Penfield City Zoning Code
ARTICLE XIII
Conditional Use Permits
§ 250-13.1 Purpose.
The purpose of conditional use permit approval is to allow the proper integration of uses into the community and appropriate zoning districts. Because of their characteristics, or the special characteristics of the area in which they are to be located, conditional uses require special consideration so that they may be properly located with respect to the objectives of this chapter and their effect on surrounding properties.
§ 250-13.2 Authorization to approve or deny conditional uses.
In cases where a conditionally permitted use is proposed to be developed on property and the subdivision and/or site plan approval process is required, the Planning Board or Town Board, as the case may be, shall have jurisdiction in granting such a permit. In all other cases, the Zoning Board of Appeals shall have the authority to grant such a permit. In permitting a conditional use or the modification of a conditional use, the board having jurisdiction may impose any additional conditions which the board considers necessary to protect the best interests of the surrounding property, the neighborhood or the Town as a whole, in addition to those standards and requirements expressly specified by this article. These conditions may include, but are not limited to, increasing the required lot size or yard dimensions; limiting the height of buildings; controlling the location and number of vehicle access points; increasing the street widths; increasing the number of off-street parking and loading spaces required; limiting the number, size and location of signs; and required diking, fencing, screening, landscaping, or other facilities to protect adjacent property. All permits granted pursuant to this section shall be issued by the Town Clerk at a fee as required by resolution by the Town Board.
§ 250-13.3 Application for conditional use.
A property owner(s) or his/her agent(s) may initiate a request for a conditional use or the modification of a conditional use by filing an application with the authorized official using forms provided for such requests by the Town. The applicant shall submit all information required to review said application and deemed necessary by the authorized official and a filing fee as required by resolution by the Town Board.
§ 250-13.4 Standards governing conditional uses.
A conditional use shall comply with the standards of the zoning district in which it is located. Notwithstanding any provision of this chapter to the contrary, in no event shall a conditional use permit be issued to authorize any explicitly prohibited use.
A.
In order to approve any conditional use, the board having jurisdiction shall find that the request is:
(1)
In harmony with the general purpose and intent of this chapter and the zoning district in which it is proposed.
(2)
Not detrimental to adjacent properties because of its:
(a)
Means of ingress and egress.
(b)
Adequacy of parking facilities.
(c)
Potential impact to both present or future uses.
(d)
Compatibility with the general area in which it is to be located.
(e)
Type and amount of signage.
(f)
Potential noise level.
(g)
Clear sight distance.
(h)
Existing or proposed buffering.
(i)
Proposed generation of noxious odors.
(j)
Exterior lighting.
(k)
Proposed hours of operation.
(3)
Not detrimental to the health, safety or general welfare of persons residing or working in the neighborhood of such proposed use or detrimental or injurious to the property and improvements in the neighborhood, or to the general welfare of the Town.
B.
A conditional use permit shall become void one year after approval unless the permitted activity has commenced, or as otherwise specified.
§ 250-13.5 Public hearing.
Before a conditional use is permitted, the use shall be considered by the board having jurisdiction at a public hearing. Notice of said hearing shall be given as provided in § 250-15.4.
§ 250-13.6 Golf courses.
A.
The Planning Board or Town Board, as the case may be, may grant a conditional use permit to be issued by the Town Clerk for the construction and maintenance of a golf course, as hereinafter defined, in any district of the Town, pursuant to § 250-13.2.
B.
A golf course, as defined in Article II of this chapter, may include the following facilities as also permitted with the principal use:
(1)
Clubhouse, including kitchens, dining areas, game rooms, bar, grill, locker rooms, and baths. In cases where a clubhouse is approved with dining facilities, said facilities may be utilized on a year-round basis.
(2)
Swimming pools.
(3)
Parking areas.
(4)
Tennis or paddleball courts.
(5)
Designated area dedicated to outdoor events, such as awards ceremonies, banquets, weddings, musical functions, etc. Said area may be open-air or tented.
D.
Prior to the granting of such a permit, the board having jurisdiction shall find, after public notice and hearing, that such action would not:
(1)
Be detrimental to adjacent property.
(2)
By reason of its location or nature create a significant hazard of any nature to the public or to any adjacent owner or occupant.
(3)
Unreasonably interfere with the lawful enjoyment of the public highway or of adjacent property.
(4)
Endanger or tend to endanger the public health, safety, morals or the general welfare of the community. In making such determination, the Board shall consider lot areas; necessity for and size of buffer zone; type of construction; parking facilities; traffic hazards; fire hazards; offensive odors, smoke, fumes, noise and lights; the general character of the neighborhood; the nature and use of other premises, and the location and use of other buildings in the vicinity; and whether or not the proposed use will be detrimental to neighborhood property.
(5)
Discourage the appropriate development and use of adjacent land and buildings nor impair the value thereof; further, that the proposed use will be in harmony with the probable future development of the neighborhood.
E.
In granting such a permit, the Board may attach such conditions and limitations as it considers to be desirable in order to ensure compliance with the application and the purposes of this chapter.
F.
Subject to the payment of the annual renewal fee, as hereinafter provided, any such permit granted hereunder shall be deemed to be indefinitely extended; provided, however, that it shall expire if the special use shall be terminated, abandoned or cease for more than six months for any reason, or if there is a default in the payment of the renewal fee; and further provided that it may be revoked by the board having jurisdiction after due hearing on not less than 10 days' notice to the person holding such permit in the event the use thereof violates any of the conditions or restrictions imposed by the board or becomes a nuisance.
§ 250-13.7 Gasoline service stations.
A.
The Zoning Board of Appeals (or in cases of new construction where subdivision and/or site plan approval is required, the Planning Board or Town Board, as the case may be) may issue a conditional use permit for the operation of a gasoline service station in any LB, GB or FC District. Such conditional use shall be issued to the operator of a gasoline service station, and no gasoline service station shall be operated in the Town without the required gasoline service station conditional use permit. Prior to the first issuance, as distinct from a renewal, of a permit under this section, the board having jurisdiction may require the applicant to submit such information as it may require and to fix the location of all structures on the premises. Prior to the first issuance of such conditional use permit, the board shall find, at a public hearing, that:
(1)
The proposed structures are located consistent with the regulations of the LB, GB or FC District in which they are to be located, and that the design and type of the proposed structures are in harmony with other structures in such neighborhood.
(2)
The proposed use will not create a traffic hazard at the proposed location. To this end, a minimum frontage of 200 feet will be required on any road used for access to the station.
(3)
The applicant has, in writing, agreed to construct and operate such proposed station in strict accordance with such conditions and restrictions as may be imposed by the board having jurisdiction.
(4)
The lot area is sufficient to permit construction of the largest station that might be needed in the future. This should, at the least, provide for four inside bays and parking for 15 cars, of which 10 spaces must be in a screened area behind the station.
(5)
All parking and outside storage shall comply with the front, side and rear lot setback requirements.
(6)
At the time of application for a permit, the applicant shall submit a full site plan or instrument survey of the property showing all tank locations, island setbacks, and such other and further information that may be necessary to determine compliance with the provisions of this chapter and any other provisions of law.
B.
Permit regulations.
(1)
Any permit granted hereunder shall be issued by the Town Clerk for a period of one year initially, and shall be renewable annually thereafter upon a favorable recommendation of the Fire Marshal. Prior to making such favorable recommendation to the Zoning Board of Appeals, the Fire Marshal shall first assure himself/herself, based upon a physical inspection, that the gasoline service station is operated in a manner consistent with the requirements of current fire codes.
(2)
Any permit granted hereunder shall be automatically terminated in the event the operator in whose name the permit has been issued ceases to operate the gasoline service station referred to in the conditional use permit.
(3)
The fees for the issuance of a conditional use permit shall be the fees as established by resolution by the Town Board.
(4)
Any conditional use permit granted hereunder may be revoked by the board having jurisdiction after due hearing on not less than 10 days' notice to the person holding such permit in the event that the use violates any of the conditions or restrictions imposed by the board having jurisdiction upon the issuance of such conditional use permit, or shall have become a nuisance.
