Kirkland City Zoning Code

A. No antenna, tower or related facility shall be altered, changed, erected, installed, modified or used except after application and issuance of a special permit by the Zoning Board of Appeals and final approval of the site plan review by the Planning Board in accordance with Chapter 118 (entitled “Zoning”) of the Code of the Town of Kirkland.

B. The Zoning Board of Appeals is hereby authorized to review and approve, approve with modifications or disapprove special use permits pursuant to this article. The Zoning Board of Appeals and the Planning Board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed antenna, tower or accessory structures consistent with Town Law §§ 274-a and 274-b, or any amendments thereto.

As used in this article, the following terms shall have the meanings indicated:

ACCESSORY STRUCTURES – Accessory buildings or structures, including base stations designed and used to shelter equipment and/or to support PWS. The term “accessory structures” does not include offices, long-term storage of vehicles or other equipment storage or broadcast studios.

ANTENNA – A device used to transmit and/or receive radio or electromagnetic waves, including but not limited to directional antennas, such as panels and microwave dishes, and omnidirectional antennas, such as whip antennas.

PERSONAL WIRELESS SERVICES (PWS) – Commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services as defined by Section 704 of the Federal Telecommunications Act.

TOWER – Any ground- or roof-mounted pole, spire, structure or combination thereof taller than 15 feet, including supporting lines, cables, wires, braces and masts, built for the purpose of mounting an antenna, meteorological device or similar apparatus above grade.

The applicant shall pay to the Town Clerk the initial filing fee and an initial amount for the Town’s engineering expense.

A. The application fee shall be the sum of $2,500, which shall be forwarded to be Town Clerk at the time of the initial application. .

B. The Zoning Board of Appeals and/or the Planning Board may hire a licensed engineer to assist the Board in reviewing and evaluating any application and any request for recertification.

C. The applicant shall deposit with the Town a fund sufficient to reimburse a Town for all reasonable cost of the engineering expenses of the Town of Kirkland in connection with a review of any application or recertification. The initial deposit for such engineering fees shall be a sum not to exceed $3,500. The Town will maintain an account for all such funds. The engineer shall bill or invoice the Town along with the necessary voucher on a monthly basis for such engineering services.

D. If at any time during the review process this account is depleted, additional funds must be deposited with the Town before a further action or consideration is taken on the application. If at the conclusion of the review process, the cost of such engineering services is more than the amount deposited pursuant hereto, the applicant shall pay the difference to the Town prior to the issuance of any special permit. In the event that the amount held by the Town is more than the amount paid to the engineer, the difference shall promptly be refunded to the applicant.

No special use permit or renewal thereof or modification of a current special use permit relating to a telecommunications facility shall be authorized by the Zoning Board of Appeals or Planning Board unless it finds that such telecommunications facility:

A. Is necessary to meet current expected demands for service.

B. Conforms to all applicable regulations promulgated by the Federal Communications Commission, Federal Aviation Administration and other federal agencies.

C. Is considered a public utility in the State of New York.

D. Is designed and constructed in a manner which minimizes visual impact to the extent practical. Maximum height of a tower is limited to 150 feet above the ground upon which the antenna is placed. The Zoning Board of Appeals may allow towers up to 200 feet high if the applicant can demonstrate that, based upon the topography of the site and surrounding area, siting of the antenna, antenna design, surrounding tree cover and structures and/or through the use of screening, off-site views of the tower will be minimized. The height limitation may be waived by the Zoning Board of Appeals when the antenna is mounted on an existing building or structure or to accommodate collocation.

E. Complies with all other requirements of the Code of the Town of Kirkland, unless expressly superseded herein.

F. Is the most appropriate site among those available within the technically feasible area for the location of a telecommunications facility.

G. When including the construction of a tower, that such tower is designed to accommodate future shared use by other telecommunications service providers. Any subsequent location of telecommunications equipment by other service providers on existing towers specifically designed for shared use shall not require a new or modified special permit if there would be no increase in the height of the tower. However, the additional equipment will require site plan review.

