Tuxedo City Zoning Code
ARTICLE VI
Supplementary Use Regulations
§ 98-20 Private swimming pools.
Private swimming pools, where allowed, are subject to the following:
A.
Swimming pools shall be maintained in a clean and sanitary condition, and in good repair.
B.
Such pool shall not be located in any required front or side yard.
C.
Such pool shall be constructed, operated, and maintained in compliance with the New York State Residential Code, Appendix G, and the New York State Uniform Fire Prevention and Building Code.
(1)
The entire portion of the premises upon which such pool is located shall be entirely enclosed with a barrier not less than four feet in height so that such pools are inaccessible to children.
(2)
Every gate and other opening in the fence enclosing such pool must be self-closing and self-latching. Each gate must be kept securely closed and locked at all times.
D.
Such pool shall not occupy more than 35% of the balance of the rear yard area, after deducting the area of all private garages and other accessory buildings and structures.
E.
If the water for such pool is supplied from the public water supply system, the inlet shall be above the overflow level of said pool.
F.
No loudspeaker or amplifying device shall be permitted which can be heard beyond the boundaries of the property or lot where said pool is located.
G.
Adjacent to every side and rear lot line within the rear yard area, there shall be a protective planting strip designed and laid out to provide an effective natural visual barrier between the swimming area and the adjacent residential areas. Such screen shall be of suitable plant materials which will attain and be maintained at a height of six feet above the water level of the pool; however, no screen need be greater than 12 feet in height from the ground level.
H.
No swimming pool shall be filled or used until the foregoing requirements shall have been certified as met by the Building Inspector. At such time of certification, the applicant shall present evidence of liability insurance of not less than $50,000.
§ 98-21 Wireless communications facilities.
A.
Legislative intent.
(1)
The Telecommunications Act (TCA) of 1996 affirms the Town of Tuxedo's authority concerning the placement, construction, and modification of wireless telecommunications facilities. The Town Board finds that wireless telecommunications facilities can, if not properly regulated, pose a unique hazard to the health, safety, public welfare and environment of the Town and its inhabitants. The Town also recognizes that wireless service technology can be a communication asset to the Town and its residents. To ensure that the placement, construction, or modification of wireless telecommunications facilities is consistent with the Town's land use policies, the Town shall regulate these facilities in accordance with this section. These regulations are intended to minimize the potential negative impact of wireless telecommunications facilities, establish an efficient process for review of applications, assure an integrated comprehensive review of environmental and aesthetic effects of such facilities, and protect the health, safety and welfare of the Town of Tuxedo.
(2)
Further, in 2009, the Federal Communications Commission (FCC) adopted Declaratory Ruling (WT Docket No. 08-165), which sets forth time frames in which a municipality must act upon a wireless telecommunications facility application ("Shot Clock"). In 2012, Congress enacted the Middle Class Tax Relief and Job Creation Act ("TRA"), which imposes additional limitations on state and local laws and regulations pertaining to the siting and modification of wireless telecommunications facilities. The FCC's October 21, 2014, Wireless Infrastructure Report and Order defines substantial and nonsubstantial modifications to existing cell sites and provides information on small cells and DAS and work in the public ROW. A September 26, 2018, Declaratory Ruling and Third Report and Order (FCC 18-133) describes FCC-identified regulatory barriers that inhibit the deployment of infrastructure including small cells necessary for network densification, 5G, and other advanced wireless services. In recognition of changes in wireless technology and an evolving regulatory framework, this section establishes regulations to review and process wireless telecommunications facilities consistent with federal regulations.
B.
Facilities subject to this section. This section regulates the review of applications for proposed modifications and changes to existing wireless telecommunication facilities, and small cell technology within the Town and the public rights-of-way within same.
C.
Exempt activities. These regulations shall not apply to wireless telecommunication services facilities installed wholly within a principal or accessory building, such as but not limited to indoor distributed antenna systems, direct-to-home satellite services or direct broadcast service (DBS), signal repeaters, baby monitors, heart monitors, garage door openers and burglar alarm transmitters.
D.
Purpose.
(1)
To establish clear standards for the siting of wireless communication facilities, buildings and structures, equipment, communication towers, antenna towers and monopoles.
(2)
To promote the health, safety, and general welfare of the residents of Tuxedo through the establishment of minimum standards to reduce the adverse visual effects of communication facilities, including but not limited to transmission towers and antennas, through the use of advanced technology, careful design, siting and screening and buffering.
(3)
To protect residential areas and land uses and property values from potential adverse impacts of towers and antennas.
(4)
To encourage the location of communication facilities and communication towers in areas suitably screened, buffered and adequately separated from residential uses.
(5)
To minimize the total number of communication facilities and communication towers throughout the community by requiring, wherever feasible, the sharing and co-location of wireless telecommunications facilities among service providers.
(6)
To encourage the joint use of new and existing communication tower sites as a primary option rather than construction of additional single-use communication towers while recognizing that co-location on higher towers is not always preferable to two less visible, less obtrusive shorter towers; thereby maximizing the use of existing communication towers or alternative antenna host sites, while not unreasonably limiting competition among communication providers or unreasonably limiting reception of receive-only antenna.
(7)
To require users of communication towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is shown to be minimal.
(8)
To require users of communication towers and antennas to configure them in a way that minimizes adverse visual, aesthetic and community character intrusion impacts caused by the installation and view of communication towers and antennas, through careful design, siting, landscape screening and buffering, sufficient setbacks to reduce visual impacts to adjacent properties and innovative camouflaging techniques such as alternative tower structures, thereby protecting the physical appearance of the community and preserving its scenic and natural beauty.
(9)
To avoid potential damage to adjacent properties from communication towers through careful engineering and appropriate siting of communication towers.
E. ABANDONED ADEQUATE COVERAGE AESTHETICS ALTERNATIVE TOWER STRUCTURE ANCILLARY EQUIPMENT ANTENNA ARRAY ANTENNA SUPPORT STRUCTURE ANTENNAS CAMOUFLAGE CLASS OF SERVICE CO-LOCATION DIRECT-TO-HOME SATELLITE SERVICES OR DIRECT BROADCAST SERVICE or DBS DISTRIBUTED ANTENNA SYSTEM (DAS) EQUIPMENT FACILITY FALL ZONE FEDERAL AVIATION ADMINISTRATION (FAA) FEDERAL COMMUNICATIONS COMMISSION (FCC) FREESTANDING WIRELESS TELECOMMUNICATIONS FACILITY FREQUENCY GUYED TOWER LATTICE TOWER MAJOR WIRELESS COMMUNICATIONS FACILITY MINOR WIRELESS COMMUNICATIONS FACILITY(1) (2) MODIFICATION, MAJOR MODIFICATION, MINOR MODULATION MONOPOLE MOUNT(1) (2) (3) (4) NONIONIZING ELECTROMAGNETIC RADIATION (NIER) PREEXISTING TOWERS AND PREEXISTING ANTENNAS RADIO FREQUENCY (RF) RADIO FREQUENCY (RF) TECHNICAL EXPERT REPEATER SECURITY BARRIER SENSITIVE RECEPTOR SEPARATION SMALL CELL TELECOMMUNICATION FACILITY(1) (2) (3) STEALTH TECHNOLOGY/STEALTH STRUCTURE SUBSTANTIAL CHANGE(1) (2) (3) (4) (5) (6) TELECOMMUNICATIONS TELECOMMUNICATIONS STRUCTURE WIRELESS CARRIER/SERVICE PROVIDER WIRELESS COMMUNICATIONS FACILITY WIRELESS COMMUNICATIONS SERVICES WIRELESS COMMUNICATIONS TOWERS
Definitions. As used in this section, the following terms shall apply. Any term not defined herein shall be as set forth § 98-4 of this Zoning Chapter:
Any wireless telecommunication facility which has not been operational for six consecutive months.
Coverage is considered to be adequate within the service area of the Town of Tuxedo if the minimum standards set forth by the Federal Communications Commission to permit the applicant to operate a personal wireless communication service within the area are met.
Outward appearance: the way something looks, especially when considered in terms of style, color, texture, finish, and material; including but not limited to towers or other support structures, antennas, antenna mounts and cabling, equipment shelters, fencing, and landscaping. Aesthetic standards and samples of wireless facility aesthetic designs will be kept on file with the Town Building Department.
Man-made trees, clock towers, bell steeples, light poles and similar alternative designs, including structures that camouflage or conceal the presence of antennas or towers.
Equipment and structures associated with a wireless telecommunication facility, including, but not limited to, equipment buildings/shelters, equipment cabinets, emergency back-up power generators, and other ancillary equipment.
A set or group of antennas aligned at the same height for use by a particular carrier of telecommunications wireless services.
Any building or structure, other than a freestanding tower, used to support antennas used in personal wireless services.
A system of electrical conductors that transmit or receive radio frequency waves. Such waves shall include but not be limited to radio navigation, radio, television, wireless and microwave communications.
The construction of facilities to house or support a wireless telecommunications facility so that the towers and/or antennas blend readily with the landscape, neighborhood, and adjacent architectural features. Camouflaging is when a facility is disguised or hidden or is completely or partially placed within or behind an existing or proposed enclosure or structure or completely hidden by surrounding vegetation, such that it is essentially screened from public views and adequately disguised as part of a building or other structure. Aesthetic standards and samples of wireless facility aesthetic designs - including camouflaging - will be kept on file with the Town Building Department. Camouflaging also pertains to the stealth tree monopole configuration, in terms of pole color/texture; branch style, taper, and density; and antennas and other pole-mounted equipment.
The class type of station as organized and defined by the FCC.
The use of an existing telecommunications tower or structure (buildings, utility poles, water towers, etc.) to accommodate additional antenna systems (single antenna or arrays) and/or appurtenances for the provision of wireless services by two or more persons or entities.
Only programming transmitted or broadcast by satellite directly to subscribers' premises without the use of ground-receiving equipment, except at the subscribers' premises or in the uplink process to the satellite.
A wireless technology consisting of a network of antenna nodes (typically affixed to existing utility poles or on other lower-elevation structures and installed lower to the ground than conventional panel antennas on towers) and supporting equipment to provide wireless services within a specific geographic area or structure, and subject to this section. DAS may be used to provide wireless services for more than one provider. A single DAS installation (e.g., one antenna and supporting equipment on a given utility pole or other structure) is referred to as a DAS node. Any new support structures for DAS will be 50 feet or less in height above ground level.
Computers, batteries, generators, transmission equipment and cabinets, etc., which are utilized to power and/or operate a wireless telecommunications facility.