C.
General regulations.
(1)
Gasoline service stations shall be operated and maintained at all times in conformity with the requirements of this article, National Fire Protection Association Code No. 30, state fire protection codes and all other New York applicable regulations.
(2)
All vehicles at motor vehicle supply station facilities shall be stored within a building when the facilities are not open for business. However, licensed vehicles at motor vehicle supply stations for minor repairs may be left outside for a period not to exceed 72 hours. At no time shall any unlicensed or dismantled automobiles, trucks, tractors, trailers or accessories thereof be outside of a building. At no time shall any vehicles for sale be displayed inside or outside of a building.
(3)
There shall be no outside storage or display of accessories or portable signs when gasoline service station facilities are not open for business.
(4)
Rubbish, oil cans, tires, discarded motor vehicle parts and components and other waste materials may be temporarily stored in a completely fenced-in opaque enclosure adjacent to the gasoline service station facility building. The area of such enclosure shall not exceed 200 square feet. There shall be no storage at any time of any of the above-mentioned items outside of such enclosure.
(5)
No repair work may be performed out of doors. This does not preclude, however, adding oil to motor vehicles, changing windshield wipers or other similar simple repairs normally performed in conjunction with the sale of gasoline.
(6)
Snow must be piled on a gasoline service station facility site so that it does not interfere with the internal circulation and parking or driver vision when entering or leaving the facility.
(7)
During the hours that a gasoline service station facility is open, all cars of employees, customers and tow trucks must be parked only in areas designated on the site plan for such vehicles.
(8)
All landscape areas designated on the gasoline service station facility site plan and/or landscaping plan must be maintained in a neat and healthy condition.
(9)
Motor vehicles being serviced shall not extend over the public sidewalk.
(10)
A nearby exterior door of the lubritorium or wash rack shall be open when a car motor is running, unless the exhaust gases of the car are carried directly to the outside by means of a flexible tube designed for this purpose.
(11)
Liquids shall be stored in approved closed containers not exceeding 60 gallons' capacity, or in tanks located in the ground, or above ground, subject to permit issuance by the Fire Marshal.
(12)
Class I liquids (liquids having a flash point below 100° F.) shall not be stored or handled within a building having a basement or pit into which flammable vapors may travel, unless adequate ventilation is supplied.
(13)
Accurate on-premises inventory records shall be maintained on all Class I liquid storage tanks for possible indication of leakage from tanks or piping.
(14)
Signs.
(a)
Signs shall be conspicuously posted setting forth the operating instructions of the dispensing units and also incorporating the following or equivalent wording:
WARNING — | ||
1) | IT IS UNLAWFUL TO DISPENSE GASOLINE INTO CONTAINERS NOT APPROVED FOR SUCH USE. | |
2) | NO SMOKING. | |
3) | STOP ENGINE. | |
(b)
A clearly visible numeral or letter at least six inches in height shall be conspicuously posted on each island with a smaller corresponding numeral or letter.
(15)
In locations where flammable vapors may be present, precautions shall be taken to prevent ignition by eliminating or controlling sources of ignition, which may include open flames, lighting, smoking, cutting and welding, hot surfaces, friction heat, sparks, spontaneous ignition, chemical and physical chemical reaction and radiant heat.
(16)
Gasoline, diesel fuel, and all Class I and Class II flammable liquids shall be stored in approved underground storage tanks. The total aggregate storage of such fuel at any one location shall not exceed 24,000 gallons.
(a)
All accidental spillage or leakage of a flammable liquid in quantities of five gallons or greater, whether or not it may enter sewers, shall be immediately reported to the Fire Department.
(b)
Five fifty-pound bags of Stay Dry absorbent, or equivalent, must be kept on the premises at all times for flammable liquid spills, and should be used for this purpose whenever possible instead of flushing with water.
(c)
The telephone number of the owner, lessee or station operator shall be posted on the door in a conspicuous location so that proper notification can be made in the event of an emergency.
(17)
No gasoline may be sold or dispensed unless into an approved container. Said product sales shall be made into approved containers clearly marked with the name of the product contained therein, and equipped with a closure filled with a screwed or spring cover, and a spout so designed that the contents can be poured. In addition, no gasoline sales shall be permitted to persons under the age of 16 without a parent or guardian present.
(18)
There shall be no smoking on the driveway of gasoline service stations in the areas used for fueling motor vehicles, dispensing flammable anti-freeze or receipt of products by tank vehicles, or in those portions of the building used for servicing automobiles, tractors or internal combustion engines. Conspicuous signs prohibiting smoking shall be posted within sight of the customer. Letters on such signs shall be not less than four inches high. The motors of all vehicles being fueled shall be shut off during the fueling operation.
(19)
Vents from underground tanks shall terminate at least 12 feet above grade and be carried around and above any nearby building overhang or other obstruction. They shall be in operating condition at all times.
(20)
There is to be no more than one tank truck on the premises at any one time. Before making any deliveries to underground tanks, the driver shall set the brakes of the truck and shall turn off the engine of the vehicle. The driver shall remain at the point of delivery to prevent spillage and overflow. In case of overflow, fire authorities and the Town Fire Marshal are to be notified immediately.
(21)
The premises are to be maintained in a neat and clean condition without the accumulation of used materials, automobile parts, dismantled cars or cars left by their owners over a considerable period of time. Used rags are to be kept in covered metal containers. Grease and other filters and/or traps shall be approved as required by the Superintendent of Sewers and the Monroe County Health Department for the purpose of protection of the public sewer system and public bodies of water.
(22)
There shall be one or more fire extinguishers capable of fighting Class A, B and C fires (Underwriters' Laboratories classification) hung in the sales room of the gasoline service station. There shall also be one or more fire extinguishers of the same capability hung in the lubritorium. At least one fire extinguisher having a minimum classification of 5B, C shall be hung within 100 feet of each pump, dispenser or underground fill pipe opening.
(23)
All electric wiring, fixtures and equipment shall be inspected and approved by the New York State Board of Fire Underwriters or other organization, which may be approved by the Town Board, by resolution and maintained in first class condition. All existing wiring material equipment and installations in hazardous locations, as defined in Chapter 5 of the National Electrical Code, shall conform to the requirements of that code, including current revisions.
(24)
Air compressors shall be installed at least one foot six inches above the main floor level of the station, and open-flame heaters shall be installed at least eight feet zero inches above said floor.
(25)
Alcohol or kerosene shall be dispensed from drums or tanks using equipment which meets the approval of the American Petroleum Institute and NFPA standards. Said drums or tanks shall be placed in locations which are remote from any exit.
(26)
Gasoline shall never be used for cleaning motor parts or cleaning the floor of the service station. Accumulation or spillage of oil or grease should be dried with Fuller's earth or equal.
D.
Attendants.
(1)
Each gasoline service station open to the public shall, at all times it is operating, have a qualified attendant or supervisor on duty.
(2)
Said attendant shall have been qualified by the gasoline service station facility operator, by means of instructions and certification, as well versed in proper handling and care of all petroleum dispensing equipment on premises and familiar with all necessary aspects of emergency operation.
(3)
It shall be the specific duty of the attendant to directly supervise, observe and control the dispensing of all flammable liquids. In addition, he/she shall be responsible for the control of sources of ignition and the immediate handling of accidental spills and fire extinguishers.
E.
Tanks, pumps and piping.
(1)
Tanks, pumps and piping shall in general be designed and equipped so as to comply with all principles of sound engineering design. They shall be able to withstand all necessary pressures and to adequately control the escape of liquids and vapors. All equipment on premises shall be constructed and equipped so as to ensure the safe and proper dispensation of Class I liquids and shall comply with necessary guidelines as expressed in National Fire Protection Association No. 30, Flammable and Combustible Liquids Code.
(2)
Class I liquids shall be conveyed from a main storage tank to the dispensing pump by means of a system of piping utilizing an arrangement of three swing joints laid in a horizontal position.
