-2 Business, J-4 Business, L-1 Industrial, L-2 Industrial, and L-4 Industrial.
C.
New towers and antennas. All new towers and antennas in the Town shall be subject to these regulations, except as otherwise provided hereinbelow.
D.
Exceptions. The requirements set forth in this article shall not be applicable to:
(1)
Amateur radio station operators' "receive only antennas" and/or towers under 50 feet in height which are owned and operated by a federally licensed amateur radio station operator or are used exclusively for receive-only antennas.
(2)
Preexisting towers or antennas.
(3)
Antennas or towers located or to be located on property owned, leased or otherwise controlled by the Town of Brookhaven, provided that said property is subject to a license or lease authorizing such antenna or tower approved by the Town Board and provided that such towers or antennas comply with the written regulations as promulgated by the Commissioner.
§ 85-786 General provisions.
A.
Principal and accessory use. Antennas and towers may be considered either principal or accessory uses. A different existing use and/or an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot.
B.
Lot size. For purposes of determining whether the installation of a tower or antenna complies with zoning district regulations, the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lots.
C.
Inventory of existing sites. Each applicant for an antenna and/or tower shall provide to the Commissioner of the Department of Planning, Environment and Land Management (hereinafter "Commissioner") an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town or within one mile of the border thereof, including specific information about the location, height, and design of each tower. The Commissioner may share such information with other applicants applying for administrative approvals or special use permits under this section or other organizations seeking to locate antennas within the jurisdiction of the Town. The Commissioner, by sharing such information, shall not be deemed to be in any way representing or warranting that such sites are available or suitable.
D.
Aesthetic requirements. All towers and antennas shall comply with the following requirements:
(1)
Towers shall be a neutral color so as to reduce visual obtrusiveness.
(2)
At a tower site, the design of the buildings and related structures shall, to the extent practicable, use materials, colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings.
(3)
If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as practicable.
(4)
Lighting. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If required, the lighting shall be designed to minimize, to the maximum extent practicable, the resultant disturbance to the surrounding views and properties.
E.
Signs. No signs shall be permitted on an antenna or tower.
F.
Multiple antenna/tower plan. Users of towers and/or antennas submitting a single application for the approval of multiple towers and/or antenna sites shall be given priority status in the review process.
§ 85-787 Permitted uses and uses subject to administrative approval.
A.
Permitted uses. The following uses are deemed to be permitted uses and shall not be subject to administrative approval or a special use permit:
(1)
Antennas or towers located on property owned, leased or otherwise controlled by the Town of Brookhaven, provided said property is subject to a license or lease authorizing such antenna or tower approved by the Town Board, and provided that such towers or antennas comply with the written regulations promulgated by the Commissioner, except antennas located within the Town's right-of-way adjacent to or within 150 feet of property zoned or used for residential purposes, which shall be subject to the special permit provisions below.
(2)
All antennas which are accessory to permitted residential uses.
(3)
Lawful or approved towers and antennas which existed prior to the effective date of this article, except that any and all additions or expansions to existing towers and/or antennas shall be subject to the requirements of this section/article.
B.
Uses subject to administrative approval.
(1)
The Commissioner of the Department of Planning, Environment and Land Management or his/her designee may approve, approve with modifications, and/or conditions, or deny the following uses:
(a)
Additions or expansions to existing towers or antennas, including new antennas on existing towers.
(b)
Antennas on existing structures, as an accessory use to any commercial, industrial, professional, institutional use, provided the antenna does not extend more than 30 feet above the highest point of the structure.
(c)
Antennas on existing transmission poles, in any zoning district, provided the antenna does not extend more than 30 feet above the highest point of the structure.
(d)
Collocation of antennas by more than one carrier on existing towers shall be accorded priority status over the construction of new towers, so long as same is in compliance with the following:
[1]
A tower which is modified or reconstructed to accommodate the collocation of an additional antenna shall be of the same tower type as the existing tower, unless the Commissioner, in his discretion, shall permit reconstruction as a monopole.
[2]
An existing tower may be modified or replaced in order to accommodate the collocation of additional antennas, provided the modified tower or replacement tower does not extend more than 30 feet above the height of the original tower. In the event a new tower is constructed, the original tower shall be removed prior to the issuance of a certificate of occupancy for the new tower, and a bond shall be required guaranteeing the removal of same to the satisfaction of the Town of Brookhaven.
(2)
Information required for applications for administrative approval:
(a)
All information required under § 85-788A(2) and (3); and § 85-788B(1)(a) through (f) of this article.
(b)
Application form as approved by the Commissioner.
(3)
Commissioner's determination.
(a)
The Commissioner shall make a final determination to grant, grant with modifications, and/or conditions, and/or covenants, or deny the applications submitted pursuant to this section.
