Hamburg Town City Zoning Code
ARTICLE XLVII
Telecommunications Facilities
[Added 11-25-1996 by L.L. No. 13-1996; amended 1-28-2019 by L.L. No. 1-2019]
§ 280-335 Authority.
§ 280-336 Intent.
The purpose of this article is to establish general guidelines for the siting of telecommunications facilities including communications towers, antennas and small cell or microcell facilities which are regulated in accordance with the Telecommunications Act of 1996 (and any revisions) and other applicable federal laws.
The intent of this article is to regulate the location of telecommunications facilities, in accordance with the Town's Master Plan and Zoning Map and giving full consideration to existing land uses and environmentally sensitive areas, and conforming to the Telecommunications Act of 1996 and other applicable federal laws, by:
Accommodating the need for telecommunications towers and antennas while regulating their location in the community;
Encouraging the location of towers in nonresidential areas, away from significant natural resources and without adverse effect to designated and eligible for designation historic resources;
Minimizing the total number of towers throughout the community;
Strongly encouraging the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers;
Encouraging owners of towers and antennas to locate them, to the maximum extent possible, in areas where the adverse impact on the size and scale of the community's built environment, the natural environment, and designated and eligible for designation historic resources is minimal;
Encouraging users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening and innovative camouflaging and design techniques (stealth technology);
Enhancing the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently;
Helping to ensure that these facilities are limited to those for which the petitioner has demonstrated a need for service. No towers shall be built purely "on speculation" for future users;
Avoiding potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.
§ 280-337 Definitions.
These definitions only apply to this article. Duplicate definitions that are found in other sections of the law do not apply to this section of the law.
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 generators or other emergency power supply equipment, utility or transmission equipment storage sheds or cabinets, or fencing.
For the purposes of this law and for consistency with 47 CFR; an apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to FCC authorization, for the provision of personal wireless service and any commingled information services. For purposes of this definition, the term antenna does not include an unintentional radiator, mobile station, or device authorized under 47 CFR part 15.
The inability to perform an act on terms that are reasonable in commerce, the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a particular return or investment or profit, standing alone, shall not deem a situation to be "commercially impracticable" and shall not render an act or terms of an agreement "commercially impracticable."
The distance measured from the preexisting grade level to the highest point on the tower or structure, including any antenna or lightning protection device.
The addition, removal, or change of any of the physical and visually discernable components or aspects of a wireless facility, such as antennas, cabling, radios, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernable components, vehicular access, parking and/or an upgrade, or change out of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site is a modification. A modification shall not include the replacement of any components of a wireless facility where the replacement is technically equivalent to the component being replaced for any matters that involve the normal repair and maintenance of a wireless facility.
See definition for "wireless telecommunications facilities."
Any wireless service provider or agent submitting an application for a special use permit, site plan approval or building permit application for wireless telecommunications facilities.
Temporary in relation to all aspects and components of this local law, something intended to, or that does, exist for fewer than 90 days.
The official document or permit by which a petitioner is allowed to construct and use wireless telecommunications facilities as granted or issued by the Town.
Structures other than utility poles, light poles and similar structures that are built for the sole purpose of supporting a wireless telecommunications facility.
Any exterior facility, including an antenna, antenna array or other communications equipment, excluding a satellite dish antenna or small cell telecommunications facility, established for the purpose of providing wireless voice, data, and image transmission within a designated service area and which includes equipment consisting of personal wireless services, as defined in federal law, including by Federal Communications Commission orders or regulations. A telecommunications facility must not be staffed. A telecommunications facility consists of one or more antennas attached to a support structure and related equipment. Equipment may be located within a building or an exterior equipment cabinet.
Siting additional telecommunications facilities on an existing tower, structure or pole, without the need to construct a new tower, structure or pole (some modifications, as defined in this law are allowed). Co-location may include siting multiple facilities from the same provider or from more than one provider in the same location.
The establishment of a telecommunications facility on a base structure where no such facility presently exists.
This is an industry term that is defined in 47 CFR (1.1312(e)(2) or as revised).
Any telecommunications facility that is integrated into an architectural feature of a structure or the surrounding landscape so that the facility does not appear out of character and is generally less visually apparent or prominent.
A monopole, tower, utility pole, existing light pole, building or any other freestanding self-supporting structure. This definition also includes the replacement of a structure with another structure of equivalent dimensions which can safely support the installation of a telecommunications facility.
§ 280-338 Applicability.
All new wireless telecommunications facilities (towers or antennas), or relocated, rebuilt, modified, or extended towers or antennas, as well as small cell facilities in the Town of Hamburg shall be subject to these regulations.