(3)
No gasoline pump shall be located closer than 25 feet to any property line.
(4)
Leaking tanks containing any flammable or combustible liquid or any pump or piping used in connection therewith which may be defective or in need of repair shall be repaired or replaced immediately, and it shall be within the sole discretion of the Fire Marshal as to whether the station or facility must cease any or all operations while such repairs or replacements are being made.
(5)
No installation, alteration or replacement of underground or aboveground tanks, pumps, piping and other equipment relating to the storage of flammable liquids shall be permitted without prior notification to the Fire Marshal, nor shall any pressure test or other test for leaks be conducted without giving at least 24 hours' prior notification to the Fire Marshal.
§ 250-13.8 Gasoline self-service stations.
A.
Each gasoline self-service station shall have a qualified attendant on duty whenever the station is open for business. It shall be the responsibility of the qualified attendant to control and operate remote pumping equipment. Class I liquids shall at no time be dispensed without the direct supervision of the qualified attendant.
B.
A control shall be provided that will permit the pump to operate only when a dispensing nozzle is removed from its bracket on the dispensing unit and the switch for this dispensing unit is manually activated. This control shall also stop the pump when all nozzles have been returned to their brackets. Lock open devices are not permitted on nozzles.
C.
Each gasoline self-service station shall have the remote dispensing equipment situated in such a manner as to give the qualified attendant controlling said equipment an optimum view of the dispensing of Class I liquids.
D.
Class I liquids may be dispensed only by customers possessing a valid motor vehicle operator's license. No sale of gasoline is permitted to a minor (under the age of 16) without a parent or guardian present.
E.
Gasoline self-service stations shall provide adequate fire protection systems in the form of an approved system of dry powder release, which will act as an automatic fire extinguisher. All systems shall be approved by the Fire Marshal prior to the start of operation.
F.
An automatic fire extinguishing system shall be installed in conformity with nationally recognized good practices and standards and approved by the Fire Marshal. Said system shall also be designed to be activated from a location remote from the pump island area. Said location shall be in the control room area if said station is so equipped, and be able to automatically terminate the electrical power to all service islands in the event of system malfunctions. Where a service station has one self-service island within 30 feet of a full-service island, both the self-service and full-service island shall be so equipped with the automatic fire-extinguishing system as provided for herein.
G.
Self-service pumps and nozzles shall be confined to service islands with no more than three self-service dispensing units per island, each of which dispensing units shall utilize no more than two hoses and nozzles per unit. Approved dispensing devices, such as but not limited to coin-operated, card-operated and remote preset types, shall be permitted, provided that the dispensing of Class I liquids is under the direct supervision of a qualified attendant.
H.
A traffic mirror, of sufficient size, shall be located on each end of each pump island to give the attendant a clear and unobstructed view of each island, said mirrors to be installed in locations acceptable to the Fire Marshal. An approved video camera system that permits unobstructed view of each island pump location shall be permitted in lieu of mirrors, subject to the approval of the Fire Marshal.
I.
A two-way communications system of the public address type shall be installed to facilitate direct and individual communication between the control room area and each pump island at all times that Class I liquids are being dispensed.
J.
Each gasoline self-service station shall provide a means of keeping pumps locked or otherwise inoperable when the station is not open for business.
§ 250-13.9 Bed-and-breakfast facilities.
A conditional use permit for a bed-and-breakfast facility shall be granted for a period deemed to be appropriate by the board to comply with all applicable provisions of this chapter. The proposed bed-and-breakfast facility shall comply with the following standards:
A.
The maximum number of sleeping rooms for transient guests shall be three, which rooms shall be located in the principal dwelling structure on site and not in any other detached buildings or structures.
B.
The maximum length of stay for transient guests shall be one week.
C.
The principal dwelling unit shall be owner-occupied.
D.
No exterior changes shall be made.
E.
Nameplate signs only may be used to identify the bed-and-breakfast facility. Such signs shall not exceed two square feet in area or be located closer than five feet to any property line. Such signs may be building-mounted or ground-mounted.
F.
Breakfast shall not be offered to the public at large, but only to such transient guests. No other meals shall be offered to any persons relating to the bed-and-breakfast operation.
H.
No kitchens shall be attached to or located within sleeping rooms.
§ 250-13.10 Child-care facilities.
A.
Child-care facilities shall be permitted in all zoning districts and shall comply with current state regulations and the following criteria:
(1)
"Child care" shall be defined as that care relating to children between the ages of six weeks and 12 years of age.
(2)
Child-care facilities in residential zoning districts shall be sized, with respect to lot area, at the determination of the board having jurisdiction and in compliance with the requirements of the New York State Office of Family Services, Division of Child Care Services.
[Amended 2-3-2021 by Res. No. 21T-066]
(3)
Child-care facilities in residential zoning districts shall be sized, with respect to building area, at the determination of the board having jurisdiction and in compliance with the requirements of the New York State Office of Family Services, Division of Child Care Services.
[Amended 2-3-2021 by Res. No. 21T-066]
(4)
The number of children permitted for child-care facilities shall be at the determination of the board having jurisdiction and in compliance with the requirements of the New York State Office of Family Services, Division of Child Care Services.
[Amended 2-3-2021 by Res. No. 21T-066]
(5)
All outdoor play areas shall be fenced by a minimum four-foot-high fence and shall be sized to accommodate 100 square feet of area per child utilizing the area at any given time.
(6)
There shall be a minimum one-hundred-foot buffer from all structures, play areas, parking facilities and driving lanes to any adjacent residential property line.
(8)
There shall be an adequate circular means of ingress and egress and turning radii for school buses and emergency vehicles.
(9)
There shall be a specific drop-off/pick-up zone to accommodate the site.
(10)
The school district in which the facility is proposed shall review and make recommendation to the board having jurisdiction with respect to location, serviceability and potential impact to the respective district.
(11)
In the case of nonresidential sites such as plazas and office parks, the board having jurisdiction shall determine the appropriate amount of lot area and parking facilities necessary to accommodate a child-care facility and its relation to other tenants operating from the site.
B.
In-home day care and those child-care facilities being conducted in conjunction with and accessory to religious or educational institutions within the Town of Penfield are not subject to review by the Town and are not subject to the criteria hereinabove.
§ 250-13.11 Wireless communications facilities.
[Amended 9-2-2020 by L.L. No. 3-2020]
A.
Wireless communications facilities in general.
(1)
Purpose.
(a)
The intent of this section is to provide a means of regulating the installation and operation of wireless communications facilities for the use, enjoyment and convenience of the residents of the Town of Penfield, while at the same time providing for the maximum protection of the health, safety and aesthetic sensibilities of the residents.
(b)
It is a further purpose of this section to minimize visual intrusion of such WCFs and to protect residents from unsafe structures and equipment. Further, this section is intended to promote the health, safety, and general welfare of the residents of the Town of Penfield, to provide standards for the safe provision of wireless communications service consistent with applicable federal and state regulations, and to protect, as much as possible, the natural features and aesthetic characteristics of the Town of Penfield.
(c)
The Town of Penfield recognizes the increased demand for WCFs and the need for the services they provide. Often the facilities require the construction of wireless support structures. The intrusion of large or high structures of unusual shape or size, monolithically towering above standard-appearing homes and structures, can be aesthetically objectionable and disturbing to visual sensitivities. Bulk and visual impact of such installations create aesthetic problems, making it appropriate to have some special limitations as to size and placement thereof. The intent of this section is to protect the Town's interest by properly siting structures in a manner consistent with sound land use planning while also allowing wireless services providers to meet their technological and service objectives.
(d)
The proliferation of the construction and installation of WCFs must be regulated so as to protect the health, safety, and welfare of the citizens to the maximum degree possible and to coordinate and control the same so as to preserve and protect the aesthetic qualities of the Town of Penfield and its environs.