No transmission tower shall hereafter be used, erected, moved, reconstructed, changed or altered except after approval of a special use permit and in conformity with these regulations. No existing structure shall be modified to serve as a transmission tower unless in conformity with these regulations.

A. These regulations shall apply to all property within all zoning districts within the Town of Kirkland.

B. Where these regulations conflict with other laws and regulations of the Town of Kirkland, the more restrictive shall apply, except for tower height restrictions which are governed by these special use standards.

An applicant shall be required to submit a site plan as described in § 118-18. The site plan shall show all existing and proposed structures and the improvements, including roads, and shall include grading plans for new facilities and roads. The site plan shall also include documentation on the proposed intent and capacity of use, as well as a justification for the height of any tower or antennas and justification for any land or vegetation clearing required.

A. The Zoning Board of Appeals or Planning Board shall require a state environmental quality-review (SEQR) environmental assessment form (EAF) for proposed facilities in the community. A visual environmental assessment form (visual EAF) may be required as an addendum to either the full or short EAF. The Zoning Board of Appeals or Planning Board may require submittal of a more detailed visual analysis based on the results of the visual EAF.

B. At all times, shared use of existing towers shall be preferred to the construction of new towers. Additionally; where such shared use is unavailable, location of antenna on preexisting structures shall be considered. An applicant shall be required to present an adequate report inventorying existing towers within reasonable distance of the proposed site and outlining opportunities for shared use of existing facilities and use of other preexisting structures as an alternative to a new construction.

C. In addition to any other decisions or determination, the Zoning Board of Appeals may also request a referral to the Planning Board prior to the issuance of a special permit or issue a permit subject to the site plan review by the Planning Board.

A proposal for a tower shall not be approved unless the Zoning Board of Appeals finds that the antenna planned for the proposed tower cannot be accommodated on an existing or approved tower or building within a one-mile search radius of the proposed tower due to one or more of the following reasons:

A. The antenna would exceed the structural capacity of the existing or approved tower or building, as documented by a qualified professional engineer, and the existing or approved tower cannot be reinforced, modified or replaced to accommodate the planned or equivalent antenna at a reasonable cost.

B. The antenna would cause interference materially impacting the usability of other existing or planned antenna at the tower or building as documented by a qualified professional engineer and the interference cannot be prevented at a reasonable cost.

C. Existing or approved towers and buildings within the search radius cannot accommodate the antenna at a height necessary to function reasonably as documented by a qualified professional engineer.

A. Any proposed tower shall be designed, structurally, electrically and in all respects, to accommodate both the applicant’s antennas and comparable antennas for at least two additional users if the tower is over 100 feet in height or for at least one additional user if the tower is over 60 feet in height. Towers must be designed to allow for future rearrangement of antennas upon the tower and to accept antennas mounted at varying height.

B. The applicant shall submit to the Zoning Board of Appeals a letter of intent committing the applicant, and his/her successors in interest, to negotiate in good faith for shared use of the proposed tower by other PWS providers in the future. The issuance of a permit (assuming the tower is approved according to this article) shall commit the new tower owner and his/her successors in interest to:

(1) Respond in a timely comprehensive manner to a request for information from a potential shared-use applicant.

(2) Negotiate in good faith concerning future requests for shared use of the new tower, by other PWS providers.

(3) Allow shared use of the new tower if another PWS provider agrees, in writing, to pay charges.

(4) Make no more than a reasonable charge for shared use.

In order to keep neighboring municipalities informed, and to facilitate the possibility of directing that an existing tall structure or existing tower in a neighboring municipality be considered for shared use, the Zoning Board of Appeals shall require that:

A. An applicant who proposes a new tower shall notify, in writing, the legislative body of each municipality that borders the Town of Kirkland and the County Planning Department. Notification shall include the exact location of the proposed tower and a general description of the project, including but not limited to the height of the tower and its capacity for future shared use. Documentation of this notification shall be submitted to the Board at the time of application.