§ 280-338.1 Exclusions.
Amateur radio station operators/receive-only antennas. This article shall not govern any tower or the installation of any antenna that is under 70 feet in height and is owned and operated by a federally licensed amateur radio station operator or is used exclusively for receive-only antennas.
Preexisting wireless telecommunications facilities (towers and antennas). Preexisting wireless towers or antennas. Preexisting towers and preexisting antennas shall not be required to meet the requirements of this article (unless modified as defined in this article), other than any applicable state or federal requirements and any applicable building codes.
§ 280-338.2 Where permitted; approvals and bulk requirements.
Applications for telecommunications facilities shall propose, locate, site, and erect these facilities in accordance with the following priorities as listed in the order below; Subsection A, Co-located/existing structure antennas, being the most preferred and Subsection B(4), Non-co-located in residential districts being the least preferred. A petitioner for a non-co-located/new structure antenna may not bypass sites of higher priority by stating that the site proposed is the only site leased or selected. All applications shall address co-location as an option. The petitioner shall submit a written report demonstrating the petitioner's review of the higher priority locations and demonstrating by technical reasons why a higher priority site was not chosen.
Co-located/existing structure antennas (including small cell or microcell).
An antenna that is to be attached to an existing wireless telecommunications tower facility, or any building or structure, is permitted in all zoning districts and will be reviewed administratively through a building permit process specifically designed for these types of projects (which may include a courtesy review and recommendation by the Planning Board, as determined by the Building Department). These antennas will also include accessory equipment that are also regulated under this Code. If the proposal is to locate the antenna on or within Town-owned property, the project will require approval from the Hamburg Town Board (see § 280-336).
The building permit application will include a structural analysis/report verifying the ability of the structure to handle the antenna. Antennas on structures, buildings, etc. shall be located in such a manner to reduce their visual appearance, utilizing stealth technology to the fullest extent possible. Specifically, these technologies can include integrating the antenna into the pole or other structure, flush mounting the antenna, camouflaging the antenna, designing the antenna to match the structure, etc. In areas of high visibility (visible to residential homes or the traveling public), accessory equipment structures may need to be screened, camouflaged or placed below ground in a vault. Co-located antennas may be placed on:
For existing utility, light or telephone poles, the height of the new antenna shall not extend above the height of the existing structure by more than five feet (note the requirement for placing new antennas on or within Town-owned property). If a pole needs to be replaced in order to accommodate the antenna, then the replacement pole shall not be more than five feet higher than the existing pole (If more than five feet taller, then the application will be treated as a new support structure).
If the new antenna is being placed on a structure within non-town governmental entity owned lands (like a road right-of-way), but is to be located on a structure (like a utility pole that is not owned by that other government entity), then the project may require referral by the Building Department to the Planning Board for review and input prior to issuance of a building permit.
Industrial buildings: the height of new antenna shall not extend above the height of the existing building by more than 12 feet;
Multifamily residential buildings: the height of new antenna shall not extend above the height of the existing building by more than 12 feet;
Commercial buildings: the height of new antenna shall not extend above the height of the existing building by more than 12 feet;
Water tower: the height of new antenna shall not extend above the height of the water tower by more than 12 feet; or
Existing standalone, wireless telecommunication tower facility: the height of new antenna shall not extend above the height of the existing facility by more than 12 feet.
Non-co-located/new support structure antennas (including small cell or microcell requiring a new support structure or a structure being expanded beyond the allowable limit). An antenna that will not be mounted on an existing structure (or allowable replacement structure), as defined above, or is more than the allowed height above that structure on which it is mounted, is permitted as follows:
Municipal or government-owned property:
If located on municipally (Town of Hamburg) owned property, a Town lease, license agreement or master license agreement must be obtained and the Town must refer the proposal to the Planning Board for their input. The tower/support structure must be set back the height of the tower from any residentially zoned property and be in accordance with the applicable requirements of this article.
If proposed in Town road right-of-way, the Town will require a Town lease, license agreement or master license agreement, and also require the project to receive a tower special use permit (including Highway Department referral and recommendation). Proper location and setbacks shall be agreed to with the Town (in the lease, license or agreement).
If located on county, state, federal property or right-of-way, or public school property, the tower/support structure shall be administratively reviewed by the Town and the Planning Board shall conduct a courtesy review and the tower must be set back the height of the tower from any property line.
M1, M2, M3, and FG zoning districts require site plan application per § 280-338 of this article. If the tower is to be set back less than the height of the proposed tower to any adjacent residential district or residentially used lot, then the application will require a tower special use permit and site plan approval.
