Highlands City Zoning Code
ARTICLE VA
Telecommunication Towers
§ 210-36.1 Intent.
This article consists of an amendment to the Zoning Law of the Town of Highlands (Chapter 210 of the Town Code) to permit the construction of telecommunication towers in the Town of Highlands in certain places and under certain circumstances as a special exception use (§ 210-10[1]) and subject to site plan review (§ 210-21). The Town of Highlands intends, by the adoption of this article, to provide standards for the safe provision of telecommunications structures within the Town consistent with applicable federal and state regulations and protecting the natural features and aesthetic character of the Town.
[1]
Editor's Note: See § 210-10D(17) regarding telecommunication towers, antennas and accessory facilities.
§ 210-36.2 Definitions.
As used in this article, the following terms shall have the meanings indicated:
An accessory facility serves the principal use, is subordinate in area, extent and purpose to the principal use and is located on the same lot as the principal use. Examples of such facilities include transmission equipment and storage sheds.
A system of electrical conductors that transmit or receive radio frequency waves. Such waves shall include but not be limited to radio navigation, radio, television, wireless and microwave communications.
The primary sending and receiving site in a wireless telecommunications network. More than one base station and/or more than one variety of personal wireless service provider can be located on a single tower structure.
Unit of measure of the power level of an electromagnetic signal expressed in decibels, referenced to one milliwatt.
A structure located at a base station designed principally to enclose equipment used in connection with personal wireless service transmissions.
Effective radiated power.
A property, or any part thereof, which is owned or leased by one or more personal wireless service providers and upon which one or more personal wireless service facility(s) and required landscaping are located.
The testing protocol which is to be used to monitor the emissions from existing and new personal wireless service facilities upon adoption of this article. The Planning Board may, as the technology changes, require, by resolution, the use of other testing protocols.
A single self-supporting vertical pole, designed to be used for the purposes provided in the definition of "telecommunication tower" in this section, with no guy wire anchors, consisting of a galvanized or other unpainted metal, or a wooden pole with below-grade foundations.
An entity licensed by the Federal Communications Commission (FCC) to provide personal wireless services to individuals or institutions.
Commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services. These services include cellular services, personal communications services (PCS), specialized mobile radio services and paging services.
All equipment (including any repeaters) with which a personal wireless service provider broadcasts and receives the radio frequency waves which carry its services and all locations of said equipment or any part thereof. This facility may be sited on one or more towers or structure(s) owned and permitted by another owner or entity.
Computer-generated estimates of the radiation emanating from antennas or repeaters sited on a specific tower or structure. The height above ground, power input and output, frequency output, type of antenna, antenna gain and topography of the site and its surroundings are all taken into account to create these simulations. They are the primary tool for determining whether a site will provide adequate coverage for the personal wireless service facility proposed for that site.
A small receiver/relay transmitter of not more than 20 watts' output designed to provide service to areas which are not able to receive adequate coverage directly from a base station.
A lattice structure or framework, a monopole or any other structure whose height is greater than its width that is designed to support personal wireless service facility (PWSF), transmitter, receiving and/or relaying antennas and/or related equipment.
A facility utilizing satellite dishes of greater than 2.0 meters in diameter designed to uplink to communications satellites for transmitting in the C-Band (4-6 GHz) spectrum.
Any PWSF, transmitter, antenna or tower which is not operated for a continuous period of five months shall be considered an unused wireless communication antenna.
§ 210-36.3 Purpose.
A.
The purpose of these regulations is to:
(1)
Preserve the character and appearance of the Town while simultaneously allowing adequate personal wireless services to be developed.
(2)
Protect the scenic, historic, environmental and natural or man-made resources of the community.
(3)
Provide standards and requirements for regulation, placement, construction, monitoring, design, modification and removal of PWSF.
(4)
Provide a procedural basis for action within a reasonable period of time for requests for authorization to place, construct, operate or modify PWSF.
(5)
Preserve property values.
(6)
Minimize the total number and height of towers throughout the community.
(7)
Locate towers so that they do not have negative impacts, such as but not limited to attractive nuisance, noise and falling objects, on the general safety, welfare and quality of life of the community.
