Fenton Town City Zoning Code
ARTICLE IIIA
Telecommunications Facilities
[Added 7-21-1999 by L.L. No. 1-1999]
§ 150-20.1 Statutory authority.
Pursuant to the authority conferred by Article 16 of the Town Law of the State of New York and the Municipal Home Rule Law of the State of New York, the Town Board of the Town of Fenton, County of Broome and State of New York, has ordained and does hereby enact this article regulating and restricting the location, size and use of telecommunications facilities and their accessory structures in the Town of Fenton.
§ 150-20.2 Legislative intent.
The Town of Fenton recognizes the increased demand for wireless communications transmitting facilities and the need for the services they provide. Often these facilities require the construction of a communications tower and/or similar facilities. The intent of this article is to regulate the location, placement, construction and modification of the telecommunications facilities in accordance with the guidelines of the Telecommunications Act of 1996 and other applicable laws by:
Accommodating the need for telecommunications towers/antennas while regulating their location and number in the community.
Minimizing adverse visual impacts of these towers/antennas through proper siting, design and screening.
Preserving and enhancing the positive aesthetic qualities of the natural environment and current development in the Town of Fenton.
Providing for the health, safety and welfare of the community by avoiding potential damage or other negative impact to adjacent properties from power failure, failing ice, etc., through proper siting and engineering.
Requiring the joint use of towers when available and encouraging the placement of antennas on existing structures to minimize the number of such structures in the future.
§ 150-20.3 Definitions.
As used in this article, the following terms shall have the meanings indicated:
A nonhabitable accessory facility or structure serving or being used in conjunction with a communications tower/antenna and/or similar facility and usually located on the same lot as the communications tower/antenna. Examples of such structures include utility or transmission equipment storage sheds, buildings or cabinets. All other uses ancillary to the antenna and associated equipment (including but not limited to a business office, maintenance depot, vehicle storage, etc.) are prohibited from the site unless otherwise permitted in the zoning district in which the facility is located.
A system of electrical conductors that transmit or receive frequency signals. Such signals shall include but not be limited to radio, television, cellular, paging, digital and/or data communications, personal wireless communications services (PWS) and microwave communications.
Any antenna that will be mounted to an existing communications tower, smoke stack, water tower or other existing structure and extends no more than 15 feet above the height of the original structure.
Towers and/or antennas and accessory structures together used in connection with the provision of cellular telephone service, personal communications services, digital and/or data communications services, paging services, radio and television broadcast services and similar broadcast services (also referred to as "facilities" or "equipment").
A structure designed to support antennas. It includes, without limit, freestanding towers, guyed towers, monopoles and similar structures which do or which do not employ camouflage technology.
§ 150-20.4 Permitted locations, approvals and bulk requirements.
No telecommunications facility shall be sited, located, constructed, erected or modified without the issuance of a building permit and such other permits or approvals as are prescribed in this article.
§ 150-20.5 Approvals and bulk requirements for collocated/existing structure antennas.
A collocated or existing structure or antenna, as defined in § 150-20.3, is permitted in the following zoning districts without a tower permit upon site plan approval and issuance of a building permit: Neighborhood Commercial; General Commercial; Limited Industrial; Industrial; Agricultural-Residential; and Mining. The building permit application shall include the following:
A structural analysis/report, certified by a New York State licensed professional engineer or architect, verifying the ability of the structure to support the antenna.
Certification by a qualified radio frequency engineer (signed and sealed by a professional engineer or architect licensed in the State of New York) that the cumulative emissions from all antennas proposed to be located at the proposed site meet current federal guidelines.
The height of the new antenna shall extend no more than 15 feet above the height of the original structure.
The antenna and any mounting structure and related equipment shall be integrated into said structure in such a manner as to minimize its visual impact to the greatest extent practicable.
§ 150-20.6 Approvals and bulk requirements for all other telecommunications facilities.