All commercial zoning districts (C1, C2, C3, HC, and WC) and mixed use zoning districts (PRD and PUD) require site plan approval per § 280-333 of this article and a tower special use permit per § 280-334 of this article.
The tower must be set back a minimum of the height of the tower from any residentially zoned property or any front yard line.
Towers exceeding 195 feet in height in these commercial zoning districts and mixed use zoning districts shall be treated as Type 1 Actions under the State Environmental Quality Review Act (SEQRA).
Residential zoning districts (NC, R1, R2, R3, R4, RA, and RE) require site plan approval per § 280-333 of this article and tower special use permit § 280-334 of this article.
The tower must be set back a minimum of twice the height of the tower from all property lines and any existing building not located on the site, but in no case shall be less than 100 feet.
The maximum height of a tower in these zoning districts is 175 feet. An area variance for height will be required from the Zoning Board of Appeals to exceed this height, following initial review by the Planning Board (and completion of the SEQR process).
All applications for telecommunications facilities in these zoning districts shall be treated as Type 1 Action under the State Environmental Quality Review Act (SEQRA).
New microcell structures to be located in residential districts (not within a ROW), shall not be on a structure greater than 35 feet in height and shall be set back from any property line by the height of the structure.
§ 280-339 Requirements for site plan applications.
The following requirements apply to all applications that require site plan approval. All applications requiring a special use permit are also subject to site plan review and the requirements of this section. Applications only requiring site plan review may have some of the following requirements waived by the Town, based on the tower's location and size. Applications for microcells requiring site plan approval may have some of these requirements waived (many may not be applicable to these types of installations).
All applicants, after obtaining Town of Hamburg and other required approvals, must obtain a building permit from the Code Enforcement Officer of the Town of Hamburg. The Code Enforcement Officer is hereby authorized to issue building permits under this article if it is determined that an applicant has met the requirements established in this article.
Site plan applications will be processed by the Town of Hamburg Planning Board. The intent of site plan review is to evaluate site plans and require changes consistent with minimizing conflicts which may result between the site layout and design of proposed uses and natural site conditions and features and/or existing or planned adjacent uses. Site plan review is also responsible for ensuring that development comply with clearly calculated planning goals and policies as are provided in the Town of Hamburg's Comprehensive Plan and other area-specific planning documents.
A site plan submittal including the following:
A scaled site plan clearly indicating the location, type and height of the proposed tower or height increase, on-site land uses and zoning, adjacent land uses and zoning (including when adjacent to other municipalities), adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower or increased height and any other structures, topography, parking and other information deemed by Town staff to be necessary to assess compliance with this article.
Legal description of the parent tract and leased parcel.
The setback distance between the proposed tower, or existing tower proposed to be increased in height, and the nearest residentially use or zoned properties.
A landscape plan showing specific landscape materials.
Method of fencing and finished color and, if applicable, the method of camouflage and illumination.
An applicant is required to demonstrate, using technological evidence, that the tower or antenna must be located where it is proposed in order to satisfy its function in the applicant's grid system. Further, the applicant must demonstrate by technological evidence that the height requested is the minimum height necessary to fulfill the cell site's function within the grid system.
The Town of Hamburg may deny the application to construct a new tower if the applicant has not proven to the Town that they cannot mount the antenna on an existing structure and/or public property (even if the site does not require a special use permit).
Applications for necessary permits will only be processed when the applicant demonstrates that it is either an FCC-licensed telecommunications provider or has in place agreements with an FCC-licensed telecommunications provider for use or lease of the support structure or tower (no tower may be built "on-spec").
Principal or accessory use. Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot.
Lot size. For the purpose of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to setback requirements, lot-coverage requirements and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels/areas within such lot.
Inventory of existing sites. Each applicant and the provider (for a proposed new tower) shall provide to the Town an inventory of their existing towers, antennas or sites approved for towers or antennas that are either within the jurisdiction of the Town of Hamburg or within 1/2 mile of the border thereof, including specific information about the location, height, and design of each tower. The Town will maintain records of this information and the Planning Department or the Code Enforcement Officer may share such information with other applicants applying for site plan approval or special use permits under this article or other organizations seeking to locate antennas within the jurisdiction of the Town of Hamburg; provided, however, that the Town official is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.
Aesthetics. Applications shall meet the following minimal requirements:
Towers shall either maintain a galvanized steel finish or, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness. Proposed color(s) shall be delineated on the site plan.
At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials, colors, textures, screening and landscaping that will blend them into the natural setting and surrounding buildings.
If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to or closely compatible with the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible (integrated into the structure, or stealth or camouflaging technology should be considered).