(8)
Require owners of towers and PWSF to configure them so as to minimize and mitigate any adverse visual impact of the towers and facilities.
(9)
Encourage tower sharing and the clustering of PWSF where possible.
(10)
Locate towers so as to provide adequate coverage and adequate capacity with the least number of towers and antennas which is technically feasible.
B.
These regulations are not intended to prohibit or have the effect of prohibiting the provision of personal wireless services, nor shall they be used to unreasonably discriminate among providers of functionally equivalent services consistent with current federal regulations.
§ 210-36.4 Procedure.
A.
All proposals to erect or operate personal wireless communication facilities shall be accompanied by a facility service plan which shall include information necessary to allow the Planning Board to understand the existing, proposed and long-range plans of the applicant. Through the facility service plan the applicant shall provide a statement explaining the rationale and justification for the proposed PWSF, transmitter, antenna or tower in the proposed location. The facility service plan shall include at least the following information:
(1)
Written documentation of any facility sites within 20 miles in any direction of the proposed site in which the applicant has a legal or equitable interest, whether by ownership, leasehold or otherwise. From each such facility site, it shall demonstrate with written documentation that these facility sites are not already providing, or do not have the potential by adjusting the site to provide, adequate coverage and/or adequate capacity to the Town of Highlands. The document shall include for each facility site listed the exact location (in longitude and latitude, to degrees, minutes and seconds), ground elevation, height of tower or structure, type of antennas, antenna gain, height of antennas on tower or structure, output frequency, number of channels, power input and maximum power output per channel. Potential adjustments to these existing facility sites, including changes in antenna type, orientation, gain, height or power output, shall be specified. Radial plots showing the effective radiated power (ERP) from each of these facility sites, as they exist and with adjustments as above, shall be provided as part of the application.
(2)
A commitment to collocate or allow collocation wherever possible on all existing and proposed facilities. This commitment shall be demonstrated with written documentation that the applicant has examined all facility sites within 20 miles in any direction of the proposed site in which the applicant has no legal or equitable interest, whether by ownership, leasehold or otherwise, to determine those existing facility sites can be used to provide adequate coverage and/or adequate capacity to the Town of Highlands. The documentation shall include, for each facility site examined, the exact location (in longitude and latitude, to degrees, minutes and seconds), ground elevation, height of tower or structure, type of antennas proposed, proposed antenna gain, height of proposed antennas on tower or structure, proposed output frequency, proposed number of channels, proposed power input and proposed maximum power output per channel. Radial plots from each of these facility sites, as proposed, shall be provided as part of the application.
(3)
Demonstration with written documentation that the applicant has analyzed the feasibility of repeaters in conjunction with all facility sites listed in compliance with Subsection A(1) and (2) to provide adequate coverage and/or adequate capacity to the Town of Highlands. Radial plots showing the effective radiated power (ERP) of all repeaters considered for use in conjunction with these facility sites shall be provided as part of the application.
B.
The applicant shall provide funds as required by the Planning Board to an escrow account to allow the Building Inspector and/or the Planning Board to retain such technical experts as may be necessary in their discretion to review the application.
C.
Prior to or concurrent with the filing of a formal application to the Planning Board to obtain a special permit under this article, the applicant shall submit information needed to meet the requirements of the New York State Environmental Quality Review Act (SEQRA) to the Planning Board, which Board shall determine whether the requirements of SEQRA have been met. Until a final SEQRA determination has been made, no application for a special permit under this article shall be granted. For purposes of this section, all proposed towers shall be considered Type 1 actions.
§ 210-36.5 Information required for wireless communication antennas.
For all proposed wireless communication antennas, the following additional information shall be provided:
A.
Name and address of the property owner and the applicant.
B.
Address, lot and block and/or parcel number of the property.
C.
Zoning district in which the property is situated.
D.
Name and address of person preparing the plan.
E.
Size of the property and the location of all lot lines.
F.
Approximate location of all residential structures within 500 feet.
G.
Approximate location of all occupied structures within 500 feet.
H.
Location of all structures on the property which is the subject of the application.
I.