B. In the case of new towers, the applicant shall be required to submit a report demonstrating good faith efforts to secure shared use from existing towers as well as documenting capacity for future shared use of the proposed tower. Written requests and responses for shared use shall be provided.

A fall zone around any tower constructed as part of a telecommunications facility must have a radius at least equal to the height of the tower and any antenna(s) attached upon its zenith. The entire fall zone may not include public roads and must be located on property either owned or leased by the applicant or for which the applicant has obtained an easement, and may not contain any structure other than those associated with the telecommunications facility. If the facility is attached to an existing structure, relief may be granted by specific permission of the Zoning Board of Appeals on a case-by-case basis.

A. All telecommunications facilities shall be located on a single parcel.

B. All telecommunications facilities shall comply with the setback standards of the underlying zoning district. The size of the leased or owned lot shall be, at a minimum, sufficiently large to include the entire fall zone. A lot leased or owned for the purpose of construction of a tower as part of telecommunications facility shall not result in the creation of a nonconforming lot.

C. The frontage requirement of the underlying zoning district shall not apply, provided that the telecommunications facility is not proposed on a parcel to be partitioned specifically for the Facility and/or is designed for occupancy by staff. In the absence of required frontage, an accessway for service vehicles, either through easement, lease or ownership, shall be in accord with § 118-50.13 herein.

All towers and accessory facilities shall be sited to have the least practical adverse visual effect on the environment.

A. Towers shall be not artificially lighted except to assure human safety as required by the Federal Aviation Administration (FAA). Towers shall be a galvanized finish or painted gray above the surrounding treeline and painted gray, green, black or similar colors designed to blend into the natural surroundings below the surrounding treeline unless other standards are required by the FAA. In all cases, structures offering slender silhouettes (i.e., monopoles or guyed tower) shall be preferable to freestanding structures except where such freestanding structures offer capacity for future shared use. Towers should be designed and sited so as to avoid, whenever possible, application of FAA lighting and painting requirements.

B. Accessory facilities shall maximize use of building materials, colors and textures designed to blend with the natural surroundings.

Existing on-site vegetation shall be preserved to the maximum extent possible.

A. No cutting of trees exceeding four inches in diameter (measured at a height of four feet off the ground) shall take place prior to approval of the special permit use. Clear-cutting of all trees in a single contiguous area exceeding 20,000 square feet shall be prohibited.

B. Deciduous or evergreen tree plantings may be required to screen portions of the tower from nearby residential property as well as from public sites known to include important views or vistas. Where the site abuts residential or public property, including streets, the following vegetative screening shall be required. For all towers, at least one row of native evergreen shrubs or trees capable of forming a continuous hedge at least 10 feet in height within two years of planting shall be provided to effectively screen the tower base and accessory facilities. In the case of poor soil conditions, planting may be required on soil berms to assure plant survival. Plant height in these cases shall include the height of any bean.

A road and parking will be provided to assure adequate emergency and service access. Maximum use of existing roads, public or private, shall be made. Road construction shall be consistent with standards for private road and shall at all times minimize ground disturbance and vegetation cutting to within the toe of fill, the top of cuts or no more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential. Public road standards may be waived in meeting the objectives of this section.

Towers and accessory structures shall be provided with security measures to prevent unauthorized entry.

The Zoning Board of Appeals shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed telecommunications tower special use permit, and the Planning Board shall have authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the site plan review.

At the time of submittal of the application of a special use permit for a telecommunications facility, the applicant shall submit an agreement to remove all antennas, driveways, structures, buildings, equipment sheds, lighting, utilities, fencing, gates, accessory equipment or structures, as well as any tower(s) dedicated solely for use within a telecommunications facility if such facility becomes technologically obsolete or ceases to perform its originally intended function for more than 12 consecutive months. Upon removal of said facility, the land shall be restored to its previous condition, including but not limited to the seeding of exposed soils.