No new towers shall be a lattice tower.
Fencing. A well-constructed masonry or stone wall or privacy fence made of natural materials, not less than eight feet (for residential districts) or 10 feet (for nonresidential districts) in height from finished grade, shall be provided around each antenna and/or tower and shall also be equipped with an anticlimbing device. Access to the tower shall be through a locked gate. No barbed wire shall be used. Use of chain-link and PVC fencing is prohibited.
Lighting. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views or residential homes.
State or federal requirements. All towers and antennas must meet or exceed current standards and regulations of the FAA, the FCC and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this article shall bring such towers and antennas into compliance with such revised standards and regulations within six months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense.
Building codes; safety standards. To ensure the structural integrity of towers and antennas, the owner of a tower or antenna shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the Town of Hamburg concludes that a tower or antenna fails to comply with such codes and standards and constitutes a danger to persons or property, then, upon notice being provided to the owner of the tower or antenna, the owner shall have 30 days to bring such tower or antenna into compliance with such standards. Failure to bring such tower or antenna into compliance within said 30 days shall constitute grounds for the removal of the tower or antenna at the owner's expense.
Measurement. For purposes of measurement, tower setbacks shall be calculated and applied to facilities located in the Town of Hamburg irrespective of municipal and county jurisdictional boundaries.
Licenses or agreements. Owners and/or operators of towers or antennas shall certify that all licenses or agreements required by law by any governmental entity, including the Town of Hamburg, now or in the future for the construction and/or operation of a wireless communication system in the Town of Hamburg have been obtained and shall file a copy of all required licenses and agreements with the Office of Planning and Development or the Code Enforcement Officer.
Buildings and support equipment. Buildings and support equipment associated with antennas or towers shall comply with the requirements of § 280-335.
Multiple antenna/tower plan. The Town of Hamburg encourages the users of towers and antennas to submit a single application for approval of multiple towers and/or antenna sites. Applications for approval of multiple sites shall be given priority in the review process.
The owner of any tower or antenna shall provide the Town Clerk with a demolition/removal bond equal to the cost of removal of the tower or antenna. Said bond shall be reviewed and approved by the Town Attorney.
The owner of any tower or antenna shall provide information detailing the purpose for the proposed antenna or tower.
All applicants/applications under this article must comply with the State Environmental Quality Review Act (SEQRA).
Unless otherwise provided, new towers and antennas and their related structures shall comply with all existing setbacks within any zoning districts. Additional setbacks may be required by this article, the Code Enforcement Officer, Planning Board, or the Town Board, as applicable, to contain on-site substantially all ice-fall or debris from tower failure and/or to comply with the purpose of this article. This Code may include setback requirements for tower parts, including guy wire anchors, and to any accessory facilities.
A petitioner may be required to submit the appropriate environmental assessment form and a visual addendum. Based on the results of the analysis, including the visual addendum, the Town may require submission of a more detailed environmental and visual analysis. The scope of the required environmental and visual assessment will be reviewed at the preapplication meeting.
The petitioner, if required, shall furnish a visual impact assessment, which shall include:
Elevation drawings of the proposed facility, and any other proposed structures, showing height above ground level;
A landscaping plan indicating the proposed placement of the facility on the site; location of existing structures, trees, and other significant site features; the type and location of plants proposed to screen the facility; the method of fencing, the color of the structure, and the proposed lighting method;
Photo simulations of the proposed facility taken from perspectives determined by the Planning Board, or their designee, during the preapplication conference. Each photo must be labeled with the line of sight, elevation, and with the date taken imprinted on the photograph. The photos must show the color of the facility and method of screening.
A narrative discussing:
The extent to which the proposed facility would be visible from, but not limited to state highways, major roads, state and local parks, public lands, historic districts, preserves, historic sites, archaeological sites, environmental conservation areas, any other location where the site is visible to visitors, travelers, employees, or residents; and
The tree line elevation of vegetation within 100 feet of the facility.
Property boundaries (copy of property survey), along with the location of all existing structures on the property and the location(s) of all existing structures on the adjacent properties within 50 feet of the property lines.
The distance between the proposed tower and the existing structures on the subject property and the adjacent properties, located within 50 feet of the property lines.
A written description of how the proposed facility fits into the applicant's telecommunications network. This submission requirement does not require the disclosure of confidential business information.