A wireless telecommunications facility.
The area on the ground within a prescribed radius from the base of a wireless telecommunications facility, tower, or small cell. The fall zone is the area within which there is a potential hazard from falling debris (such as ice) or collapsing material (such as the tower or structure).
The Federal Aviation Administration, or its duly designated and authorized successor agency, which is responsible for the safety of civil aviation.
The Federal Communications Commission, or its duly designated and authorized successor agency, that regulates telecommunications.
A structure, such as a monopole or lattice tower, greater than 50 feet in height, constructed or existing specifically for the purposes of supporting an antenna(s) and/or equipment used in conjunction with the operation of one or more wireless telecommunications facilities. Freestanding towers may include below-grade foundations and a platform or mounts for one or more panel antenna arrays at the top and/or at alternate lower heights.
The number of complete oscillations per second of energy (as sound or electromagnetic radiation) in the form of waves.
A monopole or lattice tower greater than 50 feet in height that is tied to the ground or other surface by diagonal cables. Guyed towers may include below-grade foundations and a platform or mounts for one or more panel antenna arrays at the top and/or at alternate lower heights.
A self-supporting structure greater than 50 feet in height constructed of vertical metal struts and cross braces forming a triangular or square structure which often tapers from the foundation to the top. Lattice towers may include below-grade foundations and a platform or mounts for one or more panel antenna arrays at the top and/or at alternate lower setbacks.
Any wireless communications facility that is not a minor wireless communications facility, including but not limited to any facilities including any wireless communications towers, as hereinafter defined.
Any wireless communications facility situated on the same property as an existing wireless communications facility designed for co-location and previously approved under this article or on or in an existing building or other structure; and where the equipment consists of a combination of antennas, or other receiving device, necessary in number to facilitate the provision of wireless communication services from such location, provided that such minor installation:
Comprises antennas, or transmitting and receiving devices which are no more than six feet in height, which are mounted on supports affixed to an existing structure; and
Operates with all significant equipment accessory thereto (other than the aforementioned antennas and transmitting or receiving devices, supports and connecting cables), installed in interior space appurtenant to such existing building, tower or structure, or located upon a structure, the total combined height of which is less than 100 feet from the preconstruction average-finished grades.
Modification or upgrade to an existing wireless telecommunications facility that substantially changes (defined below) the physical dimensions or visual impact of any aspect of the facility. Major modifications may include, but are not necessarily limited to: replacement of existing antennas with new models resulting in an increase to the number and/or height of the existing antennas in the array or on a utility pole; an increase of the overall tower height by more than 10% of the originally approved and/or constructed tower or support structure height (whichever is less); or an increase to the dimensions of the existing ground-based, rooftop, pole-mounted, or other equipment area (as determined by existing perimeter fencing, existing heights of equipment shelters, aggregate cubic feet of utility-pole-mounted equipment, or other criteria).
Modification or upgrade to an existing wireless telecommunications facility that does not substantially change (see definition) the physical dimensions or visual impact of any aspect of the facility. Minor modifications may include, but are not necessarily limited to: replacement of existing antennas with new models that results in equal or lesser number and/or equal or lesser height of the existing antennas in the array or on the utility pole; no increase to the overall tower height, or an increase in tower height of less than 10% of the originally approved and/or constructed tower height, whichever is less; or no changes to the existing dimensions of the ground-based, rooftop, pole-mounted, or other equipment area (as determined by existing perimeter fencing, existing heights of equipment shelters, aggregate cubic feet of utility pole mounted equipment or other criteria). A modification shall not include the replacement of any components of a wireless telecommunications facility where the replacement is identical to the component being replaced or for any matter that involves the normal repair and maintenance of a wireless telecommunications facility without adding, removing, changing, or altering the wireless telecommunications facility in any respect.
The variance of the amplitude, frequency, or phase of an electromagnetic wave for the transmission of information.
A self-supporting structure greater than 50 feet in height constructed of wood, steel or concrete with below-grade foundations and a platform or mounts for one or more panel antenna arrays at the top and/or at alternate lower heights. The monopole design without guy wires is the preferred configuration in the Town.
The structure or surface upon which antennas and ancillary equipment are mounted and likely to be visible to the general public including the following four types of mounts:
ROOF-MOUNTEDMounted on the roof of a building.
SIDE-MOUNTEDMounted on the side of a building.
STRUCTURE-MOUNTEDMounted on a telecommunication tower structure or structure other than a building. This includes antenna array frame systems and antennas mounted flush to the structure surface for tower systems and small cells.
GROUND-MOUNTEDMounted on the ground.
Nonionizing electromagnetic radiation as described and defined by the FCC.
Any tower, structure, or antenna which was installed legally and prior to the effective date of this section, or for which building permits were legally issued prior to the effective date of this section but have not yet been constructed, so long as such permits are current and not expired.
A frequency of electromagnetic spectrum referred to as "radio frequency" as defined by the FCC. Hereinafter also referred to as "RF."
A certified or licensed radio frequency (RF) engineer specializing in electrical or microwave engineering, specifically the study of radio frequencies.
A small, supplementary, and accessory bidirectional amplifier facility designed and limited in height and transmission power to provide service only where there is a failure of coverage and to minimize visual impacts and the need for the primary base stations, which may be attached to a structure or pole.
A locked, impenetrable wall, fence, or berm that completely seals an area from unauthorized entry or trespass.
A place/land use (e.g., historic property, scenic overlook) that may have an increased sensitivity to views of a telecommunications facility, including those on towers or other structures and small cells.
The distance between one carrier's antenna or array of antennas and another carrier's antenna or array of antennas.
Low-powered wireless base stations that function like cells in a mobile wireless network, typically covering localized outdoor areas such as traffic and transit corridors, commercial or shopping districts, and other places of congregation, and in areas where additional network coverage and capacity may be required to supplement existing wireless service. Small cell antennas and supporting equipment are typically affixed to existing utility poles or other structures and installed lower to the ground than conventional panel antennas on telecommunications towers to provide wireless services within a specific geographic area. Small cells are typically used to provide wireless services for one provider. A single small cell installation (e.g., one antenna and supporting equipment on a given utility pole or other structure) is referred to as a node. A small cell telecommunication facility meets the following:
Less than 50 feet in height.
Each antenna is located inside an enclosure of not more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an enclosure of not more than six cubic feet in volume.
All other wireless equipment associated with the facility is cumulatively not more than 28 cubic feet in volume. The calculation of equipment volume shall not include electric meters, concealment elements, telecommunication demarcation boxes, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.
A method of installing/constructing wireless telecommunications facilities, which conceals, hides or camouflages their presence. This may include but is not limited to the use of color-matching, antenna concealment systems for small cells and rooftop proposal, artificial tree limbs for new telecommunications towers, landscaping around ground-based equipment areas, and installing ancillary equipment underground.
An increase in the size of an existing tower or ground-based ancillary equipment consisting of one or more of the following:
Height/antenna placement: the mounting of antennas on a tower greater than 50 feet tall or structure that would (a) increase tower height by more than 10% of the tower height originally approved or constructed (whichever is less), or (b) the mounting of one additional antenna array with separation from the nearest existing antenna of up to 20 feet, if resulting tower height is increased by more than 10% of the tower height originally approved or constructed. The mounting of the proposed antenna may exceed the size limits set forth in this subsection if necessary to avoid interference with existing antennas. For modification to permitted DAS or small cell sites, the pole shall not be increased above 50 feet in height and the aggregate volume of all antennas and ancillary equipment shall be a maximum of four cubic feet at any node;
Ground-based and ancillary equipment: The installation of additional equipment cabinets or shelters that would increase the overall dimension of the existing ground-based, rooftop, or other equipment compound, including but not limited to the perimeter of existing security fencing or the height of the tallest existing element (e.g., top of ice bridge or shelter) as measured from surrounding grade or other markers. New equipment proposed at a small cell site that exceeds the aggregate volume noted above may be proposed to be placed below grade;
Ground-based equipment: the excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site. For small cell sites, no equipment shall be installed at grade;
Ancillary equipment: The installation of new or additional generators, resulting in increases to noise at the property line by more than 10% above existing conditions. Also pursuant to Chapter 157, Noise;
Lighting: the installation of new FCC-required or other lighting on the tower structure, or an increase in ground-based, rooftop, or other lighting that increases impacts by more than 10%. Strobe or flashing lighting will not be permitted without documentation of FAA or other applicable requirements; or
Tower structure. The addition of an appurtenance to the body of the tower that would protrude horizontally from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this subsection if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable.
The transmission and reception of audio, video, data and other information by wire, radio frequency, light and other electronic or electromagnetic systems.
Any structure used in, associated with or necessary for the provision of wireless services as described in the definition of "wireless telecommunications facility."
Any company which is licensed by the FCC to operate wireless telecommunications facilities.
Any site containing equipment used in connection with the commercial operation of wireless communications services, as defined herein, and as the term "personal wireless services facility" is defined in the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(C), or as hereafter amended, to transmit and/or receive frequencies, including but not limited to antennas, monopoles, equipment, appurtenances and structures.
The provision of personal wireless communications services, including but not limited to those more commonly referred to as "cellular telephone service," regulated by the Federal Communications Commission in accordance with the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(C), or as hereafter amended.
Any freestanding structure, including lattice structures or framework and freestanding self-supported vertical pole (commonly known as "monopole"), on which any equipment is located in connection with the provision of wireless communications services.
F.
Conditions applicable to all facilities.
(1)
No wireless communications facilities shall be used, located, constructed or maintained on any lot, structure or land area unless in conformity with these regulations. No wireless communications facilities may hereafter be erected, moved, reconstructed, changed or altered unless in conformity with these regulations. No existing structure shall be modified to serve as a wireless communications facility unless in conformity with these regulations.
(2)
All communication facilities shall comply with the rules and regulations of any governmental entity having jurisdiction over such communication facilities and uses, antenna and/or supporting structures and towers, including, without limitation, the Federal Communications Commission (FCC) and Federal Aviation Administration (FAA).
(3)
All communication facilities shall be operated and maintained by an FCC licensee only.
(4)
All communication facilities shall be shown to be necessary to provide coverage to an area of Town which currently lacks adequate coverage and that any related communication tower or antenna is proposed at the minimum height and aesthetic intrusion possible to provide adequate coverage. The applicant seeking to locate a communication facility in the Town of Tuxedo shall demonstrate the need for new or additional antennas or communication towers.
(5)
All communication facilities, if proposed for placement on a lot that is within or abuts a residential district, shall prove that adequate coverage cannot be achieved by siting the facility on a lot which is not or does not abut a residential district.