Location, size and height of all proposed and existing PWSF, antennas, transmitters and all appurtenant structures on the property within 500 yards.
J.
Type, size and location of all proposed landscaping.
K.
A report by a New York State licensed professional engineer documenting compliance with applicable structural standards and describing the general structural capacity of any proposed installation at the cost of the applicant.
L.
A description of the proposed PWSF, antennas, transmitters and all related fixtures, structures, appurtenances and apparatus, including height above grade, materials, color and lighting.
M.
A description of the function and purpose of the PWSF, transmitters and antenna.
N.
The make, model and manufacturer of the PWSF, transmitters and antenna.
O.
The frequency, modulation and class of service.
P.
Transmission and maximum effective radiated power.
Q.
Direction of maximum lobes and associated radiation and compliance with FCC regulations.
R.
If the name or address of the owner or operator of the PWSF, transmitters and antenna facility is changed, the Building Inspector of the Town of Highlands shall be notified of the change within 90 days of any transfer.
S.
Within 90 days of installation and/or operating any transmitting PWSF, transmitter and antenna, the owner or operator shall submit to the Building Inspector a written certification by a New York State licensed professional engineer (for monopole or tower installations) that the PWSF, transmitter and antenna comply with the Town of Highlands Code and all other applicable governmental regulations.
T.
Consent by the applicant to allow additional antennas (for purposes of collocating) on any new antenna towers, if feasible.
§ 210-36.6 Requirements applicable to all PWSF's, transmitters and antennas.
For all proposed wireless communication antennas the following requirements are applicable:
A.
For proposed sites within 500 feet of other sources of radio frequency (RF) energy, emanating from other wireless communication facilities, the applicant shall provide an estimate of the maximum total exposure from all nearby stationary sources and comparison with relevant standards. This assessment shall include individual and ambient levels of exposure. It shall not include residentially based facilities such as cordless telephones.
B.
All obsolete or unused wireless communication antennas (including tower supports) shall be removed within 60 days of cessation of operations at the site. The applicant shall, as a condition of the special permit, provide a financial surety bond payable to the Town of Highlands and acceptable to the Town Board to cover the cost of removal of the PWSF, transmitter or antenna and the remediation of the landscape.
C.
All wireless communications facilities shall be identified with signs, not to exceed six square feet, which shall list the owner or operator's name and emergency telephone number and which shall be posted in a conspicuous place. Commercial advertisements are prohibited from being posted on or around towers in the Town of Highlands.
D.
No source of nonionizing electromagnetic radiation (NICER), including facilities operational before the effective date of this section, shall exceed the federal or state NICER emission standard.
E.
New antennas and supporting towers shall be designed to accommodate additional antennas, and supporting towers shall be designed to accommodate additional antennas for purposes of collocating.
§ 210-36.7 Antenna locations where public exposure is likely.
For roof-mounted, collocated or other situations wherein a special permit is required hereunder, the application shall include:
A.
An assessment of potential public exposure to radio frequency (RF) energy from the proposed facility, indicating the facility's maximum designed output and compliance with applicable federal or state standards. The applicant shall identify the maximum exposure level, the locations at which this occurs and the estimated RF levels at specific locations of community interest, such as schools, residences or commercial buildings. Assumptions used in the calculations shall be stated, including building heights and topography.
B.
A multiple source exposure impact assessment shall be prepared if the wireless communication facility is to be situated on the same site as existing facilities, such as a tower or roof.
C.
Evidence that the maximum exposure to the general public will not exceed federal or state standards.
D.
An identification of rooftop areas to which the public may have access. The exposure in these areas shall be in compliance with the standards established by any federal or state agencies.
E.
An identification of how much of the roof, if any, should be designated a "controlled environment" due to RF field levels in accordance with the applicable federal or state standard.
F.
Notification to the building management if any portion of the roof needs to be identified as a "controlled environment" due to RF levels in excess of the guidelines in the applicable federal or state standards.
§ 210-36.8 Requirements applicable to roof-mounted PWSF, transmitters and antennas.
A.