All other telecommunications facilities must be located in a telecommunications zoning district and a tower permit shall be required. The tower must also be set back a minimum of 1 1/2 times the height of the tower and antenna from all aboveground utilities, existing buildings and public rights-of-way. The Town of Fenton Planning Board may require an additional setback area in the case of guyed wires, taking into consideration the length of guyed wires and the location of ground anchors.
All permit applications for telecommunications facilities shall be treated as a Type I action under the State Environmental Quality Review Act (SEQRA).
§ 150-20.7 Designation of telecommunications district.
In determining whether to create a telecommunications district, telecommunications facilities other than those permitted by § 150-20.5 shall be allowed in districts designated by the Town of Fenton Town Board as provided in Subsection B of this section. It is the intention of this section to allow the creation of a telecommunications district in a location that is most appropriate for this land use; the Town Board shall consider the general zoning classification in which a proposed telecommunications district is located along with the other factors specified in Subsection J of this section.
Creation of new districts. All new telecommunications districts shall be created by the Town of Fenton Town Board in accordance with the following procedure: Any person or company wishing to petition the Town for the creation of a telecommunications district shall submit to the Town Clerk an original and 11 copies of an application on a form prescribed by the Town Board for recommendation of the Planning Board, which shall contain at least the following:
The name, address and telephone number of the applicant, together with the name of the person to contact for further information, if the applicant is a company.
Copies of any related leases or real estate purchase contracts.
A map, prepared by a licensed engineer or surveyor, showing the boundaries of the proposed telecommunications district, as well as a key map showing its approximate location in the Town of Fenton. The scale of the map shall be no less than one inch equals 100 feet, unless the Planning Board, by resolution, allows a smaller scale.
A description of the proposed telecommunications facility.
A reclamation plan, including both a graphic and a narrative description of the applicant's contingency plan if the facility becomes inactive, inoperative or obsolete, the proposed method of reclaiming the affected land, a schedule for reclaiming the affected land, a plan for removing the telecommunications facilities and an estimate of the reclamation cost to assist the Planning Board in establishing the amount of the reclamation bond or other security.
A long-form environmental assessment form, prepared by a licensed professional engineer or architect, to assist the Town Board in its determination of environmental significance under the Town and State Environmental Quality Review Acts.
A fee, established pursuant to resolution adopted by the Town Board.
The Town Clerk shall forthwith file the original of the application and forward the copies as follows: two to the Town Supervisor, who shall in turn forward one copy to an engineer retained by the Town Board for review and recommendations; one to each remaining Town Board member; one to the Town Attorney or his designee; three to the Chairman of the Planning Board; and one to the Broome County Planning Department, with a request for a recommendation when required by the General Municipal Law.
The Town Board shall consider the application at its first regular meeting occurring at least 10 days following the filing of the application with the Town Clerk or at such other time and date as the Town Board shall determine. The Town Board shall discuss the application with the applicant and shall request any information it needs to consider the application. The Town Board shall also schedule a public hearing to be held at its next regular meeting or at any other time and date it shall determine. Notice of the public hearing shall be published in the official newspaper and posted on the official bulletin board of the Town at least five days prior thereto. The Town Board shall also take whatever steps are necessary to comply with the Town and State Environmental Quality Review Acts, and the public hearing on the application may be combined with a public hearing on any draft environmental impact statement which the Town Board may require.
At least 10 days prior to the public hearing, the applicant shall send notice thereof by certified mail, return receipt requested, to the record owners located within 500 feet of the boundaries of the subject premises. At least five days prior to the public hearing, applicants shall submit an affidavit sworn and subscribed before a notary public to the Town Clerk containing the following information: the names and addresses of all such property owners; a statement verifying that all such property owners' names and addresses are contained on the list; and a statement that all such property owners were properly served. Applicants shall also submit the return receipts for all property owners served along with the affidavit.
The cost of preparing, publishing and mailing the required notices shall be borne by the applicant. The Town Board shall cancel the public hearing if the applicant fails to submit the required information.