(6)
All communication facilities shall be constructed and maintained in conformance with all building, electrical, fire prevention and other applicable codes.
G.
Major (and new) wireless communications facilities and major modifications.
(1)
The Planning Board shall review all new wireless communications facility applications and major modifications, or co-locations resulting in a substantial change (as defined above) which require site plan approval and a special use permit or modification thereto. The Planning Board may approve the application, impose reasonable conditions, or deny the application. The applicant must demonstrate to the Planning Board that the proposed facility is the least intrusive means for closing a significant gap in service.
(2)
At all times, the shared use within existing tall structures (e.g., multistory buildings, church steeples, farm silos, etc.) or upon existing approved towers shall be preferred to the construction of new wireless communications towers and/or monopoles. Major modifications as a result of a substantial change of wireless communications facilities are a permitted use in all zoning districts within the Town of Tuxedo.
(3)
Approved zoning districts.
(a)
Major wireless communications facilities shall be allowed by special use permit and site plan approval in the SR, NB, GB, RO and LIO Zoning Districts.
(b)
Where it is demonstrated by evidence that no site exists in the zoning districts set forth in Subsection G(3)(a) that can provide coverage consistent with federal regulations, the Planning Board may allow a major wireless communications facility by special use and site plan approval in a C, R-1, R-2, R-3, R-4, T-TC, TB, S-HB or S-HR District in accordance with these regulations.
(4)
Conditions precedent for site plan or special use permit approval.
(a)
A service coverage map and report shall be provided. The service coverage map shall show and describe all existing and proposed areas of service coverage relating to the proposed communications facility. The service coverage map shall locate all existing sites in the Town and in bordering communities which contain communications towers or related facilities. A detailed report shall accompany the service coverage map and shall indicate why the proposed communications tower, equipment and facility are necessary. The report shall identify locations within the proposed project site service coverage area which are not, and could not be, served by either existing facilities, by co-location, utilization of alternative technology or an alternative tower structure.
(b)
A long-range communications facilities plan shall be provided, evidencing that the proposed location of the communication facility and supporting buildings and equipment has been planned to result in the fewest number of communications transmission tower locations within the Town. The plan shall indicate how the applicant intends to provide service throughout the Town, and how the applicant plans to coordinate with all other providers of wireless communication services in the Town. The plan shall address the applicant's planned and possible location of additional tower sites, additional antennas, related service area coverage and alternative long-range plan scenarios that illustrate the potential effects of multiple towers and tower height, community intrusion impacts and visual and aesthetic impacts.
(c)
Documentation, sufficient to demonstrate that the proposed communication tower height and bulk are the minimum height and bulk necessary to provide licensed communication services to locations within the Town which the applicant is not able to serve with existing facilities in the project site area, shall be provided, including evidence that visual, aesthetic and community character intrusion impacts have been minimized to the greatest extent practicable.
(d)
Demonstration that shared use is impracticable. The Planning Board may issue a permit for a major wireless communications facility only when the applicant demonstrates that shared use of an existing structure or site is impractical. An applicant shall be required to present a report inventorying all existing structures within 1/2 mile of the proposed site which are at an elevation which renders them potential sites. The report shall describe opportunities for shared use of these existing facilities as an alternative to a proposed new tower. The report shall demonstrate that the applicant used its best efforts to secure permission for shared use from the owner of each existing facility as well as documentation of the physical, technical and/or financial reasons why shared usage is not practical in each case. The applicant's written request and the property owner's written responses for shared use shall be provided.
(e)
Commitment for future shared use. New wireless communications towers shall be designed to accommodate future shared demand for reception and transmitting facilities. The applicant shall submit to the Town Board and Planning Board an irrevocable letter of intent committing the owner of the proposed new tower, and its successors in interest, to permit shared uses of the proposed tower by other telecommunications providers in the future. This letter shall also be filed with the Building Inspector prior to issuance of a building permit. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the site plan approval following a hearing and opportunity to be heard. The letter shall commit the new tower owner and its successors in interest to the following:
[1]
To notify all carriers licensed to provide telecommunication services within the Town of its application and that it will entertain requests for co-location.
[2]
To respond within 90 days to a request for information from a potential shared-use applicant.
[3]
To use best efforts and negotiate in good faith concerning future requests for shared use of the tower by other telecommunications providers.
[4]
To allow shared use of the tower if another telecommunications provider agrees in writing to pay reasonable charges. 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.
(f)
A written certification shall be submitted, prepared by a qualified engineer and/or health physicist, which calculates the maximum amount of nonionizing electromagnetic radiation (NIER) which will be emitted from the proposed wireless communications facility and demonstrates that any such emissions from the facility will be within the threshold levels adopted by the Federal Communications Commission, as of the day of application and as part of the certification required as part of § 98-21Q of this section. The certification shall include a statement or explanation of how compliance was determined, an explanation as to what, if any, restrictions on access will be maintained to ensure compliance and a statement as to whether other significant transmitting sources are located at or near the transmitting site and, if so, whether their emissions were considered in determining compliance.
(5)
Application.
(a)
A special use permit and site plan application shall include a written statement:
[1]
That the applicant's proposed wireless communication facility shall be maintained in a safe manner and in compliance with all conditions of the special use permit.
[2]
That the construction of the wireless communication facility will conform with all applicable local, county, state and federal laws, rules and regulations.
[3]
That the applicant is authorized to do business in the State of New York.
(b)
An application for a new wireless communication facility must include the following information. The Planning Board may waive one or more of the following and may require additional reports or data that it deems necessary relevant to the application:
[1]
The name, address and telephone number of the person preparing the report.
[2]
The name, address and telephone number of the property owner, lessee, operator and applicant, including the legal basis for the applicant's authority. For small cells and DAS, the utility pole owner/ROW manager shall also be defined.
[3]
The legal description, postal address, and tax map designation of the property. For small cells and DAS, address information shall include appropriate right-of-way information such as utility pole number and coordinates.
[4]
The zoning district in which the property is situated.
[5]
The size of the property, stated both in square feet and lot line dimensions. For sites proposed within the right-of-way, the dimensions of the right-of-way and locations of existing and proposed overhead/subsurface utilities and adjoining property lines shall be indicated.
[6]
Approximate location of the nearest day-care center, school, camp or recreational park.
[7]
A survey of the property indicating the dimensions of the property, the location and height of all structures, the location, size and height of all proposed and existing towers, antennas and accessory structures, and the type, size and location of all proposed and existing fencing.
[8]
Type, locations, and dimensions of all proposed and existing landscaping and fencing. If vegetation or trees are proposed to be removed, a tree removal and preservation plan shall be developed.
[9]
A map showing the location of all residential structures within 500 feet, in the case of a freestanding tower, and within 250 feet in the case of all other WTF applications. Location of the nearest residential structure, location of nearest habitable structure, and for site outside of a right-of-way, location, size and height of all existing structures on the property which is the subject of the application.
[10]
The names, addresses and telephone numbers of all owners of other freestanding towers or existing antenna support structures located within a one-half-mile radius of the proposed wireless communication facility. The address and location of each such freestanding tower or antenna support structure shall be indicated.
[11]
The number, type and design of the wireless communication facilities proposed antenna(s) and the basis for the calculations of the wireless communication facilities capacity to accommodate multiple users.
[12]
The make, model and manufacturer of the facility, antenna(s) and all ancillary equipment (including but not limited to remote radiohead units, tower-mounted amplifiers, over-voltage protectors, electric meters, pole-mounted shrouds, and stealth tree features such as branching)
[13]
A description of the proposed facility and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above preexisting grade, materials, color and lighting.
[14]
The frequency, modulation and class of service of radio or other transmitting equipment.
[15]
The transmission and maximum effective radiated power of the antenna(s).
[16]
The direction of maximum lobes and associated radiation of the antenna(s).
[17]
The applicant must identify its utilization of the most recent technological design.
[18]
The applicant's proposed facility maintenance and inspection procedures and related system of records.
[19]
All applications, communications and permits submitted to and issued by the Federal Aviation Administration.
[20]
Certification, including such documentation as the Planning Board shall require, that NIER levels at the proposed site are within the threshold levels adopted by the FCC.
[21]
A certification that the construction and placement of the proposed freestanding tower and the proposed antenna(s) will not interfere with public safety communications, the usual and customary transmission or reception of radio, television or other communications services enjoyed by adjacent residential and nonresidential properties, or other existing telecommunications devices.
[22]
A copy of the FCC license applicable for the use of the wireless communication facility.
[23]
Certification that a topographic and geomorphologic study and analysis has been conducted, taking into account the subsurface and substrata and the proposed drainage plan, and that the site is adequate to assure the stability of the proposed wireless telecommunications tower on the proposed site.
[24]
Propagation studies of the proposed site and all adjoining proposed or in- service or existing sites. The propagation study shall identify that a gap in coverage exists and shall demonstrate how the addition of a wireless communication facility will address this gap in service.
[25]
A map depicting and listing all existing sites in the Town and bordering communities containing transmitting antenna(s) used by the operator, owner or applicant.
[26]
The applicant shall disclose, in writing, any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any wireless communication facility that it constructs.
[27]
Certification that the wireless communication facility, foundation and attachments are designed and will be constructed to meet all local, county, state and federal structural requirements for loads, including wind and ice loads. If the wireless communication facility is subsequently approved and constructed, similar "as-built" certification indicating that the wireless communication facility has been constructed in accordance with all standards shall be furnished prior to the Town issuance of a special use permit.
[28]
Certification that the proposed site of the wireless communication facility does not pose a risk of explosion, fire or other danger to life or property due to its proximity to volatile, flammable, explosive or hazardous materials such as LP gas, propane, gasoline, natural gas, or corrosive or other dangerous chemicals.
[29]
An engineering report prepared by a New York State licensed professional engineer specializing in electrical engineering with expertise in radio communication facilities and, if a monopole or tower is proposed, a professional engineer specializing in structural engineering. The report shall contain the following information:
[a]
Name(s) and address(es) of person(s) preparing the report.
[b]
Approximate location of the nearest residential structure.
[c]
Approximate location of the nearest occupiable structure.
[d]
Approximate location, size and height of all proposed and existing antennas and all appurtenant structures.
[e]
The number, type and design of the antenna(s) proposed and the basis for the calculations of capacity.
[f]
The make, model and manufacturer of the antenna(s).
[g]
A description of the proposed antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above grade, materials, color, grounding and lighting.
[h]
The frequency, modulation and class of service of radio equipment.
