Town of Avon, NY Communications Towers and Antennas

All applicants for a tower conditional use permit for communications towers, antennas and accessory communications structures or any modification of such a facility shall comply with the requirements set forth in this section:

(1)

The Town Board is the officially designated agency or body of the community to whom applications for a conditional use permit for communications towers, antennas and accessory communications structures must be made and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking tower conditional use permits for communications towers, antennas and accessory communications structures. The Town Board shall delegate to the Town Planning Board the power to accept, review, analyze, evaluate and make recommendations to the Town Board with respect to the granting or not granting, recertifying or not recertifying, or revoking tower conditional use permits for communications towers, antennas and accessory communications structures.

(2)

An application for a tower conditional use permit for communications towers, antennas and accessory communications structures shall be signed by the applicant (or by a person acting on behalf of the applicant who has prepared the same and who has knowledge of the contents and representations made therein), attesting to the truth and completeness of the information. The owner of the land on which the communications towers, antennas and accessory communications structures are proposed to be located, if different from the applicant, shall also sign the application. At the discretion of the Town Board, any material false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.

(3)

Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the Town Board and/or the Town Planning Board.

(4)

The applicant shall include a statement in writing:

(a)

That the applicant's proposed communications towers, antennas and accessory communications structures will be maintained in a safe manner and in compliance with all conditions of the tower conditional use permit, without exception (unless specifically granted relief by the Town Board in writing), as well as all applicable local codes, local laws, ordinances, and regulations, and all applicable county, state and federal statutes, laws, codes, rules, and regulations;

(b)

That the construction of the communications towers, antennas and accessory communications structures is legally permissible, including but not limited to the fact that the applicant is authorized to do business in New York State.

(5)

No communications towers, antennas and accessory communications structures shall be placed, constructed, used or modified in the Town unless and until a tower conditional use permit therefor has been granted by the Town Board pursuant to this article. No construction or modification of communications towers, antennas and accessory communications structures for which a tower conditional use permit has been issued shall take place unless and until a building permit therefor has been issued by the Town Code Enforcement Officer.

(6)

Application.

(a)

Whenever it is specified in this chapter that a particular use may be undertaken in a particular district only upon the issuance of a tower conditional use permit, any person seeking to establish, renew or extend such a use or to construct or remodel any building which will be devoted to such a use shall file an application for a tower conditional use permit on the forms to be supplied by the Town Clerk. Said forms shall be filled out by the applicant and approved as to form by the Town Clerk. Thereafter, the applicant shall file said form with the Town Clerk, together with a filing fee designated in the current fee schedule approved by the Town Board and filed with the Town Clerk's Office. The Town Clerk shall forward such application to the Planning Board and the Town Board no later than 10 days after the filing of the application. All applications for a tower conditional use permit for the construction or installation of new communications towers, antennas and accessory communications structures shall be accompanied by a report containing the information hereinafter set forth, which said report shall be signed by a licensed professional engineer registered in the state.

[1]

Name, address, and phone number of the person preparing the report;

[2]

Name, address, and phone number of the property owner, operator, and applicant, including information about the legal status of the applicant;

[3]

The tax map parcel number of the property and 911 address, if available;

[4]

Zoning district or designation in which the property is situated;

[5]

Size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines;

[6]

Location of nearest residential structure;

[7]

Location of nearest habitable structure;

[8]

Location and dimensions of all structures currently on the property and those proposed for the property that is the subject of the application;

[9]

Location and dimensions of all proposed and existing antennas and all appurtenant structures;

[10]

Type, locations, and dimensions of all proposed and existing landscaping and fencing;

[11]

The number, type, and design of the communications tower(s), antenna(s) and accessory communications structure(s) proposed and the basis for the calculations of the capacity to accommodate multiple users;

[12]

The make, model, and manufacturer of the tower and antenna(s);

[13]

A description of the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above pre-existing grade, materials, color, and lighting;

[14]

The frequency, modulation, and class of service of radio or other transmitting equipment;

[15]

Transmission and maximum effective radiated power of the antenna(s);

[16]

Direction of maximum lobes and associated radiation of the antenna(s);

[17]

Application's proposed tower maintenance and inspection procedures and related system of records;

[18]

Certification that the National Institute of Environmental Research levels at the proposed site are within the threshold levels adopted by the FCC;

[19]

Certification that the proposed antenna(s) will not cause interference with existing telecommunications devices;

[20]

A copy of the FCC license applicable for the use of the communications tower, antenna(s) and/or accessory communications structure(s);

[21]

Certification that a topographic and geomorphologic study and analysis has been conducted and that, taking into account the subsurface and substrata and the proposed drainage plan, the site is adequate to assure the stability of the proposed drainage plan and the site is adequate to assure the stability of the proposed communications towers, antennas and accessory communications structures on the proposed site;

[22]

Propagation studies of the proposed site and all adjoining proposed or in service or existing sites;

[23]

Location, layout, and dimensions of off-street parking and loading facilities, vehicular entry, exit, and circulation on the site and neighboring roads;

[24]

Grading and drainage plan for the site;

[25]

Type, size, and location of all proposed screening, signs, and physical features meant to protect adjacent land uses;

[26]

Identification of other sites owned or leased by the applicant in the municipality;

[27]

The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable. Attached must be a certificate of the owner of existing tower or structure that such cost was not made to induce the applicant not to enter into a sharing agreement for such tower; and

[28]

Disclosure in writing of any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any new communications towers, antennas and accessory communications structures that he constructs.