The Town Board shall conduct the public hearing, affording all interested persons an opportunity to speak. At the conclusion of the public hearing, the Town Board shall direct the applicant to submit any additional information it determines is necessary to a determination of the application, if any. The Town Board shall formally act on said application no later than 60 days following the close of the public hearing or the receipt of all necessary information, whichever comes later.
Prior to acting upon said application, the Town Board shall obtain a recommendation from the Planning Board as to whether the telecommunications district shall be created.
If a new telecommunications district is created, the Town Board shall cause the Town Zoning Map to be amended accordingly and shall forward copies of the petition to the Planning Board.
Standards for the creation of telecommunications districts. In considering application for the creation of a telecommunications district, the Town Board shall consider all relevant factors, including the following:
The consistency of the proposed telecommunications district with the Comprehensive Zoning Plan of the Town, as embodied in its Zoning Map and this chapter.
The character of the neighborhood in which the proposed telecommunications district would be located.
The general zoning classification of the area in which the proposed telecommunications district would be located.
The proximity of the proposed telecommunications district to other telecommunications districts or operations.
Impact of the telecommunications facility on the immediate area.
The applicant's need for the facility.
The applicant's consideration of other sites, including possible collocation sites, and a detailed report from applicant's engineer explaining why alternate sites and collocation were not pursued.
Negative impact on radio, television and other similar transmissions.
Any other factor the Town Board considers relevant.
Every telecommunications district shall remain in existence for a period of one year after the abandonment of telecommunications operations thereon or after the termination of the telecommunications permit term without renewal or otherwise, whichever is later. Upon the permanent termination of telecommunications operations, the owner of the premises or the person or company responsible for the telecommunications operations conducted therein shall commence reclamation of the premises in accordance with the telecommunications reclamation plan. If the responsible party has not commenced reclamation within 60 days following the permanent termination of telecommunications activities or fails to complete reclamation in accordance with the plan, the Town may take whatever steps are necessary to accomplish or complete said reclamation, including resort to the undertaking provided by the telecommunications operator, applicant or responsible party upon the granting of the telecommunications permit. The telecommunications operator, applicant or other responsible party shall advise the Planning Board upon the commencement and completion of reclamation.
§ 150-20.8 Tower permit and application.
§ 150-20.9 Content of application.
All applicants for a tower permit shall make a written application for the tower permit and site plan approval to the Town of Fenton Planning Board through the Town of Fenton Town Clerk. Said application shall include:
A completed tower permit application form. In addition to the requirements set forth herein, all applications shall be processed in accordance with the requirements of § 150-47 of the Code of the Town of Fenton generally applicable to site plan approval. The application shall be accompanied by the payment of the tower permit application fee, as established by the Town Board in the schedule of fees.[1]
A site plan, in the form and content acceptable to the Town of Fenton Planning Board, prepared to scale and in sufficient detail and accuracy. At minimum, such site plan shall include:
The exact location of the proposed tower, together with guy wires and ground anchors, if applicable, and any accessory structures.
The maximum height of the proposed tower and antennas.
A detail of tower type (monopole, guyed, freestanding or other).
The color or colors of the tower.
The location, type and intensity of any lighting on the tower and antennas and adjacent structures.
A survey showing the boundary of the property and a topographical map of the property with contour lines not exceeding five-foot intervals.
Proof of ownership of the land by the applicant or the landowner's consent if the applicant will not own the property. A copy of the final lease agreement, plus any amendments thereto, must also be provided if the applicant will not own the property.
The location of all current and proposed structures on the property and all structures on any adjacent property within 50 feet of the property lines, together with the distance of these structures to the tower and antennas and location of any adjacent residential dwellings, schools and historic structures within 500 feet.
Identification of adjacent landowners.
The location, nature and extent of any proposed fencing and landscaping or screening. Existing on-site vegetation shall be preserved to the maximum extent possible.
The location and nature of proposed utility easements and access roads, if applicable. The applicant must demonstrate that all private access roads will be maintained in order to ensure access by emergency vehicles on a year-round basis.
