[Added 10-1-1998 by L.L. No. 3-1998]
This article consists of an amendment to the Zoning Law of the Town of Highlands (Chapter 210 of the Town Code) to permit the construction of telecommunication towers in the Town of Highlands in certain places and under certain circumstances as a special exception use (§ 210-10[1]) and subject to site plan review (§ 210-21). The Town of Highlands intends, by the adoption of this article, to provide standards for the safe provision of telecommunications structures within the Town consistent with applicable federal and state regulations and protecting the natural features and aesthetic character of the Town.
[1]
Editor's Note: See § 210-10D(17) regarding telecommunication towers, antennas and accessory facilities.
As used in this article, the following terms
shall have the meanings indicated:
An accessory facility serves the principal use, is subordinate
in area, extent and purpose to the principal use and is located on
the same lot as the principal use. Examples of such facilities include
transmission equipment and storage sheds.
A system of electrical conductors that transmit or receive
radio frequency waves. Such waves shall include but not be limited
to radio navigation, radio, television, wireless and microwave communications.
The primary sending and receiving site in a wireless telecommunications
network. More than one base station and/or more than one variety of
personal wireless service provider can be located on a single tower
structure.
Unit of measure of the power level of an electromagnetic
signal expressed in decibels, referenced to one milliwatt.
A structure located at a base station designed principally
to enclose equipment used in connection with personal wireless service
transmissions.
Effective radiated power.
A property, or any part thereof, which is owned or leased
by one or more personal wireless service providers and upon which
one or more personal wireless service facility(s) and required landscaping
are located.
The testing protocol which is to be used to monitor the emissions
from existing and new personal wireless service facilities upon adoption
of this article. The Planning Board may, as the technology changes,
require, by resolution, the use of other testing protocols.
A single self-supporting vertical pole, designed to be used
for the purposes provided in the definition of "telecommunication
tower" in this section, with no guy wire anchors, consisting of a
galvanized or other unpainted metal, or a wooden pole with below-grade
foundations.
An entity licensed by the Federal Communications Commission
(FCC) to provide personal wireless services to individuals or institutions.
Commercial mobile services, unlicensed wireless services
and common carrier wireless exchange access services. These services
include cellular services, personal communications services (PCS),
specialized mobile radio services and paging services.
All equipment (including any repeaters) with which a personal
wireless service provider broadcasts and receives the radio frequency
waves which carry its services and all locations of said equipment
or any part thereof. This facility may be sited on one or more towers
or structure(s) owned and permitted by another owner or entity.
Computer-generated estimates of the radiation emanating from
antennas or repeaters sited on a specific tower or structure. The
height above ground, power input and output, frequency output, type
of antenna, antenna gain and topography of the site and its surroundings
are all taken into account to create these simulations. They are the
primary tool for determining whether a site will provide adequate
coverage for the personal wireless service facility proposed for that
site.
A small receiver/relay transmitter of not more than 20 watts'
output designed to provide service to areas which are not able to
receive adequate coverage directly from a base station.
A lattice structure or framework, a monopole or any other
structure whose height is greater than its width that is designed
to support personal wireless service facility (PWSF), transmitter,
receiving and/or relaying antennas and/or related equipment.
A facility utilizing satellite dishes of greater than 2.0
meters in diameter designed to uplink to communications satellites
for transmitting in the C-Band (4-6 GHz) spectrum.
Any PWSF, transmitter, antenna or tower which is not operated
for a continuous period of five months shall be considered an unused
wireless communication antenna.
A.
The purpose of these regulations is to:
(1)
Preserve the character and appearance of the
Town while simultaneously allowing adequate personal wireless services
to be developed.
(2)
Protect the scenic, historic, environmental
and natural or man-made resources of the community.
(3)
Provide standards and requirements for regulation,
placement, construction, monitoring, design, modification and removal
of PWSF.
(4)
Provide a procedural basis for action within
a reasonable period of time for requests for authorization to place,
construct, operate or modify PWSF.
(5)
Preserve property values.
(6)
Minimize the total number and height of towers
throughout the community.