Evidence demonstrating that no existing building, tower, or structure can accommodate the applicant's proposed facility, the evidence for which may consist of any one or more of the following:
Evidence that no existing facilities (building, tower or other structure) are located within the targeted market coverage area as required to meet the applicant's engineering requirements;
Evidence that existing facilities do not have sufficient height or cannot be increased in height at a reasonable cost to meet the applicant's engineering requirements,
Evidence that existing facilities do not have sufficient structural strength to support applicants proposed antenna and related equipment. Specifically:
Planned, necessary equipment would exceed the structural capacity of the existing facility, considering the existing and planned use of those facilities, and these existing facilities cannot be reinforced to accommodate the new equipment.
The applicants proposed antenna or equipment would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna or equipment on the existing facility would cause interference with the applicants proposed antenna.
Existing or approved facilities do not have space on which planned equipment can be placed so it can function effectively.
For facilities existing prior to the effective date of this ordinance, evidence that the fees, costs, or contractual provisions required by the owner in order to share or adapt an existing facility are unreasonable. Costs exceeding the pro rata share of a new facility development are presumed to be unreasonable. This evidence shall also be satisfactory for a tower built after the passage of this ordinance (it should be noted that facilities built in the Town in accordance with the Town law must allow co-location on the tower);
Evidence that the applicant has made diligent good faith efforts to negotiate co-location on an existing facility, building, or structure, and has been denied access.
If the proposed tower is found by the Planning Board to be a good location, the petitioner may be asked to examine the feasibility of designing a proposed tower to accommodate future demand (co-locators) for a minimum of three to five additional commercial applications. The tower shall be structurally designed to accommodate a minimum of three to five additional antenna arrays equal to those of the petitioner, and located as close to the petitioner's antenna as possible without causing interference. This requirement may be waived, provided that the petitioner, in writing, demonstrates that the provisions of future shared usage of the Tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:
The foreseeable number of FCC licenses available for the area;
The kind of wireless telecommunication facility site and structure proposed;
The number of existing and potential licenses without wireless telecommunications facilities' spaces/sites; and
Available space on existing and approved towers.
Petitioner/applicant may not bypass sites of higher priority by stating the site proposed is the only site leased or selected. An application shall address co-location as an option. If such option is not proposed, the petitioner must explain to the reasonable satisfaction of the Planning Board why co-location is commercially impracticable or otherwise impracticable. Agreements between providers limiting or prohibiting co-location shall not be a valid basis for any claim of commercial impracticability or hardship.
Notwithstanding the above, the Planning Board may approve any site located within an area in the above list of priorities, provided that the Planning Board finds that the proposed site is in the best interest of the health, safety, and welfare of the Town and will further the policies and goals set forth in the Town's laws and Comprehensive Plan.
The petitioner shall submit a written report demonstrating the petitioner's review of the above locations in order of priority, demonstrating the technological reason for the site selection. If appropriate, based on selecting a site of lower priority, a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.
Traffic, access, and safety (for new towers):
A road turnaround and one parking space shall be provided to assure adequate emergency and service access. Maximum use of existing roads, public or private, shall be made. The use of public roadways or road rights-of-way for the siting of a tower or antenna(s) accessory structures is prohibited. All applicable county, state, and federal regulations for traffic ingress and egress and fire access shall apply.
No tower shall contain any signs or advertising devices. A small sign, to be approved by the Planning Board, shall be placed on fencing surrounding the base of the tower identifying the owner of the facility, owner's physical mailing address, owner's telephone number, and owner's e-mail address.
The Planning Board may request evaluation of alternative tower designs to include, but not be limited to: stealth technology, flush mounted arrays, and concealed tower designs (e.g. monopines/trees, lighthouses, windmills, water towers, etc.).
Proof of landowner's consent if the applicant will not own the property (a copy of a lease agreement must also be provided if the applicant will not own the property).
"Before" and "after" propagation studies prepared by a qualified (licensed) radio frequency engineer, demonstrating existing signal coverage, contrasted with the proposed signal coverage resulting from the proposed telecommunications facility.
A "search ring" prepared by a qualified (licensed) radio frequency engineer 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 Planning Board 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 a co-located antenna(s), and to what extent the applicant explored locating the proposed tower in a more intensive use district. Correspondence with other telecommunications companies concerning co-location is part of this requirement.
§ 280-340 Special use permits.
The following provisions shall govern the issuance of special use permits for the construction of new towers or other new facilities requiring a special use permit.
Applicants for a special use permit under this section are also subject to the site plan review requirements of Article XLIV of the Zoning Local Law of the Town of Hamburg and this article.
Applications for special use permits under this section shall be subject to the procedures and requirements of Article XLVI of the Zoning Local Law of the Town of Hamburg and the procedures and requirements of this article.