(c)
Upon a final determination by the Commissioner to deny, modify and/or impose conditions and/or covenants upon an application, the applicant may appeal to the Board of Zoning Appeals within 30 days of the final determination.
§ 85-788 Uses subject to special permits.
A.
Unless otherwise permitted by this article, the construction of new communications towers and/or the installation of antennas shall be permitted upon the issuance of a special permit by the Board of Zoning Appeals, subject to the following:
(1)
Applications for special use permits under this section shall be subject to procedural and other provisions applicable to the Board of Zoning Appeals as set forth in § 85-57 of this chapter, except as otherwise modified in this section.
(2)
A certification, by an engineer licensed by the State of New York, that the towers/antennas meet or exceed current standard regulations of the FAA, the FCC and any other state or federal agency having authority to regulate towers or antennas. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by a New York State licensed professional engineer.
(3)
A nonrefundable fee as established by Town Board resolution.
[Amended 11-20-2018 by L.L. No. 26-2018, effective 12-3-2018]
B.
Special permit requirements for towers/antennas.
(1)
Information required. Applications for a special use permit for a tower shall include the following:
(b)
Setback distance(s) between the proposed tower and the nearest existing residential dwellings and residentially zoned properties.
(c)
Separation distance(s) from other towers described in the inventory of existing sites submitted with the application shall be shown on an updated site plan or map, identification of the type of construction of the existing tower(s) and the owner/operator of any existing tower(s), if known.
(d)
A written description of the application's compliance with all applicable requirements of this article and with all applicable federal, state and local laws.
(e)
A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users.
(f)
A description of the suitability of existing towers and/or other structures and/or alternative technology, and the services contemplated for the use of the proposed tower.
(2)
The Zoning Board shall consider the following factors in determining whether to issue a special use permit, in addition to the standards for consideration of special use permit applications set forth at § 85-57 of this chapter:
(a)
Height of the proposed tower;
(b)
Proximity of the tower to residential structures and residential district boundaries;
(c)
Nature of existing and/or proposed uses on adjacent and nearby properties;
(d)
Site and/or surrounding topography;
(e)
Surrounding tree coverage and foliage;
(f)
Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;
(g)
Proposed ingress and egress; and
(h)
Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of new towers and/or structures.
(i)
That the tower does not obstruct or tend to obstruct or render the Town's right-of-way, highway, street, road, sidewalk or other public way dangerous for vehicular or pedestrian passage.
(j)
The Board may waive or reduce the burden on the applicant of one or more of these criteria if it concludes that the goals of this article are better served thereby.
(3)
No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Zoning Board that:
(a)
No existing tower, structure or alternative technology not requiring the construction/alteration of new towers or structures can accommodate the applicant's proposed antenna. An applicant shall submit any information requested by the Zoning Board related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any or all of the following:
[1]
That no suitable (as to height and structural strength) towers or structures are located within the geographic area which meet applicant's engineering requirements, or that the applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna and/or that there are other limiting factors that render existing towers and structures unsuitable.
[2]
That the fees, costs or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable.
[3]
The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable microcell network using multiple low-powered transmitters/receivers attached to a wireline system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.
(b)
The tower does not obstruct or tend to obstruct or render the Town's right-of-way, highway, street, road, sidewalk or other public way dangerous for vehicular or pedestrian passage.
(4)
Setbacks. The following setback requirements shall apply to all towers for which a special use permit is required:
(a)
Towers shall be set back a distance equal to at least 150% of the height of the tower from any adjoining lot line.
(b)
Accessory buildings shall satisfy the minimum zoning district setback requirements in the zoning district where the tower or antenna is proposed.
(c)
Provided, however, that the Board of Zoning Appeals may reduce the standard setback to no less than 75% of the height of the tower from any adjoining lot line and may reduce the setbacks for accessory buildings if the goals of this article would be better served thereby.
(5)
Separation. The following separation requirements shall apply to all towers for which a special use permit is required; provided, however, the Board of Zoning Appeals may reduce the standard separation requirements if the goals of this article would be better served thereby:
(a)
Separation between towers. Separation distances between towers shall be applicable to and measured between the proposed tower and preexisting towers; separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, for the proposed tower. The separation distances between towers shall be 5,000 linear feet.
(6)
Security fencing. Towers shall be enclosed by security fencing not less than eight feet in height and shall be equipped with an appropriate anti-climbing device; provided, however, that the Zoning Board of Appeals may waive such requirements as it deems appropriate.
(a)
Security fencing shall not be required for antennas or towers located within the Town's right-of-way.
(7)
Landscaping. The following requirements shall govern the landscaping surrounding towers for which a special use permit is required; provided, however, that the Zoning Board of Appeals may waive such requirements if the goals of this article would be better served thereby.
