Dickinson City Zoning Code
ARTICLE XI
Siting of Wireless Telecommunications Facilities
§ 600-54 Purpose and legislative intent.
A.
The Telecommunications Act of 1996 (herein after referred to as the "Act"), in effect, affirmed the authority of a local government, such as the Town of Dickinson (hereinafter referred to as "Town"), over decisions regarding the placement, construction and modification of wireless telecommunications facilities.
B.
The Town Board of the Town finds and determines that wireless telecommunications facilities and related facilities may pose a unique hazard to the safety, public welfare and environment of the Town and its inhabitants. The Town also recognizes that facilitating the development of wireless service technology can be an economic development asset to the Town and of significant benefit to the Town and its residents. In order to ensure that the placement, construction and modification of wireless telecommunications facilities is consistent with the Town's land use policies, the Town is adopting a single, comprehensive, wireless telecommunications facilities application and permit process. The intent of this article is to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of the environmental impacts of such facilities, and protect the health (consistent with the Act), safety and welfare of the Town and its residents.
§ 600-55 Title.
This article may be known, cited, and referred to as the "Wireless Telecommunications Facilities Siting Law of the Town of Dickinson." For purposes of Chapter 600, Zoning, this article may be known, cited and referred to as the "Cell Tower Law."
§ 600-56 Severability.
A.
If any word, phrase, sentence, part, section, subsection, or other portion of this article or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this article, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect. The invalidity of any provision of this article shall not affect the validity of any other provision of this article which can be given effect without such invalid provision.
B.
Any tower special use permit issued under this article shall be comprehensive and not severable. If any part of a tower special use permit issued hereunder is deemed or ruled to be invalid or unenforceable in any material respect, by a competent authority, or is overturned by a competent authority, the permit shall be void in total, upon election by the Town Board.
§ 600-57 Definitions:
For purposes of this article, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include the plural number. The word "shall" is always mandatory, and not merely directory.
An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to, utility or transmission equipment storage sheds or cabinets.
The Telecommunication Act of 1996.
A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency signals. Such waves shall include, but not be limited to, radio, television, cellular, paging, personal telecommunications services (PCS), and microwave telecommunications.
Any person submitting an application to the Town for a tower special use permit for wireless telecommunications facilities.
The form approved by the Town Board, together with all necessary and appropriate documentation that an applicant submits in order to receive a tower special use permit for wireless telecommunications facilities.
The Town Board of the Town of Dickinson, which is the officially designated board of the Town of Dickinson to which applications for a tower special use permit for wireless telecommunications facilities must be made, and which is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking tower special use permits for wireless telecommunications facilities. The Board may, at its discretion, request that other official agencies of the Town accept, review, analyze, evaluate and make recommendations to the Board with respect to the granting or not granting, recertifying or not recertifying or revoking tower special use permits for wireless telecommunications facilities.
The location on a telecommunications structure which, in the event of a failure of the telecommunications structure, would result in the telecommunications structure failing or collapsing within the boundaries of the property or lot on which the telecommunications structure is placed.
Any tower or supporting structure that, due to design, location, or appearance, partially or completely hides, obscures, conceals, or otherwise disguises the presence of the tower and one or more antennas or antenna arrays affixed thereto.
The area in which any portion of a telecommunications structure could or would fall, collapse or plunge to the ground or into a river or other body of water. The collapse zone shall be no less than the lateral equivalent of the distance from the break point to the top of the structure plus 10 feet, such being not less than 1/2 times the height of the structure.
The use of the same wireless telecommunications facilities or telecommunications structure to carry two or more antennas for the provision of wireless services by two or more persons or entities.
These terms shall have the meaning in this article and any tower special use permit granted hereunder as is given to those terms and applied under § 2-615 of the New York Uniform Commercial Code (UCC).
An application that contains all information and/or data necessary to enable the Board to evaluate the merits of the application, and to make an informed decision with respect to the effect and impact of the wireless telecommunications facilities on the Town in the context of the permitted land use for the particular location requested.
Broome County.
Only programming transmitted or broadcast by satellite directly to subscribers' premises without the use of ground receiving equipment, other than such equipment at the subscribers' premises or in the uplink process to the satellite.
The United States Environmental Protection Agency, or its duly designated and authorized successor agency.
The Federal Aviation Administration, or its duly designated and authorized successor agency.
The Federal Communications Commission, or its duly designated and authorized successor agency.
A tower that is not supported by guy wires and ground anchors or other means of attached or external support.
The full environmental assessment form approved by the New York Department of Environmental Conservation.
When referring to a tower or structure, the distance measured from the preexisting grade level to the highest point on the tower or structure, even if said highest point is an antenna.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership, joint venture, association of two or more persons having a joint common interest, limited-liability company, or any other entity.
See definition for "wireless telecommunications facilities."
These terms shall have the same meaning given to those terms or used in the Telecommunications Act of 1996.
See definition for "wireless telecommunications facilities."
The State of New York.
The transmission and reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
A structure, tower or location designed, intended to be used, or used in the provision of services described in the definition of "wireless telecommunications facilities."
In relation to all aspects and components of this article, something intended to, or that does, exist for fewer than 90 days.