[i]
Transmission and maximum effective radiated power of the antenna(s).
[j]
Certification that the proposed antenna(s) will not cause interference with existing communication devices.
[k]
Elevation drawings depicting the front, side and rear of the property, illustrating the proposed antenna, mounting device and structure, if any, on which the antenna(s) is mounted.
(c)
Additional information which may be required at the discretion of the Planning Board.
[1]
Visual impact assessment.
[a]
A viewshed analysis or "zone of visibility" map in order to determine locations where the tower and appurtenant facilities may be visible.
[b]
Graphic representations of before and after views from key viewpoints located inside and outside of the Town, including but not limited to state highways and other major roads, state and local parks, other public lands, preserves and historic sites normally open to the public, residential developments and from any other location where the site is visible. A balloon test or similar test may be required to visualize the height of the proposed facility and photosimulations from various scenic vantage points may be required by the Planning Board.
[c]
Assessment of alternative tower designs and color schemes, as described in Subsections G(5)(c)[2], Tower design, and G(6)(c), Coloring and marking, below.
[d]
Assessment of the visual impact of the tower base, guy wires, accessory buildings and overhead utility lines from abutting properties and streets.
[2]
Tower design. A report regarding alternative tower designs which includes lattice and monopole structures and other designs to minimize visual impacts. The Board may request a review of the tower design by a qualified engineer in order to evaluate the need for, and the design of, any new tower and potential alternatives. All designs to be considered shall be required to include, at a minimum, the following characteristics:
[a]
Towers shall be designed to accommodate future shared use by other wireless communications providers.
[b]
Unless specifically required by other regulations, a tower shall have a finish (either painted or unpainted) that minimizes its degree of visual impact.
[c]
No portion of any tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to company name, phone numbers, banners and streamers.
[d]
Any new tower shall be securely mounted to withstand damage from earthquakes and the wind and ice loads for the place of installation in accordance with the New York State Uniform Fire Prevention and Building Code.
[e]
The height of any new tower shall be the minimum height necessary, considering shared use, to meet the minimum requirements of the Federal Communications Commission for coverage of the service area encompassing the Town of Tuxedo.
(d)
Intermunicipal notification. In order to facilitate the shared use of existing wireless telecommunication sites and structures, the applicant shall provide the following additional notice of the application:
[1]
Notification in writing to the Municipal Clerk of any adjoining municipality within one mile of a proposed site or a greater distance, at the discretion of the Planning Board, which may be affected by the proposed major wireless telecommunication facility.
[2]
Notification in writing by certified mail of all landowners within 1,000 feet of the property line of the parcel on which a major wireless telecommunication facility is proposed.
(6)
Design standards.
(a)
Location, lot size and setbacks. Any proposed wireless communications towers and its accessory structures shall be located on a single parcel and shall comply with following:
[1]
Distance from public facilities. In order to protect the health, safety and welfare of children who may be injured by falling ice or debris, all wireless communication towers shall be a distance of not less than 350 feet from the nearest property line of a school, day-care center, camp, public park or playground.
[2]
Lot size of major wireless communications facilities sites shall be determined by the amount of land required to meet the setback requirements. If the land is to be leased, the entire area required shall be leased from a single parcel.
[3]
Wireless communications towers shall be located with a minimum setback from any property line equal to the height of the tower in any zoning district, except, however, if the applicant can demonstrate that the fall zone for the structure can be safely accommodated on a smaller size parcel or with reduced setbacks to no less than the minimum bulk requirements in the underlying zoning district, the Planning Board shall have the discretion to reduce the size accordingly. The applicant must demonstrate that there is adequate protection to adjoining properties from the dangers of falling ice or debris through either an easement or other safeguards. The Planning Board shall make findings of fact justifying a reduction and shall impose such additional conditions that the Board may deem appropriate to protect the health, safety and welfare. Accessory structures shall comply with the minimum setback requirements in the underlying zoning district.
[4]
Additional setbacks may be required by the Planning Board to contain on-site substantially all ice fall or debris from tower failure and preserve the privacy of any adjoining residential and public properties. Setbacks for antennas and accessory structures associated with wireless telecommunications facilities located on existing rooftops shall be set back at least 10 feet from the building edge or flush-mounted to the sides of the building.
(b)
Security and safety fencing. Security and safety fencing shall be located around all communication towers, equipment and related facilities to restrict unauthorized access. Access to all structures shall be through a locked gate or principal building. Fencing shall be designed to minimize visual and aesthetic impacts and shall be equipped with appropriate anticlimbing devices. Failure to maintain said security and safety fencing in an appropriate manner shall be grounds for immediate revocation of all permits and certificates of use by the Building Inspector. In addition:
[1]
All communication towers, antenna towers or monopoles and other supporting structures shall be made inaccessible to nonauthorized persons, particularly children, and shall be constructed or shielded in such a manner that they cannot be climbed.
[2]
All transmitter controls that could cause the transmitter to deviate from its authorized operating parameters shall be designed and installed in such a manner that they are readily accessible only to persons authorized by the licensee to operate or service them.
[3]
All transmitters used with in-building radiation systems shall be designed in such a manner that, in the event that an unauthorized person does gain access, that person cannot cause the transmitter to deviate from its authorized operating parameters in such a way as to cause interference to other stations.
[4]
All transmitters (other than hand-carried or pack-carried mobile transmitters) and control points shall be equipped with a visual means of indicating when the control circuitry has been put in a condition that should cause the transmitter to radiate.
[5]
All transmitters shall be designed in such a manner that they can be turned off independently of any remote-control circuits.
(c)
Coloring and marking. Unless otherwise required by the FAA or FCC, all communication facilities, including antenna and communication towers, shall be colored, camouflaged and/or shielded to blend with surrounding areas, provided that such coloring, camouflage and/or shielding do not inhibit their effectiveness. The painting or marking of such facilities shall have a finish or coloring which will minimize visual and aesthetic impacts. Towers and all appendages shall generally have a galvanized finish and shall be painted gray or blue gray or some other finish or color that is shown to be visually unobtrusive.
(d)
Signals and lights. No communication tower, antenna tower or monopole shall include any signals, lights or illumination unless required by the FAA or other applicable authority. The applicant shall provide evidence mandating any requirement for lighting. If lighting is required, said lighting shall be shown to cause the least disturbance to surrounding properties and views. Any lighting necessary for accessory structures or buildings shall be minimized and shall be properly shielded to prevent light emission and glare onto adjacent properties.
(e)
Signage. No signs, including advertising signs, shall be permitted on any antenna, communication tower, antenna tower or monopole or antenna support structure, except as follows:
[1]
Signs specifically required by a federal, state or local agency.
[2]
Each site shall include a sign containing the name of the owner and operator of any antenna present, including an emergency phone number. In addition, any door having access to a roof-mounted antenna and all entrances to the fenced enclosure shall be similarly signed. Wireless telecommunications facilities shall contain a sign no larger than four square feet to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities. The sign shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be located so as to be visible from the access point of the site. Smaller signage for small cell and DAS nodes shall be affixed to the subject pole or pole-mounted equipment, or otherwise as determined by the Board or Building Inspector in accordance with FCC regulations. The sign shall not be lighted unless the Board shall have allowed such lighting or unless such lighting is required by applicable provisions of law. The sign shall be approved by the Board before installation. No other signage, including advertising, shall be permitted on any facilities, antennas, antenna supporting structures or antenna towers, unless required by law.
[3]
Any signage permitted above shall comply with the sign regulations of the Town Code.
(f)
Access and parking.
[1]
Access. Adequate emergency and service access shall be provided. Maximum use of existing roads, public or private, shall be made. Road construction shall, at all times, minimize ground disturbance and vegetation cutting to within the toe of the fill, the top of cuts or no more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential.
[2]
Parking. Parking shall be provided on-site in an amount determined by the Board based upon recommendation from the applicant. No parking shall be located in any required front yard.
[3]
No access road or parking shall be proposed for DAS or small cell sites located in a right-of-way.
(g)
Vegetative screening. All communication facilities shall be screened from view as follows:
[1]
All communications towers shall be located and designed to have the least possible adverse visual and aesthetic effect on the environment.
[2]
The area surrounding the installation, other than the area necessary to maintain a clear line of site to the signal source, shall be landscaped and maintained with trees, shrubs and ground cover to maximize screening and visual buffering. An existing natural vegetative buffer which meets or exceeds the above requirements may be substituted or enhanced for said requirements.
[3]
Screening and buffering utilizing trees of a height and density established by the Planning Board that will, over time, reduce visual impacts resulting from the installation of said facility shall be provided.
[4]
The outside of security fencing shall be screened with evergreen shrubs, trees or climbing evergreen material on the fencing.
[5]
The base of any communication tower and any accessory structure shall be effectively screened using primarily vegetative screening, including a continuous evergreen screen planted in a natural setting and consisting of native plant species. Existing vegetation shall be preserved to the maximum extent practicable. Additional planting shall be required, as necessary, to screen and buffer all structures from nearby properties or important view sheds of scenic areas. All landscaping shall be properly maintained to ensure continued screening and buffering.
(h)
Undergrounding of electrical power and noise suppression. All electrical power supply to service the on-site buildings and appurtenances supporting the tower antenna operations shall be installed underground. Noise suppression shall be utilized in the structural design and construction of the tower support buildings and appurtenances.
H.
Minor modification to wireless communications facilities, co-location on existing wireless telecommunication facilities (not resulting in substantial change) and Small Cell/DAS. At all times, the shared use within existing tall structures (for example, multistory buildings, church steeples, farm silos, etc.) and upon existing buildings shall be pursued. The Building Inspector may issue building permits for minor modifications and co-locations at existing, permitted wireless telecommunications facilities; for co-locations at other structures (e.g., rooftops, water tanks) after the first such co-location; and applications for DAS and small cell nodes in public rights-of-way, provided that all of the requirements set forth herein are met. A building permit may be issued for minor modifications, co-locations, and DAS/small cell nodes set forth below. The Building Inspector shall issue a building permit for the following:
(1)
A minor modification to an existing wireless facility, as defined in this section, and where it is demonstrated that:
(a)
Transmit power, frequency/class of service, and NIER levels remain within FCC MPE criteria; and
(b)
The proposed modification equipment and installation would not exceed the structural capacity of the existing facility or structure, including but not limited to foundations, supports, and existing antenna mounts; and
(c)
Additional local, county, or state reviews/approvals/permits are not required (e.g., FAA, NYSDOT, NYSDEC), other than a building permit; and
(d)
The existing wireless telecommunications facility or structure complies with the provisions of this section and all other provisions of law outside of this section, including but not limited to all applicable zoning restrictions, height restrictions, and building permit requirements, if any.