In granting a special use permit, the Planning Board may impose conditions to the extent such conditions are necessary to minimize any adverse effect of the proposed tower and antenna on adjoining properties.
Any information of an engineering nature that the applicant submits, whether civil, mechanical or electrical, shall be certified by a licensed professional engineer.
An applicant for a special use permit shall submit the information described in this section and a nonrefundable fee as established by resolution of the Town Board of the Town of Hamburg.
Compliance with the requirements of this article shall be required.
New towers.
Information required. In addition to any information required for applications for special use permits pursuant to Article XLVI of the Zoning Local Law of the Town of Hamburg, applicants for a special use permit for a tower shall submit the following information:
A description of compliance with requirements of this article (including the information required in § 280-333) and all applicable federal, state, or local laws.
A notarized statement by the applicant as to whether construction of the tower will accommodate co-location of additional antennas for future users.
Identification of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the Town of Hamburg.
A description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower/structure.
A description of the feasible locations/areas of future towers or antennas within the Town of Hamburg based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower is erected.
Proof of notification (certified mail return receipts to be given to the Town by the applicant) of all property owners within 500 feet of the boundaries of the property that the tower is to be constructed.
Factors considered in granting special use permits for towers. In addition to any standards for consideration of special use permit applications pursuant to Article XLVI of the Zoning Local Law of the Town of Hamburg. The Planning Board of the Town of Hamburg shall consider the following factors in determining whether to issue a special use permit:
Height of the proposed tower or the increase in height proposed to any existing tower;
Proximity of the proposed or existing tower to residential structures and residential zoning district boundaries;
Nature of uses on adjacent and nearby properties;
Surrounding topography;
Surrounding tree coverage and foliage;
Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;
Proposed ingress and egress; and
Availability of suitable existing towers, other structures or alternative technologies not requiring the use of towers or structures, as discussed in this article.
The proof required by this article that the tower is needed and that the location is in the most preferred location (as described in this article and below).
Availability of suitable existing towers, other structures or alternative technology. No new tower or tower reconstruction, relocation or height increase shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Planning Board of the Town of Hamburg that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's proposed antenna. An applicant shall submit information requested by the Planning Board related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following:
No existing towers or structures are located within the geographic area which meet applicant's engineering requirements.
Existing towers or structures are not of sufficient height to meet applicant's engineering requirements.
Existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment.
The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna.
The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable.
The following setback requirements shall apply to all towers for which a special use permit is required:
For a tower to be located in a residential zoning district, towers must be set back a minimum distance equal to twice the height of the tower, including any proposed height increase, from any residentially zoned lot line.
Accessory buildings must satisfy the minimum zoning district setback requirements in the Hamburg Town Code and any specific requirements of this article.
Security fencing for towers. Towers shall be enclosed by security fencing as provided in this article.
The following requirements shall govern the landscaping surrounding towers and their equipment for which a special use permit is required:
Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound (buildings and equipment) from property used for residences. The standard buffer shall consist of a landscaped strip at least four feet wide outside the perimeter of the compound.
In locations where the visual impact of the tower's building and equipment would be minimal, the landscaping requirement may be reduced or waived.
Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. In some cases, such as towers sited on large, wooded lots, natural growth around the property perimeter may be sufficient buffer.
§ 280-340.1 Extent and parameters of special use permits for wireless telecommunications facilities.
Such special use permit shall be nonexclusive.
Such special use permit shall not be assigned, transferred, or conveyed without the express prior written notification to the Town within 30 days prior to such assignment, transfer, or conveyance.
Such special use permit may, following a hearing upon due prior notice to the petitioner, be revoked, canceled, or terminated for a violation of the conditions and provisions of the special use permit, or for a material violation of this local law after prior written notice to the holder of the special use permit.
§ 280-340.2 Retention of expert assistance and reimbursement by petitioner.
The Town may hire a qualified consultant and/or expert necessary to assist the Town in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any requests for recertification. Prior to hiring such consultant, the Town will determine an appropriate scope for such services.
If the Town hires a qualified consultant/expert, the petitioner shall deposit with the Town funds sufficient to reimburse the Town for all reasonable costs of a qualified consultant and expert evaluation and consultation to the Town in connection with the review of any application including the construction and modification of the site, once permitted. The initial deposit shall be determined by the Town and a request sent to the applicant. The placement of these funds with the Town shall occur after the preapplication meeting and at the time of application. The Town will maintain a separate escrow account for all such funds. The Town's consultants/experts shall invoice the Town for its services in reviewing the application, including the construction and modification of the site, once permitted. If at any time during the process this escrow account has a balance less than $1,000, the petitioner shall immediately, upon notification by the Town, replenish said escrow account so that it has a minimum balance as stipulated by the Town (based on estimates provided by the consultant/expert). Such additional escrow funds shall be deposited with the Town before any further action or consideration is taken on the application. In the event that the amount held in escrow by the Town is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall be promptly refunded to the petitioner.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis, and inspection of any construction or modification.