The authorization by which an applicant is permitted to place, construct, use, or modify wireless telecommunications facilities, subject to the requirements imposed by the law and the conditions attached to the issuance of the tower special use permit by the Town Board.
The Town of Dickinson, New York.
The Town Board of the Town of Dickinson.
A visual environmental assessment form.
A structure or location designed, or intended to be used, or used to support antennas. It includes without limit, freestanding towers, guyed towers, monopoles, and similar structures that employ camouflage technology, including but not limited to structures such as a church steeple, silo, water tower, sign or other similar structures intended to mitigate the visual impact of an antenna or the functional equivalent of such. It is a structure intended for transmitting and/or receiving radio, television, cellular, paging, personal telecommunications services, or microwave telecommunications, but excluding those used exclusively for fire, police or other dispatch telecommunications, or exclusively for private radio or television reception or exclusively for private citizen's bands, amateur radio or other similar telecommunications.
§ 600-58 Policy and goals for tower special use permits for wireless telecommunications facilities.
In order to ensure that the placement, construction, and modification of wireless telecommunications facilities conform to the Town's purpose and intent of this article, the Town Board (acting pursuant to § 274-b of the Town Law and other applicable provisions) hereby authorizes the Town Board to grant tower special use permits pursuant to this article. The Town Board hereby adopts an overall policy with respect to a tower special use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:
A.
Implementing an application process for person(s) seeking a tower special use permit for wireless telecommunications facilities.
B.
Establishing a policy for examining an application for, and issuing a tower special use permit for, wireless telecommunications facilities that is both fair and consistent.
C.
Establishing reasonable time frames for granting or not granting a tower special use permit for wireless telecommunications facilities, or recertifying or not recertifying, or revoking the tower special use permit granted under this article.
D.
Promoting and encouraging, wherever possible, the sharing and/or collocation of wireless telecommunications facilities among service providers.
E.
Promoting and encouraging, wherever possible, the placement of wireless telecommunications facilities in such a manner as to cause minimal disruption to aesthetic considerations of the land, lot, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities.
§ 600-59 Tower special use permit application and other requirements.
A.
All applicants for a special use permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this section. The Town Board is the officially designated agency or body of the community to whom applications for a special use permit for wireless telecommunications facilities 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 wireless telecommunications facilities. The Town Board may, at its discretion, delegate or designate other official agencies of the Town to accept, review, analyze, evaluate and make recommendations to the Town Board with respect to the granting or not granting, recertifying or not recertifying or revoking special use permits for wireless telecommunications facilities.
B.
An application for a tower special use permit for wireless telecommunications facilities shall be signed by the applicant (or by a person acting on behalf of the applicant who has prepared the same and who has knowledge of the contents and representations made therein), attesting to the truth and completeness of the information. The owner of the land on which the wireless telecommunications facilities is proposed to be located, if different from the applicant, shall also sign the application. At the discretion of the Town Board, any material false or misleading statement in the application may subject the applicant to denial of the application, without further consideration or opportunity for correction.
C.
Applications not meeting the requirements stated herein or which are otherwise incomplete, may be rejected by the Board.
D.
The applicant shall include a statement, in writing:
(1)
That the applicant's proposed wireless telecommunications facilities will be maintained in a safe manner, and in compliance with all conditions of the tower special use permit, without exception, (unless specifically granted relief by the Town Board in writing) as well as all applicable local codes, ordinances, and regulations, and all applicable county, state and federal statutes, laws, codes, rules, and regulations; and
(2)
That the construction of the wireless telecommunications facilities is legally permissible, including, but not limited to the fact that the applicant is authorized to do business in New York State.
E.
No wireless telecommunications facilities shall be placed, constructed, used or modified in the Town unless and until a tower special use permit therefor has been granted by the Town Board pursuant to this article. No construction or modification of wireless telecommunications facilities, for which a tower special use permit has been issued, shall take place unless and until a building permit therefor has been issued by the Town Building and Code Inspector.
F.
Licensed professional engineer.
(1)
All applications for a tower special use permit for the construction or installation of new wireless telecommunications facilities shall be accompanied by a report containing the information hereinafter set forth, which said report shall be signed by a licensed professional engineer registered in the state.
(a)
Name, address, and phone number of the person preparing the report.
(b)
Name, address, and phone number of the property owner, operator and applicant, including information about the legal status of the applicant.
(c)
The 911 address and Tax Map parcel number of the property.
(d)
Zoning district or designation in which the property is situated.
(e)
Size of the property stated both in square feet and lot line dimensions, and diagram showing the location of all lot lines.
(f)
Location of nearest residential structure.
(g)
Location of nearest habitable structure.
(h)
Location and dimensions of all structures currently on the property and those proposed for the property which is the subject of the application.
(i)
Location and dimensions of all proposed and existing antennas and all appurtenant structures.
(j)
Type, locations and dimensions of all proposed and existing landscaping and fencing.
(k)
The number, type and design of the wireless telecommunications facilities antenna(s) proposed and the basis for the calculations of the telecommunications tower's capacity to accommodate multiple users.
(l)
The make, model and manufacturer of the tower and antenna(s).
(m)
A description of the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above preexisting grade, materials, color and lighting.