(7)
Locate towers so that they do not have negative
impacts, such as but not limited to attractive nuisance, noise and
falling objects, on the general safety, welfare and quality of life
of the community.
(8)
Require owners of towers and PWSF to configure
them so as to minimize and mitigate any adverse visual impact of the
towers and facilities.
(9)
Encourage tower sharing and the clustering of
PWSF where possible.
(10)
Locate towers so as to provide adequate coverage
and adequate capacity with the least number of towers and antennas
which is technically feasible.
B.
These regulations are not intended to prohibit or
have the effect of prohibiting the provision of personal wireless
services, nor shall they be used to unreasonably discriminate among
providers of functionally equivalent services consistent with current
federal regulations.
A.
All proposals to erect or operate personal wireless
communication facilities shall be accompanied by a facility service
plan which shall include information necessary to allow the Planning
Board to understand the existing, proposed and long-range plans of
the applicant. Through the facility service plan the applicant shall
provide a statement explaining the rationale and justification for
the proposed PWSF, transmitter, antenna or tower in the proposed location.
The facility service plan shall include at least the following information:
(1)
Written documentation of any facility sites
within 20 miles in any direction of the proposed site in which the
applicant has a legal or equitable interest, whether by ownership,
leasehold or otherwise. From each such facility site, it shall demonstrate
with written documentation that these facility sites are not already
providing, or do not have the potential by adjusting the site to provide,
adequate coverage and/or adequate capacity to the Town of Highlands.
The document shall include for each facility site listed the exact
location (in longitude and latitude, to degrees, minutes and seconds),
ground elevation, height of tower or structure, type of antennas,
antenna gain, height of antennas on tower or structure, output frequency,
number of channels, power input and maximum power output per channel.
Potential adjustments to these existing facility sites, including
changes in antenna type, orientation, gain, height or power output,
shall be specified. Radial plots showing the effective radiated power
(ERP) from each of these facility sites, as they exist and with adjustments
as above, shall be provided as part of the application.
(2)
A commitment to collocate or allow collocation
wherever possible on all existing and proposed facilities. This commitment
shall be demonstrated with written documentation that the applicant
has examined all facility sites within 20 miles in any direction of
the proposed site in which the applicant has no legal or equitable
interest, whether by ownership, leasehold or otherwise, to determine
those existing facility sites can be used to provide adequate coverage
and/or adequate capacity to the Town of Highlands. The documentation
shall include, for each facility site examined, the exact location
(in longitude and latitude, to degrees, minutes and seconds), ground
elevation, height of tower or structure, type of antennas proposed,
proposed antenna gain, height of proposed antennas on tower or structure,
proposed output frequency, proposed number of channels, proposed power
input and proposed maximum power output per channel. Radial plots
from each of these facility sites, as proposed, shall be provided
as part of the application.
(3)
Demonstration with written documentation that the applicant has analyzed the feasibility of repeaters in conjunction with all facility sites listed in compliance with Subsection A(1) and (2) to provide adequate coverage and/or adequate capacity to the Town of Highlands. Radial plots showing the effective radiated power (ERP) of all repeaters considered for use in conjunction with these facility sites shall be provided as part of the application.
B.
The applicant shall provide funds as required by the
Planning Board to an escrow account to allow the Building Inspector
and/or the Planning Board to retain such technical experts as may
be necessary in their discretion to review the application.
C.
Prior to or concurrent with the filing of a formal
application to the Planning Board to obtain a special permit under
this article, the applicant shall submit information needed to meet
the requirements of the New York State Environmental Quality Review
Act (SEQRA) to the Planning Board, which Board shall determine whether
the requirements of SEQRA have been met. Until a final SEQRA determination
has been made, no application for a special permit under this article
shall be granted. For purposes of this section, all proposed towers
shall be considered Type 1 actions.
For all proposed wireless communication antennas,
the following additional information shall be provided:
A.
Name and address of the property owner and the applicant.
B.
Address, lot and block and/or parcel number of the
property.
C.
Zoning district in which the property is situated.