(e)
Among other things, reasonable controls contribute to the good appearance of the Town, stabilize property values, assure the safety of the owner and others, and, in general, contribute to the preservation of a pleasant community within which to work and live. This section shall be construed and administered so as to not unduly hamper satisfactory reception or transmission of other communication signals.
(2)
Applicability.
(a)
Unless otherwise exempted by this section, no WCF shall hereafter be used, erected, moved, reconstructed, changed or altered except after approval by the Town in accordance with the requirements of this section.
(b)
No existing structure shall be modified to serve as a wireless support structure unless in conformity with this section.
(3)
Exemptions. The following are exempt from the requirements of securing a conditional use permit and site plan approval pursuant to this section:
(a)
Satellite dish antennas measuring one meter or less in diameter.
(b)
Commercial satellite dish antennas measuring two meters or less in diameter located in the following commercial districts: Limited Industrial (LI), General Business (GB), Limited Business (LB), Business Non-Retail (BN-R), Four Corners (FC), and LaSalle's Landing Development District (LLD).
(4)
Existing applications. The board having jurisdiction is hereby empowered to continue the processing of any applications for wireless communications facilities that are pending before it as of the effective date of this section. Notwithstanding the foregoing, those boards shall apply the specifications and standards contained in this section in considering such applications.
B.
The following regulations shall apply to all tower-based WCFs that do not meet the definition of a small WCF:
(1)
Height. The maximum height for all tower-based WCFs permitted under this section, including any antennas, extensions, or other devices extending above the structure of the wireless support structure, measured from the ground surface immediately surrounding the site, shall be no higher than 190 feet.
(2)
Commercial tower-based WCFs and accessory equipment permitted in certain primary zoning districts. Tower-based WCFs and their accessory equipment are permitted in any of the following primary zoning districts, subject to final site plan approval pursuant to Article XII by the Planning Board or Town Board, as the case may be, and upon approval and issuance of a conditional use permit pursuant to Article XIII and under the procedures set forth in this chapter and subject to and complying with all other applicable laws, rules and regulations:
(3)
Minimum lot area in single-family residential use districts. Notwithstanding any language to the contrary in § 250-5.1F of this chapter, the minimum lot area in single-family residential use districts for the installation of a commercial tower-based WCF shall be five acres.
(4)
Commercial tower-based WCFs and accessory equipment prohibited in certain primary zoning districts. Commercial tower-based WCFs and accessory equipment are not permitted in the following zoning districts:
(5)
Tower-based WCFs and accessory equipment are not permitted in the public rights-of-way in any Town zoning district.
(6)
Review procedures for commercial tower-based WCFs.
(a)
For the purposes of this section, all commercial tower-based WCFs are subject to site plan approval and to the conditional use permit process pursuant to the requirements of Articles XII and XIII of this chapter. The Planning Board shall have jurisdiction in the both the site plan review and conditional use permit review.
(b)
Notwithstanding the foregoing subsection, to encourage subsequent carriers seeking collocation of non-tower wireless communications facilities on existing commercial and noncommercial tower-based WCFs within the Town of Penfield, the authorized official is hereby authorized to issue conditional use permits to allow such collocation but may refer an application for collocation to the appropriate board for review if, in his/her opinion, the proposed collocation facilities are not consistent with those existing facilities.
(7)
Conditional use permit and site plan application requirements. Prior to the issuance of a conditional use permit and site plan approval for a proposed tower-based WCF by the Planning Board, the following requirements shall be complied with:
(a)
Conditional use permit and site plan. All applications for a conditional use permit and site plan approval shall be by written application on forms provided by the Town Planning Department. The application shall include a site plan setting forth specific site data on a map, acceptable in form and content to the Planning Board, and shall be prepared to scale and in sufficient detail and accuracy and shall show the following:
[1]
The location of property lines and permanent easements.
[2]
The location of the tower-based WCF, together with guy wires and guy anchors, if applicable.
[3]
A side elevation or other sketch of the tower-based WCF showing the proposed antennas.
[4]
The location of all structures on the property and all structures on any adjacent property within 200 feet of the base of the proposed tower-based WCF and at a minimum of 200 feet from all property lines.
[5]
The names of adjacent landowners as they appear on the Town of Penfield Assessor's records.
[6]
The location, nature, and extent of any proposed fencing, landscaping and/or screening.
[7]
The location and nature of proposed utility easements and access road, if applicable.
[8]
Inventory of other existing and proposed tower-based and applicant's non-tower-based WCFs within a minimum of two miles of the proposed location in the Town of Penfield and adjacent communities.
[9]
A completed visual environmental assessment form (visual EAF) and a landscaping plan addressing other standards listed within this section, with particular attention to visibility from key viewpoints within and outside of the municipality as identified in the visual EAF. The Board may require submittal of a more detailed visual analysis based on the results of the visual EAF.
[10]
Verification that the proposed facility will comply with all applicable FCC rules and regulations.
(b)
Preference for siting tower-based WCFs. The following establishes a system of preferred locations in which a proposed tower-based WCF is located. This relates to a specific setting or in a specific area or zoning district, assuming there is a technologically feasible and available location. A guideline for the preference from most favorable to least favorable district/setting/property is as follows:
(c)
Shared use.
[1]
Tower-based and non-tower-based WCFs shall be designed to provide for collocation of at least three carriers or designed so that they can be retrofitted to accommodate a minimum of three carriers. Additionally, where such shared use is unavailable, location of an antenna on preexisting structures shall be considered the next preferable location. An applicant shall be required to present a report, inventorying existing tower-based and applicant's non-tower based WCFs within a minimum of two miles from the proposed location in the Town of Penfield and adjacent municipalities and outlining opportunities for shared use of existing WCFs and use of other preexisting structures as alternatives to new construction.
[2]
An applicant intending to share use of an existing tower-based or non-tower based WCF shall be required to document consent from an existing tower-based or non-tower-based WCF owner for that shared use. The applicant shall pay all reasonable fees and costs of adapting an existing tower-based WCF or structure to a new shared use. Those costs of adapting an existing tower-based WCF or structure to a new shared use include, but are not limited to, structural reinforcement, preventing transmission or receiver interference, additional site screening, and other changes, including real property acquisition or lease required to accommodate the shared use.
[3]
In the case of new tower-based WCFs, the applicant shall be required to submit a report demonstrating good-faith efforts to secure shared use from owners of existing tower-based WCFs. Copies of written requests and responses for shared use shall be provided. The applicant shall also be required to submit a report justifying its inability to place its tower-based WCF and related facilities in areas set forth in Subsection B(6)(b).
[4]
The appropriate board or authorized official, as the case may be, shall have the power to grant a waiver of the collocation requirement, provided the applicant proves that such waiver is required in order for the applicant to render safe and adequate service.
(d)
Aesthetics. In order to minimize any adverse aesthetic effect on neighboring properties to the maximum extent practicable, the Planning Board may impose reasonable conditions on the applicant, including the following:
[1]
All tower-based WCFs and accessory facilities or structures shall be sited to have the least adverse visual effect on the environment.
[2]
A freestanding tower-based WCF instead of a guyed tower-based WCF.
[3]
Reasonable landscaping consisting of trees or shrubs to screen the base of the tower-based WCF and/or to screen the tower-based WCF to the extent possible from adjacent residential property. Existing on-site trees and vegetation shall be preserved to the maximum extent practicable.
[4]
As defined in Subsection B(6)(c)[3], the applicant shall show that it has made good-faith efforts to collocate on existing tower-based WCFs or other available and appropriate structures and/or to construct new tower-based WCFs near existing tower-based WCFs in an effort to consolidate visual disturbances. However, such request shall not unreasonably delay the application.
[5]
Tower-based WCFs should be designed and sited so as to avoid, whenever possible, application of Federal Aviation Administration (FAA) lighting and painting requirements. The tower-based WCF shall not be artificially lighted except as required by the FAA. Any lighting utilized shall not result in glare on adjacent properties. Tower-based WCFs are to be of a galvanized finish or painted matte gray unless otherwise required by the FAA.
