Middletown, NY Zoning Ordinance

§ 475-27 Special occupancies.

No building or structure to be occupied for one or more of the following purposes or for similar special occupancies shall hereafter be erected, nor shall an existing building or structure or premises not used for one or more or such enumerated uses prior to the adoption of this chapter hereafter be altered or converted to such use or altered or converted from one to another of such enumerated uses, except by permission of the Planning Board in accordance with the provisions of § 475-53 and such other safeguards and conditions which the Planning Board may impose. The Planning Board may withhold such permission in its absolute discretion since the following uses are, by their very nature, deemed to be potentially hazardous or injurious to the health, safety and welfare of the citizens of the City of Middletown (and such uses, if allowed by the Planning Board, may only be allowed in an I-2 Heavy Industrial District or I-3 Heavy Industrial Restricted District.

Ammonia, chlorine or bleaching powder manufacture

Atomic research or radioactive materials

Auto or vehicle wrecking yards

Boiler making

Crematory

Cooperage

Distillation of coal, wood or bones

Dry-dyeing establishments

Dumps, incinerators or reduction works, or recycling establishments, or sewage and sludge treatment plants; solid waste establishments or solid waste transfer stations are allowable only on City-owned property

[Amended 2-21-2006]

The manufacture, sale or storage of explosives

Fat rendering

Fertilizer manufacture

Bulk fuel storage

The manufacture, sale or storage of gas, including bottled gas and propane

Glue, size and gelatin manufacture

Liquid petroleum gas distributing stations

Oilcloth or linoleum manufacture

Paint, oil, varnish or turpentine manufacture

Petroleum refining or storage

Pyroxylin manufacture

Rags and waste: sorting or storage

Rawhide or skins: storage, curing or tanning

Saw or planing mill

Slaughtering of animals

Soap manufacture

Starch, glucose or dextrine manufacture

Stockyards

Sulfurous, sulfuric, nitric or hydrochloric acid manufacture

Tallow, grease or lard manufacture or refining

Tar distillation or manufacture

Tar roofing or tar waterproofing manufacturing

§ 475-27.1 Minimum square footage for new single family dwellings.

[Added 12-17-2024; amended 1-21-2025]

All single family dwellings constructed in all zoning districts in the City of Middletown after the effective date of this resolution must contain at least 1,200 square feet of livable floor area, as that term is defined in § 475-4 of the Zoning Code.

§ 475-28 Sidewalk and outdoor cafes.

[Added 6-10-2002]

The outdoor and sidewalk cafe regulations as set forth in this section are designed to permit those cafes in areas where they are appropriate and to promote and protect the public health, safety and general welfare. Specific purposes of this section are:

(1)

To ensure adequate space for pedestrians on the sidewalk adjacent to outdoor and sidewalk cafes.

(2)

To preserve and enhance the character of neighborhoods through the City and to protect adjacent residential areas.

(3)

To simplify administrative and strengthen enforcement procedures for outdoor and sidewalk cafes that are effective, efficient and enforceable.

(4)

To promote the most desirable use of land and to provide compensation to the City for use of City-owned land for sidewalk cafe purposes.

For the purposes of this section, the following terms shall have the following meanings:

CITY CLERK

The City Clerk, Registrar and Clerk of the Common Council or his/her designee.

[Amended 1-7-2008]

OUTDOOR CAFE

Those exterior facilities adjacent to and a part of establishments selling food and/or drink, located entirely on private property, open to the elements except for awnings and/or low walls or fences, temporary or permanent in nature, such as rooftop cafes and those at street level, not using any City-owned property.

PERMIT

Written authorization issued by the City Clerk pursuant to this section permitting the operation of either an outdoor or sidewalk cafe.

SIDEWALK CAFE

Those exterior facilities adjacent to and a part of establishments selling food and/or drink that require the use of some City-owned property for operation, open to the elements except for awnings and/or temporary low walls or fences.

No outdoor or sidewalk cafe shall be allowed to operate unless a permit has been obtained from the City Clerk. The following procedures (which may be supplemented by the City Clerk as he/she deems necessary and appropriate) must be followed before the City Clerk can issue such permit:

(1)

Any request to operate an outdoor or sidewalk cafe must be in writing on such application form(s) as may be required or designated by the City Clerk.

(2)

Whenever the application provides for construction or alteration of existing premises, the applicant must also apply for and obtain a building permit from the Department of Public Works of the City before a permit can be issued by the City Clerk. The City Clerk's permit will be conditioned upon receipt of a certificate of occupancy or compliance from the City's Department of Public Works in connection with the building permit.

(3)

The application must be accompanied by a nonrefundable fee of $50 and shall include at least the following information

(a)

The name, address and telephone number of the applicant.

(b)

The name, address and telephone number of the establishment which is the subject of the application.

(c)

The days and hours for which the permit is requested.

(d)

Whether alcoholic beverages are to be served, and whether a license for the same has been obtained from the New York State Liquor Authority.

(e)

The number of tables and chairs desired for the area of the outdoor or sidewalk cafe, and a drawing or rendering of positions of tables and chairs relative to entrances and exits of the outdoor or sidewalk cafe and the main establishment to which the outdoor or sidewalk cafe is appended, and relative to the sidewalk.

(f)

A description of facilities and equipment to be used, including whether music is to be played and what devices are needed for the provision of such music, when applicable.

(g)

A site plan and property survey map, drawn to scale and prepared by a licensed surveyor and/or engineer, showing proper clearance around ingress and egress to the building and to fire safeguards, and also showing proper amount of clearance on the sidewalk for pedestrian traffic. The map must also indicate property lines and which property is owned by the applicant (or by the applicant's landlord) and which property is owned by the City (and if the property is not owned by the applicant, then the landlord's consent to the application must be indicated on the application).

(h)

Proof of insurance, in such forms and amounts as required by the Corporation Counsel.

(i)

An indication of all fixtures such as fencing, decking, awnings and/or planters to be used, and an indication of whether or not they will be removed when the outdoor or sidewalk cafe is closed.

(j)

Any other information as the City Clerk may deem reasonably necessary or appropriate for the fair determination as to whether a permit should be issued.

(4)

Prior to making a decision with respect to the permit application, the City Clerk shall send a copy of the application to the Commissioner of Public Works, the Corporation Counsel, the Chief of Police and the Chief of the Fire Department for their comments.

(5)

The City Clerk shall issue a permit upon a finding that the proposed outdoor or sidewalk cafe will not unreasonably interfere with the pedestrian traffic or use of the City-owned portion of property to be used; that the applicant has complied with the requirements of the City's Department of Public Works with respect to the building permit and any issues under the New York State Uniform Fire and Building Code; that the applicant has complied with the requirements of the Corporation Counsel with respect to insurance; that if the application is for a sidewalk cafe, the applicant has obtained approval of the Common Council of the City for the use of City-owned property; and that the applicant has met all other applicable provisions of this chapter of the City, including site plan and special use permit approval, if required, for the use of the main building to which the outdoor or sidewalk cafe area is appended for an eating and drinking establishment. Notice of permit issuance shall be given to the Commissioner of Public Works, the Corporation Counsel, the Chief of Police and the Chief of the Fire Department. The permit holder must also post the permit in a conspicuous place in the outdoor or sidewalk cafe so that the permit is visible from the street.