(n)
The frequency, modulation and class of service of radio or other transmitting equipment.
(o)
Transmission and maximum effective radiated power of the antenna(s).
(p)
Direction of maximum lobes and associated radiation of the antenna(s).
(q)
Applicant's proposed tower maintenance and inspection procedures and related system of records.
(r)
Certification that NIER levels at the proposed site are within the threshold levels adopted by the FCC, though the certifying engineer need not be approved by the Board.
(s)
Certification that the proposed antenna(s) will not cause interference with existing telecommunications devices, though the certifying engineer need not be approved by the Town Board.
(t)
A copy of the FCC license applicable for the use of the wireless telecommunications facilities.
(u)
Certification that a topographic and geomorphologic study and analysis has been conducted, and that taking into account the subsurface and substrata, and the proposed drainage plan, the site is adequate to assure the stability of the proposed wireless telecommunications facilities on the proposed site, though the certifying engineer need not be approved by the Town Board.
(v)
Propagation studies of the proposed site and all adjoining proposed or in-service or existing sites.
(w)
Location, layout, and dimensions of off-street parking and loading facilities; vehicular entry, exit, and circulation on the site and neighboring roads.
(x)
Grading and drainage plan for the site.
(y)
Type, size and location of all proposed screening, signs and physical features meant to protect adjacent land uses.
(z)
Applicant shall disclose, in writing, any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any new wireless telecommunications facilities that it constructs.
(2)
Where this section calls for a certification, such certification shall be by a qualified New York State licensed professional engineer, acceptable to the Town Board, unless otherwise noted.
G.
In the case of new wireless telecommunications facilities, the applicant shall be required to submit a written report demonstrating its efforts to secure shared use of existing telecommunications tower(s) or use of existing building or other structures within the Town. Copies of written requests and responses for shared use shall be provided to the Town Board.
H.
The applicant shall furnish written certification that the wireless telecommunications facilities, foundation and attachments both are designed and constructed ("as-built") to meet all applicable county, state and federal structural requirements for loads, including wind and ice loads.
I.
After construction and prior to receiving a certificate of occupancy, applicant shall furnish written certification that the wireless telecommunications facilities and related facilities are grounded, bonded so as to protect persons and property, and installed with appropriate surge protectors.
J.
The applicant shall submit a completed full EAF and a completed visual EAF addendum. The Town Board may require submission of a more detailed visual analysis based on the results of the visual EAF addendum. Applicants are encouraged to seek preapplication meetings with the Town Board to address the scope of the required visual assessment. The applicant shall submit a completed environmental impact statement (EIS) if the same is required by applicable provisions of law.
K.
If requested by the Town Board, the applicant shall furnish a visual impact assessment which shall include:
(1)
A zone of visibility map which shall be provided in order to determine locations where the tower may be seen.
(2)
Pictorial representations of before and after views from key viewpoints both inside and outside of the Town, including but not limited to state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers or residents. If requested by the applicant, the Town Board, acting in consultation with its consultants or experts, will provide guidance concerning the appropriate key sites at a preapplication meeting.
(3)
An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets.
L.
Any and all representations made by applicant to the Town Board, on the record, during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Town Board.
M.
The applicant shall, in a manner approved by the Town Board, demonstrate in writing how it will effectively screen from view its proposed wireless telecommunications facilities base and all related facilities and structures.
N.
All utilities leading to and away from any wireless telecommunications facilities site shall be installed in compliance with the New York State Uniform Fire Prevention and Building Code and shall be installed underground and in compliance with all applicable ordinances, local laws, codes, rules and regulations of the Town, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code, where appropriate. The Town Board may waive or vary the requirements of undergrounding installation of utilities whenever, in the opinion of the Town Board, such variance or waiver shall not be detrimental to the health, safety, general welfare or environment, including the visual and scenic characteristics of the area.
O.
All wireless telecommunications facilities and accessory facilities shall be sited so as to have the least practical adverse visual effect on the environment and its character, and the residences in the area of the wireless telecommunications facilities site.
P.
Both the wireless telecommunications facilities and accessory facilities shall maximize use of building materials, colors and textures designed to blend with the natural surroundings.
Q.
At a telecommunications site, an access road and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and vegetation cutting. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential.
R.
A person who holds a tower special use permit for wireless telecommunications facilities shall construct, operate, maintain, repair, modify or restore the permitted wireless telecommunications facilities in strict compliance with all current technical, safety and safety-related codes adopted by the Town, county, state or United States, including but not limited to the most recent editions of the New York State Uniform Fire Prevention and Building Code, National Electrical Safety Code and the National Electrical Code, as well as accepted and responsibly workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health and land use codes. In the event of a conflict between or among any of the preceding, the more stringent shall apply.
S.
A person holding a tower special use permit granted under this article shall obtain, at his own expense, all permits and licenses required by applicable law, rule, regulation or law, 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 applicant.
T.
Subject to, and in accordance with, the State Environmental Quality Review Act (SEQRA),[1] the Town Board shall be the lead agency for the purpose of conducting the environmental review of the application for tower special use permits. The Town Board shall conduct an integrated, comprehensive environmental review of the proposed project in combination with its review of the application under this article.