[6]
No tower-based WCF shall contain any advertising signs or devices. Safety warning signs shall not be considered advertising and shall be permitted, the size and type to be determined and approved by the appropriate board.
[7]
Accessory facilities and structures shall maximize the use of building materials, colors, and textures designed to blend with the natural surroundings.
(e)
Setbacks.
[1]
All freestanding tower-based WCFs and accessory equipment shall be set back from abutting parcels, public property, or right-of-way lines a distance sufficient to contain substantially all ice fall or debris on-site from tower-based WCF failure, or 200 feet, whichever is greater.
[2]
All appurtenances and attachments, such as guy wires, must be located at a minimum setback from any property line a distance of at least 200 feet or the minimum setback of the underlying zoning district, whichever is greater. The minimum setback requirement of this subsection may be increased at the discretion of Planning Board, as part of the site plan approval procedures, or it may be decreased in those instances where the owner/applicant has submitted plans for a tower-based WCF designed in such a manner as to collapse within a smaller area. Such tower-based WCF design and collapse zone must be acceptable to the Town Engineer and the Building Inspector.
(f)
Radio frequency effects. It is recognized that federal law [Telecommunications Act of 1996, Public Law 104-104, Section 704 (February 8, 1996)] prohibits the regulation of cellular and personal communications service (PCS) tower-based WCFs based on the environmental effects of radio frequency emissions where those emissions comply with the Federal Communications Commission (FCC) standards for those emissions. The Board shall, however, impose a condition on the applicant that the communication antennas be operated only at FCC-designated frequencies and power levels and require applicants to submit evidence, upon approval and once every three years thereafter, demonstrating that the proposed use is in compliance with such standards.
(g)
Retention of experts. The Town may hire any consultant(s) and/or expert(s) necessary to assist the Town in reviewing and evaluating the application for approval of a tower-based WCF and, once approved, in reviewing and evaluating any potential violations of the terms and conditions of these WCF provisions. The WCF applicant and/or owner of the WCF shall reimburse the Town for all costs of the Town's consultant(s) in providing expert evaluation and consultation in connection with these activities, including reasonable attorney fees.
(h)
Indemnification. To the maximum extent permitted by law, each person that owns or operates a tower-based WCF shall, at its sole cost and expense, execute an agreement to indemnify, defend and hold harmless the Town, its elected and appointed officials, and employees, at all times against any and all claims for personal injury, including death, and property damage arising in whole or in part from, caused by or connected with any act or omission of the person, its officers, agents, employees or contractors arising out of, but not limited to, the construction, installation, operation, maintenance or removal of the tower-based WCF. Each person that owns or operates a tower-based WCF shall defend any actions or proceedings against the Town in which it is claimed that personal injury, including death, or property damage was caused by the construction, installation, operation, maintenance or removal of a tower-based WCF. The obligation to indemnify, hold harmless and defend shall include, but not be limited to, the obligation to pay judgments, injuries, liabilities, damages, reasonable attorney fees, reasonable expert fees, court costs and all other costs of indemnification. This indemnification shall not apply to any claim or liability resulting from the gross negligence or willful misconduct of any indemnified party.
(i)
Traffic, access, and safety.
[1]
A road and parking area 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 Town standards for private roads and shall at all times minimize ground disturbance and vegetation cutting. 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 objective of this subsection.
[2]
All tower-based WCFs and guy anchors, if applicable, shall be enclosed by climb-proof fencing of a height sufficient to protect it from trespassing or vandalism.
[3]
The applicant must comply with all applicable state and federal regulations, including, but not limited to, FAA and FCC regulations.
(j)
Existing vegetation. Existing on-site vegetation shall be preserved to the maximum extent possible, and 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 conditional use permit.
(k)
Letter of credit/security. The applicant and the owner of record of the premises shall be required to execute and file with the Town Clerk of the Town of Penfield a letter of credit or other form of security acceptable to the Town Attorney as to form and manner of execution in an amount sufficient for the faithful performance of the terms and conditions of this section, the conditions of the permit or approval issued hereunder, for the observation of all Town local laws to cover the maintenance of the tower-based WCF during its lifetime, and provide for its removal. The amount required shall be determined by the Town Engineer. In the event of default upon the performance of any of such conditions, the letter of credit or security shall be forfeited to the Town of Penfield, which shall be entitled to maintain an action thereon. The letter of credit or security shall remain in full force and effect until the removal of the tower, antenna, pole, accessory facility/structure, and site restoration. Further, the applicant and owner shall be required to furnish evidence of adequate insurance, the adequacy of which shall be determined by the Town's insurance consultant.
(l)
Removal. In the event that use of a tower-based WCF is to be discontinued, the owner shall provide written notice to the Town of its intent to discontinue use and the date when the use shall be discontinued. Unused or abandoned WCF, or portions of WCF, shall be removed as follows:
[1]
All abandoned or unused WCFs and accessory equipment shall be removed within one year of the cessation of operations at the site unless a time extension is approved by the Town.
[2]
If the WCF or accessory equipment is not removed within one year of the cessation of operations at a site, or within any longer period approved by the Town, the WCF and/or associated facilities and equipment may be removed by the Town and the cost of removal assessed against the owner of the WCF and or the property owner upon which the tower-based WCF is located.
(m)
Conditions. The Planning Board or Town Board, as the case may be, may impose reasonable conditions and restrictions in granting approvals applied for under this section.
(n)
Verification of compliance. The applicant shall submit, on an annual basis, a written report of compliance to the authorized official, verifying that the site has maintained compliance with all applicable FCC emission requirements and mechanical safety regulations.
C.
The following regulations shall apply to all non-tower WCF that do not meet the definition of a small WCF:
(1)
Permitted in all zones subject to regulations. Non-tower WCF are permitted outside the public rights-of-way in all zones subject to the restrictions and conditions prescribed below and subject to generally applicable permitting by the Town.
(2)
Conditional use authorization required. Any WCF applicant proposing the construction of a new non-tower WCF that does not substantially change the dimensions of the underlying wireless support structure, or the modification of an existing non-tower WCF, shall first obtain conditional use authorization from the Planning Board. The conditional use application shall demonstrate that the proposed facility complies with all applicable provisions in the Town of Penfield Zoning Law. The application shall include a site plan setting forth specific site data on a map, acceptable in form and content to the Planning Board, and shall be prepared to scale and in sufficient detail and accuracy and shall show the following:
(a)
The location of property lines and permanent easements.
(b)
The location of the non-tower WCF and accessory equipment.
(c)
A side elevation or other sketch of the wireless support structure showing the proposed antenna(s) and dimensional change as a result of the installation of the non-tower WCF.
(d)
The location of all structures on the property and all structures on any adjacent property within 200 feet of the wireless support structure and at a minimum of 200 feet from all property lines.
(e)
The names of adjacent landowners as they appear on the Town of Penfield Assessor's records.
(f)
The location, nature, and extent of any proposed fencing, landscaping and/or screening relating to accessory equipment, if necessary.
(g)
Verification that the proposed facility will comply with all applicable FCC rules and regulations and the requirements of this § 250-13.11C.
(3)
Building permit required. WCF applicants proposing the collocation of a non-tower WCF on a wireless support structure that already supports one or more WCF and that does not substantially change the physical dimensions of the wireless support structure to which they are attached shall obtain a building permit from the Town Building Department. In order to be considered for such permit, the WCF applicant must submit a permit application to the Town in accordance with applicable permit policies and procedures.
(4)
Prohibited on certain structures. No non-tower WCF shall be located on single-family detached residences, single-family attached residences, semi-detached residences, or duplexes.
(5)
Nonconforming wireless support structures. Non-tower WCF shall be permitted to collocate upon nonconforming tower-based WCF and other nonconforming structures. Collocation of WCF upon existing tower-based WCF is encouraged even if the tower-based WCF is nonconforming as to use within a zoning district.