(6)

Notwithstanding the foregoing, the City Clerk may deny a permit upon a finding that the proposed outdoor or sidewalk cafe will have an undue adverse effect upon nearby property, the character of the neighborhood, vehicular traffic conditions, pedestrian traffic, parking, or other matters affecting the public health, safety, welfare or convenience.

(7)

In making the determination of whether or not to issue a permit, the City Clerk may hold an administrative hearing with the applicant for a permit and with any other interested persons to assist the City Clerk in making such a determination. Such hearing shall be upon five days' notice to the applicant, the Commissioner of Public Works, the Corporation Counsel, the Chief of Police, the Chief of the Fire Department and the President of the Common Council.

(8)

Any person or entity to whom or to which a permit is issued by the City Clerk shall be bound by all applicable federal, state and local rules, regulations, ordinances, local laws and statutes. The permit may be conditioned on the applicant making such modifications or conforming to such restrictions as may be necessary or appropriate to ensure compliance with the provisions of this section and to protect the public health, safety, welfare or convenience.

The person, persons or entities to whom permits are issued under this section, by applying for and accepting such permit, understand and agree that such person, persons or entities shall be liable to and shall indemnify the City against, and hold the City harmless from, any and all losses, damages, injuries and claims, including attorney fees, sustained by any person whatever by reason of the negligence of the person, persons or entities to whom or to which the permit shall have been issued, or which may arise from or be attributable to the operation of the outdoor or sidewalk cafe by the person, persons or entities to whom or to which the permit shall have been issued and such person's, persons' or entities' employees, agents, contractors, guests and invitees. The applicant for a permit shall present to the City a certificate of insurance, prior to the opening and operation of the outdoor or sidewalk cafe and prior to the issuance of the permit, which names the City as an additional insured. The amount and form of the insurance must be acceptable to the Clerk and the Corporation Counsel of the City. The City Clerk may, in his/her discretion, waive the requirement for insurance when circumstances warrant.

The City Clerk may revoke a permit issued under this section if the City Clerk finds that the person, persons or entities to whom or to which such a permit has been issued has violated any provision of this section or any other applicable federal, state or local rule, regulation, ordinance, local law or statute. In addition, the Police Department of the City, upon inspection and discovery of a violation of any provision of this section or other applicable federal, state or local rule, regulation, ordinance, local law or statute, may immediately cause the offending cafe to be cleared of patrons, if such action is reasonably necessary to protect the public health, safety, welfare or convenience. In such case, the Police Department shall, by the next business day, report such action to the City Clerk.

Appeals from the issuance, denial, revocation or other condition of a permit may be taken to the Zoning Board of Appeals in accordance with the procedures established in this chapter for such Board.[1]

[1]

Editor's Note: See Art. VII, Zoning Board of Appeals.

Miscellaneous provisions.

(1)

The area of the outdoor or sidewalk cafe shall be cleaned on a daily basis and shall be kept free of refuse at all times. No large containers for trash shall be placed on the cafe premises.

(2)

For sidewalk cafes, at the expiration of the term of the permit, all City-owned property shall be delivered back to the City in good condition. City-owned property may not be altered in any way during the term of the permit without the express written approval of the Commissioner of Public Works and the Corporation Counsel.

(3)

Outdoor and sidewalk cafes may open for business no earlier than 7:00 a.m. and shall close by no later than 2:00 a.m.

[Amended 5-10-2004]

(4)

Music; lighting; outdoor cooking.

[Amended 2-6-2018; 4-16-2019 by Res. No. 79-19; 5-21-2020; 5-4-2021]

(a)

Outdoor and sidewalk cafes may be allowed to provide music, so long as such music does not violate or does not conflict with any applicable law or ordinance, such as the City's noise ordinance[2] (except as may otherwise be provided below), or does not create a nuisance to surrounding residents or properties. Live music or live music performances are not permitted in or at sidewalk cafes. With respect to outdoor cafes only (and only within the geographic area described below), live music or live music performances will be permitted from May 18, 2021, until and including October 15, 2021, during the hours of 12:00 noon until 10:00 p.m. on Thursday, Friday and Saturday, and 1:00 p.m. until 9:00 p.m. on Sunday, in such a manner as to generate an instantaneous sound pressure level not to exceed 90 decibels (DBA) as measured from any point along the boundary line of the real property on which the outdoor cafe is located and from which the sound pressure is generated.

[2]

Editor's Note: See Ch. 332, Noise.

(b)

For purposes of this Subsection G(4), live music or live music performances will be allowed in or at outdoor cafes only within the area contained within the City’s Business Improvement District (except not in or on properties located south of Fulton Street) and in or on properties on either side of East Main Street from Academy Avenue to the west side of Railroad Avenue.

(c)

Live music or live music performances will be allowed in or at outdoor cafes as described above during a trial period lasting only until October 21, 2021, unless the ability and permission to have live music or live music performances in or at outdoor cafes is extended by action of the Common Council of the City. If the time period is not extended by action of the Common Council, then live music or live music performances will not be permitted after October 21, 2021, in or at outdoor cafes.

(d)

Lighting in outdoor and sidewalk cafes shall be minimal and shall not be allowed to disturb surrounding residents or properties. No outdoor cooking of any type is permitted in outdoor and sidewalk cafes.

(5)

All fixtures and furnishings of a temporary nature must be secured if left outside and additionally any fixtures left outside after operational hours of the establishment are understood to be the personal property of the establishment and the City of Middletown is held harmless with relation to any claims resulting from said fixtures and furnishings being left outside of the establishment. No objects, except retractable awning(s) and lighting fixtures, may be permanently attached to the exterior. All planters, railings and fences must be temporary and not exceed a height of four feet. No additional signage shall be permitted to be affixed to a cafe's temporary structures or accessories. The provisions of this Subsection G(5) shall not apply to outdoor cafes unless determined to be necessary and a condition of the issuance of the permit by the City Clerk.

[Amended 5-10-2004]

(6)

For all cafes, there shall be a minimum of five feet or 50% of the total sidewalk width (whichever is greater) for clearance, to provide adequate and unobstructed pedestrian movement, such measurement being made from the outermost point of the cafe to the unobstructed inner edge of the curb. The City Clerk, in his/her sole discretion, may require a larger pedestrian right-of-way based on the proposed location and volume of pedestrian traffic typically experienced at that location.

Violations.

(1)

Violations of this section shall be punishable in accordance with § 475-50 of this chapter. In addition, the City Clerk may revoke the permit (as set forth in Subsection E above) for any violation of this section.