(b)

Where this section calls for a certification, such certification shall be by a qualified New York State licensed professional engineer, acceptable to the Town Board, unless otherwise noted.

(7)

In the case of new communications towers, antennas and accessory communications structures, the applicant shall be required to submit a written report demonstrating his efforts to secure shared use of existing communications towers, antennas and/or accessory communications structures or use of existing buildings or other structures within the Town. Copies of written requests and responses for shared use shall be provided to the Board.

(8)

The applicant shall furnish written certification that both the foundation and attachments of the communications tower(s), antenna(s) and/or accessory communications structure(s) are designed and constructed ("as built") to meet all applicable county, state and federal structural requirements for loads, including wind and ice loads.

(9)

After construction and prior to receiving a certificate of occupancy, applicant shall furnish written certification that the communications towers, antennas and accessory communications structures and related facilities are grounded, bonded so as to protect persons and property, and installed with appropriate surge protectors.

(10)

The applicant shall submit a completed full EAF and a completed visual EAF addendum. The Board may require submission of a more detailed visual analysis based on the results of the visual EAF addendum. The applicant shall submit a completed environmental impact statement (EIS), if the same is required by applicable provisions of law.

(11)

The applicant shall furnish a visual impact assessment that shall include:

(a)

A Zone Visibility Map, which shall be provided in order to determine locations where the tower may be seen.

(b)

Pictorial representations of before and after views from key viewpoints both inside and outside of the Town, including but not limited to state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers, or residents. If requested by the applicant, the Town Board, acting in consultation with its consultants or experts, hired at the expense of the applicant, will provide guidance concerning the appropriate key sites at a pre-application meeting.

(c)

An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets.

(12)

Any and all representations made by an applicant to the Town Board, on the record, during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Town Board.

(13)

The applicant shall, in a manner approved by the Town Board, demonstrate in writing how he will effectively screen from view the base and all related facilities and structures of the proposed communications towers, antennas and accessory communications structures.

(14)

All utilities leading to and away from the site of any communications towers, antennas and accessory communications structures shall be installed in compliance with the New York State Uniform Fire Prevention and Building Code and shall be installed underground and in compliance with all applicable ordinances, local laws, codes, rules, and regulations of the Town, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code, where appropriate. The Town Board may waive or vary the requirements of underground installation of utilities whenever, in the opinion of the Town Board, such variance or waiver shall not be detrimental to the health, safety, general welfare or environment, including the visual and scenic characteristics of the area.

(15)

All communications towers, antennas and accessory communications structures and accessory facilities shall be sited so as to have the least practical adverse visual effect on the environment and its character and on the residences in the area of the communications towers, antennas and accessory communications structures site.

(16)

Both the communications towers, antennas and accessory communications structures and accessory facilities shall maximize use of building materials, colors, and textures designed to blend with the structure to which they may be affixed and/or to harmonize with the natural surroundings; this shall include the utilization of stealth or concealment technology, as required by the Town.

(17)

At a communications tower or antenna, an access road and parking shall be provided to assure adequate emergency and service access. Accessways shall make maximum use of existing public or private roads to the extent practical. New accessways constructed solely for accessory communications structures, antennas or communications towers must be at least 20 feet but no more than 30 feet wide and closely follow natural contours to assure minimal ground disturbance, vegetation cutting, visual disturbance and to reduce soil erosion potential.

(18)

The road surface (driveway) shall be centered within accessways and shall not comprise more than 60% of the width of the roadways.

(19)

Parking areas shall be sufficient to accommodate the greatest number of service vehicles expected on the premises at one time.

(20)

Driveways or parking areas shall provide adequate interior turnaround, such that service vehicles will not have to back out onto a public thoroughfare.

(21)

Equipment or vehicles not used in direct support, renovation, additions or repair of any accessory communications structure, antenna or communications tower shall not be stored or parked on the facility site.

(22)

Communications towers shall not be artificially lighted unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen shall, to the fullest extent possible, cause the least disturbance to the surrounding areas. However, an applicant may be required to add FAA-style lighting and marking if, in the judgment of the Planning Board, such a requirement would be of direct benefit to public safety.