(2)
Co-location of new wireless equipment at an existing wireless telecommunications facility:
(a)
For proposed co-locations at an existing wireless telecommunications facility where the proposed co-location is on a tower/pole which contains one or more telecommunication facilities that have been approved in accordance with this section, provided that: the height of the existing structure is not increased by more than 10% of the originally approved tower height at time of construction (provided that it does not increase the overall tower height to over 200 feet); there is no change to the lighting scheme at the site or noise at the nearest property line; and all height, setback and design requirements as set forth in this section or in the original site plan approval are met. All accessory structures, including, but not limited to, equipment, equipment cabinets, equipment sheds/shelters, generators, etc., must also comply with the standards set forth in this section; and
(b)
For proposed co-locations on a rooftop or other structure (including, but not limited to, water tanks, and utility poles within the Town or rights-of-way) where one or more wireless telecommunications facility exists at the time of application and where no increase in height is proposed (as determined by the existing rooftop element with the highest elevation or the existing antenna height on the support structure), provided that there is no change to the lighting scheme at the site or noise at the nearest property line, and provided that all height, setback, and design requirements as set forth in this section or in the original site plan approval are met. Antennas and all accessory structures, including, but not limited to, equipment, cables, equipment cabinets, equipment sheds/shelters, generators, etc., must also comply with the standards set forth in this section and all other provisions of law in this section and outside of this section of the Town Code. It is noted that co-location of small cells/DAS on a common utility pole may be entertained to reduce the proliferation and consolidate these cell sites; however, the height of any utility pole may not be increased above 50 feet, and the aggregate volume of the antenna and visible ancillary equipment at each node location shall not increase above that which was approved by more than 25%. The Building Inspector will determine if additional bulk, height, or other potential visual impacts will necessitate referral of such co-location applications to the Planning Board. No ground-based equipment shall be permitted at small cell sites located in rights-of-way unless it shall be demonstrated that:
[1]
Transmit power, frequency/class of service, and NIER levels remain within FCC MPE criteria; and
[2]
The proposed co-location equipment and installation would not exceed the structural capacity of the existing wireless facility or other support structure, including but not limited to foundations, supports, and existing antenna mounts; and
[3]
Additional local, county, or state reviews approvals/permits are not required (e.g., FAA, NYSDOT, NYSDEC), other than a building permit; and
[4]
The existing wireless telecommunications facility or structure complies with the provisions of this section and all other provisions of law in this section.
(c)
The construction of a new small cell or DAS facility in county or state rights-of-way, and:
[1]
The facility will not exceed 50 feet in height (on an existing or on a new utility pole);
[2]
The style, materials, colors, and other aesthetics features will match the character of the surrounding area and right-of-way features, to be reviewed by the Code Enforcement Officer;
[3]
The aggregate volume of the antenna at each node, including antenna enclosure and mount, will not exceed three cubic feet;
[4]
The aggregate volume of all other visible equipment, including but not limited to meter boxes, radio shrouds, and conduits affixed to the utility pole, will not exceed 28 cubic feet at each node, and no at-grade equipment shall be permitted;
[5]
The minimum height of any pole-mounted equipment is not less than eight feet above surrounding grade;
[6]
The following information will be furnished for Building Department review: supporting information on agreements between the applicant and pole owner (structural analysis, communication zone where small cell equipment is allowed); coverage and/or capacity need documentation and other technical information; samples of specifications, cut sheets, and equipment details with dimensions and volumes; heights of all mounted equipment; and color/texture options for such DAS and small cell antennas and ancillary equipment. It shall be demonstrated that:
[a]
Transmit power, frequency/class of service, and NIER levels are within FCC MPE criteria;
[b]
The proposed small cell equipment and installation would not exceed the structural capacity of the pole or other support structure, including but not limited to foundations, supports, and existing equipment affixed to the pole/structure;
[c]
Additional local, county, or state reviews/approvals/permits are not required (e.g. FAA, NYSDOT, NYSDEC), aside from the building permit;
[d]
The existing wireless telecommunications facility or structure complies with the provisions of this subsection and all other provisions of law in this section and outside of this section, including but not limited to all applicable zoning restrictions, height restrictions, and building permit requirements, if any; and
[e]
No more than five small cell nodes located in county or state rights-of-way shall be submitted in a single application to the Building Department.
(3)
Building permit application requirements. An application shall be submitted to the Building Inspector which shall certify that the application is complete before the application is reviewed. Waivers from certain application items may be proposed in writing to the Building Inspector at the time of the application.
(4)
The Building Department may refer any minor modification, co-location, and DAS/small cell applications to the Planning Board for review of and recommendation on visual impacts, proximity to sensitive receptors, safety considerations, or other reasons in accordance with this section. The Planning Board may recommend that an application be considered a major modification (requiring a special permit) provided that it finds and states that the facility for which the permit is requested would, if erected, constructed, or altered as proposed, cause one or more harmful visual effects under guidelines herein. Prior to recommendation that an application be considered as a major modification, the Planning Board shall afford the applicant an opportunity to meet with it and discuss suggestions for changes in the application. The Planning Board may determine the application to be a minor modification upon finding that the facility or structure for which the permit is requested, if erected or altered in accordance with the submitted plan would meet the requirements of this section. If the Building Department determines that a minor modification, co-location, or DAS/small cell application is a major modification or Planning Board review is requested, then the applicant will be notified within 30 business days of receipt of the application, notwithstanding all other provisions of law.
I.
Requirements imposed on all approvals.
(1)
Removal.
(a)
Any antenna, communication facility, communication tower, antenna tower or monopole, including any supporting structure and related appurtenances, or part thereof, that is not used for a period of six months in any twelve-month period, shall be removed and the site restored by, and at the expense of, the owner of the property or the operator of said facility.
(b)
An extension of an additional six months may be granted by the Building Inspector upon a written request, including proof as determined reasonable by the Building Inspector that the owner is actively engaged in the marketing of the property for sale or rent.
(c)
In the event that the tower is not removed and the site restored as herein required, the Town, after notice and opportunity to be heard, may cause the same to be removed and the site restored at the expense of the property owner collectible in the same manner as a real property tax.
(d)
Where it is determined that a wireless telecommunications facility is abandoned or has become unsafe or that there are recurring, repeated or continuing violations of any of the provisions of this section, the Building Inspector may revoke the special use permit. Further, the Building Inspector may determine that any hazards to the health, safety, and welfare interests of the Town warrant removal of a wireless telecommunications facility:
[1]
Wireless telecommunications facilities, with a permit, have been abandoned (i.e., not used as wireless telecommunications facility) for a period exceeding 90 consecutive days or a total of 180 days in any 365-day period, except for periods caused by force majeure or acts of God, in which case, repair or removal shall commence within 90 days;
[2]
Permitted wireless telecommunications facilities fall into such a state of disrepair that a health or safety hazard is created, or that the mitigation measures of the permit are no longer effective or functioning as intended;
[3]
Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required special permit, building permit, or any other necessary authorization.
(e)
If the Board or Building Inspector makes such a determination as set forth in Subsection I(1)(d) above, the Building Inspector shall notify the holder of the special use permit or building permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed. The Building Inspector may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
(f)
The holder of the permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within 90 days of receipt of written notice from the Building Inspector. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the Board or Building Inspector.
(g)
If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the permit holder has received notice, then the Building Inspector may order officials or representatives of the Town to remove the wireless telecommunications facilities.
(h)
If the Town removes or causes to be removed wireless telecommunications facilities, and the owner of the wireless telecommunications facility does not claim them and remove them from the site to a lawful location within 10 days, then the Town may take steps to declare the wireless telecommunications facilities abandoned and sell them and their components.
(i)
Notwithstanding anything in this section to the contrary, the Board or Building Inspector may approve a temporary use permit/agreement for the wireless telecommunications facilities, for no more than 90 days, during which time a suitable plan for removal, conversion or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the permit, subject to the approval of the Board or Building Inspector, and an agreement to such plan shall be executed by the holder of the permit and the Town. If such a plan is not developed, approved and executed within the ninety-day time period, then the Town may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.
(j)
Upon written notice to the former holder of the revoked permit, the wireless telecommunications facility shall be removed.
(k)
The Town shall have the right to remove any abandoned or unsafe wireless telecommunications facilities and shall utilize the performance bond provided for under this article to cover the costs related thereto.
J.
Operational certification. Within 45 days of initial operation or modification of a wireless communication facility, the owner or operator shall submit to the Building Inspector a written certification by a professional engineer that the operation facility is in compliance with the application submitted, any conditions imposed and all other provisions of this section as a condition to continue operating past the forty-five-day period. The Town may confirm and periodically reconfirm compliance as necessary to ensure that the provisions of this section, including NIER level thresholds, as set forth by the FCC are in compliance. The owner/operator of the facility shall supply all necessary documentation to permit the Town to make such a determination regarding compliance. If found not to be in compliance, the facility shall cease operation until compliance is restored.
K.
Reimbursement of review expenses.
(1)
The Planning Board and/or Building Inspector may hire any consultant and/or expert necessary to assist in reviewing and evaluating the application and any requests for recertification.
(2)
An applicant shall deposit with the Town funds sufficient to reimburse the Town/Planning Board and Building Inspector for all reasonable costs of consultant and expert evaluation in connection with the review of any application and in accordance with the Town of Tuxedo Fee Schedule.
L.
Existing wireless telecommunications facilities.
(1)
The current operator of any wireless telecommunications facility existing at the time that these regulations take effect shall be permitted to remain in operation, provided that the operator submits proof within six months of the enactment of these regulations that a valid building permit was issued for the facility and that the facility complies with current emission standards as recommended by the FCC.
(2)
Any legal nonconforming wireless telecommunication facility shall be permitted to remain until such time as said use and facility is altered, at which time the compliance herein shall be brought in.
(3)
Any facility for which emission and security compliance documentation is not received shall cease operation within six months of the enactment of these regulations and shall be immediately removed thereafter.
M.
Ongoing obligations applicable to permits; responsibilities of owners and operators.
(1)
Any permit may, following a hearing upon prior notice of at least 30 days to the applicant, be revoked, canceled terminated for a violation of the conditions and provisions of the permit for the wireless telecommunications facility, or for a material violation of this section after prior written notice to the applicant and the holder of the permit.
(2)
A holder of a permit granted under this article shall obtain, at its own expense, all permits and licenses required by applicable law, rule or regulation and must maintain the same, in full force and effect, for as long as required by the Town or other governmental entity or agency having jurisdiction over the applicant.