D.
Name and address of person preparing the plan.
E.
Size of the property and the location of all lot lines.
F.
Approximate location of all residential structures
within 500 feet.
G.
Approximate location of all occupied structures within
500 feet.
H.
Location of all structures on the property which is
the subject of the application.
I.
Location, size and height of all proposed and existing
PWSF, antennas, transmitters and all appurtenant structures on the
property within 500 yards.
J.
Type, size and location of all proposed landscaping.
K.
A report by a New York State licensed professional
engineer documenting compliance with applicable structural standards
and describing the general structural capacity of any proposed installation
at the cost of the applicant.
L.
A description of the proposed PWSF, antennas, transmitters
and all related fixtures, structures, appurtenances and apparatus,
including height above grade, materials, color and lighting.
M.
A description of the function and purpose of the PWSF,
transmitters and antenna.
N.
The make, model and manufacturer of the PWSF, transmitters
and antenna.
O.
The frequency, modulation and class of service.
P.
Transmission and maximum effective radiated power.
Q.
Direction of maximum lobes and associated radiation
and compliance with FCC regulations.
R.
If the name or address of the owner or operator of
the PWSF, transmitters and antenna facility is changed, the Building
Inspector of the Town of Highlands shall be notified of the change
within 90 days of any transfer.
S.
Within 90 days of installation and/or operating any
transmitting PWSF, transmitter and antenna, the owner or operator
shall submit to the Building Inspector a written certification by
a New York State licensed professional engineer (for monopole or tower
installations) that the PWSF, transmitter and antenna comply with
the Town of Highlands Code and all other applicable governmental regulations.
T.
Consent by the applicant to allow additional antennas
(for purposes of collocating) on any new antenna towers, if feasible.
For all proposed wireless communication antennas
the following requirements are applicable:
A.
For proposed sites within 500 feet of other sources
of radio frequency (RF) energy, emanating from other wireless communication
facilities, the applicant shall provide an estimate of the maximum
total exposure from all nearby stationary sources and comparison with
relevant standards. This assessment shall include individual and ambient
levels of exposure. It shall not include residentially based facilities
such as cordless telephones.
B.
All obsolete or unused wireless communication antennas
(including tower supports) shall be removed within 60 days of cessation
of operations at the site. The applicant shall, as a condition of
the special permit, provide a financial surety bond payable to the
Town of Highlands and acceptable to the Town Board to cover the cost
of removal of the PWSF, transmitter or antenna and the remediation
of the landscape.
C.
All wireless communications facilities shall be identified
with signs, not to exceed six square feet, which shall list the owner
or operator's name and emergency telephone number and which shall
be posted in a conspicuous place. Commercial advertisements are prohibited
from being posted on or around towers in the Town of Highlands.
D.
No source of nonionizing electromagnetic radiation
(NICER), including facilities operational before the effective date
of this section, shall exceed the federal or state NICER emission
standard.
E.
New antennas and supporting towers shall be designed
to accommodate additional antennas, and supporting towers shall be
designed to accommodate additional antennas for purposes of collocating.
For roof-mounted, collocated or other situations
wherein a special permit is required hereunder, the application shall
include:
A.
An assessment of potential public exposure to radio
frequency (RF) energy from the proposed facility, indicating the facility's
maximum designed output and compliance with applicable federal or
state standards. The applicant shall identify the maximum exposure
level, the locations at which this occurs and the estimated RF levels
at specific locations of community interest, such as schools, residences
or commercial buildings. Assumptions used in the calculations shall
be stated, including building heights and topography.
B.
A multiple source exposure impact assessment shall
be prepared if the wireless communication facility is to be situated
on the same site as existing facilities, such as a tower or roof.
C.
Evidence that the maximum exposure to the general
public will not exceed federal or state standards.
D.
An identification of rooftop areas to which the public
may have access. The exposure in these areas shall be in compliance
with the standards established by any federal or state agencies.
E.
An identification of how much of the roof, if any,
should be designated a "controlled environment" due to RF field levels
in accordance with the applicable federal or state standard.