[1]
Editor's Note: See Environmental Conservation Law § 8-0101 et seq.
U.
An applicant shall submit no fewer than eight copies of the entire completed application to the Town Board and a copy of the application to the town boards of all towns which adjoin the Town, any adjacent municipality, the Broome County Department of Planning and Economic Development, the Clerk of the Broome County Legislature and the Clerk of the Tioga County Legislature.
V.
The applicant shall examine the feasibility of designing a proposed wireless telecommunications facilities to accommodate future demand for at least two additional commercial applications, for example, future collocations. The scope of this examination shall be determined by the Town Board. The wireless telecommunications facilities shall be structurally designed to accommodate at least two additional antenna arrays equal to those of the applicant, and located as close to the applicant's antenna as possible without causing interference. This requirement may be waived by the Town Board, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the wireless telecommunications facilities is not technologically feasible, or is commercially impracticable and creates an unnecessary and unreasonable burden, based upon:
(1)
The foreseeable number of FCC licenses available for the area.
(2)
The kind of wireless telecommunications facilities site and structure proposed.
(3)
The number of existing and potential licenses without wireless telecommunications facilities spaces/sites.
(4)
Available space on existing and approved wireless telecommunications facilities.
W.
The applicant shall submit to the Town Board a letter of intent committing the owner of the proposed new tower, and his/her successors in interest, to negotiate in good faith for shared use of the proposed tower by other telecommunications providers in the future. This letter shall be filed with the Town Board. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the special use permit. The letter shall commit the new tower owner and their successors in interest to:
(1)
Respond within 60 days to a request for information from a potential shared-use applicant.
(2)
Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers.
(3)
Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.
X.
Unless waived by the Town Board, there shall be a preapplication meeting. The purpose of the preapplication meeting will be to address issues which will help to expedite the review and permitting process. A preapplication meeting may also include a site visit if required. Where the application is for the shared use of an existing telecommunications tower(s) or other high structure, the applicant should seek to waive any section or subsection of this article that may not be required. At the preapplication meeting, the waiver requests, if appropriate, will be decided by the Town Board. Costs of the Town's consultants to prepare for and attend the preapplication meeting will be borne by the applicant.
Y.
The holder of a special use permit shall notify the Town of any intended modification of a wireless telecommunication facility and shall apply to the Town to modify, relocate or rebuild a wireless telecommunications facility.
Z.
If applicable, a stormwater pollution prevention plan consistent with the requirements of Articles I and II of Chapter 476, Stormwater Management and Erosion and Sediment Control, of the Code of the Town of Dickinson shall accompany a special use application for wireless telecommunications facilities. The proposed wireless telecommunications facilities shall be consistent with the requirements of Articles I and II of Chapter 476, Stormwater Management and Erosion and Sediment Control.
[Added 7-9-2007 by L.L. No. 6-2007]
§ 600-60 Location.
A.
Siting priorities.
(1)
Applicants for tower special use permits for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities or other tall structures in accordance with the following priorities, Subsection A(1)(a) being the highest priority and Subsection A(1)(h) being the lowest priority:
[Amended 5-8-2000 by L.L. No. 5-2000]
(a)
On existing wireless telecommunications facilities or other tall structures.
(b)
Collocation on a site with existing wireless telecommunications facilities or structures.
(c)
On any property used for a municipal purpose, such as for a municipal park, a municipal highway garage, a municipal gavel pit, a municipal hall, a school, or a school bus garage.
(d)
Within a Highway Interchange Commercial District (H-C) within the Town.
(e)
Within a Commercial District (C-2) within the Town.
(f)
Within a Commercial District (C-1) within the Town.
(g)
Within a Residential District (R-M) within the Town.
(h)
Within a Residential District (R-2) within the Town.
(i)
Within a Residential District (R-1) within the Town.
(j)
Within any other zoning district within the Town.
(2)
If the proposed property site is not the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.
(3)
An applicant may not bypass sites of higher priority by stating the site presented is the only site leased or selected. An application shall address collocation as an option and if such option is not proposed, the applicant must explain why collocation is commercially impracticable or otherwise impracticable. Agreements between providers limiting or prohibiting collocation shall not be a valid basis for any claim of commercial impracticability or hardship.
B.
The applicant shall submit a written report demonstrating the applicant's review of the above locations in order of priority, demonstrating the technological reason for the site selection. If the site selected is not the highest priority, then a detailed written explanation, as to why sites of a higher priority were not selected, shall be included with the application.
C.
The applicant shall, in writing, identify and disclose the number and locations of any additional sites that the applicant has, is or will be considering, reviewing or planning for wireless telecommunications facilities in the Town, and all municipalities adjoining the Town, for a two-year period following the date of the application.
D.
Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Town Board may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with traffic needs or traffic laws, or definitive plans for changes in traffic flow or traffic laws;
(3)
Conflict with the historic nature of a neighborhood or historical district;
(4)
The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;
(5)
The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the probability of such, to residents, the public, employees and agents of the Town, or employees of the service provider or other service providers; or
(6)
Conflicts with the provisions of the Act or this article.
§ 600-61 Shared use.
A.