(2)

Notwithstanding the previous subsection and in addition to any penalties imposed under the previous subsection of this § 475-28H, violations of § 475-28G(4) of the Code of the City of Middletown may be enforced by the Police Department, any code enforcement officer of the Department of Public Works or the Fire Inspector and disposed of as follows:

[Added 2-6-2018; amended 4-16-2019; 5-21-2020; 5-4-2021]

(a)

For the first violation of § 475-28(G)(4) of the Code of the City of Middletown by an outdoor café’s operation, the owner and/or operator of the outdoor café shall be issued a verbal or written warning informing the owner and/or operator of the violation and directing that it be ceased immediately.

(b)

For the second violation and subsequent violations of § 475-28(G)(4) of the Code of the City of Middletown by an outdoor café’s operation, the owner and/or operator of the outdoor café shall be issued a written violation notice and/or an appearance ticket ordering the owner and/or operator to appear in Middletown City Court to answer the violation(s).

(c)

At any time, the Police Department of the City, upon inspection and discovery of a violation of § 475-28(G)(4) of the Code of the City of Middletown by an outdoor café’s operation, may immediately cause the offending outdoor cafe to be cleared of patrons, if such action is reasonably necessary to protect the public health, safety, welfare or convenience.

(d)

If the operation of an outdoor cafe is alleged to be in violation of § 475-28(G)(4) of the Code of the City of Middletown a second time, the outdoor café permit issued to the owner and/or operator of the outdoor café shall be revoked by the City Clerk.

(e)

Any person found guilty of violating § 475-28(G)(4) of the Code of the City of Middletown shall be guilty of a violation and shall be liable for a fine of not less than $250 nor more than $2,000 for the first occurrence, and such fines shall be increased to a fine of not less than $500 nor more than $4,000 for any subsequent occurrence(s).

This section is to be a permanent section of the Middletown Zoning Code, and any permits issued under the trial periods previously established by the Common Council may be continued in full force and effect, subject to the modification, revocation and other regulatory provisions of this section.

[Amended 4-22-2003]

§ 475-28.1 Sidewalk sales.

[Added 5-17-2011]

The regulations as set forth in this section regarding sidewalk sales by retail stores are designed to permit such sales only in the area encompassed by the geographic boundaries of the Downtown Business Improvement District and to promote and protect the public health, safety and general welfare. Specific purposes of this section are:

(1)

To ensure adequate space for pedestrians on the sidewalk adjacent to the location of sidewalk sales by retail stores.

(2)

To preserve and enhance the character of area contained within the Downtown Business Improvement District.

(3)

To simplify administrative and strengthen enforcement procedures for sidewalk sales that are effective, efficient and enforceable.

(4)

To promote the most desirable use of land and to provide compensation to the City for use of City-owned land for sidewalk sales by retail stores.

For the purposes of this section, the following terms shall have the following meanings:

CITY CLERK

The City Clerk, Registrar and Clerk of the Common Council or his/her designee.

PERMIT

Written authorization issued by the City Clerk pursuant to this section permitting sidewalk sales.

SIDEWALK SALES

Use of sidewalks adjacent to retail stores located within the geographic boundaries of the Downtown Business Improvement District for outdoor sales by those retail stores of items otherwise sold within those stores and for signs advertising sales by those retail stores.

No sidewalk sales shall be allowed to operate unless a permit has been obtained from the City Clerk. The following procedures (which may be supplemented by the City Clerk as he/she deems necessary and appropriate) must be followed before the City Clerk can issue such permit:

(1)

Any request to conduct sidewalk sales must be in writing on such application form(s) as may be required or designated by the City Clerk.

(2)

No construction or alteration of existing premises will be allowed in connection with the sidewalk sales.

(3)

The application must be accompanied by a nonrefundable fee of $50 and shall include at least the following information:

(a)

The name, address and telephone number of the applicant.

(b)

The name, address and telephone number of the establishment which is the subject of the application.

(c)

The days and hours for which the permit is requested.

(d)

A drawing or rendering of the placement of equipment, signs and the like relative to entrances and exits of the main establishment to which the outdoor sales is connected and relative to the sidewalk.

(e)

A description of facilities, equipment and signs to be used.

(f)

A site plan showing proper clearance around ingress and egress to the building and to fire safeguards, and also showing proper amount of clearance on the sidewalk for pedestrian traffic. The site plan must also indicate property lines and which property is owned by the applicant (or by the applicant's landlord) and which property is owned by the City (and if the property is not owned by the applicant, then the landlord's consent to the application must be indicated on the application).

(g)

Proof of insurance, in such forms and amounts as required by the Corporation Counsel.

(h)

Any other information as the City Clerk may deem reasonably necessary or appropriate for the fair determination as to whether a permit should be issued.

(4)

(5)

The City Clerk shall issue a permit upon a finding that the proposed sidewalk sales will not unreasonably interfere with the pedestrian traffic or use of the City-owned portion of property to be used; that the applicant has complied with the requirements of the City's Department of Public Works with respect to any issues under the New York State Uniform Fire and Building Code; that the applicant has complied with the requirements of the Corporation Counsel with respect to insurance; that the applicant has obtained approval of the Board of Estimate and Apportionment of the City for the use of City-owned property; and that the applicant has met all other applicable provisions of this chapter of the City, including site plan and special use permit approval, if required, for the use of the main building to which the sidewalk sales area is appended for a retail store. Notice of permit issuance shall be given to the Commissioner of Public Works, the Corporation Counsel, the Chief of Police and the Chief of the Fire Department. The permit holder must also post the permit in a conspicuous place in the area of the sidewalk sales so that the permit is visible from the street.

(6)

Notwithstanding the foregoing, the City Clerk may deny a permit upon a finding that the proposed sidewalk sales will have an undue adverse effect upon nearby property, the character of the neighborhood, vehicular traffic conditions, pedestrian traffic, parking, or other matters affecting the public health, safety, welfare or convenience.

(7)

(8)

(9)

A permit issued pursuant to this section shall be valid for one year from the date of its issuance. Permits may be renewed upon the filing and approval of an application consistent with the requirements of this section.

The person, persons or entities to whom permits are issued under this section, by applying for and accepting such permit, understand and agree that such person, persons or entities shall be liable to and shall indemnify the City against, and hold the City harmless from, any and all losses, damages, injuries and claims, including attorney fees, sustained by any person whatever by reason of the negligence of the person, persons or entities to whom or to which the permit shall have been issued, or which may arise from or be attributable to the operation of the sidewalk sales by the person, persons or entities to whom or to which the permit shall have been issued and such person's, persons' or entities' employees, agents, contractors, guests and invitees. The applicant for a permit shall present to the City a certificate of insurance, prior to the opening and operation of the sidewalk sales and prior to the issuance of the permit, which names the City as an additional insured. The amount and form of the insurance must be acceptable to the Clerk and the Corporation Counsel of the City. The City Clerk may, in his/her discretion, waive the requirement for insurance when circumstances warrant.

The City Clerk may revoke a permit issued under this section if the City Clerk finds that the person, persons or entities to whom or to which such a permit has been issued has violated any provision of this section or any other applicable federal, state or local rule, regulation, ordinance, local law or statute. In addition, the Police Department of the City, upon inspection and discovery of a violation of any provision of this section or other applicable federal, state or local rule, regulation, ordinance, local law or statute, may immediately cause the offending sidewalk sales to be cleared of patrons, if such action is reasonably necessary to protect the public health, safety, welfare or convenience. In such case, the Police Department shall, by the next business day, report such action to the City Clerk.