Building elevations of accessory structures or immediately adjacent buildings within 50 feet.
"Before" and "after" propagation studies prepared by a qualified radio frequency engineer (signed and sealed by a professional engineer licensed in the State of New York) demonstrating existing signal coverage resulting from the proposed telecommunications facility.
A search ring analysis prepared by a qualified radio frequency engineer (signed and sealed by a professional engineer licensed in the State of New York) and overlaid on an appropriate background map demonstrating the area within which the telecommunications facility needs to be located in order to provide proper signal strength and coverage to the target cell. The applicant must be prepared to explain to the Town of Fenton Planning Board how and why it selected the proposed site, discuss the availability (or lack of availability) of a suitable structure within the search ring, which would have allowed for collocated antenna(s) and to what extent the applicant explored locating the proposed tower and antennas in a more desirable use district. Proof of correspondence with other telecommunications companies or structure owners concerning collocation shall be part of this requirement.
The Town of Fenton Planning Board, upon reviewing the application, may request reasonable additional visual and aesthetic and site information, as it deems appropriate on a case-by-case basis. Such additional information may include, among other things, visual impact statements, enhanced landscaping plans, line of sight drawings and/or visual simulations from viewpoints selected by the Town staff.
For sites in close proximity to significant historical sites or important preservation/conservation areas, the Town of Fenton Planning Board may request additional site plans and tower permit requirements. These requirements may include specially designed towers, additional screening, greater setbacks and improved landscaping. Siting in these areas should be avoided to the maximum extent possible.
The applicant must submit a copy of its policy regarding collocation of other facilities on the proposed tower. Such policy shall allow collocation under the following conditions: the new antenna(s) and equipment do not exceed structural loading requirements, interfere with tower space used or to be used by the applicant or pose any technical or radio frequency interference with existing equipment; the party desiring to collocate pays the applicant an appropriate and reasonable sum to collocate; and the party desiring to collocate has a similar policy of collocation as the applicant.
During the application process and after construction of the tower, the applicant shall provide a certification from a qualified New York State licensed professional engineer, certifying that the tower and antennas meet applicable federal, New York State and American National Standards Institute (ANSI) structural safety standards.
§ 150-20.10 Building permit requirements.
Upon issuance of a tower permit by the Town of Fenton Planning Board, the applicant must obtain a building permit, pursuant to § 150-20.4, before the facility may be constructed.
§ 150-20.11 Telecommunications facility permit standards.
The following criteria will be considered by the Town of Fenton Planning Board prior to the approval/denial of a request for a tower permit. The criteria listed may be used as a basis to impose reasonable conditions on the applicant. Tower permits run with the land and may not be transferred to a different parcel of land.
§ 150-20.12 Siting preferences.
The Town of Fenton Planning Board may express a preference for an alternative site(s) and/or that the proposed telecommunications facility be located in a higher intensity use district or on higher intensity use property, provided that there is a technologically feasible and available location. A guideline for the Town's preference, from most desirable to least desirable zoning district/property, is as follows:
Property with an existing structure suitable for collocation.
Municipal- or government-owned property.
Mining (M), industrial (I) or limited industrial (I-L) zoning districts.
Agricultural-residential (AgR) or residential (RA) zoning districts.
[Amended 6-4-2014 by L.L. No. 5-2014]
Sites which are in close proximity to significant historic sites and/or important preservation/conservation areas.
Medical facilities.
Any request by the Town of Fenton Planning Board for information or technical analysis on a preferred alternate site shall be provided by the applicant at its sole cost.
§ 150-20.13 Aesthetics.
Telecommunications facilities shall be located and buffered to the maximum extent that is practical and technologically feasible to help ensure compatibility with surrounding land uses. In order to minimize any adverse aesthetic effect on neighboring residences to the extent possible, the Town of Fenton Planning Board may impose reasonable conditions on the applicant, including, but not limited to, the following:
Tower height, including antennas, and design are matters of primary public concern. The Board may require a monopole or guyed tower (if sufficient land is available to the applicant) instead of a freestanding tower. Monopoles are a preferred design. The Board may impose reasonable restrictions and/or conditions on height. For example, the Board may reasonably determine that adverse impact upon the community will be best mitigated by requiring the applicant to construct multiple towers of lower height at several different locations to meet the applicant's demonstrated service coverage requirement(s).