Shared use of existing wireless telecommunications facilities shall be preferred by the Town Board, as opposed to the proposed construction of new wireless telecommunications facilities. Where such shared use is unavailable, location of antennas on other preexisting structures shall be considered and preferred. The applicant shall submit a comprehensive report inventorying existing towers and other appropriate structures within four miles of any proposed new tower site, unless the applicant can show that some other distance is more reasonable, and outlining opportunities for shared use of existing facilities and the use of other preexisting structures as a preferred alternative to new construction. An applicant intending to share use of an existing wireless telecommunications facilities or other tall structure shall be required to document the intent of the existing owner to share use. In the event of an application to share the use of existing wireless telecommunications facilities that does not increase the height of the wireless telecommunications facilities, the Town Board may waive such requirements of the application required by this article as may, for good cause, be shown.
B.
Such shared use shall consist only of the minimum antenna array technologically required to provide service within the Town, to the extent practicable, unless good cause is shown.
§ 600-62 Height.
A.
The applicant must submit documentation justifying to the Town Board the total height of any wireless telecommunications facilities and/or antenna and the basis therefor. Such justification shall be to provide appropriate service within the Town, to the extent practicable, unless good cause is shown.
B.
Wireless telecommunications facilities shall be no higher than the minimum height necessary. Unless waived by the Town Board upon good cause shown, the maximum height shall be 110 feet, based on three collocated antenna arrays and ambient tree height of 80 feet.
C.
The maximum height of any wireless telecommunications facilities and attached antennas constructed after the effective date of this article shall not exceed that which shall permit operation without artificial lighting of any kind or nature, in accordance with municipal, county, state, and/or any federal statute, law, local law, Town ordinance, code, rule or regulation.
§ 600-63 Visibility.
A.
Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by applicable provisions of law.
B.
Wireless telecommunications facilities shall be of a galvanized finish, or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings as approved by the Town Board, and shall be maintained in accordance with the requirements of this article.
C.
If lighting is required, the applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under state and federal regulations, and an artist's rendering or other visual representation showing the effect of light emanating from the site on neighboring habitable structures within 1,500 feet of all property of the lot on which the wireless telecommunications facilities are located.
§ 600-64 Security against unauthorized access.
All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner which prevents unauthorized access. Specifically:
A.
All antennas, 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 run into; and
B.
Transmitters and telecommunications control points must be installed such that they are readily accessible only to persons authorized to operate or service them.
§ 600-65 Signage.
Wireless telecommunications facilities shall contain a sign no larger than four square feet in area to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities. The sign shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be located so as to be visible from the access point of the site. The sign shall not be lighted unless the Town Board shall have allowed such lighting or unless such lighting is required by applicable provisions of law. No other signage, including advertising, shall be permitted on any antennas, antenna supporting structures or antenna towers, unless required by law.
§ 600-66 Lot size and setbacks.
A.
All proposed wireless telecommunications facilities shall be set back from abutting parcels, recorded rights-of-way and road and street lines a distance sufficient to substantially contain on site all ice-fall or debris from a tower or tower failure, and to preserve the privacy of any adjoining properties.
B.
Wireless telecommunications facilities shall be located with a minimum setback from any property line a distance equal to the height of the wireless telecommunications facilities or the existing setback requirement of the underlying zoning district, whichever is greater. Further, any accessory structure shall be located so as to comply with the applicable minimum zoning district setback requirements for the property on which it is situated.
§ 600-67 Retention of expert assistance and reimbursement by applicant.
A.
The Board may hire any consultant and/or expert necessary to assist the Town Board in reviewing and evaluating the application and any requests for recertification.
B.
An applicant 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 Board in connection with the review of any application. The initial deposit shall be $3,500. These funds shall accompany the filing of an application and the Town shall maintain a separate escrow account for all such funds. The Town's consultants/experts shall, in accordance with an agreement between the Town and its consultants or experts, bill or invoice the Town no less frequently than monthly for its services in reviewing the application and performing its duties. If at any time during the review process this escrow account has a balance less than $1,500, the applicant shall immediately, upon notification by the Town, replenish said escrow account so that it has a balance of at least $2,500. Such additional escrow funds must be deposited with the Town before any further action or consideration is taken on the application. If, at the conclusion of the review process, the cost of such consultant/expert services is more than the amount escrowed pursuant hereto, the applicant shall pay the difference to the Town prior to the issuance of any tower special use permit. In the event that the amount held in escrow by the Town is more than the amount of the actual billing or invoicing by the Town's consultants or experts, the difference shall be promptly refunded to the applicant.
C.
The total amount of the funds 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 by the Town Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as required and requested by the Town, shall be paid by the applicant. The initial amount of the escrow deposit shall be established at a preapplication meeting with the Town Board. Notice of the hiring of a consultant/expert shall be given to the applicant at or before this meeting.
§ 600-68 Requirements for tower special use permit.
A.
No person shall site, place, build, construct, modify, prepare, use or repair any site for the placement or use of wireless telecommunications facilities in the Town on or after the effective date of this article without having first obtained hereunder a tower special use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no tower special use permit shall be required for those towers used exclusively for fire, police or other dispatch telecommunications, or exclusively for private radio or television reception or exclusively for private citizen's bands, amateur radio or other similar telecommunications.