Appeals from the issuance, denial, revocation or other condition of a permit may be taken to the Zoning Board of Appeals in accordance with the procedures established in this chapter for such Board.

Miscellaneous provisions.

(1)

The area of the sidewalk sales shall be cleaned on a daily basis and shall be kept free of refuse at all times. No large containers for trash shall be placed in or adjacent to the area of the sidewalk sales.

(2)

At the expiration of the term of the permit, all City-owned property shall be delivered back to the City in good condition. City-owned property may not be altered in any way during the term of the permit without the express written approval of the Commissioner of Public Works and the Corporation Counsel.

(3)

Sidewalk sales may be conducted no earlier than 8:00 a.m. and shall close by no later than 9:00 p.m.

(4)

All fixtures, equipment and furnishings of a temporary nature must be secured if left outside. All such fixtures, equipment and furnishings are understood to be the personal property of the owner of the retail store to which they relate, and the City of Middletown is held harmless with relation to any claims resulting from said fixtures, equipment and furnishings being left outside of the retail store. No additional signage shall be permitted to be affixed to a retail store's temporary structures or accessories, although freestanding signs may be allowed so long as they are approved as to size and location by the City Clerk and whose dimensions do not exceed two feet by three feet.

(5)

For all sidewalk sales, there shall be a minimum of five feet or 50% of the total sidewalk width (whichever is greater) for clearance, to provide adequate and unobstructed pedestrian movement, such measurement being made from the outermost point of the sidewalk sales area to the unobstructed inner edge of the curb. The City Clerk, in his/her sole discretion, may require a larger pedestrian right-of-way based on the proposed location and volume of pedestrian traffic typically experienced at that location.

(6)

Sidewalk sales cannot extend for more than ten linear feet or 30% of the width of the retail store to which such sales relate, whichever is smaller.

§ 475-28.2 Cannabis sales.

[Added 5-16-2023 ]

The sale of cannabis, cannabinoids, cannabinoid hemp, cannabis flower, cannabis products, cannabis-infused products, hemp and hemp extract, as those terms are defined in Section 3 of the New York Cannabis Law, is prohibited in and on all private and public property in every zoning district in the City of Middletown.

Penalties. Any person who violates any of the provision of this section or any person who owns or controls property upon which such violation occurs shall, upon conviction, be guilty of an offense punishable by a fine of not less than $250 nor more than $2,000 or by imprisonment for a period not exceeding 15 days, or by both such fine and imprisonment. Each day that a violation is permitted to exist shall constitute a separate offense. The term "person," as used in this Section, shall include the owner, property manager as defined in Chapter 296 of the City Code, occupant, mortgagee, vendee in possession, assignee of rents, receiver, executor, trustee, lessee, agent, or any other person, firm or corporation directly or indirectly in control of a premises or part thereof.

§ 475-29 Self-service structures and booths; donation bins, sheds and boxes.

[Amended 11-1-2011; 12-20-2011]

Outside vending machines such as soda and beverage machines, other self-service machines, and coin-operated, credit card- or telephone card-operated telephones and telephone booths or any other similar structures, apparatuses or devices located on the outside of any building (whether freestanding or attached to said building) shall not be permitted in any zoning district except by special permission and at the discretion of the Planning Board, and subject to such conditions, restrictions and safeguards as may be deemed necessary by said Planning Board.

Such vending machines, self-service machines and coin-operated, credit card- or telephone card-operated telephones and telephone booths in existence without permission of the Planning Board at the date of this chapter shall, at the expiration of three months from such date, become a prohibited and nonconforming use and shall be discontinued immediately.

Donation bins, sheds and boxes.

(1)

Bins, sheds and boxes for the deposit of donated shoes and clothing, and any other similar structures, apparatuses or devices located on the outside of any building (whether freestanding or attached to said building) shall not be permitted in any zoning district within the City of Middletown.

(2)

Any such bins, sheds and boxes for the deposit of donated shoes and clothing, and any other similar structures, apparatuses or devices located on the outside of any building (whether freestanding or attached to said building) in existence as of the date of the adoption of this § 475-29C shall, as of March 30, 2012, become a prohibited and nonconforming use and shall be discontinued immediately.

(3)

Violations of this § 475-29C shall be punishable as provided in § 475-50.

§ 475-30 Temporary business movable structures.

[Amended 3-3-2020; 3-4-2025]

No temporary, movable or portable structures used in connection with any gainful occupation or business, whether such structures are for sale, storage or display purposes, and including, but not necessarily limited to, temporary, movable or portable structures used by flower vendors and furniture vendors, shall be permitted in any zoning district except by special permission and at the discretion of the Planning Board and subject to such conditions, restrictions and safeguards as may be deemed necessary by said Planning Board. Any such approval shall be valid for not longer than a one-year period, which may be renewed by the Planning Board in its sole discretion upon application therefor and subject to such conditions, restrictions and safeguards as it may deem necessary. With regard to renewal applications, the Planning Board shall have the discretion whether to require a mailing and a public hearing. In no event shall such temporary, movable or portable structures be used for the storage of hazardous or toxic materials or products.

All such temporary, movable or portable structures in existence without permission of the Planning Board at the date of this chapter shall, at the expiration of three months from such date, become a prohibited and nonconforming use and shall be discontinued immediately.

§ 475-31 Trailer and boat storage; trailer camps.

Any vehicle equipped to be used for temporary living or sleeping purposes, commonly known and used as a camping or travel trailer or recreational vehicle (RV), or a boat, whether or not mounted on wheels, may be located in any district, provided that:

(1)

Such vehicle or boat is unoccupied.

(2)

The length of such vehicle or boat, including hitch, does not exceed 32 feet.

(3)

Such vehicle or boat is stored only in a rear yard, unless the Commissioner of Public Works issues a permit for side yard storage, after considering the following criteria:

[Amended 12-18-2018]

(a)

Whether the subject property contains a rear yard;

(b)

Whether the rear yard is large enough to store the subject vehicle; and

(c)

Whether rear yard storage of the vehicle will cause an unreasonable detriment to the aesthetic or other well-being of neighboring properties.

(4)

In a residential district, not more than one such vehicle or boat shall be permitted on a lot.

House trailers, mobile homes and trailer camps are prohibited in all districts.

Any permit issued pursuant to Subsection A(3), above, shall be limited to a single vehicle or boat and storage shall be limited to a side yard only. Any such permit shall be valid for a period of one year only, and shall be subject to renewal for yearly periods in the discretion of the Commissioner of Public Works after consideration of the criteria provided in Subsection A(3), above. Such permit shall be revocable by the Commissioner of Public work for violation of any of the provisions of the Zoning Code or of applicable Uniform State Codes. A fee of $5 shall be charged for each permit and renewal.