(23)

No signs or advertising materials of any nature shall be allowed on any communications tower or antenna unless such signs consist of warning signs or other notifications designed to alert the public to safety concerns.

(24)

All accessory communications structures shall be designed, sited and screened to minimize their visibility from surrounding public streets or neighborhoods, using suitable materials, colors, textures, screening and landscaping.

(25)

Communications towers and antennas that are proposed to be mounted or attached on existing communications towers, buildings or structures shall be designed so as to make the equipment as visually unobtrusive as possible and, to the full extent possible, shall be harmonious with the architectural fabric of the supporting structure and the surrounding area.

(26)

Proposed accessory communications structures, antennas or communications towers shall have appropriate vegetative screening around the tower base area and any accessory facilities to screen their view from neighboring residences, recreation areas or public roads. Such screening shall include the maximum feasible retention of existing vegetation. The Planning Board may similarly require screening adjacent to waterways, landmarks, refuges, community facilities or conservation or historic areas within the view of the public.

(27)

A person or entity who holds a tower conditional use permit for communications towers, antennas and accessory communications structures shall construct, operate, maintain, repair, modify or restore the permitted communications towers, antennas and accessory communications structures in strict compliance with all current technical, safety and safety-related codes adopted by the Town, county, state, or United States, including but not limited to the most recent editions of the New York State Uniform Fire Prevention and Building Code, National Electrical Safety Code and the National Electrical Code, as well as accepted and responsibly workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health, and land use codes. In the event of a conflict between or among any of the preceding, the more stringent shall apply.

(28)

A person or entity holding a tower conditional use permit granted under this article shall obtain, at his 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.

(29)

Subject to and in accordance with the State Environmental Quality Review Act (SEQRA), the Town Board shall be the lead agency for the purpose of conducting the environmental review of the application for a tower conditional use permit. The Town Board shall conduct an integrated comprehensive environmental review of the proposed project in combination with its review of the application under this article.

(30)

An applicant shall submit no fewer than eight copies of the entire completed application to the Town Board and a copy of notice of the application to the town clerks of all towns, townships, and cities which adjoin the Town, the Avon Town Planning Board, the Livingston County Planning Board, the clerk of the Livingston County Board of Supervisors, the New York State Office of Parks, Recreation and Historic Preservation, New York State Commissioner of Agriculture and Markets, and New York State Commissioner of Environmental Conservation.

(31)

The applicant shall examine the feasibility of designing proposed communications towers, antennas and accessory communications structures to accommodate future demand for at least two additional commercial applications, for example, future collocations. The scope of this examination shall be determined by the Town Board. The communications towers, antennas and accessory communications structures shall be structurally designed to accommodate at least two additional antenna arrays equal to those of the applicant and located as close to the applicant's antenna as possible without causing interference. This requirement may be waived by the Town Board, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the communications towers, antennas and accessory communications structures is not technologically feasible or is "commercially impracticable," as that term is defined and applied under § 2-615 of the New York State Uniform Commercial Code and creates an unnecessary and unreasonable burden, based upon:

(a)

The foreseeable number of FCC licenses available for the area;

(b)

The kind of communications towers, antennas and accessory communications structures site and structure proposed;

(c)

The number of existing and potential licenses without communications tower and/or antenna spaces/sites;

(d)

Available space on existing and approved communications towers and/or antennas.

(32)

The applicant shall submit to the Town Board a letter of intent committing the owner of the proposed new communications tower or antenna, and his/her successors in interest, to negotiate in good faith for shared use of the proposed tower by other telecommunications providers in the future. This letter shall be filed with the Town Board. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the tower conditional use permit. The letter shall commit the applicants and their successors in interest to:

(a)

Respond within 60 days to a request for information from a potential shared-use applicant.

(b)

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

(c)

Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are 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, less a depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.

(33)

Unless waived by the Board, there shall be a pre-application meeting attended by the applicant as well as a member of the Town Board and a member of the Planning Board. The purpose of the pre-application meeting will be to address issues that will help to expedite the review and permitting process. A pre-application meeting may also include a site visit, if required. Where the application is for the shared use of an existing communications tower(s) or other high structure, the applicant should seek to waive any section or subsection of this article that may not be required. At the pre-application meeting, the waiver requests, if appropriate, will be decided by the Town Board. Costs of the Town's consultants to prepare for and attend the pre-application meeting will be borne by the applicant.

(34)

The holder of a tower conditional use permit shall notify the Town of any intended modification of a communications tower, antenna or accessory communications structure and shall apply to the Town to modify, relocate, or rebuild the same.