(6)
Permit fees. The Town may assess appropriate and reasonable permit fees directly related to the Town's actual costs in reviewing and processing the application for approval of a non-tower WCF, as well as related inspection, monitoring and related costs. Such permit fees shall be established by the Town Fee Schedule and shall comply with the applicable requirements of the FCC.
(7)
Development regulations. Non-tower WCF shall be collocated on existing structures, such as existing buildings or tower-based WCF, subject to the following conditions:
(a)
The total height of any wireless support structure and mounted WCF shall not exceed 20 feet above the maximum height permitted in the underlying zoning district.
(b)
In accordance with industry standards, all non-tower WCF applicants must submit documentation to the Town justifying the total height of the WCF.
(c)
If the WCF applicant proposes to locate the accessory equipment in a separate building, the building shall comply with the minimum requirements for the applicable zoning district.
(d)
A security fence having a minimum height of eight feet shall surround any separate communications equipment building. Vehicular access to the communications equipment building shall not interfere with the parking or vehicular circulations on the site for the principal use.
(8)
Design. Non-tower WCFs shall employ stealth technology and be treated to match the wireless support structure in order to minimize aesthetic impact. The application of the stealth technology utilized by the WCF applicant shall be subject to the approval of the Town.
(9)
Standard of care. Any non-tower WCF shall be designed, constructed, operated, maintained, repaired, modified and removed in strict compliance with all current applicable technical, safety and safety-related codes, including but not limited to the most recent editions of the American National Standards Institute (ANSI) Code, National Electrical Safety Code, National Electrical Code, or to the industry standard applicable to the structure. Any WCF shall at all times be kept and maintained in good condition, order and repair by qualified maintenance and construction personnel, so that the same shall not endanger the life of any person or any property in the Town.
(10)
Wind and ice. All non-tower WCFs shall be designed to withstand the effects of wind gusts and ice to the standard designed by the American National Standards Institute as prepared by the engineering departments of the Electronics Industry Association, and Telecommunications Industry Association (ANSI/TIA-222, as amended), or to the industry standard applicable to the structure.
(11)
Aviation safety. Non-tower WCFs shall comply with all federal and state laws and regulations concerning aviation safety.
(12)
Public safety communications. Non-tower WCFs shall not interfere with public safety communications or the reception of broadband, television, radio or other communication services enjoyed by occupants of nearby properties.
(13)
Radio frequency emissions. A non-tower WCF shall not, by itself or in conjunction with other WCFs, generate radio frequency emissions in excess of the standards and regulations of the FCC, including but not limited to, the FCC Office of Engineering Technology Bulletin 65 entitled "Evaluating Compliance with FCC Guidelines for Human Exposure to Radio Frequency Electromagnetic Fields," as amended.
(14)
Removal. In the event that use of a non-tower WCF is to be discontinued, the owner shall provide written notice to the Town of its intent to discontinue use and the date when the use shall be discontinued. Unused or abandoned WCFs, or portions of WCFs, shall be removed as follows:
(a)
All abandoned or unused WCFs and accessory equipment shall be removed within 60 days of the cessation of operations at the site unless a time extension is approved by the Town.
(b)
If the WCF or accessory equipment is not removed within 60 days of the cessation of operations at a site, or within any longer period approved by the Town, the WCF and/or associated facilities and equipment may be removed by the Town and the cost of removal assessed against the owner of the WCF and/or the property owner upon which the tower-based WCF is located.
(15)
Insurance. Each person that owns or operates a non-tower WCF shall be required to furnish evidence of adequate insurance, the adequacy of which shall be determined by the Town's insurance consultant.
(16)
Retention of experts. The Town may hire any consultant(s) and/or expert(s) necessary to assist the Town in reviewing and evaluating the application for approval of the non-tower WCF and, once approved, in reviewing and evaluating any potential violations of the terms and conditions of these WCF provisions. The WCF applicant and/or owner of the WCF shall reimburse the Town for all costs of the Town's consultant(s) in providing expert evaluation and consultation in connection with these activities, including reasonable attorney fees.
(17)
Indemnification. To the maximum extent permitted by law, each person that owns or operates a non-tower WCF shall, at its sole cost and expense, execute an agreement to indemnify, defend and hold harmless the Town, its elected and appointed officials, employees and agents, at all times against any and all claims for personal injury, including death, and property damage arising in whole or in part from, caused by or connected with any act or omission of the person, its officers, agents, employees or contractors arising out of, but not limited to, the construction, installation, operation, maintenance or removal of the non-tower WCF. Each person that owns or operates a non-tower WCF shall defend any actions or proceedings against the Town in which it is claimed that personal injury, including death, or property damage was caused by the construction, installation, operation, maintenance or removal of a non-tower WCF. The obligation to indemnify, hold harmless and defend shall include, but not be limited to, the obligation to pay judgments, injuries, liabilities, damages, reasonable attorney fees, reasonable expert fees, court costs and all other costs of indemnification. This indemnification shall not apply to any claim or liability resulting from the gross negligence or willful misconduct of any indemnified party.
(18)
Maintenance. To the extent permitted by law, the following maintenance requirements shall apply:
(a)
The non-tower WCF shall be fully automated and unattended on a daily basis and shall be visited only for maintenance or emergency repair.
(b)
Such maintenance shall be performed to ensure compliance with applicable structural safety standards and radio frequency emissions regulations.
(c)
All maintenance activities shall conform to industry maintenance standards.
(19)
Timing of approval.
(a)
Within 90 days of receipt of a complete application for a non-tower WCF on a preexisting wireless support structure that substantially changes the wireless support structure to which it is attached, the Planning Board shall make a final decision on whether to approve the application and shall notify the WCF applicant in writing of such decision.
(b)
Within 60 days of receipt of a complete application for a non-tower WCF on a preexisting wireless support structure that does not substantially change the wireless support structure to which it is attached, the Town Building Department shall issue the required building and zoning permits authorizing construction of the WCF. All applications for such WCF shall designate that the proposed WCF meets the requirements of an eligible facilities request.
(20)
Historic buildings. No non-tower WCF may be located within 100 feet of any property, or on a building or structure that is listed on either the National or New York Registers of Historic Places, or eligible to be so listed, located within a historic district, or is included in the official historic structures list maintained by the Town, including, but not limited to, Town of Penfield locally designated historical landmarks.
(21)
Removal, replacement and substantial change.
(a)
The removal and replacement of non-tower WCFs and/or accessory equipment for the purpose of upgrading or repairing the WCF is permitted, so long as such repair or upgrade does not substantially change the overall height of the WCF or increase the number of antennas.
(b)
Any substantial change to a WCF shall require notice to be provided to the Town Planning Department, and possible supplemental permit approval as determined by the Town Planning Board.
(22)
Inspection. The Town reserves the right to inspect any WCF to ensure compliance with the provisions of the Zoning Law and any other provisions found within the Town Code or state or federal law. The Town and/or its agents shall have the authority to enter the lease area of any property upon which a WCF is located at any time, upon reasonable notice to the operator, to ensure such compliance.
D.
The following regulations shall apply to small wireless communications facilities:
(1)
Location and development standards.
(a)
Small WCF are permitted by administrative review and approval by the Town Planning Department in all Town zoning districts, subject to the requirements of this § 250-13.11D. The application shall include a site plan setting forth specific site data on a map, acceptable in form and content to the Town Planning Department, which shall be prepared to scale and in sufficient detail and accuracy and shall show compliance with the requirements of this § 250-13.11D.
(b)
Small WCFs in the public right-of-way requiring the installation of a new wireless support structure shall not be located in front of any building entrance or exit to the extent technically feasible.
(c)
Small WCFs in the public right-of-way requiring the installation of a new wireless support structure shall only be allowed in areas where all utilities are underground if the applicant demonstrates that no opportunity for collocated small WCFs in the public right-of-way is available. If the installation of a new wireless support structure is proposed in an area where all utilities are underground, the wireless support structure shall be a decorative pole as required by the Town of Penfield Small Wireless Communication Facility Design Manual.