The Board may require reasonable landscaping consisting of trees or shrubs to screen the base of the tower and antennas and/or to screen the tower and any accessory structure or buildings to the extent possible from adjacent residential property. Existing on-site trees and vegetation shall be preserved to the maximum extent possible.
The Town of Fenton Planning Board shall require the applicant to show that it has made good faith efforts to collocate on existing towers or other available and appropriate structures and/or to construct new towers near existing towers in an effort to consolidate visual disturbances.
The type of finish, color and lighting shall be subject to Town and/or Federal Aviation Administration (FAA) approval. The Town of Fenton Planning Board may require lights to be shielded to minimize ground visual impact.
No tower shall contain any signs or advertising devices. Notwithstanding the foregoing, the Board shall require appropriate signage indicating ownership of the facility and phone numbers to call in case of emergency.
§ 150-20.14 Radio frequency.
The Town of Fenton Planning Board shall impose a condition on the applicant that the communications antenna will be operated only at Federal Communications Commission (FCC) designated frequencies and power levels and/or Environmental Protection Agency (EPA) technical exposure limits and may periodically require that the applicant provide competent documentation to support that maximum allowable frequencies, power levels and exposure limits for radiation will not be exceeded.
Unless otherwise preempted by federal or state law, the applicant shall submit to the Building Inspector an inspection of the telecommunications facility every two years, for radio emissions. A New York State licensed professional engineer specializing in electrical engineering with expertise in radio communications facilities shall perform radio emission inspections. The radio emission inspection shall describe the power density levels of the electromagnetic energy generated from the facility, including the cumulative effects of collocated antennas. In the event that the radio emission inspection indicates that the electromagnetic energy generated from the facility is above the allowable limits stated with applicable FCC or ANSI standards or other applicable federal or state guidelines in effect at the time of the inspection, the applicant shall cease all use of the facility until such time as it proves, to the satisfaction of the Building Inspector, or pertinent Town consultant, that the power density levels of the electromagnetic energy to be generated at the facility are below the applicable standards.
§ 150-20.15 Traffic, access and safety.
A road turnaround and one parking space shall be provided to assure adequate year-round emergency and service access. Maximum use of existing roads, public or private, shall be made for access. Tower or antenna(s) accessory structures shall not be sited in public roadways or road rights-of-way.
All structures, towers and ground anchors, if applicable, shall be enclosed by a fence not less than eight feet in height and otherwise sufficiently protected from trespassing or vandalism.
The applicant must comply with all applicable state and federal regulations, including, but not limited to, FAA and FCC regulations, and from time to time may be required to provide certification of such compliance.
All towers and antennas shall include anticlimbing devices for a minimum of 25 feet extending above ground level.
§ 150-20.16 Removal of tower.
The applicant shall agree in writing to remove the tower and antenna if the telecommunications facility ceases to be used for its intended purpose for six consecutive months. The Town of Fenton Planning Board shall require the applicant to provide an appropriate and adequate reclamation bond following receipt of its tower permit, site plan approval and building permit, but before construction, for the purpose of removing the telecommunications facility and restoration of the land in case the applicant fails to do so as required above.
At the time of application, and at least every five years thereafter, the applicant shall submit an analysis to confirm the efficiency of the reclamation bond and a report of the cost of removal and property restoration, which are to be performed by a New York State licensed professional engineer, at the applicant's expense. If the analysis and report determines that the amount of the bond in force is insufficient to cover the removal, disposal and restoration costs, the bond shall be increased to the amount necessary to cover such costs within 10 days of applicant's receipt of such report.
§ 150-20.17 Structural safety inspections.