F.
Notification to the building management if any portion
of the roof needs to be identified as a "controlled environment" due
to RF levels in excess of the guidelines in the applicable federal
or state standards.
A.
PWSF, transmitters and antennas shall not be placed
more than 15 feet higher than the height limitation for buildings
and structures within the zoning district in which the antenna is
proposed to be erected.
B.
PWSF, transmitters and antennas may be set back from
the outer edge of the roof a distance equal to or greater than 10%
of the rooftop length and width, or such antennas may be attached
directly to the roof parapet wall, whichever in the Planning Board's
opinion will have the minimal visual impact while achieving signal
coverage requirements.
C.
If the Planning Board requests, antennas shall be
the same color as the predominant color of the exterior of the top
floor or parapet of the building, except to the extent required by
law.
A.
The applicant shall demonstrate to the Planning Board
that no tower exists on which the antenna may collocate, or that collocation
is not feasible for any of the following reasons:
(1)
The applicant's network of antenna locations
is not adequate to properly serve its customers, and the use of facilities
of other entities is not suitable for physical reasons.
(2)
Adequate and reliable service cannot be provided
from existing sites in a financially and technologically feasible
manner consistent with the service provider's system requirements.
(3)
Existing sites cannot accommodate the proposed
antenna due to structural or other engineering limitations.
B.
Any application for the approval of a special permit
for a wireless communication facility shall include a report, by a
qualified engineer, health physicist or other qualified professional
as determined by the Planning Board, which calculates the maximum
amount of nonionizing electromagnetic radiation (NICER) which will
be emitted from the proposed wireless communication facility upon
its installation and demonstrates that the facility will comply with
the applicable federal or state standards.
All applicants for wireless communication antennas
in any district shall submit calculations of the estimated NICER output
of the antenna(s). The calculations shall be provided to the Planning
Board at the time of making the application for special permit. NICER
levels shall be measured and calculated as follows:
A.
Measuring equipment used shall be generally recognized
by the Environmental Protection Agency (EPA), the FCC (if applicable),
the National Council on Radiation Protection and Measurement (NCRPM),
the American National Standards Institute (ANSI) or the National Bureau
of Standards (NBA) as suitable for measuring NICER at frequencies
and power levels of the proposed and existing sources of NICER.
B.
Measuring equipment shall be calibrated as recommended
by the manufacturer in accordance with methods used by the NBS and
ANSI, whichever has the most current standard.
C.
The effect of contributing individual sources of NICER
within the frequency range of a broadband measuring instrument may
be specified by separate measurement of these sources using a narrowband
measuring instrument.
D.
NICER measurements shall be taken based on maximum
equipment output. NICER measurements shall be taken or calculated
when and where NICER levels are expected to be highest due to operating
and environmental conditions.
E.
NICER measurements shall be taken or calculated along
the property lines at an elevation six feet above grade at such locations
where NICER levels are expected to be highest and at the closest occupied
structure.
F.
NICER measurements shall be taken or calculated following
spatial averaging procedures generally recognized and used by experts
in the field of RF measurement or other procedures recognized by the
FCC, EPA, NCRPM, ANSI and NBS.
G.
NICER calculations shall be consistent with FCC Office
of Science and Technology (OST) Bulletin 65 or other engineering practices
recognized by the EPA, NCRPM, ANSI, NBS or similarly qualified organization.
H.
Measurements and calculations shall be certified by
a New York State licensed professional engineer specializing in radio
frequency engineering or a health physicist. The measurements and
calculations shall be accompanied by an explanation of the protocol,
methods and assumptions used.
A.
In residential districts, all wireless communication
facilities shall comply with yard requirements of this chapter for
principal buildings. No wireless communication facilities may be located
between the principal structure and the street.
B.
In nonresidential districts, wireless communication
facilities may be in side or rear yards, as established in this chapter
as acceptable to the Planning Board, but not in buffers shown on an
approved site plan or in a conservation or similar easement. No wireless
communication facilities may be located between the principal structure
and the street.
C.