(d)
All small WCFs shall comply with the applicable requirements of the Americans with Disabilities Act, all requirements of the Town Code and Town Design Specifications applicable to streets and sidewalks.
(2)
Nonconforming wireless support structures. Small WCFs shall be permitted to collocate upon nonconforming tower-based WCFs and other nonconforming structures. Collocation of WCF upon existing tower-based WCFs is encouraged even if the tower-based WCF is nonconforming as to use within a zoning district.
(3)
Standard of care. Any small WCF shall be designed, constructed, operated, maintained, repaired, modified and removed in strict compliance with all current applicable technical, safety and safety-related codes, including but not limited to the most recent editions of the American National Standards Institute (ANSI) Code, National Electrical Safety Code, National Electrical Code, or to the industry standard applicable to the structure. Any WCF shall at all times be kept and maintained in good condition, order and repair by qualified maintenance and construction personnel, so that the same shall not endanger the life of any person or any property in the Town.
(4)
Wind and ice. All small WCF shall be designed to withstand the effects of wind gusts and ice to the standard designed by the American National Standards Institute as prepared by the engineering departments of the Electronics Industry Association, and Telecommunications Industry Association (ANSI/TIA-222, as amended), or to the industry standard applicable to the structure.
(5)
Aviation safety. Small WCFs shall comply with all federal and state laws and regulations concerning aviation safety.
(6)
Public safety communications. Small WCFs shall not interfere with public safety communications or the reception of broadband, television, radio or other communication services enjoyed by occupants of nearby properties.
(7)
Radio frequency emissions. A small WCF shall not, by itself or in conjunction with other WCFs, generate radio frequency emissions in excess of the standards and regulations of the FCC, including but not limited to, the FCC Office of Engineering Technology Bulletin 65 entitled "Evaluating Compliance with FCC Guidelines for Human Exposure to Radio Frequency Electromagnetic Fields," as amended.
(8)
Time, place and manner. The Town shall determine the time, place and manner of construction, maintenance, repair and/or removal of all small WCF in the right-of-way based on public safety, traffic management, physical burden on the right-of-way, and related considerations including, but not limited to aesthetics.
(9)
Accessory equipment. Small WCFs and accessory equipment shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, create safety hazards to pedestrians and/or motorists, or to otherwise inconvenience public use of the right-of-way as determined by the Town.
(10)
Graffiti. Any graffiti on the tower or on any accessory equipment shall be removed at the sole expense of the owner within 10 days of notification by the Town.
(11)
Design regulations. All small WCFs shall be designed to meet the requirements of the Town "Small Wireless Communications Facility Design Manual," a copy of which is kept on file at the Town Planning Department.
(12)
Timing of approval.
(a)
Within 60 days of receipt of a complete application for collocation of a small WCF on a preexisting wireless support structure, the Town Building Department shall make a final decision on whether to approve the application and shall notify the WCF applicant in writing of such decision.
(b)
Within 90 days of receipt of an application for a small WCF requiring the installation of a new wireless support structure, the Town Planning Department shall make a final decision on whether to approve the application and shall notify the WCF applicant in writing of such decision.
(13)
Relocation or removal of facilities.
(a)
Within 180 days following written notice from the Town, or such longer period as the Town determines is reasonably necessary or such shorter period in the case of an emergency, an owner of a small WCF in the right-of-way shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any WCF when the Town, consistent with its police powers, shall determine that such removal, relocation, change or alteration is reasonably necessary under the following circumstances:
[1]
The construction, repair, maintenance or installation of any Town or other public improvement in the right-of-way;
[2]
The operations of the Town or other governmental entity in the right-of-way;
[3]
Vacation of a street or road or the release of a utility easement; or
[4]
An emergency as determined by the Town.
(b)
The Town and owner shall cooperate to the extent possible to assure continuity of service during any relocation. The Town shall use best efforts to provide a reasonably equivalent location that affords owner substantially similar engineering objectives.
(14)
Insurance. Each person that owns or operates a small WCF shall be required to furnish evidence of adequate insurance, the adequacy of which shall be determined by the Town of Penfield.
(15)
Reimbursement for right-of-way use. In addition to permit fees as described in this section, every small WCF in the right-of-way is subject to the Town's right to fix annually a fair and reasonable fee to be paid in order to recover the Town's costs for management of WCF in the right-of-way. Such compensation for right-of-way use shall be directly related to the Town's actual right-of-way management costs including, but not limited to, the costs of the administration and performance of all reviewing, inspecting, permitting, supervising and other right-of-way management activities by the Town. The owner of each small WCF shall pay an annual fee to the Town to compensate the Town for the Town's costs incurred in connection with the activities described above.
(16)
Retention of experts. The Town may hire any consultant(s) and/or expert(s) necessary to assist the Town in reviewing and evaluating the application for approval of a small WCF and, once approved, in reviewing and evaluating any potential violations of the terms and conditions of these WCF provisions. The WCF applicant and/or owner of the WCF shall reimburse the Town for all reasonable costs of the Town's consultant(s) in providing expert evaluation and consultation in connection with these activities, including reasonable attorney fees.
(17)
Indemnification. To the maximum extent permissible by law, each person that owns or operates a small WCF shall, at its sole cost and expense, execute an agreement to indemnify, defend and hold harmless the Town, its elected and appointed officials, employees and agents, at all times against any and all claims for personal injury, including death, and property damage arising in whole or in part from, caused by or connected with any act or omission of the person, its officers, agents, employees or contractors arising out of, but not limited to, the construction, installation, operation, maintenance or removal of the small WCF. Each person that owns or operates a small WCF shall defend any actions or proceedings against the Town in which it is claimed that personal injury, including death, or property damage was caused by the construction, installation, operation, maintenance or removal of a small WCF. The obligation to indemnify, hold harmless and defend shall include, but not be limited to, the obligation to pay judgments, injuries, liabilities, damages, reasonable attorney fees, reasonable expert fees, court costs and all other costs of indemnification. This indemnification shall not apply to any claim or liability resulting from the gross negligence or willful misconduct of any indemnified party.
E.
Noncommercial tower-based WCFs.
(1)
Radio and television towers and receiving antennas, amateur radio service transmitting and receiving towers and antennas are accessory uses within all districts, provided that a conditional use permit and a building permit are first issued, in accordance with the following regulations:
(a)
Tower-based WCFs and antennas must be so situated that the placement of the base of the tower-based WCF is set back a minimum of the height of the tower-based WCF from any property line; should the structure fall from whatever cause, it would not collide with any structure off the lot in which it is located, or with any telephone or electric power lines or poles, or within the public right-of-way. Freestanding tower-based WCFs and/or antennas may not be located in front of principal structures and, when located on the side or rear of principal structures, must observe the setback requirement for accessory equipment in the district, whereby the portion of the tower, base, antenna or any component or accessory thereto (whether vertical or horizontal) closest to the side or rear property line shall not be within the minimum setback area for accessory equipment within the zoning district.
(b)
Tower-based WCFs shall be so designed and constructed that guy wires or other accessories shall not cross or encroach upon any street, public space, right-of-way or over any telephone, electric power or cable television lines or encroach upon any other privately owned property.
(c)
Permitted freestanding tower-based WCFs, climbable from the ground up to a distance of 12 feet above the ground, or if the tower-based WCF and antenna require mechanical equipment associated with, and necessary for operation, including an enclosure for batteries and storage cells, and if said equipment is located outside the principal structure, then there shall be provided a completely enclosed (sides and top) area, the size and extent of which shall be determined by the Building Inspector or his/her designee, but the extent shall be the minimum necessary for safe enclosure.
(d)
Permitted freestanding tower-based WCFs and antennas shall not be lighted in any way, unless such lighting is required by the FAA or other controlling agency.