PWSF, transmitters and antennas shall not be placed more than 15 feet higher than the height limitation for buildings and structures within the zoning district in which the antenna is proposed to be erected.
B.
PWSF, transmitters and antennas may be set back from the outer edge of the roof a distance equal to or greater than 10% of the rooftop length and width, or such antennas may be attached directly to the roof parapet wall, whichever in the Planning Board's opinion will have the minimal visual impact while achieving signal coverage requirements.
C.
If the Planning Board requests, antennas shall be the same color as the predominant color of the exterior of the top floor or parapet of the building, except to the extent required by law.
§ 210-36.9 Requirements applicable to new wireless communication towers.
A.
The applicant shall demonstrate to the Planning Board that no tower exists on which the antenna may collocate, or that collocation is not feasible for any of the following reasons:
(1)
The applicant's network of antenna locations is not adequate to properly serve its customers, and the use of facilities of other entities is not suitable for physical reasons.
(2)
Adequate and reliable service cannot be provided from existing sites in a financially and technologically feasible manner consistent with the service provider's system requirements.
(3)
Existing sites cannot accommodate the proposed antenna due to structural or other engineering limitations.
B.
Any application for the approval of a special permit for a wireless communication facility shall include a report, by a qualified engineer, health physicist or other qualified professional as determined by the Planning Board, which calculates the maximum amount of nonionizing electromagnetic radiation (NICER) which will be emitted from the proposed wireless communication facility upon its installation and demonstrates that the facility will comply with the applicable federal or state standards.
§ 210-36.10 NICER measurements and calculations.
All applicants for wireless communication antennas in any district shall submit calculations of the estimated NICER output of the antenna(s). The calculations shall be provided to the Planning Board at the time of making the application for special permit. NICER levels shall be measured and calculated as follows:
A.
Measuring equipment used shall be generally recognized by the Environmental Protection Agency (EPA), the FCC (if applicable), the National Council on Radiation Protection and Measurement (NCRPM), the American National Standards Institute (ANSI) or the National Bureau of Standards (NBA) as suitable for measuring NICER at frequencies and power levels of the proposed and existing sources of NICER.
B.
Measuring equipment shall be calibrated as recommended by the manufacturer in accordance with methods used by the NBS and ANSI, whichever has the most current standard.
C.
The effect of contributing individual sources of NICER within the frequency range of a broadband measuring instrument may be specified by separate measurement of these sources using a narrowband measuring instrument.
D.
NICER measurements shall be taken based on maximum equipment output. NICER measurements shall be taken or calculated when and where NICER levels are expected to be highest due to operating and environmental conditions.
E.
NICER measurements shall be taken or calculated along the property lines at an elevation six feet above grade at such locations where NICER levels are expected to be highest and at the closest occupied structure.
F.
NICER measurements shall be taken or calculated following spatial averaging procedures generally recognized and used by experts in the field of RF measurement or other procedures recognized by the FCC, EPA, NCRPM, ANSI and NBS.
G.
NICER calculations shall be consistent with FCC Office of Science and Technology (OST) Bulletin 65 or other engineering practices recognized by the EPA, NCRPM, ANSI, NBS or similarly qualified organization.
H.
Measurements and calculations shall be certified by a New York State licensed professional engineer specializing in radio frequency engineering or a health physicist. The measurements and calculations shall be accompanied by an explanation of the protocol, methods and assumptions used.
§ 210-36.11 Bulk height and regulations.
A.
In residential districts, all wireless communication facilities shall comply with yard requirements of this chapter for principal buildings. No wireless communication facilities may be located between the principal structure and the street.
B.
In nonresidential districts, wireless communication facilities may be in side or rear yards, as established in this chapter as acceptable to the Planning Board, but not in buffers shown on an approved site plan or in a conservation or similar easement. No wireless communication facilities may be located between the principal structure and the street.
C.
In all residential districts, wireless communication facilities shall not exceed 150 feet in height and all such communication facilities shall be erected with each and all setbacks at least 150% of the height of the communication facility unless the requirements of Subsection D below are met. In nonresidential districts, wireless communication facilities shall not exceed 150 feet in height unless the requirements of Subsection D below are met. These height requirements shall supersede those of the zoning ordinance.