(3)
Applicants shall submit information on the proposed radio frequency emissions of their proposed wireless telecommunications facility and demonstrate how this meets FCC standards. An applicant shall submit evidence of compliance with FCC standards on a yearly basis to the Town. If new, more restrictive standards are adopted, the antennas shall be made to comply, or continued operations may be restricted by the Town Board. The cost of verification of compliance shall be borne by the owner and operator of the tower.
(4)
All wireless telecommunication facilities shall be certified by an engineer to be structurally sound and in conformance with the requirements of the Building Code and all other construction standards set forth by the Town's Code and federal and state law. Such certification shall be submitted with an application pursuant to this article. The owner of the wireless telecommunications facility may be required by the Town to submit more frequent certifications should there be reason to believe that the structural and electrical integrity of the wireless telecommunications facility is jeopardized.
(5)
Owners of a wireless telecommunications facility and owners of an antenna support structure shall at all times employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.
(6)
Owners of a wireless telecommunications facility shall install and maintain towers, antennas, antenna attachments, accessory structures, wires, cables, fixtures and all other equipment of the wireless telecommunications facility in substantial compliance with the requirements of the National Electric Safety Code and all FCC, state and local regulations, and in such manner that will not interfere with the use of other property.
(7)
All wireless telecommunications facilities, antennas, antenna support structures, and ancillary equipment shall at all times be kept and maintained in good condition, order and repair so that the same shall not menace or endanger the life, health, safety, welfare or property of any person.
(8)
All maintenance or construction of wireless telecommunications facilities, antennas, antenna support structures, and ancillary equipment shall be performed by licensed maintenance and construction personnel.
(9)
All wireless telecommunications facilities shall maintain compliance with current RF emission standards of the FCC.
(10)
In the event that the use of a wireless telecommunications facility is discontinued by the facility owner, the facility owner shall provide written notice to the Town of its intent to discontinue use and the date when the use shall be discontinued. Subsequent to the notice, the tower shall be removed in accordance with this section.
(11)
Owners of a wireless telecommunications facility shall provide the Building Inspector annually with a certification by a New York State licensed professional engineer stating that the wireless telecommunications facility is in compliance with all applicable regulations and does not pose any threat which shall endanger the health, safety and general welfare of the community.
(12)
A cash deposit, letter of credit or bond from a surety company shall be submitted that is both an admitted carrier in the State of New York and has an A.M. Best's Rating of B- or better, or a Best's rating of four or better.
(a)
The cash deposit, letter of credit or bond must be in an amount equal to 125% of the estimated cost of removing any proposed wireless telecommunications facility equipment, in the case it is abandoned, and of restoring the site.
(b)
In the event that a penalty, fine or financial obligation is assessed pursuant to the provisions of this section, the Building Inspector or the Town Clerk/Treasurer may deduct the amount of such penalty from the cash deposit.
(c)
The applicant must maintain the required cash deposit, letter of credit or bond at all times to assure the faithful performance of the terms and conditions of this section and the conditions of any permit issued pursuant to this section. The full amount of the bond or security as determined when the permit is issued or as adjusted thereafter shall remain in full force and effect throughout the term of the permit and/or until the removal of the wireless telecommunications facility and any necessary site restoration is completed. The failure to pay any annual premium for the renewal of any such security shall be a violation of the provisions of the permit and shall entitle the Planning Board or Building Inspector to revoke the permit after prior written notice to the applicant and holder of the permit and after a hearing upon due prior notice to the applicant and holder of the permit.
N.
State and/or federal rules and regulations.
(1)
To the extent that the holder of a permit for a wireless telecommunication facility has not received relief or is otherwise exempt from appropriate state and/or federal agency rules or regulations, then the holder of such a permit shall adhere to, and comply with, all applicable rules, regulations, standards and provisions of any state or federal agency, including but not limited to the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical and RF emission standards.
(2)
To the extent that applicable rules, regulations, standards and provisions of any state or federal agency, including but not limited to the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting and security, are changed and/or are modified during the duration of a permit for a WTF, then the holder of such a permit shall conform the permitted WTF to the applicable changed and/or modified rule, regulation, standard or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard or provision, or sooner as may be required by the issuing entity.
O.
Security against unauthorized access. All wireless telecommunications facilities, antennas, and ancillary equipment shall be located, fenced or otherwise secured in a manner which prevents unauthorized access. All small cell/DAS equipment shall be locked/secured. Specifically:
(1)
All antennas, towers and accessory structures shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or run into.
(2)
Transmitters and telecommunications control shall be installed such that they are readily accessible only to persons authorized to operate or service them.
P.
Authority to inspect.
(1)
In order to verify that the holder of a permit for a wireless telecommunications facility and any and all lessees, renters, and/or licensees of wireless telecommunications facilities place, construct and maintain such facilities, including towers, antennas, antenna attachments and accessory structures, in accordance with all applicable technical, safety, fire, building and zoning codes, laws, ordinances and regulations and other applicable requirements, the Town shall have authority to enter onto the property upon which the wireless telecommunications facility is located to inspect all facets of said permit holder's, renter's, lessee's, licensee's or owner's placement, construction, modification and maintenance of such facilities, including but not limited to towers, antennas, mitigation features such as stealth tree branching or stealthing, small cell/DAS nodes, antenna attachments, accessory structures, buildings or other accessory structures constructed or located on the permitted site.
(2)
The Town reserves the right to conduct such inspections at any time, upon reasonable notice to the property owner and operator of the wireless telecommunications facility. All expenses related to such inspections by the Town shall be borne by the owner of the premises on which the wireless telecommunications facility is located, and also the owner of the wireless telecommunications facility.
(3)
The owner/permit holder agrees to an inspection of the telecommunications facility by an RF consultant of the Town's choosing on the one-year anniversary of the permit issuance and every five years thereafter, to ensure the structural integrity of the facility and that RF emissions are within acceptable limits. Concurrent with the five-year review the RF consultant shall also review the amount of security (cash deposit, letter of credit or bond) being held by the Town and determine whether that bond amount should be increased or decreased based upon fluctuations in the material or labor costs to remove such facilities as well as based upon any other relevant changes to the facility. Costs of such inspection shall be reimbursed by the permit holder.
(4)
The holder of a wireless telecommunications facility permit shall, at all times, keep on file with the Building Department the name, address, and telephone number of the owner or operator of the permitted facility to arrange for Town inspections and required maintenance, reporting, etc.
Q.
Annual NIER and structural certifications. The holder of the permit shall certify, in writing, annually, to the Town that (a) NIER levels at the site are within the threshold levels adopted by the FCC and (b) that the tower, utility pole, or other structure and all mounts for antennas and ancillary equipment are adequate for code compliance and public safety. The certifying engineer must be licensed to practice engineering in the State of New York. Such a certification shall also be provided should any alterations to the wireless telecommunications facility be made that could reasonably be anticipated to change the NIER levels at the site.
R.
Renewal.
(1)
Every special permit for a wireless telecommunications facility shall be recertified at least every five years, commencing on the date a certificate of occupancy is issued, and reoccurring certifications required on every December 31 fifth-year anniversary thereafter. For tower, rooftop, small cell or DAS node, or other permitted sites that accommodate equipment of more than one FCC-licensed commercial carrier, a single re-certification for the site - encompassing all carrier information - shall be submitted to the Planning Board. A signed, written request to the Board for recertification shall be made at any time between 12 months and six months prior to the expiration of the recertification. Any permit holders whose recertification is due prior to December 31, 2019, may extend the time to recertify until June 1, 2020, unless advised by the Building Department otherwise because of safety issues. Any permit holder whose prior five-year certification/recertification occurred less than five years prior to June 1, 2020, must nonetheless be recertified by June 1, 2020. For any wireless telecommunications facility whose initial certification occurs less than one year prior to a December 31 recertification date, the Board may, upon request by the permit holder, and recommendation of the Town Engineer and Building Inspector, allow the recertification to occur on the next-following recertification date. Each small cell or DAS node shall be recertified individually by the Building Department. The Board may reserve the right to assign recertification reviews to the Building Inspector.
(2)
For wireless telecommunication facilities that did not require a special use permit and were issued a building permit from the Building Inspector, the Building Inspector will issue recertifications.
(3)
A recertification request shall be accompanied by the following:
(a)
The name of the holder of the permit for the wireless telecommunications facilities.
(b)
If applicable, the number or title of the permit.
(c)
The issuance of the special use permit and issuance of a certificate of occupancy.
(d)
Whether the wireless telecommunications facilities or support structure have been moved, relocated, rebuilt or otherwise modified since the issuance of the permit and, if so, in what manner.
(e)
If the wireless telecommunications facilities or support structure have been moved, relocated, rebuilt or otherwise modified, then whether the Board or Building Department approved such action, under what terms and conditions, and whether there has been compliance with the terms and conditions.
(f)
Any requests for waivers or relief of any kind from the requirements of this section and any requirements for a permit.
(g)
That the wireless telecommunications facilities are in compliance with the special permit/building permit and in compliance with all applicable federal, state, county and local codes, laws, rules and regulations.
(h)
Recertification that the telecommunications tower or support structure and attachments are designed and constructed "as built" and continue to meet all local, federal, state, and county structural requirements for loads, including wind and ice loads. Such recertification shall be by a New York State licensed professional engineer acceptable to the Town, the cost of which shall be borne by the applicant.
(i)
RF emissions compliance statement (cumulative, including all co-locators, if applicable).
(j)
The facility is subject to an annual inspection by the Building Inspector to make certain that the facility conforms to all safety and building codes.
(4)
If, after such review, the Building Inspector determines that the wireless telecommunications facility is in compliance with any building permit and/or special use permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the Building Inspector shall issue a recertification permit for the wireless telecommunications facility, which may include any new provisions or conditions that are mutually agreed upon or required by applicable statutes, laws, local laws, ordinances, codes, rules and regulations. If, after such review, the Building Inspector determines that the wireless telecommunications facility is not in compliance with the special use permit, building permit, and all applicable statutes, local laws, ordinances, codes, rules and regulations, then the Building Inspector may refuse to issue a recertification special permit for the wireless telecommunications facility, and, in such event, such wireless telecommunications facility shall not be used after the date that the applicant receives written notice of such decision from the Town. Any such decision shall be in writing and supported by substantial evidence contained in a written record.
(5)
If the applicant has submitted all of the information requested by the Building Inspector and required by this section, and if the Building Inspector does not complete its review, then the applicant for the permitted wireless telecommunications facilities shall receive an automatic extension of the special permit for up to six months in order for the Town to complete its review.