In all residential districts, wireless communication facilities shall not exceed 150 feet in height and all such communication facilities shall be erected with each and all setbacks at least 150% of the height of the communication facility unless the requirements of Subsection D below are met. In nonresidential districts, wireless communication facilities shall not exceed 150 feet in height unless the requirements of Subsection D below are met. These height requirements shall supersede those of the zoning ordinance.
D.
The Planning Board in its site plan review shall have
the power to waive the height requirements contained in this article
and permit a height greater than that set forth above, provided that:
(1)
The proposed height does not exceed 200 feet.
(2)
The proposed height is the minimum height necessary
for adequate operation to meet the applicant's communication need,
and the aesthetic intrusion has been minimized to the greatest extent
practicable.
(3)
The site or building on which the facility is
proposed to be installed does not become nonconforming or increase
in nonconformity by reason of the installation of wireless communication
facilities. This includes but is not limited to yard, buffer, height,
floor area ratio for equipment buildings, parking, open space and
other requirements. Height requirements of this chapter shall apply
to buildings and equipment shelters.
E.
PWSF, transmitters and antennas, whether roof-side
or tower mounted, shall not be located within 1,000 feet, on a horizontal
plane, of any structure existing at the time of application which
is occupied or habitable as a school (either public or private).
F.
No tower-mounted PSWF, transmitter or antenna shall
be located closer than 1,000 feet to an existing dwelling unit or
less than 25 feet above the ground.
G.
There is evidence that the applicant has given due
consideration to the effect of the proposed facility on any historic
sites listed or eligible for listing in the National Registry of Historic
Places.
The proposed locations are ranked in the following
order of preference:
A.
Property owned or under the control of the federal
or state governments subject to Section 704 of the Telecommunication
Act of 1996.
B.
Shared use of existing personal wireless service facilities
(shall be encouraged).
C.
Clustering of towers; applications for towers adjacent
to existing towers (shall be encouraged).
D.
The use of lands where visual impact can be minimized
and mitigated (shall be encouraged).
E.
The use of repeaters to provide adequate coverage
without requiring new towers (shall be encouraged).
F.
The use of land distant from higher-density residential
properties and where visual and auditory impact can be minimized (shall
be encouraged).
The Town Planning Board shall, in consultation
with its independent consultants, make all of the applicable findings
before granting a special permit, as follows:
A.
That the applicant is not already providing adequate
coverage and/or adequate capacity to the Town of Highlands.
B.
That the applicant has exhausted the requirements of the public necessity standard in the siting of PWFS's, transmitters, antennas and towers by showing that there are no other locations which can accomplish the goal of adequate capacity and adequate coverage that meet the parameters of appropriate siting in § 210-36.12 to a higher degree.
C.
That the applicant is not able to use existing tower/facility
sites either with or without the use of repeaters to provide adequate
coverage and/or adequate capacity to the Town of Highlands.
D.
That the applicant has agreed to rent or lease available
space on the tower under the terms of a fair-market lease, without
discrimination to other personal wireless service providers.
E.
That the proposed wireless service facility or tower
will not have an undue adverse impact on historic resources, scenic
views, residential property values or natural or man-made resources.
F.
That the applicant has agreed to implement all reasonable
measures to mitigate the potential adverse impacts of the facilities.
G.
That the proposal shall comply with FCC Regulation
96-326 regarding emissions of electromagnetic radiation, and the required
monitoring program is in place and shall be paid for by the applicant.
A.
Personal wireless services facility transmitters,
antennas and towers shall be, when possible, sited off ridge lines
where the visual impact is least detrimental to significant scenic
areas.
B.
For all buildings or equipment shelters to be located
in a residential zoning district, the equipment shelter shall be treated
in an architectural manner compatible with the homes in the vicinity.
For any new wireless communication towers, landscaping
shall be provided as follows:
A.
In determining the most appropriate landscaping to
be provided, the Planning Board shall consider the visual impact of
the proposed facility in its setting with regard to immediate proximity
of observers and the sight lines from major viewing points.
B.