D.
The Planning Board in its site plan review shall have the power to waive the height requirements contained in this article and permit a height greater than that set forth above, provided that:
(1)
The proposed height does not exceed 200 feet.
(2)
The proposed height is the minimum height necessary for adequate operation to meet the applicant's communication need, and the aesthetic intrusion has been minimized to the greatest extent practicable.
(3)
The site or building on which the facility is proposed to be installed does not become nonconforming or increase in nonconformity by reason of the installation of wireless communication facilities. This includes but is not limited to yard, buffer, height, floor area ratio for equipment buildings, parking, open space and other requirements. Height requirements of this chapter shall apply to buildings and equipment shelters.
E.
PWSF, transmitters and antennas, whether roof-side or tower mounted, shall not be located within 1,000 feet, on a horizontal plane, of any structure existing at the time of application which is occupied or habitable as a school (either public or private).
F.
No tower-mounted PSWF, transmitter or antenna shall be located closer than 1,000 feet to an existing dwelling unit or less than 25 feet above the ground.
G.
There is evidence that the applicant has given due consideration to the effect of the proposed facility on any historic sites listed or eligible for listing in the National Registry of Historic Places.
§ 210-36.12 Parameters of appropriate siting.
The proposed locations are ranked in the following order of preference:
A.
Property owned or under the control of the federal or state governments subject to Section 704 of the Telecommunication Act of 1996.
B.
Shared use of existing personal wireless service facilities (shall be encouraged).
C.
Clustering of towers; applications for towers adjacent to existing towers (shall be encouraged).
D.
The use of lands where visual impact can be minimized and mitigated (shall be encouraged).
E.
The use of repeaters to provide adequate coverage without requiring new towers (shall be encouraged).
F.
The use of land distant from higher-density residential properties and where visual and auditory impact can be minimized (shall be encouraged).
§ 210-36.13 Approval criteria.
The Town Planning Board shall, in consultation with its independent consultants, make all of the applicable findings before granting a special permit, as follows:
A.
That the applicant is not already providing adequate coverage and/or adequate capacity to the Town of Highlands.
B.
That the applicant has exhausted the requirements of the public necessity standard in the siting of PWFS's, transmitters, antennas and towers by showing that there are no other locations which can accomplish the goal of adequate capacity and adequate coverage that meet the parameters of appropriate siting in § 210-36.12 to a higher degree.
C.
That the applicant is not able to use existing tower/facility sites either with or without the use of repeaters to provide adequate coverage and/or adequate capacity to the Town of Highlands.
D.
That the applicant has agreed to rent or lease available space on the tower under the terms of a fair-market lease, without discrimination to other personal wireless service providers.
E.
That the proposed wireless service facility or tower will not have an undue adverse impact on historic resources, scenic views, residential property values or natural or man-made resources.
F.
That the applicant has agreed to implement all reasonable measures to mitigate the potential adverse impacts of the facilities.
G.
That the proposal shall comply with FCC Regulation 96-326 regarding emissions of electromagnetic radiation, and the required monitoring program is in place and shall be paid for by the applicant.
§ 210-36.14 Visual impact.
A.
Personal wireless services facility transmitters, antennas and towers shall be, when possible, sited off ridge lines where the visual impact is least detrimental to significant scenic areas.
B.
For all buildings or equipment shelters to be located in a residential zoning district, the equipment shelter shall be treated in an architectural manner compatible with the homes in the vicinity.
§ 210-36.15 Landscaping requirements.
For any new wireless communication towers, landscaping shall be provided as follows:
A.
In determining the most appropriate landscaping to be provided, the Planning Board shall consider the visual impact of the proposed facility in its setting with regard to immediate proximity of observers and the sight lines from major viewing points.
B.
The area surrounding the installation shall be landscaped and maintained with trees, shrubs and ground cover to maximize screening.
C.
Any buildings or other equipment shelters associated with the antenna facility shall be landscaped with evergreen trees or shrubs of sufficient size and density to screen, in whole or in part, and effectively mitigate the appearance of the structures and buildings. Any antenna facility requiring a tower or pole shall plant trees around the facility of a minimum height of 10 feet at planting that will, over time, reduce the visual impact from the tower or pole.