(6)
If the holder of a special permit for wireless telecommunications facility does not submit a request for recertification of such special permit within the time frame set forth herein, then such special use permit or building permit or certificate of occupancy and any authorizations granted thereunder shall expire unless the holder of the permit adequately demonstrates to the Building Inspector that extenuating circumstances prevented a timely recertification request. If the Building Inspector agrees that there were legitimately extenuating circumstances, then the holder of the permit may submit a late recertification request or application for a new permit.
(7)
Fee. The Town of Tuxedo may charge a fee for recertification review, and which shall be in an amount set forth in the Town of Tuxedo Fee Schedule.
S.
Liability insurance required for a wireless telecommunication facility.
(1)
A holder of a permit for a wireless telecommunications facility shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage, in the amount of $5,000,000 for the duration of the permit in amounts as set forth below:
(2)
The commercial general liability insurance policy shall specifically include the Town as an additional named insured.
(3)
The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State of New York and with an A.M. Best's rating of at least B-.
(4)
The insurance policies shall contain an endorsement obligating the insurance company to furnish the Town with at least 30 days' prior written notice in advance of the cancellation of the insurance. The holder of the special use permit shall also be required to inform the Town with at least 30 days' prior notice written in advance of the cancellation of the insurance. Such notification shall be by certified mail, return receipt requested.
(5)
Renewal or replacement policies or certificates shall be delivered to the Town at least 15 days before the expiration of the insurance which such policies are to renew or replace.
(6)
Before construction of a permitted wireless telecommunications facility is initiated, but in no case later than 15 days after the grant of the special permit or building permit, the holder of the permit shall deliver to the Town a copy of each of the policies or certificates representing the insurance in the required amounts.
T.
Indemnification.
(1)
Any application for a wireless telecommunications facility that is proposed for Town property shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless and exempt the Town, and its officers, boards, employees, committee members, tax attorneys, agents and consultants, from any and all penalties, damages, costs or charges arising out of any and all claims, suits, demands, causes of action or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of or are caused by the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal or restoration of said wireless telecommunications facility. With respect to the penalties, damages or charges referenced herein, reasonable attorney fees, consultant fees and expert witness fees are included in those costs that are recoverable by the Town.
(2)
Notwithstanding the requirements noted above, an indemnification provision will not be required in those instances where the Town itself applies for and secures a permit for a wireless telecommunications facility.
U.
Automatic disconnect in event of failure of a wireless telecommunications facility.
(1)
All carriers shall have installed at their wireless telecommunications facility the ability to disable the use of the wireless telecommunications facility at an off-site monitoring location.
(2)
In the event of a malfunction, the carrier shall have the ability to discontinue the use.
(3)
There shall be placed at the entrance to the wireless telecommunications facility a sign indicating the owner, address and telephone number for emergency contacts.
(4)
Any malfunction of a wireless telecommunications facility, which shall endanger the health, safety and general welfare of the community, shall cause the carrier to notify the Building Department in writing within 24 hours of the event. Such notification shall be made by electronic communication and certified mail, return receipt requested, at addresses to be provided by the Building Inspector.
(5)
Failure on the part of the carrier to provide the Building Department of this notification shall be grounds to suspend the operating license for a period no less than 30 days. The carrier shall present to the Town Board the reason for failure to notify the Town.
§ 98-22 Agricultural operations.
A.
Purpose. The Town Board recognizes agriculture as an essential and integral industry in Orange County that enhances the economic base, stabilizes the tax base, and perpetuates the rural character of a community. The Town Board further declares that it shall be the policy of Tuxedo to encourage agriculture within the Town, particularly in the Conservation Zoning District.
B.
Agricultural data statement.
(1)
Any application for a special use permit, site plan approval, area variance, use variance, or subdivision approval that would occur on property within an agricultural district created in accordance with Article 25AA of the New York State Agriculture and Markets Law and containing an agricultural operation or on property with boundaries within 500 feet of an agricultural operation within an agricultural district shall include an agricultural data statement as required by Section 305-a of the New York State Agriculture and Markets Law. The agricultural data statement shall be reviewed by the board having jurisdiction to determine the possible impacts of a proposed action upon the functioning of agricultural operations within such agricultural district. A copy of the agricultural data statement shall be sent to the Orange County Agriculture and Farmland Protection Board or other similarly designated agency for review and comment.
(2)
Written notice of an application for which an agricultural data statement has been submitted shall be mailed the applicant, with proof of mailing submitted to the Building Department, to the owners of land as identified by the applicant in the agricultural data statement. Such notice shall include a description of the proposed project and its location and may be sent in conjunction with any other notice required by state or local law, ordinance, rule or regulation for the said project. The cost of mailing the notice shall be borne by the applicant. The agricultural data statement shall include the following information: the name and address of the applicant; a description of the proposed project and its location; the name and address of any owner of land within the agricultural district, which land contains agricultural operations and is located within 500 feet of the boundary of the property upon which the project is proposed; and a tax map or other map showing the site of the proposed project relative to the location of agricultural operations identified in the agricultural data statement.
C.
Required disclosure. The following disclosure statement shall be included on any site plan or subdivision plat involving property located partially or wholly within an agricultural district established pursuant to the provisions of Article 25AA of the New York State Agriculture and Markets Law:
"It is the policy of New York State and the Town of Tuxedo to conserve, protect and encourage the development and improvement of agricultural land for the production of food, and other products, and also for its natural and ecological value. This disclosure notice is to inform prospective owners or occupants of this property that it lies partially or wholly within an agricultural district and that agricultural activities occur within the district. Such activities may include, but not be limited to, activities that cause noise, dust and odors."
D.
Agricultural operation, exceptions. The following shall apply to any agricultural operation situated on a property located within an agricultural district as defined in Article 25AA of the New York State Agriculture and Markets Law:
(1)
The following agricultural buildings and structures shall not be subject to the height limitations of this Zoning Chapter: barns, silos, and grain bins.
(2)
Agricultural buildings and structures shall not be subject to maximum lot coverage requirements of this Zoning Chapter.
(3)
Agricultural operations shall not be subject to site plan or special use permit review and approval except site plan approval is required for any building which the general public may occupy, or which otherwise requires a certificate of occupancy.
E.
A farm stand display for selling agricultural products may be permitted as an accessory use on the same lot on which said products have been harvested, provided that:
(1)
No processed products shall be offered for sale unless processed and produced on site, such as honey.
(2)
The display stand shall be located not closer than 50 feet to any rear or side lot line; nor shall the storage of any such products outside a structure be located closer than 50 feet to any rear or side lot line.
(3)
The sale of any such products shall not have a deleterious effect on adjoining properties by reason of nuisance or health hazard.
(4)
A suitable area for off street parking and loading shall be provided.
F.
The storage and use of manure, dust-producing substances or any uses producing odor or dust associated with an agricultural operation permitted herein shall be located not less than 200 feet from any property line.
§ 98-23 Adaptive reuse of historic buildings.
A.
Purpose. Adaptive reuse of a historic building shall be subject to Planning Board special use permit and site plan approval. The objectives and individual standards set forth in §§ 98-50 and 98-51 shall also apply. These uses shall be in addition to any use which is otherwise allowed in the zoning district in which the building is located.
B.
The historic building shall be listed on the National Register of Historic Places, the State Register of Historic Places, or shall be eligible for listing. Evidence of said eligibility shall be made by submission of a Historic Resource Survey conducted in accordance with guidelines promulgated by the New York State Office of Parks, Recreation and Historic Preservation (OPRHP). The historic survey shall be submitted to the OPRHP and that agency shall determine "eligibility."
C.
The minimum lot area shall be one acre unless the Planning Board finds that the use can be conducted on a smaller lot and meet the standards set forth herein.
D.
In addition to the uses otherwise allowed in the zoning district in which the subject property is located, the following additional uses are allowed by special use permit:
E.
There shall be no exterior alteration of the structure except where said alteration makes the building or property consistent with its original historic character as determined by the Planning Board. The Planning Board may require that the building be improved to the Secretary of the U.S. Department of the Interior Standards for Rehabilitation as a condition of approval or standards promulgated by the NYS Office of Parks, Recreation and Historic Preservation. Continuing maintenance of the building to protect its historic character shall be a condition of any special use permit.
F.
The applicant shall demonstrate to the satisfaction of the Planning Board that the use does not create or introduce traffic at levels that will significantly impact local roads giving access thereto and does not introduce lighting or noise levels inconsistent with the neighborhood environs, create parking demand, or operate in a manner that would impact adjoining properties, especially those in residential use. The applicant shall also demonstrate that the use can be furnished adequately with water supply and that adequate wastewater treatment facilities are available.
G.
The Planning Board may impose conditions on the adaptive reuse of a building in order to protect the adjoining neighborhood and the historic character of the structure.
§ 98-24 Municipal uses and facilities.
A.
Town Board determination. The Town Board shall determine whether a proposed use is a "municipal use or facility" and the extent to which same will be subject to the regulations set forth in this Zoning Chapter, based on the following nine factors:
(1)
The nature and scope of the instrumentality seeking immunity;
(2)
The encroaching government's legislative grant of authority;
(3)
The kind of function or land use involved;
(4)
The effect local land use regulation would have upon the use concerned;
(5)
Alternative locations for the facility in less restrictive zoning areas;
(6)
The impact upon legitimate local interests;
(7)
Alternative methods of providing the proposed improvement;
(8)
The extent of the public interest to be served by the improvements; and
(9)
Intergovernmental participation in the project development process and an opportunity to be heard.
B.
Planning Board approval. Any such proposed municipal use or facility determined by the Town Board to be subject to the provisions of this Zoning Chapter, other than a Town of Tuxedo municipal use or facility, shall be subject to site plan review and approval, and the Planning Board shall be bound by any determination issued by the Town Board relative to the municipal use or facility.
§ 98-25 Community benefit facility uses.
A.
Purpose. Community benefit facilities are those nonresidential uses that, by their nature, are beneficial to society and the communities they locate in. Because these facilities serve the public, they have a greater impact on neighborhoods, properties, transportation systems, emergency services and the environment.
B.
Definitions. For the purpose of this section, "structure" shall also include temporary structures such as tents.
D.
The Code Enforcement Officer shall determine whether a particular use meets the intent and definition of a "community benefit facility" use for the purpose of this section. In making a determination, the Code Enforcement Officer shall rely upon the similarity or dissimilarity of the proposed use to the community benefit facility uses enumerated in this section. A disputed determination may be appealed to the Zoning Board of Appeals.