§ 280-340.3 Administratively approved uses.
The following provisions shall govern the issuance of administrative approvals:
Applicants for administratively approved uses must comply with the applicable site plan submittal requirements of this article, as directed by the Code Enforcement Officer.
The Code Enforcement Officer may administratively approve the uses listed in this article.
Each applicant for administrative approval shall apply to the Code Enforcement Officer by providing them the information as specified by the Code Enforcement Officer and this article and submitting a nonrefundable fee as established by resolution of the Town Board of the Town of Hamburg.
The Code Enforcement Officer shall respond to each such complete application within 60 days after receiving it by either approving or denying the application.
If an administrative approval is denied, the applicant may file an application for a special use permit pursuant to this article in order to proceed.
§ 280-340.4 Buildings or other equipment storage.
Antennas mounted on structures or rooftops. The equipment cabinet or structure used in association with antennas shall comply with the following (note, that for some new towers, the applicant may propose an open equipment platform to eliminate the need for HVAC thus reducing noise):
The cabinet or structure shall not contain more than 300 square feet of gross floor area or be more than six feet in height. In addition, for buildings and structures which are less than 65 feet in height, the related unmanned equipment structure, if over 300 square feet of gross floor area or six feet in height pursuant to an area variance granted by the Zoning Board of Appeals of the Town of Hamburg, shall be located on the ground and shall not be located on the roof of the structure.
If the equipment structure is located on the roof of a building, the area of the equipment structure and other equipment and structures shall not occupy more than 25% of the roof area.
Equipment storage buildings or cabinets shall comply with all applicable building codes.
Antennas mounted on utility poles or light poles (microcells). The equipment cabinet or structure used in association with these antennas shall be located in accordance with the following:
In residential districts, the equipment cabinet or structure shall be sited using stealth technology (including locating them below grade) to the fullest extent practicable. In these residential districts and all zoning districts, the following shall apply:
Antennas located on towers. The related unmanned equipment structure shall not contain more than 300 square feet of gross floor area or be more than 12 feet in height and shall be located in accordance with the minimum yard requirements of the zoning district in which located.
§ 280-340.5 Removal of abandoned antennas and towers.
Any antenna or tower that is not operated for a period of 12 months shall be considered abandoned, and the owner of such antenna or tower shall remove the same within 90 days of receipt of notice from the Town of Hamburg notifying the owner of such abandonment. The Planning Board shall require the applicant to provide a demolition bond (in an amount determined by the Planning Board based on the cost of removal) for purposes of removing the tower in case applicant fails to do so as required above.
§ 280-341 Nonconforming uses.
Nonexpansion of nonconforming use. Towers that are constructed and antennas that are installed in accordance with the provisions of this article shall not be deemed to constitute the expansion of a nonconforming use or structure.
Preexisting towers. Preexisting towers shall be allowed to continue their usage as they presently exist. Routine maintenance shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall comply with the requirements of this article.
Rebuilding damaged or destroyed nonconforming towers or antennas. Notwithstanding § 280-336E, bona fide nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to first obtain administrative approval or a special use permit and without having to meet the setback requirements specified in this article. The type, height and location of the tower on site shall be of the same type and intensity as the original facility approval. Building permits to rebuild the facility shall comply with applicable building codes and shall be obtained within 180 days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in § 280-335E, hereof.
§ 280-342 Uses of premises owned or controlled by Town.
This section only applies to proposed towers on Town-owned parcels or rights-of-way.
General. All applicants who wish to locate a tower or antenna on Town land or ROWs must submit to the Office of the Code Enforcement Officer a completed application and detailed plan that complies with the requirements of this article and the Code of the Town of Hamburg and must furnish any other pertinent information as may be requested by the Town. In addition, such applicant shall submit along with the applications nonrefundable fee as shall be established by resolution of the Town Board of the Town of Hamburg. Any such application is subject to the site plan review requirements of Article XLIV of the Zoning Local Law of the Town of Hamburg. Upon receipt of any such complete application, within the 60 days, the Code Enforcement Officer shall issue a building permit if he is satisfied that the applicant is in compliance with the requirements contained herein or deny such application.
Towers on Town land. Towers or antennas may be located on Town land, provided that a license or lease authorizing such antenna or tower has been approved by the Town of Hamburg and further provided that the applicant complies with the provisions of this section.