(2)
Abandonment or cessation of use. The conditional use permit and site plan approval shall expire upon:
(a)
The failure to commence active operation of the tower-based WCF, antenna, pole, or accessory facility/structure within 12 months of the issuance of a conditional use permit and final site plan approval by the Planning Board or Town Board, as the case may be; or
(b)
The discontinuance of the active and continuous operation of the tower-based WCF, antenna, pole, or accessory facility/structure for a continuous period of 12 months, regardless of any reservation of an intent not to abandon or discontinue the use or of an intent to resume active operations. Upon such abandonment or cessation of use, the applicant shall remove the tower-based WCF and related facilities.
F.
Review procedures for noncommercial tower-based WCFs and accessory equipment. For the purposes of this section, the regulation of noncommercial telecommunications systems that are not exempt shall be subject to the requirements of Article XV of this chapter, and the Zoning Board of Appeals shall have jurisdiction over the review process. Further, in cases where site plan approval may be required in addition to the conditional use permit process pursuant to Article XII, the Planning Board shall have jurisdiction.
G.
Satellite dish antennas.
(1)
Noncommercial satellite dish antennas.
(a)
Unless exempt pursuant to Subsection A(3) of this section, all noncommercial satellite dish antennas (more commonly known as "satellite dishes") shall comply with the specifications and standards set forth herein.
(b)
Satellite dish antennas are considered a permitted accessory use within all districts pursuant to the procedures of this chapter.
[1]
All satellite dish antennas of a size of one meter or less are exempt from permit requirements. Satellite dish antennas in excess of one meter shall be subject to conditional use permit review and approval by the Zoning Board of Appeals and issuance of a building permit.
[2]
Satellite dish antennas may be mounted on the residence. They may also be placed in the yard, subject to compliance with minimum setback requirements for the zoning district in which they are proposed to be installed. Any such ground-mounted satellite dish antenna that cannot comply with minimum setback requirements shall be subject to area variance approval of the Zoning Board of Appeals.
[3]
Satellite dish antennas shall only be placed on the property which they serve.
[4]
Satellite dish antennas, when building-mounted, shall not be installed on any chimney, fire escape or in front of any window or door in such a manner as to obstruct or prevent emergency egress from the residence.
[5]
The authorized official may also refer the applicant to the Zoning Board of Appeals, if in its determination said placement will adversely impact an adjacent property owner or cause harm to the general public or the property owner. In such cases, the applicant shall apply to the Zoning Board of Appeals for relief from the authorized official's decision.
(2)
Commercial satellite dish antennas.
(a)
Unless exempt pursuant to Subsection A(3) of this section, all commercial satellite dish antennas (more commonly known as "satellite dishes") shall comply with the specifications and standards set forth herein.
(b)
Satellite dish antennas are considered a permitted accessory use within all districts pursuant to the procedures of this chapter.
[1]
All commercial satellite dish antennas of a size of two meters or less are exempt from permit requirements. Commercial satellite dish antennas in excess of two meters shall be subject to conditional use permit review and approval by the Zoning Board of Appeals.
[2]
Satellite dish antennas shall be building-mounted in accordance with the applicable requirements of the New York State Building Code.
[3]
In cases where it has been technically demonstrated that it is not reasonable or practicable to have satellite dish antennas mounted on the roof or walls of the commercial establishment, the applicant shall comply with the minimum setback requirements for accessory equipment when determining the placement of such satellite dish antennas. In such cases, their placement shall be subject to the approval of the Zoning Board of Appeals.
§ 250-13.12 Cannabis retail dispensary.
[Added 10-19-2022 by L.L. No. 5-2022]
A.
Purpose. The purpose of this section is to provide zoning district locations and regulations governing cannabis retail dispensary establishments in accordance with New York State's Cannabis Law, as amended or changed. It is the express purpose and intent of this section to minimize the adverse impacts cannabis retail dispensaries may have on adjacent properties and to provide standards for the placement, design, siting, safety, security, monitoring, modification, and discontinuance of cannabis retail dispensaries. This section outlines reasonable conditions that will protect the public health, safety, and welfare of the Penfield community. This section is intended to encourage appropriate land use and reasonable safeguards to govern the time, place, and manner of cannabis retail dispensary operations.
B.
Authorization to approve or deny conditional use permits to establish cannabis retail dispensaries. A conditional use permit shall be required before any property may be used as a cannabis retail dispensary. The power to approve, approve with conditions, or deny such application is vested in the board having jurisdiction as set forth above in § 250-13.2, except that those applications that may be processed administratively as set forth in Subsection D below.
D.
Changes in operator or site. Changes in owner or operator of an existing cannabis retail dispensary or minor building or site modifications of a legally existing cannabis retail dispensary may be reviewed and a revised conditional use permit may be approved administratively by the Building and Zoning Department. If it is determined that the change in operator will result in a substantial change in operation or site plan, the application can be referred to the board having jurisdiction for a revised conditional use permit and/or revised site plan approval, subject to a public hearing if required by law or at the discretion of the board having jurisdiction.
E.
Cannabis retail dispensary standards, rquirements and considerations. In addition to the standards set forth in § 250-13.4, the following standards, requirements and/or considerations shall be addressed in any application for conditional use permit and/or site plan approval associated with a retail cannabis dispensary:
(1)
Minimum distances. For the purposes of this law, distance shall be measured on a straight line from the nearest boundary line(s) of the specified use or zoning district to the nearest point of the building footprint or tenant space footprint of the proposed cannabis retail dispensary.
(a)
A cannabis retail dispensary shall not be located within 500 feet of any residential zoning district.
(b)
A cannabis retail dispensary shall not be located within 1,000 feet of any recreational facility, school, place of worship, park, public playground, child-care facility, children's camp, or similar use(s), as determined by the Code Enforcement Officer.
(c)
A cannabis retail dispensary shall not be located within 1,500 feet of any other cannabis retail dispensary.
(2)
Hours of operation. Cannabis retail dispensaries may be open for business between the hours of 9:00 a.m. and 8:00 p.m. Monday through Saturday and between the hours of 11:00 a.m. and 5:00 p.m. on Sundays. Hours of operation must be provided in the application submission to the Town.
(3)
The cannabis retail dispensary shall provide for adequate and proper security at the premises to deter and prevent illegal activities from taking place on or near the applicant's premises and avoid conduct that has an adverse effect on the health, safety and/or welfare of the surrounding neighborhood.
(4)
No marijuana or marijuana product shall be smoked, eaten, or otherwise consumed or ingested on the premises where sold. All dispensaries permitted under this section shall comply with all state and local laws, rules and regulations governing the smoking of tobacco.
(5)
No drive-through service shall be permitted at a cannabis retail dispensary.
(6)
No outside storage of marijuana, marijuana products, or related supplies is permitted.
(7)
The applicant must provide an odor control plan that provides for proper and adequate ventilation and demonstrates that any odors associated with the cannabis products stored on site shall be effectively confined to the premises or so treated in order to avoid any negative impacts to neighboring properties or tenant spaces.
(8)
Any conditional use permit issued under this section shall contain a condition that the cannabis retail dispensary shall not operate, and the conditional use permit shall not be valid, until the applicant has obtained all required licenses and permits issued by the State of New York and any of its agencies.
(9)
In case of conflict between any of the provisions contained in § 250-13.4 and any other law, rule or regulation, the stricter, more restrictive provision shall govern and apply.
(10)
Subject to applicable law, the conditional use permit application to the board having jurisdiction must include a copy of all information submitted to the State of New York in application for a license to operate under the New York State Cannabis Law, as amended or changed.
F.
License and permit revocation violations and penalties for offenses.
(1)
License and permit revocation.
(a)
A revocation of the cannabis retail dispensary license by New York State shall render the conditional use permit null and void and of no further force and effect, and result in the immediate closure of the dispensary.
(b)
Any violation of this section and/or conditions of approval shall be grounds for revocation of a conditional use permit issued under this section.
(2)
Violations and penalties for offenses.
(a)
Notice of violation(s) of this section shall be provided to the business operator in writing directing the conditions requiring correction. Notwithstanding the provisions set forth in § 250-15.8, the notice shall provide a time limit, as determined reasonable by the Code Enforcement Officer, to resolve the observed or reported violations.