At the time of obtaining a building permit and annually thereafter, the applicant and the owner of record of the telecommunications site shall jointly execute and provide a financial surety bond, issued by an insurance company licensed to do business in the State of New York, sufficient to assure the faithful performance of the terms and conditions of any special use permit issued herein. The full amount of the bond shall remain in effect throughout the term of the special permit and/or until the removal of the antenna, tower and accessories. The failure to pay the annual premium shall be a violation of the special permit and shall entitle the Zoning Board of Appeals to revoke the special permit after written notice to the permit holder, mailed by ordinary mail addressed to the name and address recorded by the permit holder in the Town Clerk’s office.

A. The amount of the bond shall be in an amount equal to the cost of the erected antenna, tower and related facility, as certified by the applicant’s licensed engineer, approved by the Town Board and filed with the Town Clerk.

B. At times of the renewal or modification of the special use permit, the Zoning Board of Appeals or the Planning Board may adjust the required amount of the financial security bond to adequately cover increases in the cost of removal of the telecommunications facility and property restoration.

The owner/operator of any telecommunications facility shall document annually whether or not the facility is operational and present such document to the Town Clerk and Town Code Enforcement Officer.

Each application for installation of an antenna shall include a certified statement that the installation of the antenna, including reception and transmission functions, will not interfere with radio or television service enjoyed by adjacent residential and nonresidential properties or with public safety telecommunications, A final certified statement of noninterference shall be provided and approved by the Planning Board prior to the issuance of a permit. The certified statement shall be prepared by a licensed professional engineer.

Antennas shall be subject to state and federal regulations pertaining to nonionizing radiation and other health hazards related to such facilities. The owner shall submit evidence of compliance with the generally accepted standard for the construction of the communication tower, including but not limited to, EIA\TIA-222-F, Structural Standards for Steel Antenna Towers and Antenna Supporting Structures, and with the FCC standards at the time the permit is issued and annually thereafter. If new more restrictive standards are adopted, the antennas shall be made to comply, or continued operations may be restricted by the Town Board. The cost of compliance shall be borne by the owner and operator of the tower.

The operator of every PWS antenna shall submit to the Town Clerk copies of all licenses and permits required by other agencies and governments with jurisdiction over the design, construction, location and operation of such antenna and shall maintain such licenses and permits and provide evidence of renewal or extension amount thereof when granted.

Every permit granting approval of the tower shall state that any assignment or transfer of the permits or any rights thereunder may be made only on approval of the Town Board of the Town of Kirkland.

The special permit shall be subject to review by the Zoning Board of Appeals at ten-year intervals, to determine whether the technology in the provision of the PWS has changed such that the necessity for the permit at the time of its approval has been eliminated or modified, and whether the permit should be modified or terminated as a result of such change.

Antennas and towers in existence, which do not conform to or comply with this article are subject to the following provisions:

A. Antennas and towers may continue in use for the purpose now used and as now existing, but may not be altered, modified, replaced or structurally altered without complying in all respects with this article.

B. If such antennas or towers arc hereafter damaged or destroyed due to any reason or cause whatsoever, the antenna or tower may be repaired and restored to its former use, location and physical dimensions without complying with this article; provided, however, that if the cost of repairing the tower to the former use, physical dimensions and location would be 10% or more of the cost of the new tower of like kind in quality, then the tower may not be repaired or restored except in full compliance with this article.

A. The penalties set forth in this section are in addition to the provisions relating to the termination or revocation of the special permit. Any person or corporation, whether as owner or lessee, agent or employee, which shall violate any provisions of this article or which fails to comply with any order or regulation made hereunder shall be guilty of an offense and, upon the conviction, shall be punished by a fine not exceeding $250 or imprisonment not exceeding six months, or both, in accordance with the provisions of Article 9 of the Town Law and any amendments thereto and any other statutes relating thereto.

B. Each violation shall constitute a separate additional violation and shall be subject to a separate and additional fine and/or penalty. For the purpose of conferring jurisdiction upon any court, including but not limited to the Town Court of the Town of Kirkland and the respective judicial officers generally, such violation shall be deemed misdemeanors, and for such purpose only, all provisions of law relating to misdemeanors shall apply to such violations.