Priority of users. Priority for the use of Town land for antennas and towers will be given to the following entities in descending order:
The Town of Hamburg;
Public safety agencies, including law enforcement, fire and ambulance services, which are not part of the Town of Hamburg and private entities with a public safety agreement with the Town of Hamburg;
Other governmental agencies, for uses which are not related to public safety; and
Entities providing licensed commercial wireless telecommunications services, including cellular, personal communication services (PSC), specialized mobilized radio (SMR), enhanced specialized mobilized radio (ESMR), data, Internet, paging and similar services that are marketed to the general public.
Placement. The placement of antennas or towers on Town land must comply with the following requirements:
The antennas or tower will not interfere with the purpose for which the Town land is intended.
The antennas or tower will have no adverse impact on surrounding private property.
The applicant is willing to obtain adequate liability insurance and commit to a lease agreement which includes equitable compensation for the use of Town land and other necessary provisions and safeguards.
The applicant will submit a letter of credit, performance bond or other security acceptable to the Town of Hamburg to cover the costs of the antenna or tower's removal.
The antennas or tower will not interfere with other users of Town land.
Upon reasonable notice, the Town of Hamburg may require the antenna or tower to be removed at the applicant's expense.
The owner of the tower or antenna must reimburse the Town of Hamburg for any costs which the Town incurs because of the presence of the antenna or tower.
The applicant must obtain all necessary land use approvals.
The applicant will cooperate with the Town of Hamburg's objective to promote co-locations and thus limit the number of separate antenna sites requested.
The applicant's continued compliance with the requirements of this article.
Special requirements. The use of certain Town land, such as water tower sites, parks and Town road right-of-way, for antennas or towers brings with it special concerns due to the unique nature of these sites. The placement of antennas or towers on these special Town lands will be allowed only when the following additional requirements are met:
Water tower or reservoir sites. The Town of Hamburg's water towers and reservoirs represent a large public investment in water pressure stabilization and peak capacity reserves. Protection of the quality of the Town's water supply is of prime importance to the Town. The placement of antennas or towers on water tower or reservoir sites will be allowed only when the Town is fully satisfied that the following requirements are met:
The applicant's access to the facility will not increase the risks of contamination to the Town's water supply;
There is sufficient room on the structure and/or on the grounds to accommodate the applicant's facility;
The presence of the facility will not increase the water tower or reservoir maintenance cost to the Town; and
The presence of the facility will not be harmful to the health of workers maintaining the water tower or reservoir.
Parks. The presence of certain antennas or towers represent a potential conflict with the purpose of some parks owned by the Town of Hamburg. In no case shall towers be allowed in designated conservation areas unless they are to be installed in areas which currently contain tower facilities. Antennas or towers will be considered only in the following parks after the recommendation of the Parks and Recreation Department, approval by the Town Board of the Town of Hamburg and NYS alienation procedures, if required:
Town road right-of-way. The Town of Hamburg Town Board may allow antennas to be placed on existing structures within the Town road right-of-way. New structures within the Town road right-of-way will only be allowed under extenuating circumstances and would need to follow the full requirements of this law. Antennas to be placed on existing structures will also require input from the Highway Department, the Engineering Department, the Town Attorney and the Building and Planning Departments. The designs will utilize stealth technology, and equipment will either be screened or placed underground. The Town will consider all financial impacts of the project and the possibility of yearly fees for use of these lands.
Termination. The Town Board of the Town of Hamburg may terminate any lease if it determines that any one of the following conditions exist:
A potential user with a higher priority as described in § 280-342 of this article cannot find another adequate location and the potential use would be incompatible with the existing use;
A user's frequency broadcast unreasonably interferes with other uses of higher priority as described in § 280-342 of this article regardless of whether or not this interference was adequately predicted in the technical analysis; or
A user violates any of the standards in this article or the conditions attached to the Town of Hamburg's lease or other authorization.
Before taking action, the Town of Hamburg will provide notice to the user of the intended termination and the reasons for it and provide an opportunity for the user to address the Town Board regarding the proposed action. This procedure need not be followed in emergency situations.
Reservation of right. Notwithstanding the above, the Town Board of the Town of Hamburg reserves the right to deny, for any reason, the use of any or all Town land by any one or all.
Master license agreement. The Town of Hamburg may utilize a master license agreement to address the requirements of this section and set the terms and conditions of utilizing ROWs.
§ 280-343 Severability.
If any section, subsection, phrase, sentence, or other portion of this article is for any reason held invalid, void, unconstitutional, or unenforceable by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions hereof.