The area surrounding the installation shall be landscaped
and maintained with trees, shrubs and ground cover to maximize screening.
C.
Any buildings or other equipment shelters associated
with the antenna facility shall be landscaped with evergreen trees
or shrubs of sufficient size and density to screen, in whole or in
part, and effectively mitigate the appearance of the structures and
buildings. Any antenna facility requiring a tower or pole shall plant
trees around the facility of a minimum height of 10 feet at planting
that will, over time, reduce the visual impact from the tower or pole.
D.
When a security fence is required, the outside of
such fencing shall be landscaped with evergreen shrubs, trees or climbing
evergreen material on the fencing or may contain wooden slats woven
into the fence so as to mitigate and minimize the industrial character
of the fence.
E.
An existing natural vegetative buffer, owned or controlled
by the applicant, which meets or exceeds the above requirements, may
be substituted to meet the landscape requirements set forth above.
Except as specifically required by the Federal
Aviation Administration (FAA) or the FCC, antennas, including the
supporting structure and all related appurtenances, shall:
A.
Be colored to reduce the visual impact to the greatest
degree possible or camouflaged to blend with the surrounding area.
B.
Not be illuminated, except that buildings may use
lighting required by the New York State Fire Prevention and Building
Code or when required for security reasons. When lighting is used,
it shall be compatible with the surrounding neighborhood to the greatest
degree practicable.
No antenna or combination of antennas shall
expose the general public to NICER levels exceeding the standard of
any federal or state agencies having jurisdiction. In addition, no
antenna facility shall emit radiation such that the general public
will be exposed to shock and burn in excess of the standards contained
in ANSI C-95.1.
The Building Inspector shall keep a list of
the names, addresses, type and maximum emissions of all antenna operators
in the Town. This list shall be maintained from applications to the
Planning Board and Building Inspector and from FCC or similar inventories
of facilities in the Town. If the name or address of the owner or
operator of the antenna facility is changed, the Building Inspector
shall be notified of the change within 30 days.
New antennas must comply with the performance
standard that the estimated or measured NICER from a proposed antenna,
when added to existing radio frequency electromagnetic radiation from
existing sources, will not exceed the guidelines set forth in the
applicable federal and state standards.
The Planning Board shall make written findings
that the issuance of a special permit is in compliance with all of
the requirements of this chapter.
The operator of any personal wireless communication
facility existing at the time that this article takes effect shall
be permitted to remain in operation, provided that the operator submits
proof within six months of the enactment of this article that the
facility complies with the standards adopted by the Federal Communications
Commission and all requirements of this article, as certified by a
professional engineer with qualifications acceptable to the Town of
Highlands. Operating antennas or towers for personal wireless facilities
that are legally nonconforming with respect to the area regulations
of this article shall be permitted to remain until such time as a
request is made to modify the antenna or tower. Any facility for which
emission, structural and security compliance documentation is not
received shall cease operations within six months of the enactment
of this article and be immediately removed thereafter in accordance
with the provisions of this article. Any facility (antenna or tower)
in a residential zoning district which is not operating as of the
effective date hereof shall be considered to be nonconforming and
shall be removed within six months of the enactment of this article.
This section acknowledges the interest of the
Federal Communications Commission in promoting amateur radio operations
as expressed in FCC Order P.B.-1 by imposing the minimum practicable
regulation on amateur radio antennas necessary to accomplish the Town's
legitimate zoning purposes.
A.
Towers and personal wireless service facilities (PWSF)
shall be insured by the owners(s) against public liability and damage
to persons or property in the amount of $10,000,000. The owner(s)
shall provide a certificate of insurance to the Town on an annual
basis in which the Town of Highlands shall be an additional named
insured at no cost to the Town.
In addition to all other referral requirements
for special permit and site plan applications, notification shall
be made to all municipalities of all applications involving PWSF's,
transmitters, antennas and towers where the coverage area is not separated
from the Town line by an approved coverage area. With said referral,
the Town shall request reciprocal referral of all applications in
the adjacent municipality involving the same where the coverage area
is not separated from the Town line by an approved coverage area.