D.
When a security fence is required, the outside of such fencing shall be landscaped with evergreen shrubs, trees or climbing evergreen material on the fencing or may contain wooden slats woven into the fence so as to mitigate and minimize the industrial character of the fence.
E.
An existing natural vegetative buffer, owned or controlled by the applicant, which meets or exceeds the above requirements, may be substituted to meet the landscape requirements set forth above.
§ 210-36.16 Color and lighting standards.
Except as specifically required by the Federal Aviation Administration (FAA) or the FCC, antennas, including the supporting structure and all related appurtenances, shall:
A.
Be colored to reduce the visual impact to the greatest degree possible or camouflaged to blend with the surrounding area.
B.
Not be illuminated, except that buildings may use lighting required by the New York State Fire Prevention and Building Code or when required for security reasons. When lighting is used, it shall be compatible with the surrounding neighborhood to the greatest degree practicable.
§ 210-36.17 Fencing and NICER warning signs.
§ 210-36.18 NICER exposure standards.
No antenna or combination of antennas shall expose the general public to NICER levels exceeding the standard of any federal or state agencies having jurisdiction. In addition, no antenna facility shall emit radiation such that the general public will be exposed to shock and burn in excess of the standards contained in ANSI C-95.1.
§ 210-36.19 Registration.
The Building Inspector shall keep a list of the names, addresses, type and maximum emissions of all antenna operators in the Town. This list shall be maintained from applications to the Planning Board and Building Inspector and from FCC or similar inventories of facilities in the Town. If the name or address of the owner or operator of the antenna facility is changed, the Building Inspector shall be notified of the change within 30 days.
§ 210-36.20 Performance standards for new antennas.
New antennas must comply with the performance standard that the estimated or measured NICER from a proposed antenna, when added to existing radio frequency electromagnetic radiation from existing sources, will not exceed the guidelines set forth in the applicable federal and state standards.
§ 210-36.21 Planning Board findings.
The Planning Board shall make written findings that the issuance of a special permit is in compliance with all of the requirements of this chapter.
§ 210-36.22 Expiration; issuance of certificate of use.
§ 210-36.23 Existing installations.
The operator of any personal wireless communication facility existing at the time that this article takes effect shall be permitted to remain in operation, provided that the operator submits proof within six months of the enactment of this article that the facility complies with the standards adopted by the Federal Communications Commission and all requirements of this article, as certified by a professional engineer with qualifications acceptable to the Town of Highlands. Operating antennas or towers for personal wireless facilities that are legally nonconforming with respect to the area regulations of this article shall be permitted to remain until such time as a request is made to modify the antenna or tower. Any facility for which emission, structural and security compliance documentation is not received shall cease operations within six months of the enactment of this article and be immediately removed thereafter in accordance with the provisions of this article. Any facility (antenna or tower) in a residential zoning district which is not operating as of the effective date hereof shall be considered to be nonconforming and shall be removed within six months of the enactment of this article.
§ 210-36.24 Exclusion and exemptions.
This section acknowledges the interest of the Federal Communications Commission in promoting amateur radio operations as expressed in FCC Order P.B.-1 by imposing the minimum practicable regulation on amateur radio antennas necessary to accomplish the Town's legitimate zoning purposes.
§ 210-36.25 Fees and insurance.
A.
Towers and personal wireless service facilities (PWSF) shall be insured by the owners(s) against public liability and damage to persons or property in the amount of $10,000,000. The owner(s) shall provide a certificate of insurance to the Town on an annual basis in which the Town of Highlands shall be an additional named insured at no cost to the Town.
§ 210-36.26 Intermunicipal notification of applications.
In addition to all other referral requirements for special permit and site plan applications, notification shall be made to all municipalities of all applications involving PWSF's, transmitters, antennas and towers where the coverage area is not separated from the Town line by an approved coverage area. With said referral, the Town shall request reciprocal referral of all applications in the adjacent municipality involving the same where the coverage area is not separated from the Town line by an approved coverage area.