(35)

In order to better inform the public in the case of a new communications tower, antenna and/or accessory communications structure, the applicant shall prior to the public hearing on the application, hold a "balloon test" as follows: Applicant shall arrange to fly or raise upon a temporary mast a minimum of a three-foot-diameter brightly colored balloon at the maximum height of the proposed new tower. The dates (including a second date, in case of poor visibility on the initial dates), times and location of this balloon test shall be advertised by the applicant at seven and 14 days in advance of the first test date in a newspaper with a general circulation in Town and agreed to by the Board. The applicant shall also serve 10 days' notice of the time, place and object of such test by regular first class mail upon all owners and occupants of properties having a frontage on both sides of the public highway or highways within 1,000 feet in both directions along such highway or highways from the nearest side line, or nearest side line extended, of the premises to be considered for such use and also upon the owners and occupants of all properties located within 250 feet of the rear or side line of any premises for which such use is proposed. The applicant shall inform the Board, in writing, of the dates and times of the test, at least 14 days in advance. The balloon shall be flown for at least eight consecutive hours some time between 7:00 a.m. and 4:00 p.m. of the dates chosen. The primary date shall be on a weekend, but the second date, in case of poor visibility on the initial date, may be on a weekday.

(36)

The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the communications tower or existing structure intended to support wireless facilities requires lighting under Federal Aviation Regulation Part 77. This requirement shall be for any new tower or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines that the FAA must be contacted, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided in a timely manner.

(37)

Notice and hearing. Following the receipt by the Town Board of a completed application and within seven days thereof, the matter shall be referred to the Planning Board for hearing and recommendation. Within 60 days of referral from the Town Board, the Planning Board shall publish a notice in a newspaper of general circulation in the Town of Avon setting forth the name of the applicant, the location and owner of the property, the use proposed and the time and place of a public hearing to be held by the Planning Board no sooner than five business days after the day of publication. After the Planning Board has set a date for the hearing, the applicant shall also serve 10 days' notice of the time, place and object of such hearing by regular first class mail upon all owners and occupants of properties having a frontage on both sides of the public highway or highways within 1,000 feet in both directions along such highway or highways from the nearest side line, or nearest side line extended, of the premises to be considered for such use and also upon the owners and occupants of all properties located within 500 feet of the rear or side line of any premises for which such use is proposed. Such notice shall also indicate that the use permit application is available for public inspection at the Town Clerk's office prior to such hearing. The Town Clerk shall make available for public inspection prior to such hearing the use permit application for a communications tower or antenna. The applicant shall file proofs of service with the Town Clerk no less than three days prior to the scheduled hearing date. Proofs of service shall be in the form of an affidavit of service by mailing.

(38)

Recommendation by Planning Board. Following such public hearing, the Planning Board shall forward to the Town Board its recommendations with regard to the application and any restrictions that it recommends be attached to the permit, if it is issued. The recommendations of the Planning Board shall be made no later that 30 days after the public hearing.

(39)

Decision by the Town Board. The Town Board may authorize and direct the approval or denial of the issuance of the tower conditional use permit on the basis of the effect of such permit on the public health, safety, aesthetics or general welfare. The Town Board shall attach to such permit such restrictions, in addition to or in lieu of the bulk-density regulations and general standards of the district, as are necessary or desirable, in its judgment, to ensure the compatibility of the proposed use with surrounding property and the overall development of the community.

(40)

Compliance:

(a)

The Town Clerk and the Code Enforcement Officer shall keep records of all tower conditional use permits issued and review all permits, except those for which all conditions have been permanently satisfied and so noted, at least once annually.

(b)

The Code Enforcement Officer shall cause an inspection to occur upon the land or structure where the special use is located in order to ascertain that the landowner is complying with all of the conditions listed and ordinances applicable to said permit and property affected.

(c)

A permit holder who is not in compliance shall be issued a written order to comply and remedy said violations within 30 days or be subject to revocation.

(41)

Revocation. Upon submission to the Town Board of a written report of the Code Enforcement Officer that the permit holder is in violation of the conditions established and has failed to remedy the violations or comply with the regulations herein, the Town Board shall have the power to revoke the previously issued tower conditional use permit upon findings that the holder has failed to remedy or comply with applicable conditions and/or ordinances.

(42)

Abandonment of use. All tower conditional use permits issued under this chapter shall expire and terminate upon the cessation or abandonment of the use permitted, after a one-year period.

(43)

Termination.

(a)

All tower conditional use permits hereinafter issued under this chapter shall be deemed to be personal to the holder and shall terminate upon transfer of title or ownership of the property or use so affected.

(b)

The subsequent applicant must reapply for a tower conditional use permit that terminates upon the transfer of title or ownership within 60 days of purchase or transfer.

(44)

Exceptions. A tower conditional use permit, which when granted and approved by the Board designates the use to be continuous and will run with the land, shall be irrevocable and subject only to the restrictions of this chapter and any conditions attached thereto.