[Added 12-18-2018]

§ 475-32 Public utilities.

Nothing in this chapter shall restrict the construction or use of underground or overhead distribution conduits of public utilities operating under the laws of the State of New York and regulated by the Public Service Commission of the State of New York, except for antenna, antenna accessory structures and towers. Public utility buildings and electrical substations are permitted in a residential district only when the location within such district is necessary for the furnishing of service to customers, and provided that no business offices, warehouses, construction or repair shops or garage facilities are included, and provided that the Planning Board approves such application in accordance with the provisions of § 475-53.

§ 475-33 Off-street parking.

The following parking spaces shall be provided and satisfactorily maintained by the owner of the property for each building which, after the date when this chapter becomes effective, is erected, used, enlarged or altered for use for any of the following purposes:

(1)

Dwelling: At least one parking space for each dwelling unit in the building or buildings. No parking of any vehicles shall be allowed anywhere within the front yard of the lot upon which the dwelling unit(s) is/are located, except on a driveway which is no wider than 30 feet wide (unless the Commissioner of Public Works, in his sole discretion, allows a wider driveway to be constructed), and not more than two such driveways shall be allowed on such lot in the case of one-family and two-family dwellings.

[Amended 8-8-2000; 12-15-2015]

(2)

Dwelling used as a doctor's or dentist's office: At least four parking spaces.

(3)

Dwelling used as a professional office other than by a doctor or dentist, in which is located a home occupation: At least one parking space.

(4)

Places of assembly such as a theater, dance hall, auditorium or stadium, or similar uses and purposes, including membership clubs where the chief activity or primary purpose is a service customarily carried on as a business or primarily for gain: At least one parking space for each eight seats provided for its patrons, based on maximum seating capacity.

(5)

Hotel or motel: At least one parking space for each three guest sleeping rooms.

(6)

Eating or drinking place: At least one parking space for each five seats, except when it is in a building which provides parking spaces, in which case the number of places already provided may be taken to be available for the eating or drinking places.

(7)

Adult care facility, hospital, sanitarium or nursing home: At least one parking space for each five patients or residents.

(8)

Stores and service establishments: At least one parking space for each 150 square feet of store floor area.

[Amended 12-7-2009]

(9)

Office buildings: At least one parking space for each 300 square feet of office floor area.

(10)

Industrial or manufacturing establishments: At least one parking space for each 400 square feet of gross floor area or for each two workers.

(11)

For membership clubs catering to members and their guests and for any other use not listed, the number of spaces shall be determined by the Planning Board so that persons using or connected with such use shall not park on the street.

Not more than one commercial vehicle, which shall be of not over 1 1/2 tons' capacity or two tons' weight, shall be housed or parked on any off-street parking area or yard in any R-1, R-2, OR-2, UR-3, SR-3, SR-3A, SR-3B or R-4 Residence District. These restrictions as to commercial vehicles shall not apply to farm implements or vehicles on farms.

In all residential districts, no parking shall be allowed anywhere within the front yard of the lot upon which the dwelling unit(s) is/are located, except on a driveway which is wide enough to encompass up to three vehicles (unless the Commissioner of Public Works, in his sole discretion, allows a wider driveway to be constructed), and not more than two such driveways shall be allowed on such lot in the case of one-family and two-family dwellings. In addition, there shall be no dismantling, wrecking or repairing of motor vehicles or the storage or parking of disabled, dismantled, obsolete or wrecked vehicles or parts thereof, except that nonconforming gasoline stations or public garages in residential districts may make minor repairs to motor vehicles as part of the service station business and except that motor vehicles owned by the occupants of the premises may be repaired or stored for personal use, not business or commercial use, of the occupants. In no event, however, shall more than one such motor vehicle be repaired at one time on any outside area on the premises, and in no event shall any such motor vehicle be stored or left standing for repairs or otherwise on the outside area of such premises for a period of time exceeding two weeks.

[Amended 12-15-2015]

All parking spaces provided pursuant to this section shall be on the same lot with the building for which the parking is used, except that the Planning Board may permit the parking spaces to be on a lot within 500 feet of the building if it determines that it is impractical to provide parking on the same lot with the building.

The Planning Board may permit a lesser number of parking spaces than those herein required to be provided whenever it determines that because of location there are sufficient other parking areas in the vicinity or when it is impractical and causes a serious hardship to the owner of the building to provide the number of required parking spaces.

Inapplicability to existing building and uses. The provisions of this section, except Subsections A(1), B and C, shall not apply to any building, structure or use lawfully in existence at the effective date of this chapter, whether continued as a permitted or nonconforming use, or to any enlargements, alterations or replacement of the same, whether of the same use or to a different use.

§ 475-34 Off-street loading.

Berths required. In any district, in connection with every building or building group or part thereof hereafter erected and having a gross floor area of 10,000 square feet or more which is to be occupied by manufacturing or commercial uses or distribution by vehicles of material or merchandise, there shall be provided and maintained, on the same zone lot with such building, off-street loading berths in accordance with the following requirements:

Use	Floor Area (square feet)	Required Off-Street Loading Berths
Retail, commercial wholesale, manufacturing, storage and miscellaneous	From 10,000 to 25,000	1
	From 25,000 to 40,000	2
	From 40,000 to 60,000	3
	From 60,000 to 100,000	4
	For each additional 50,000 or major fraction thereof	1 additional

Size and location. Each loading space shall be not less than 10 feet in width, 70 feet in length and 14 feet in height and may occupy all or any part of any required yard except the front yard (unless the Planning Board varies the requirement that no such loading space be located in a front yard).

Inapplicability to existing buildings and uses. The provisions of this section shall not apply to any building, structure or use lawfully in existence at the effective date of this chapter, whether continued as a permitted or nonconforming use, or to any enlargements, alterations or replacement of the same, whether of the same use or to a different use.

§ 475-35 Boarders in residential districts and dwellings; boardinghouses.

The taking of a boarder or the renting of a room by a residential family in a one-family dwelling in any zoning district is permitted, provided that:

[Amended 4-5-2016]

(1)

The dwelling is owner-occupied; and

(2)

The taking in of a boarder and the renting of a room is incidental only to the family use of such residence; and

(3)

The number of such boarders shall not exceed one person; except that the Planning Board may grant a revocable special use permit, pursuant to the provisions of § 475-53, for a greater number of boarders or the renting of rooms in one-family dwellings in all zoning districts if the building is owner-occupied and if the Planning Board determines it to be in the public interest, and then only on such conditions and regulations as the Planning Board deems necessary to protect neighboring properties; and

(4)

The owner must apply for and receive a rental permit pursuant to the provisions of Article IV of Chapter 296 of the Middletown City Code.

Boarders are not permitted in two-family dwellings or multiple dwellings, except as provided in Subsection C of this section. No landlord or tenant may sublet a room out to another person in a rental dwelling or apartment, except as provided in Subsection C of this section.

[Amended 4-5-2016]

Boardinghouses.