B.
New construction, including routine maintenance on an existing wireless telecommunications facilities, shall comply with the requirements of this article.
C.
All wireless telecommunications facilities existing on or before the effective date of this article shall be allowed to continue as they presently exist; provided, however, that any modification, enlargement or extension of existing wireless telecommunications facilities must comply with this article.
§ 600-69 Public hearing required.
A.
Prior to the approval of any application for a tower special use permit for wireless telecommunications facilities, a public hearing shall be held by the Town Board, notice of which shall be published in the official newspaper of the Town no less than 10 days prior to the scheduled date of the public hearing. In order that the Town may notify nearby landowners, the applicant, at least three weeks prior to the date of said public hearing, shall provide to the Town Board the names and address of all landowners whose property is located within 1,500 feet of any property line of the lot on which the new wireless telecommunications facilities are proposed to be located.
§ 600-70 Action on application for tower special use permit.
A.
The Town Board shall, in accordance with the Act, undertake a review of an application pursuant to this article in a timely fashion, consistent with its responsibilities, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public's interest and need to be involved, and the applicant's desire for a timely resolution.
B.
The Town Board may refer any application or part thereof to any Town advisory committee or other Town committee for a nonbinding recommendation.
C.
Except for necessary building permits, and subsequent certificates of occupancy, once a tower special use permit has been granted hereunder, no additional permits or approvals from the Town, such as site plan or zoning approvals, shall be required by the Town for the wireless telecommunications facilities covered by the tower special use permit.
D.
After the public hearing and after formally considering the application, the Town Board may approve and issue, or deny a tower 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 applicant.
E.
If the Town Board approves the tower special use permit for wireless telecommunications facilities, then the applicant shall be notified of such approval in writing within 10 calendar days of the Town Board's action, and the tower special use permit shall be issued within 30 days after such approval.
F.
If the Town Board denies the tower special use permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within 10 calendar days of the Town Board's action.
G.
The Town Board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed tower special use permit. Upon its granting of such tower special use permit for wireless telecommunications facilities, any such conditions and restrictions must be met in connection with the issuance of a building permit and any other required permits by applicable enforcement officials of the Town.
§ 600-71 Recertification of tower special use permit.
A.
Request.
(1)
At any time between 12 months and six months prior to the five-year anniversary date after the effect date of the tower special use permit and all subsequent fifth anniversaries of the effective date of the original tower special use permit for wireless telecommunications facilities, the holder of a tower special use permit for such wireless telecommunications facilities shall submit a signed written request to the Town Board for recertification. In the written request for recertification, the holder of such tower special use permit shall include the following information:
(a)
The name of the holder of the tower special use permit for the wireless telecommunications facilities;
(b)
If applicable, the number or title of the tower special use permit;
(c)
The date of the original granting of the tower special use permit;
(d)
Whether the wireless telecommunications facilities has been moved, relocated, rebuilt, repaired or otherwise modified since the issuance of the tower special use permit;
(e)
If the wireless telecommunications facilities has been moved, relocated, rebuilt, repaired, or otherwise modified, then whether the Town Board approved such action, and under what terms and conditions, and whether those terms and conditions were complied with;
(f)
Any requests for waivers or relief of any kind whatsoever from the requirements of this article and any requirements for a tower special use permit; and
(g)
A statement that the wireless telecommunications facilities are in compliance with the tower special use permit and are in compliance with all applicable statutes, laws, local laws, ordinances, codes, rules and regulations.
(2)
Such recertification shall be by a qualified New York State licensed professional engineer acceptable to the Town, and the costs thereof shall be borne by the applicant.
B.
If, after such review, the Town Board determines that the permitted wireless telecommunications facilities are in compliance with the tower special use permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the Town Board shall issue a recertification tower special use permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon, or required by applicable statutes, laws, local laws, ordinances, codes, rules and regulations. If, after such review, the Town Board determines that the permitted wireless telecommunications facilities are not in compliance with the tower special use permit and all applicable statutes, local laws, ordinances, codes, rules and regulations, then the Town Board may refuse to issue a recertification tower special use permit for the wireless telecommunications facilities, and in such event, such wireless telecommunications facilities shall not be used after the date that the applicant receives written notice of such decision by the Town Board. Any such decision shall be in writing and supported by substantial evidence contained in a written record.
C.
If the Town Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the tower special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the tower special use permit for up to six months, in order for the Town Board to complete its review.
D.
If the holder of a tower special use permit for wireless telecommunications facilities does not submit a request for recertification of such tower special use permit within the time frame noted in Subsection A of this section, then such tower 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 tower special use permit, or subsequent fifth anniversaries, unless the holder of the tower special use permit adequately demonstrates to the Town Board that extenuating circumstances prevented a timely recertification request. If the Town Board agrees that there were legitimately extenuating circumstances, then the holder of the tower special use permit may submit a late recertification request under terms agreeable to the Town Board.
§ 600-72 Extent and parameters of tower special use permit.
The extent and parameters of a tower special use permit for wireless telecommunications facilities shall be as follows:
A.
Such tower special use permit shall be nonexclusive.
B.