E.
Location of community benefit facilities. A community benefit facility use shall be permitted in the Special Recreation Zoning District, and/or any residential or mixed-use zoning district as set forth in § 98-5 of this Zoning Chapter.
F.
Bulk requirements. Community benefit facilities shall be subject to the Schedule of Bulk Requirements[1] applicable to a single-family detached dwelling for the zoning district in which the community benefit facility is to be located, except that the minimum lot area for said use shall be no less than two times the lot area required for a single-family detached dwelling after taking into account those exclusions set forth in § 98-12A. Where the standards in Subsection J below vary from a bulk requirement as set forth above, the more restrictive requirement shall apply. In addition to the bulk requirements as set forth above, a community benefit facility shall also meet any standard applicable to a nonresidential use as may be set forth in this Zoning Chapter.
[1]
Editor's Note: Said table is included as an attachment to this chapter.
G.
Waiver from bulk requirements for places of worship. Upon good cause shown, the Planning Board may waive applicable bulk standards for places of worship if it is shown that said standards will impermissibly impede the applicant's exercise of religion. The Planning Board may not waive bulk standards for other community benefit facilities.
H.
Approvals. A community benefit facility shall require a special use permit issued pursuant to this section and site plan approval, both issued by the Planning Board. The Planning Board shall follow the procedures set forth in Article X of this Zoning Chapter.
I.
Procedure.
(1)
The applicant for a community benefit facility use shall submit an application to the Planning Board. Said application shall conform to the submission requirements for special use permit and site plan approval as set forth in this Zoning Chapter.
(2)
Nothing herein shall permit any board to render a decision on the special use permit or site plan until the SEQRA review process is complete.
J.
Special use permit standards for a community benefit facility other than a place of worship. Community benefit facilities are allowed subject to special use permit and site plan approval. In addition to the standards set forth elsewhere in this Zoning Chapter including the general standards and determinations required for the issuance of a special use permit and site plan approval, the following special use standards shall be met, which standards are the minimum necessary for the protection for the public health, welfare and safety. The below provisions shall not be waivable by the Planning Board for community benefit facilities other than places of worship:
(1)
A maximum floor area ratio (FAR) of 0.25 shall not be exceeded. The FAR shall apply to all principal and accessory buildings and structures applicable to the use.
(2)
The maximum development coverage shall not exceed 45%.
(3)
The use shall be located on a lot with no less than one acre after having met the requirements of § 98-12A of the Zoning Chapter.
(4)
All structures and parking shall be screened from adjacent properties by evergreen plantings of sufficient height and diameter to substantially eliminate noise and traffic. The width of the planting screen shall not be less than 25 feet, and the Planning Board may require a wider buffer to meet this objective.
§ 98-26 Solar facilities.
A.
Intent. Solar energy is a renewable and nonpolluting energy resource that reduces fossil fuel emissions and reduces a municipality's energy load. Energy generated from solar energy systems can be used to offset energy demand on the grid when excess solar power is generated. The use of solar energy systems for the purpose of providing electricity and energy for heating and/or cooling, or any other use needing electric power, is a necessary component of the Town of Tuxedo's current and long-term sustainability agenda. This section is intended to permit and regulate solar energy systems and equipment, including the efficacy of siting to provide for adequate sunlight and convenience of access; to balance the potential impact on neighbors when solar collectors and/or solar energy systems may be installed near their property, while preserving the rights of property owners to install solar energy systems in accordance with applicable laws and regulations; and to recognize solar energy as a source for current and long term energy sustainability.
B.
The requirements of this section shall apply to all solar energy systems and equipment installed or modified after the effective date of this section. No solar energy system equipment shall be installed, operated or modified except in compliance with this section.
C.
A pre-existing solar energy system for which a valid permit has been issued and complies with all applicable New York State laws, rules and regulations is not required to comply with this section, provided that such systems complied with all applicable laws, rules and regulations when installed.
D.
All solar energy system installations must be performed by a Qualified Solar Installer.
E.
Prior to operation, electrical connections must be inspected by the Town Code Enforcement Officer and by a qualified electrical inspector acceptable to the Town. Any connection to a public utility grid must meet all applicable Town, state, federal and public utility laws, rules and regulations.
F.
All solar energy systems shall be maintained to be safe and in good working order.
G.
All solar energy systems shall comply with all applicable New York Uniform Fire Prevention and Building Code standards.
H.
If solar storage batteries are included as part of the system, they must be placed in secure containers or enclosures meeting the requirements of the New York State Building Code when in use, and when no longer used, such batteries shall be disposed of in accordance with the laws and regulations of the Town and other applicable laws and regulations.
I.
All solar energy systems and equipment shall be marked in order to provide emergency responders with appropriate warning and guidance with respect to isolating the solar electric system. Materials used for marking shall be weather-resistant. The markings shall be placed adjacent to the main service disconnect in a location clearly visible from the location where the lever is operated. If any of the standards for markings in this subsection are more stringent than applicable provisions of the New York State Uniform Fire Prevention and Building Code, the more stringent provisions shall apply.
J.
All solar panels and equipment shall be designed and sited so as to not reflect glare onto other properties, public or private roads, rights-of-way, or aircrafts in flight; and shall not interfere with traffic or create a safety hazard.
K.
Prior to issuance of any permit for a solar energy system, the applicant shall submit to the Town Building Department a letter stating that the issuance of said permit shall not and does not create in the property owner, or its successors and assigns in title, or create in the property itself:
(1)
The right to remain free of shadows and/or obstructions to solar energy caused by development of adjoining or neighboring property or the growth of any trees or vegetation on adjoining or neighboring property; or
(2)
The right to restrict or prohibit development or the growth of any trees or vegetation on adjoining or neighboring property.
L.
Roof-mounted solar energy systems.
(1)
A roof-mounted solar energy system may be mounted on any legal principal or accessory building or structure, subject to the Code Enforcement Officer and Town Engineer's review for structural integrity. It is not subject to site plan review and approval by the Planning Board.
(2)
A roof-mounted solar energy system is permitted to serve only the building(s) or structure(s) on the lot upon which the system is located except that a solar energy system that is connected to the utility grid may push back excess electricity back into said grid.
(3)
The applicant shall file a New York State Unified Solar Permit (USP) application with the Town Building Department and pay all fees to obtain a building permit.
(4)
Solar panels facing the front yard must be mounted at the same angle as the roof's surface, with a maximum distance of 18 inches between the roof and the highest edge of the panels.
(5)
Roof-mounted solar collectors which are flush-mounted shall not be included in the height of the building, nor subject to height limitations governing principal or accessory buildings or structures to which it is mounted, if, in the opinion of the Town Code Enforcement Officer, after consultation with the Town Engineer, such collectors are installed no more than a height reasonably necessary to accomplish the intended purpose and do not obstruct solar access of neighboring properties.
(6)
A suitable perimeter area around the edge of the roof shall be provided, where in the panels shall be setback a minimum of 18 inches from the perimeter, except that along one side of the roof panels shall be set back three feet for emergency access.
M.
Ground-mounted solar energy system.
(1)
A ground-mounted solar energy system is permitted to serve only the building(s) or structure(s) on the lot upon which the system is located except that a solar energy system that is connected to the utility grid may push back excess electricity back into said grid. Site plan review and approval by the Planning Board is required for all properties except a lot containing a single-family detached, single-family semi-attached, or two-family dwelling.
(2)
A ground-mounted solar energy system shall not be placed in a front yard. The required rear yard and side yard setback for a ground-mounted solar energy system shall be at least 50 feet from the property line.
(3)
The height of ground-mounted solar collectors and mounts shall not exceed 12 feet when oriented at a maximum tilt.
(4)
The ground-mounted solar energy system and related equipment shall be substantially screened from view from adjoining and neighboring properties and public and private roadways architectural features, earth berms, landscaping or other screening which will harmonize with the character of the property and surrounding area. If landscape screening is proposed, a landscape design, signed and stamped by a licensed landscape architect shall be submitted with all solar system site plan applications. Such screening shall be designed and installed so as not to substantially interfere with normal operation of the solar collectors.
(5)
Ground-mounted solar energy system equipment shall not be sited within any required buffer area.
(6)
Lot coverage limitations. The total surface area of all solar collectors on a lot shall not exceed the area of the ground covered by the principal building on the lot measured from the exterior walls, excluding patios, decks, balconies, screened and open porches and attached garages. The area beneath all solar collectors shall be included in calculating maximum permitted development coverage limitations. If the solar collectors are mounted above an existing impervious surface, they shall not be calculated as part of the lot surface coverage limitations for the applicable zoning district.
(7)
The area beneath solar collectors shall not be used for storage of any equipment or material.
(8)
The applicant, property owner, system owner and system operator must agree, in writing satisfactory to the Town Attorney, to remove the solar energy system and all associated equipment and structures, if the solar energy system ceases to be used for its intended purpose for 12 consecutive months. Removal of such unused system, equipment and structures shall be completed within six months thereafter.
§ 98-27 Adaptive reuse of nonresidential buildings in R-2 Zoning District.
A.
Purpose. The purpose of this section is to allow the adaptive reuse of buildings presently or previously in nonresidential use, and to allow them to be converted to residential use in order to bring the building in conformity with the otherwise residential character of an existing neighborhood. Adaptive reuse of a nonresidential building in the R-2 Zoning District shall be subject to Planning Board special use permit and site plan approval. The objectives set forth in § 98-50 and the individual standards set forth in § 98-51M shall generally apply but shall be applied in a manner to permit and encourage the adaptive reuse of existing structures, in addition to the requirements set forth herein.
B.
For purposes of this section, "nonresidential building" shall mean any building not presently or previously in residential use.
C.
The minimum lot area shall be three gross acres.
E.
The applicant shall be permitted to construct the uses set forth in Subsection D above, provided the proposed uses are constructed within, and not significantly larger than (no more than 5%), the existing building footprint of the principal nonresidential buildings located on the lot. Variations that the Planning Board determines to be minor are permitted.
F.
The maximum building height shall not exceed the height limitations of the zoning district.
G.
The applicant shall demonstrate to the satisfaction of the Planning Board that the use does not create or introduce traffic at levels that will significantly and adversely impact local roads giving access thereto and does not introduce lighting or noise levels inconsistent with the neighborhood environs, create parking demand, or operate in a manner that would significantly and negatively impact adjoining properties, especially those in residential use. The applicant shall also demonstrate that the use can be furnished adequately with water supply and that adequate wastewater treatment facilities are available.