(1)

All boardinghouses are prohibited in all R-1, R-2, OR-2, SR-3A, SR-3B and C-1A Districts, excepting, however, that this subsection shall not apply to any boardinghouse which is owner-occupied and which has received a special use permit from the Planning Board or Common Council prior to the enactment of this chapter.

(2)

All boardinghouses are prohibited in C-1, C-2, C-3, C-3A and Industrial Districts, excepting, however, that this subsection shall not apply to any boardinghouse which either:

(a)

Has been operated continuously as a boardinghouse since 1967; or

(b)

Has received a special use permit from the Planning Board or Common Council prior to enactment of this chapter.

(3)

All boardinghouses are uses which require the issuance of a special use permit and site plan approval by the Planning Board in UR-3, SR-3 and R-4 Districts, excepting, however, that this subsection shall not apply to any boardinghouse which either:

(a)

Has been operated continuously as a boardinghouse since 1967; or

(b)

Has received a special use permit from the Planning Board or Common Council prior to enactment of this chapter.

(4)

Notwithstanding any other provision of this chapter, boardinghouses for college students are uses permitted in all R-1, R-2, OR-2, SR-3A, SR-3B, C-1, C-2, C-1A, C-3A and DMU Zoning Districts, provided that:

[Added 04-03-2018 by Res. No. 96-18; amended 9-3-2019 by Res. No. 187-19]

(a)

The college students must be full-time students during the entire period of their occupancy at an accredited college or university located in Orange County ("full-time students" is defined to mean undergraduate or graduate students who are taking at least 12 credit hours of classes per semester at such college or university, or 30 credit hours of classes during such college's or university's academic year, or full-time medical residents at or associated with Orange Regional Medical Center.);

(b)

There can be no more than three such students in any such boardinghouse;

(c)

The owner(s) must apply for and receive a student housing rental permit pursuant to the provisions of Article III of Chapter 296 of the Middletown City Code. This rental permit shall be applied for and issued in accordance with all of the requirements contained in Article III for boardinghouse permits, except:

[1]

The student housing rental permit shall be valid for a period of one year from the date of issuance and may be renewed for additional one-year periods as provided in § 296-18B;

[2]

The applicant for a student housing rental permit, or a renewal thereof, is not subject to the background check requirements of § 296-20H.

Except as provided in Subsections A, B and C of this section, the taking in of boarders, the renting of rooms, and the operation of a boardinghouse are prohibited in all dwelling units and zoning districts of the City of Middletown.

§ 475-35.1 Short-term rentals.

[Added 4-18-2023]

The short-term rental of a residential property or a portion thereof for a period of less than 30 days is prohibited in all zoning districts in the City of Middletown, subject to the following exemptions:

(1)

A legally operating commercial hotel/motel is not subject to this prohibition;

(2)

Short-term rentals of property during emergencies affecting the City of Middletown declared by any federal, state, county or City authority shall not be subject to this prohibition, provided that the owner of the property obtains permission for the rental from the Commissioner of Public Works; and

(3)

Family members who are granted the use of premises without charge shall not be subject to this prohibition.

Nothing in this section shall be construed as amending or excusing compliance with the provisions of § 475-35 of the Zoning Code.

§ 475-36 Approval of site development plan required before use.

No housing complex (including multiple dwellings), shopping center or industrial park or any other use shall be constructed unless such plans shall meet all of the requirements of this chapter and unless said plans are reviewed by the Planning Board and approved by the Planning Board, if the zone in which such use is contemplated requires site plan approval of the particular use by the Planning Board, and no lots or buildings shall be sold, leased or used pursuant to said plans until approved.

§ 475-37 Signs in residential districts.

See also Chapter 394, Signs. No signs or announcements in any residential districts for home occupations, or "For Sale" or "For Rent" or "For Lodging," shall be permitted unless they meet the following conditions:

The sign shall not be more than 18 inches long and not more than 12 inches wide.

The sign shall not project more than 24 inches beyond that portion of the building or porch which faces the street, and in no event shall the sign project beyond the property line.

Should any sign be illuminated, all illuminating devices shall be confined and contained within the sign itself and no exterior lights can be used.

All such signs in existence without permission from the Planning Board or the Commissioner of Public Works at the date of this chapter shall, at the expiration of six months from such date, become a prohibited and nonconforming use and shall be discontinued.

§ 475-38 Fences.

§ 475-39 Exterior lighting.

No spotlights, floodlights, ground lights, roof lights, pole lights, wall lights or any other lights for exterior illumination for commercial and industrial areas or uses shall be used unless reflectors shall be provided with proper glass lenses concentrating the illumination upon the business area so as to prevent direct glare upon the street or adjacent property. All commercial and industrial uses shall have lighting installed on pedestals or poles such that the lighting is directed upon the lot on which such use is located and upon any buildings located on such lot, and away from other lots and public streets.

Lights used to illuminate any swimming pool or other outdoor activity or area in any residence district shall be so arranged and shaded as to reflect away from adjoining premises and from the public streets.

§ 475-40 Established building lines.

[Amended 6-14-2004]

Wherever there is an established building line which is behind the minimum setback lines required in any district in this chapter, all buildings newly erected or reconstructed shall be set back so that the front of said buildings shall be in line with the established building line on the subject street and block, or as otherwise determined by the Planning Board.

§ 475-41 Annexed property.

Any property which may hereafter be annexed to the City of Middletown shall automatically be zoned R-1 One-Family Residential District, unless specifically otherwise zoned by ordinance or resolution of the Common Council.

§ 475-42 Adult uses.

Findings. There is presently in Orange County a substantial growth in the number of adult entertainment uses and an increasing trend toward the concentration of adult entertainment establishments. Based upon recent studies evaluating the nature and extent of adverse secondary effects caused by adult uses in residential and commercial areas, including a 1998 study by the City of Middletown, a 1996 study by the City of Newburgh, a 1994 study by the City of New York, and a 1980 study by the Town of Islip, the Common Council hereby finds that adult uses have negative secondary impacts such as a deterioration of community character and quality of life, depreciation of property values, increase in crime rates, and the blighting or downgrading of surrounding neighborhoods and commercial land uses.

Purpose. In the development and execution of this section, it is recognized that there are some adult uses which, because of their very nature, are recognized as having serious objectionable characteristics. The objectionable characteristics of these uses are further heightened by their concentration in any one area, thereby having deleterious effects on adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of surrounding neighborhoods or land uses, impede the revitalization of downtown Middletown, increase crime or police calls, contribute to the spread of prostitution and AIDS, increase the quantity of transients in residential and commercial areas, cause a deterioration in the quality of life in residential and commercial neighborhoods, increase the accessibility of adult-oriented material and entertainment to minors, and encourage residents and businesses to locate elsewhere.

Definitions. As used in this section, and as used elsewhere in this chapter, the following terms shall have the meaning indicated:

ADULT BOOKSTORE

(1)

An establishment having as a substantial or significant portion of its stock-in-trade any one or more of the following: books, magazines, other periodicals, films, slides, audiotapes, compact discs, DVD tapes, videotapes, photographs, motion pictures, cassettes or other visual representations which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; or

(2)

An establishment having as a substantial or significant portion of its stock-in-trade any one or more of the following: books, magazines, other periodicals, films, slides, audiotapes, compact discs, DVD tapes, videotapes, photographs, motion pictures or cassettes, which establishment is customarily not open to the public generally but excludes any minor by reason of age or requires permission of a parent or guardian for such minor to enter upon or into such establishment.