Such tower special use permit shall not be assigned, transferred or conveyed without the express prior written consent of the Town Board, and such consent shall not be unreasonably withheld or delayed.
C.
Such tower special use permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled or terminated for a violation of the conditions and provisions of the tower special use permit for wireless telecommunications facilities, or for a material violation of this article after prior written notice to the applicant and the holder of the tower special use permit.
§ 600-73 Application fee.
A.
Application fees for tower special use permits for new wireless telecommunication facilities and for collocating on an existing telecommunication tower or high structure shall be as set forth from time to time by resolution of the Town Board.[1]
B.
No application fee is required in order to recertify a tower special use permit for wireless telecommunications facilities, unless there has been a modification of the wireless telecommunications facilities since the date of the issuance of the existing tower special use permit. In the case of any modification, the fees provided in Subsection A shall apply.
§ 600-74 Performance security.
The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at its cost and expense, be jointly required to execute and file with the Town a bond, or other form of security acceptable to the Town as to type of security and the form and manner of execution, in the amount of $75,000 and with such sureties as are deemed sufficient by the Town Board to assure the faithful performance of the terms and conditions of this article and conditions of any tower special use permit issued pursuant to this article. The full amount of the bond or security shall remain in full force and effect throughout the term of the tower special use permit and/or until the removal of the wireless telecommunications facilities, and any necessary site restoration is completed. The failure by applicant to pay any annual premium for the renewal of any such security shall be a violation of the provisions of the tower special use permit and shall entitle the Town Board to revoke the tower special use permit after prior written notice to the applicant and holder of the tower special use permit, and after a hearing upon due prior notice to the applicant and holder of the tower special use permit.
§ 600-75 Authority to inspect wireless telecommunication facilities.
A.
In order to verify that the holder of a tower special use permit for wireless telecommunications facilities and any and all lessees, renters, and/or licensees of wireless telecommunications facilities place, maintain, construct, modify and use such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building and zoning codes, laws, ordinances and regulations and other applicable requirements, the Town, and its consultants or experts, may inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification, maintenance and use of such facilities, including, but not limited to towers, antennas and buildings or other structures constructed or located on the permitted site. If requested by the Town, the holder of the tower special use permit shall assist the Town and its consultants and experts in obtaining access to the site.
B.
The Town shall pay for costs associated with such an inspection, except for those circumstances occasioned by said holder's, lessee's or licensee's refusal to provide necessary information or necessary access to such facilities, including towers, antennas and appurtenant or associated facilities, or refusal to otherwise cooperate with the Town with respect to an inspection, or if violations of this article are found to exist, in which case the holder, lessee or licensee shall reimburse the Town for the cost of the inspection.
C.
Payment of such costs shall be made to the Town within 30 days from the date of the invoice or other demand for reimbursement. In the event that the finding(s) of violation is/are appealed in accordance with the procedures set forth in this article, said reimbursement payment must still be paid to the Town and the reimbursement shall be placed in an escrow account established by the Town specifically for this purpose, pending the final decision on appeal.
§ 600-76 Annual NIER certification.
The holder of the tower special use permit shall, annually, certify in writing to the Town that NIER levels at the site are within the threshold levels adopted by the FCC. (The certifying engineer need not be approved by the Town.)
§ 600-77 Liability insurance.
A.
A holder of a tower special use permit for wireless telecommunications facilities shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage, for the duration of the tower special use permit in the minimum amounts set forth below:
(1)
Commercial general liability covering personal injuries, death and property damage: $2,000,000 per occurrence/$6,000,000 aggregate.
(2)
Automobile coverage: $2,000,000 per occurrence/$6,000,000 aggregate.
(3)
Excess liability: $1,000,000.
(4)
Workers compensation and disability insurance in accordance with applicable statutory amounts.
B.
The commercial general liability insurance policy and excess liability policy shall specifically include the Town and its officers, boards, employees, committee members, attorneys, agents and consultants as additional named insureds.
C.
The insurance policies shall be issued by an insurance company licensed to do business in the state and with a Best's rating of at least A.
D.
The insurance policies shall contain an endorsement obligating the insurance company to furnish the Town with at least 30 days' prior written notice in advance of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall be delivered to the Town at least 15 days before the expiration of the insurance which such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications facilities is initiated, but in no case later than 15 days after the grant of the tower special use permit, the holder of the tower special use permit shall deliver to the Town a copy of each of the policies or certificates representing the insurance in the required amounts.
§ 600-78 Indemnification.
A.
Any tower special use permit issued pursuant to this article shall contain a provision with respect to indemnification. Such provision shall require the holder of the tower special use permit, 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 a wireless telecommunications facilities within the Town. 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. The holder of the tower special use permit shall not be obligated to provide such indemnification in the case of any claims, suits, demands, cause of action or award of damages which arise solely as a result of the negligence or intentional acts or actions of the Town or its officials, boards, employees, committee members, attorneys, agents or consultants.
§ 600-79 Fines; penalties for offenses.
A.
For a violation of this article or any provision, term or condition of a tower special use permit issued pursuant to this article, the provisions of § 600-45 of this chapter shall be applicable.
B.