During the application process, and after construction of the tower, the applicant shall provide a certification from a qualified New York State licensed professional engineer certifying that the tower and antennas meet applicable New York State and ANSI structural safety standards.
Unless otherwise preempted by federal or state law, the telecommunications facility shall be inspected every five years, at the applicant's expense, for structural integrity, and a copy of the report shall be promptly delivered to the Town of Fenton Building Inspector. A New York State licensed professional engineer specializing in structural engineering shall perform the structural inspection. The structural inspection report shall describe the structural integrity of the facility, maintenance issues and repairs needed or made, if any. In the event that the structural inspection indicates structural deficiencies, then the deficiencies must be remedied within the time reasonably set by the Building Inspector. Upon the applicant's failure to do so, the bonds for demolition may be exercised.
§ 150-20.18 Maintenance of telecommunications facility.
All telecommunications facilities shall be maintained in good order and repair as directed by the Building Inspector and/or Town Engineer. The Town of Fenton Planning Board may require that reasonable records of such maintenance be kept and available for Town review upon request.
§ 150-20.19 Exemptions.
Except as provided herein, the following towers and antennas, or combinations thereof, shall be exempt from the provisions of this article:
Tower and antenna(s) may be repaired and maintained without restriction.
Towers and antennas used:
Solely for residential household television and radio reception.
For two-way station-to-station radio communications. This exemption shall include amateur radio and citizens' band installations, dispatch stations, such as are commonly utilized by taxicab and trucking companies, and similar installations not intended to provide the sort of commercial communications and broadcasting services described and defined in § 150-20.3 of this article, provided that tower and antenna installations under this Subsection B exceeding 40 feet in height measured from ground level shall require site plan review by the Planning Board and a building permit issued by the Building Inspector after appropriate inspection or inspections as determined by the Building Inspector.
Satellite antennas measuring eight feet or less in diameter and located in commercial districts and satellite antennas two feet or less in diameter regardless of location.
§ 150-20.20 Conflict with other provisions.
If there are any conflicts or inconsistencies between this article and any other local law, including the zoning law, this article shall control telecommunications towers and similar facilities in the Town unless otherwise specifically referenced in this article.
§ 150-20.21 Penalties for offenses.
This article is adopted pursuant to the zoning and planning powers granted to the Town under applicable law. In the event of any violation of this article or any permit(s) issued hereunder, the Town may seek enforcement under available authority, including but not limited to Town Law § 268. The Town may also seek appropriate remedies, including but not limited to injunctive relief, in a civil action in a court of competent jurisdiction.
A violation of this article or of such local law, ordinance or regulation is hereby declared to be an offense, punishable by a fine not less than $250 nor more than $1,000 or imprisonment for a period not to exceed six months, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine not less than $1,000 nor more than $2,500 or imprisonment for a period not to exceed six months, or both; and, upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $2,500 nor more than $5,000 or imprisonment for a period not to exceed six months, or both. A violation shall be deemed to have first occurred from the date of written notification of violation issued by the enforcement officer or from such date as may be designated in such written notice. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this article, or of such local law, ordinance or regulation, shall be deemed misdemeanors, and for such purpose only, all provisions of law relating to misdemeanors shall apply to such violations. Each day's continued violation shall constitute a separate additional violation.
Any entity operating under a tower permit or site plan approval that fails to comply with the requirements and/or conditions of that permit or approval, or violates the same, shall cease and desist use of the facility upon notice by the Town of Fenton enforcement officer and shall not resume use until brought into compliance. Once the deadline has passed for rectifying the violation, the Town may direct the removal of the tower, antennas and other facilities within 90 days of notification by the Town directing such removal, or the Town may remove said facilities and use the demolition bonds posted to pay for such removal.
Failure to comply with direction to cease and desist or to remove shall constitute a separate violation.
§ 150-20.22 Severability.
If any part of this article shall be judicially declared to be invalid, void, unconstitutional or unenforceable, all unaffected provisions hereof shall survive such declaration and this article shall remain in full force and effect as if the invalidated portion had not been enacted.