(3)

For the purpose of determining whether an adult bookstore has a substantial or significant portion of its stock in materials as defined in Subsections (1) and (2) immediately above, the following factors shall be considered:

(a)

The amount of such stock accessible to customers as compared to the total stock accessible to customers in the establishment; and

(b)

The amount of floor area and cellar space accessible to customers containing such stock; and

(c)

The amount of floor area and cellar space accessible to customers containing such stock as compared to the total floor area and cellar space accessible to customers in the establishment.

ADULT DRIVE-IN THEATER

(1)

A drive-in theater that customarily presents motion or moving pictures, films, videotapes or slide shows which are characterized by emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; or

(2)

A drive-in theater that customarily presents motion or moving pictures, films, videotapes or slide shows, which theater is not open to the public generally but excludes any minor by reason of age or requires permission of a parent or guardian for such minor to enter upon or into such establishment.

ADULT ENTERTAINMENT CABARET

A public or private establishment that presents (in person or by videotape, film or similar presentation) topless, bottomless or nude dancers, strippers, male or female impersonators or exotic dancers or lap dancers or other similar entertainment in any portion of the establishment and which is customarily not open to the public generally but excludes any minor by reason of age or requires permission of a parent or guardian for such minor to enter upon or into such establishment, or which presents (in person or by videotape, film or similar presentation) topless, bottomless or nude dancers, strippers, male or female impersonators or exotic dancers or lap dancers or other similar entertainment which is characterized by an emphasis on specified anatomical areas or specified sexual activities, or which has employees who, as part of their employment, regularly expose to patrons specified anatomical areas. In defining "adult entertainment cabaret," it is irrelevant whether or not such establishment serves food and/or drinks of any type.

ADULT THEATER

(1)

A theater that customarily presents motion or moving pictures, films, videotapes or slide shows which are characterized by emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; or

(2)

A theater that customarily presents motion or moving pictures, films, videotapes or slide shows, which theater is not open to the public generally but excludes any minor by reason of age or requires permission of a parent or guardian for such minor to enter upon or into such establishment.

ADULT USE

Includes adult bookstore, adult drive-in theater, adult entertainment cabaret, adult theater, massage establishment and peep show, all as defined in this subsection.

MASSAGE ESTABLISHMENT

Any establishment having a fixed place of business where massages are administered for pay, including but not limited to massage parlors, sauna baths and steam baths. This definition shall not be construed to include a hospital, nursing home or medical clinic or the office of a physician, surgeon, chiropractor, osteopath, or New York State duly licensed and certified massage therapist or physical therapist, or barbershops or beauty salons in which massages are administered only to the scalp, face, neck or shoulders. This definition also shall exclude health clubs which have facilities for physical exercise, such as tennis courts, racquetball courts or exercise rooms, and which do not receive their primary source of revenue through the administration of massages.

PEEP SHOW

(1)

An establishment which presents material in the form of live shows, films or videotapes, viewed from an individual enclosure, which material is characterized by emphasis upon the depiction or description of specified sexual activities or specified anatomical areas, for which a fee is charged; or

(2)

An establishment which presents material in the form of live shows, films or videotapes, viewed from an individual enclosure, for which a fee is charged, which establishment is not open to the public generally but excludes any minor by reason of age or requires permission of a parent or guardian for such minor to enter upon or into such establishment.

SPECIFIED ANATOMICAL AREAS

(1)

Less than completely and opaquely covered or concealed:

(a)

Human genitals; pubic region;

(b)

Human buttock; anus; or

(c)

Female breast below a point immediately above the top of the areola; or

(2)

Human male genitals in a discernible turgid state even if completely and opaquely covered or concealed.

SPECIFIED SEXUAL ACTIVITIES

(1)

Human genitals in a state of sexual stimulation or arousal; or

(2)

Actual or simulated acts of human masturbation, sexual intercourse or sodomy; or

(3)

Fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast.

Restrictions. The adult uses defined in Subsection C of this section above are to be restricted as to location in the following manner, in addition to any other requirements of this chapter:

(1)

No adult use shall be located in any residential or commercial zoning district in the City of Middletown or in any industrial district other than I-3 Heavy Industrial Restricted District.

(2)

No adult use shall be located within a five-hundred-foot radius of any residential or commercial zoning district.

(3)

No adult use shall be located within a one-thousand-foot radius of any property containing any church, synagogue, mosque or other place of religious worship.

(4)

No adult use shall be located within a one-thousand-foot radius of any property containing any school, park, civic or youth-oriented center, playground or playing field.

(5)

No adult use shall be located within a five-hundred-foot radius of the property of another adult use.

Variance. Upon appropriate application, the Zoning Board of Appeals may issue a use variance to an adult use already existing at the date of the adoption of this chapter in a commercial zone (C-3 only) if the applicant satisfies the criteria for a use variance set forth elsewhere in this chapter as well as the following additional conditions:

(1)

The proposed adult use will not be contrary to the public interest or injurious to nearby properties and the spirit and intent of this section will be observed.

(2)

The establishment of an adult use in the area will not be contrary or injurious to any program of neighborhood revitalization, conservation or improvement.

Exterior display prohibited. No adult use shall be conducted in any manner that allows the observation of any material depicting, describing or relating to specified sexual activities or specified anatomical areas from any public way. This provision shall apply to any display, decoration, sign, show window or other opening.

Touching and close-in entertaining prohibited. It shall constitute a violation of this section for any entertainer in an adult entertainment cabaret or peep show, as defined in Subsection C above, to perform closer than six feet to the nearest patron.

§ 475-43 Telecommunication towers.

The purpose of this section is to establish predictable and balanced regulations for the siting and screening of antennas, towers, and antenna accessory structures and other structures in order to accommodate the growth of such systems within the City of Middletown while protecting the public against any adverse impacts on aesthetic resources, avoiding potential damage to adjacent properties from tower failure through structural standards and setback requirements, and reduce the number of towers needed to serve the community by maximizing the use of existing towers and buildings.

No antenna or tower shall hereafter be used, erected, changed or altered unless the applicant for same shall obtain a special use permit and site plan approval in accordance with the requirements of this chapter. The Planning Board, in its review process in connection with applications for towers, antennas, antenna accessory structures and other, similar structures, shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed tower, antenna, antenna accessory structure and other, similar structures.

Collocation requirements. All towers or antenna erected, constructed or located within the City shall comply with the following requirements:

(1)

A proposal for a tower shall not be approved unless the Planning Board 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 (one-half-mile search radius for towers under 120 feet in height; one-fourth-mile search radius for towers under 80 feet in height) 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 antennas 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.

(d)

Other foreseen reasons that make it infeasible to locate the antenna upon an existing or approved tower or building.