Notwithstanding anything in this article, the holder of the tower special use permit for wireless telecommunications facilities may not use the payment of fines, liquidated damages or other penalties, to evade or avoid compliance with this article or any section of this article. An attempt to do so shall subject the holder of the tower special use permit to termination and revocation of the tower special use permit, after prior written notice to the applicant and holder of the tower special use permit and after a hearing upon due prior notice to the applicant and holder. The Town may also seek injunctive relief to prevent the continued violation of this article.
§ 600-80 Default and/or revocation.
A.
If wireless telecommunications facilities are used, operated, repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this article or of the tower special use permit, then the Town Board shall notify the holder of the tower special use permit in writing of such violation. Such notice shall specify the nature of the violation or noncompliance and that the violations must be corrected within seven days of the date of the postmark of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this subsection or any other section of this article, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the Town Board may, at its sole discretion, order the violation remedied within 24 hours.
B.
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this article, or of the tower special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Town Board may revoke such tower special use permit for the wireless telecommunications facilities, and shall notify the holder of the tower special use permit in writing within 48 hours of such action, and the reasons for such action. The holder of the tower special use permit shall not thereafter use or operate the wireless telecommunications facilities until such time as the tower special use permit has been restored.
§ 600-81 Removal of wireless telecommunications facilities.
A.
Under the following circumstances, the Town Board may determine that the health, safety and welfare interests of the Town warrant and require the removal of wireless telecommunications facilities:
(1)
Wireless telecommunications facilities with a permit have been abandoned (i.e., not used as wireless telecommunications facilities) for a period exceeding 90 consecutive days or a total of 180 days in any three-hundred-sixty-five-day period, except for periods caused by a superior or irresistible force or acts of God, in which case, repair or removal shall commence within 90 days after notification from the Town;
(2)
Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard;
(3)
Wireless telecommunications facilities have been placed, located, constructed or modified without the prior granting of the required tower special use permit, or any other necessary authorization.
B.
If the Town Board makes such a determination as noted in Subsection A of this section, then the Town Board shall notify the holder of the tower special use permit for the wireless telecommunications facilities in writing within 48 hours that said wireless telecommunications facilities are to be removed at the cost and expense of the holder of said permit. The Town Board may approve an interim temporary tower special use permit, so as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the tower special use permit, at its cost and expense, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within 90 days of receipt of written notice from the Town Board. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the Town Board.
D.
If the wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the permit holder has received such notice, then the Town Board may order officials or representatives of the Town to remove the wireless telecommunications facilities at the sole cost and expense of the owner or permit holder.
E.
If the Town removes, or cause to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications facilities does not claim and remove them from the site to a lawful location within 10 days following receipt of written notice from the Town Board, then the Town may take steps to declare the wireless telecommunications facilities abandoned, and cause them to be removed at the expense of the owner or special permit holder, and sell them and their components.
F.
Notwithstanding anything in § 600-80 to the contrary, the Town Board may approve a temporary special use permit for the wireless telecommunications facilities, for no more 90 days, during which time a suitable plan for removal, conversion or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the permit, subject to the approval of the Town Board, and an agreement to comply with such plan shall be executed by the holder of the permit and the Town. If such a plan is not developed, approved and executed within the ninety-day time period, then the Town may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in Subsection E hereof.
§ 600-82 Relief.
Any applicant desiring relief or exemption from any aspect or requirement of this article may request such from the Town Board at a preapplication meeting, provided that the relief or exemption is contained in the original application for either a tower special use permit, or in the case of an existing or previously granted tower special use permit, a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete, at the sole discretion of the Town Board. However, the burden of proving the need for the requested relief or exemption, is solely on the applicant to prove to the satisfaction of the Town Board. The applicant shall bear all costs of the Town Board or the Town in considering the request and the relief shall not be transferable to a new or different holder of the permit or owner of the tower or facilities without the express prior written permission of the Town Board, and such permission shall not be unreasonably withheld or delayed. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief or exemption will have no significant adverse effect on the health, safety and welfare of the Town, its residents and other service providers.
§ 600-83 Periodic regulatory review by Town Board.
A.
The Town Board may at any time conduct a review and examination of this entire article.
B.
If after such a periodic review and examination of this article, the Town Board determines that one or more provisions of this article should be amended, repealed, revised, clarified or deleted, then the Town Board may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the Town, the Town Board may, consistent with applicable provisions of law, amend, revise, clarify or delete any part of this article or repeal the entire article.
§ 600-84 Adherence to state and/or federal rules and regulations.
A.
To the extent that the holder of a tower special use permit for wireless telecommunications facilities has not received relief, or is otherwise exempt, from appropriate State and/or Federal agency rules or regulations, then the holder of such a tower 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.
B.
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 tower special use permit for wireless telecommunications facilities, then the holder of such a tower special use permit shall conform the permitted wireless telecommunications facilities to the applicable changed and/or modified rule, regulation, standard or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard or provision, or sooner as may be required by the issuing entity.
§ 600-85 Conflict with other provisions.
Where this article differs or conflicts with other statutes, local laws, ordinances, codes, rules or regulations, unless the right to do so is preempted or prohibited by the county, state or federal government, the more restrictive or protective of the Town and the public shall apply.