(a)
Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from residential property. Deciduous or tree plantings may be required. The standard buffer shall consist of at least one row of native mixed evergreen shrubs, or trees capable of forming a contiguous hedge at least eight feet in height shall be provided to effectively screen the tower base and accessory facilities. In the case of poor soil conditions, planting may be required on soil berms to assure plant survival. Plant height in these cases shall include the height of any berm.
(b)
In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived by the Zoning Board of Appeals.
(c)
Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. In some cases, such as towers sited on large, wooded lots, natural growth around the property perimeter may be sufficient buffer.
(d)
Landscaping shall not be required for antennas or towers located within the Town's right-of way.
§ 85-789 Site plan and other approvals.
A.
An applicant must submit a site plan application to the Planning Board pursuant to the requirements of §§ 85-113 through 85-116 of this chapter. Such site plan application shall be submitted prior to any application for a special permit to the Board of Zoning Appeals. Towers and antennas located within the Town's right-of-way adjacent to or within 150 feet of property zoned or used for residential purposes are exempt from site plan approval.
B.
An applicant must submit an application for a highway work permit and/or obtain a license or lease from the Town Board of the Town of Brookhaven for towers and antennas located within the Town's right-of-way adjacent to or within 150 feet of property zoned or used for residential.
§ 85-790 Removal of abandoned antennas and towers.
Any antenna or tower that is not operated for a continuous period of 12 months shall be deemed abandoned. The owner of such antenna or tower shall remove the same within 90 days of receipt of notice from the Town notifying the of such abandonment. Failure to remove an abandoned antenna or tower within said 90 days shall be grounds to remove the tower or antenna at the owner's expense. In the event that two or more entities using a single tower, then this provision shall not apply unless all uses cease with respect to such tower.
§ 85-791 Nonconforming uses.
Preexisting towers shall be permitted as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance of a preexisting tower shall comply with the requirements of this chapter.
§ 85-792 Severability.
The various parts, sections and clauses of this article are hereby declared to be severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of the article shall not be affected thereby.
§ 85-793 Repealer.
Any ordinances or parts thereof in conflict with the provisions of this article are hereby repealed to the extent of such conflict.
§ 85-794 Siting of small cell antenna and small wireless facility infrastructure in public rights-of-way.
[Added 12-19-2019 by L.L. No. 25-2019, effective 12-31-2019]
A.
No small wireless facility shall be constructed, erected, modified, operated or maintained within the Town on any property, including the public right-of-way, without the issuance of a permit. No approval granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the Town for delivery of telecommunications services or any other purpose.
B.
Applications.
(1)
An application to construct, place, replace, or modify a small wireless facility in a public right-of-way must be submitted to the Town of Brookhaven Highway Department.
(2)
An application to construct, place, replace, or modify a small wireless facility located within the Town of Brookhaven, except in the public right-of-way, must submit a land use application to the Town of Brookhaven Planning Department.
(3)
All applications must comply with the rules promulgated by the Town Board and/or the Town of Brookhaven Highway Department for the siting of small wireless facilities.
C.
Fees. The Town of Brookhaven Highway Department and the Town of Brookhaven Planning Department shall charge fees as established by Town Board resolution.
§ 85-795 Small wireless facility in public rights-of-way annual recertification.
[Added 12-19-2019 by L.L. No. 25-2019, effective 12-31-2019]
A.
Each year on January 1, the owner and/or operator of a small wireless facility in the public right-of-way shall submit a recertification affidavit to the Town of Brookhaven Highway Department in accordance with the promulgated rules to renew the small wireless facility permit.
B.
The owner and/or operator of a small wireless facility shall also submit an annual test report that the small wireless facilities located within the Town's public rights-of-way comply with all FCC radio-frequency emission limits as they pertain to exposure to the general public. In the event that such test reveals that any said small wireless facilities are emitting radio-frequency radiation in excess of FCC exposure guidelines as they pertain to the general public, the owner and/or operator shall have 48 hours to bring the small wireless facilities into compliance from receipt of test report. Failure to bring the small wireless facilities into compliance shall require the removal of such facilities 10 days thereafter.
C.
Any small wireless facility which is no longer in use shall be removed by the owner and/or operator within 60 days of submission of the annual recertification affidavit, at the owner and/or operator's expense.
D.
Any small wireless facility which is not removed within 60 days after being reported as no longer in use in the annual recertification affidavit shall be subject to a fine of $100 per day until such facility is removed.
E.
Where such annual recertification of the small wireless facility permit has not been timely submitted, or equipment no longer in use has not been removed within the required sixty-day period, no further applications by the owner and/or operator for small wireless facilities will be accepted by the Town until such time as the annual recertification has been submitted and all fees and fines paid.
F.
Nonpermitted installations. Any small wireless facility constructed, erected, modified or enhanced prior to the issuance of a site-specific permit from the Town shall be removed prior to the submission of an application. No consideration of any application for a small wireless facility shall be made, and the "shot clock" for approval shall not commence while such unauthorized installations remain.