(2)

Any proposed tower shall be designed, structurally, electrically, and in all other respects, to accommodate both the applicant's antennas and no less than either comparable antennas or those typically used by cellular or personal wireless services providers, whichever creates a heavier load, 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 heights. The applicant shall submit to the Planning Board a letter of intent committing the applicant, and his/her/its successors in interest, to negotiate in good faith for shared use of the proposed tower by other personal wireless services providers in the future. The issuance of a permit (assuming the tower is approved in accordance with this chapter) shall commit the new tower owner and his/her/its successors in interest to:

(a)

Respond in a comprehensive manner within 30 days to a request for information from a potential shared-use applicant.

(b)

Negotiate in good faith concerning future requests for shared use of the new tower by other applicants.

(c)

Allow shared use of the new tower if another applicant agrees in writing to pay reasonable charges.

(d)

Make no more than a reasonable charge for shared use, based on generally accepted accounting principles. The charge may include but is not limited to a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, and depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.

(3)

In order to keep neighboring municipalities informed, and to facilitate the possibility of directing than an existing tall structure or existing tower in a neighboring municipality be considered for shared use, the Planning Board shall require that an applicant who proposes a new tower shall notify in writing the Orange County Planning Commission and the legislative body of each municipality that borders the City of Middletown. 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 Planning Board at the time of application.

Each application for installation of an antenna shall include either a preliminary or a certified statement that the installation of the antenna, including reception and transmission functions, will not interfere with the radio or television service enjoyed by adjacent residential and nonresidential properties or with public safety telecommunications. In the event that only a preliminary statement is submitted with the application, a final certified statement of noninterference will be provided and approved by the Planning Board and Commissioner of Public Works prior to the issuance of a permit. All preliminary and certified statements shall be prepared by a 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 Federal Communications Commission's and Federal Aviation Administration's standards on a yearly basis. If new, more restrictive standards are adopted by any applicable federal or state agency, the antennas shall be made to comply with such standards, or the Planning Board will retain jurisdiction to restrict the continuation of operations at and through such antennas and towers. The cost of verification of compliance shall be borne by the owner and operator of the tower.

Towers shall not be illuminated by artificial means and shall not display strobe lights unless such lighting is specifically required by the Federal Aviation Administration or other federal or state authority for a particular tower. When incorporated into the approved design of the tower, light fixtures used to illuminate ball fields, parking lots, or similar areas may be attached to the tower.

The use of any portion of a tower for signs other than warning or equipment information signs is prohibited.

The maximum height of a tower is limited to 150 feet above the ground, including any building upon which the tower is placed. The Planning Board may allow towers up to 200 feet above the ground, including any building upon which the tower is placed, 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, that off-site views of the tower will be minimized. The height limitation may be waived by the Planning Board when the antenna is mounted on an existing building or structure or to accommodate collocation.

The use of guyed towers is prohibited. Towers must be self-supporting without the use of wires, cables, beams or other means. The design should utilize an open framework or monopole configuration. Permanent platforms or structures exclusive of antennas that serve to increase off-site visibility are prohibited. The base of the tower shall occupy no more than 500 square feet and the top of the tower shall be no longer than the base. The minimum spacing between tower locations is 1/4 of a mile.

A road and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads (whether public or private) shall be made.

Towers and all antenna accessory structures and other structures shall conform to each of the following minimum setback requirements:

(1)

The minimum setbacks of the underlying zoning district in which the tower or antenna is located shall be met, with the exception of industrial zoning districts, where towers and antenna accessory structures may encroach into the rear setback area, provided that the rear property line abuts another industrially zoned property and the tower does not encroach upon any easements.

(2)

Towers and antenna accessory structures shall be set back from the public right-of-way, by a minimum distance equal to 1/2 of the height of the tower, including all antennas and attachments.

(3)

A tower's setback may be reduced in the sole discretion of the Planning Board to allow the integration of a tower into an existing or proposed structure such as a church steeple, light pole, power line, water tower or similar structure.

Existing on-site vegetation shall be preserved to the maximum extent practicable. The base of the tower and any antenna accessory structures shall be landscaped as directed by the Planning Board. Towers and antenna accessory structures shall be provided with security fencing to prevent unauthorized entry.

Towers and antennas shall be designed to blend into the surrounding environment through the use of color and camouflaging architectural treatment, except in instances where the color is dictated by federal or state authorities such as the Federal Aviation Administration. Every antenna and tower shall be of neutral colors that are harmonious with, and that blend with and into, the natural features, buildings and structures surrounding such antenna and tower; provided, however, that directional or panel antenna and omnidirectional or whip antennas located on the exterior of a building that will also serve as an antenna tower shall be of colors that match, and cause the antenna to blend with, the exterior of the building. Accessory structures will be designed to be architecturally compatible with principal structures on the site. Preference will be given to those antennas and towers located on municipal buildings or structures or other municipally owned property.

The operator of every antenna shall submit to the Clerk of the Planning Board 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 such operator shall maintain such licenses and permits and provide evidence of renewal or extension thereof when granted.

Every permit granting approval of an antenna, antenna accessory structure or tower shall state that any assignment or transfer of the permit or any rights thereunder may be made only with the approval of the Planning Board.

The permit granted by the Planning Board shall be subject to review by the Planning Board at five-year intervals, or sooner if the Planning Board shall so require, to determine whether the technology in the provision of personal wireless services or other services which have need of antennas, antenna accessory structures and towers 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 any such change.

The Planning Board may impose on an owner and operator of a tower, antenna or antenna accessory structure an annual fee for the continued validity of the permit originally granted by the Planning Board.

Abandoned or unused towers or portions of towers shall be removed as follows:

(1)

All abandoned or unused towers and associated facilities shall be removed within six months of the cessation of operations at the site unless a time extension is approved by the Planning Board. A copy of the relevant portions of a signed lease which requires the applicant to remove the tower and associated facilities (such as antenna and antenna accessory structures) upon cessation of operations at the site shall be submitted at the time of application. In the event that a tower is not removed within six months of the cessation of operations at a site, the tower and associated facilities may be removed by the City and the costs of removal assessed against the real property upon which the tower and associated facilities were located, or the costs may be recovered from the removal bond described below, in the City's discretion.

(2)

Unused portions of towers above a manufactured connection shall be removed within six months of the time of antenna relocation. The replacement of portions of a tower previously removed requires the issuance of a new permit by the Planning Board.

(3)

At the time of approval of any tower by the Planning Board, the applicant must post with the City a removal bond in the amount of $10,000, or such other amount as may be required by the Planning Board. The form and amount of the bond must be approved by the City's Corporation Counsel.

Antennas, antenna accessory structures and towers in existence at the time of adoption of this chapter which do not conform to or comply with this chapter are subject to the following provisions:

(1)

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

(2)

If such antennas, antenna accessory structures or towers are 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 chapter; 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 a new tower of like kind and quality, then the tower may not be repaired or restored except in full compliance with this chapter.

Middletown City Zoning Code

ARTICLE IV