[HISTORY: Adopted by the Town Board of the
Town of Cicero 12-22-1997 by L.L. No. 3-1997. Amendments noted where
applicable.]
The Town of Cicero recognizes the increased
demand for wireless communications transmitting facilities and the
need for the services they provide. Often facilities require the construction
of a communications tower. The intent of this chapter is to protect
the town's interest in siting towers in a manner consistent with sound
land use planning by: minimizing visual effects of towers through
careful design, siting and vegetative screening; avoiding potential
damage to adjacent properties from tower failure or falling debris
through engineering and careful siting of tower structures; and maximizing
use of any new or existing tower and encouraging the use of existing
buildings and/or structures to reduce the number of towers needed;
while also allowing wireless service providers to meet their technological
and service objectives for the benefit of the public.
As used in this chapter, the following terms
shall have the meanings indicated:
An accessory facility or structure serving or being used
in conjunction with a telecommunications facility or tower and located
on the same lot as the telecommunications facility or tower. Examples
of such structures include utility or transmission equipment, storage
sheds or cabinets.
A system of electrical conductors that transmit or receive
radio frequency signals. Such signals shall include but not be limited
to radio, televisions, cellular, paging, PCS and microwave communications.
Telecommunications facilities which utilize existing towers,
buildings or other structures for placement of antenna(s) and which
do not require construction of a new tower.
Towers and/or antennas and accessory structures used in connection
with the provision of cellular telephone service, personal communications
services (PCS), paging services, radio and television broadcast services
and similar broadcast services.
A structure designed to support antennas. It includes, without
limit, freestanding towers, guyed towers, monopoles and similar structures
which employ camouflage technology.
A.
Co-located antennas. Telecommunications facilities
comprised of co-located antennas utilizing existing buildings or structures
other than towers shall be permitted in any district upon the issuance
of a building permit.
B.
New towers. Telecommunications facilities requiring
construction of a new tower also shall be deemed a permitted use in
any district, but shall require the following permits and/or approvals:
(1)
On municipal or government owned property at any height, a tower shall be permitted upon the issuance of a building permit in accordance with the standards set forth by Chapter 210, Zoning, of the town and upon site plan approval by the Planning Board.
(2)
In industrial and agricultural districts where the proposed tower is 150 feet or less in height, or in any nonresidential district where the proposed tower location is more than 500 feet from any adjoining residential use and the proposed tower is 150 feet or less in height, site plan approval from the Planning Board shall be required in accordance with the standards set forth in this section and in Chapter 210, Zoning, of the Town of Cicero.
(3)
In all other districts and locations, telecommunications
facilities requiring construction of a new tower shall require, in
addition to site plan approval, a tower permit from the Planning Board
in accordance with the standards set forth in this section.
A.
For each telecommunications facility requiring only a building permit, the applicant shall submit a written application and such other supporting materials as are generally required for such permits under Chapter 210, Zoning.
B.
For each telecommunications facility requiring a tower
permit, the applicant shall submit a written application for such
permit to the Planning Board on a form prescribed by the Planning
Board.
C.
Each applicant for a telecommunications facility,
other than a telecommunications facility requiring only the issuance
of a building permit, shall submit an environmental assessment form
(long form), with the visual addendum, and an analysis demonstrating
that location of the telecommunications facility as proposed is necessary
to meet the frequency reuse and spacing needs of the applicant's telecommunications
system and to provide adequate service and coverage to the intended
area. In addition, each applicant shall submit a site plan prepared
to scale and in sufficient detail and accuracy showing a minimum of:
(1)
The exact location of the proposed telecommunications
facility and/or tower, together with any guy wires and guy anchors,
if applicable;
(2)
The maximum height of the proposed telecommunications
facility and/or tower;
(3)
A detail of tower type (monopole, guyed, freestanding
or other);
(4)
The location, type and intensity of any lighting on
the tower;
(5)
Property boundaries and names of adjacent landowners;
(6)
Proof of the landowners' consent if the applicant
does not own the property;
(7)
The location of all other structures on the property
and all structures on any adjacent property within 10 feet of the
property lines, together with the distance of those structures to
any proposed tower;
(8)
The location, nature and extent of any proposed fencing,
landscaping and/or screening; and
(9)
The location and nature of proposed utility easements
and access road, if applicable.
A.
The following criteria and additional requirements
shall apply to each application for site plan approval for a telecommunications
facility:
(1)
Setbacks. All towers shall be set back from all adjacent
property lines a sufficient distance to safeguard the general public
and/or adjacent property. In the absence of any evidence supporting
a greater or lesser setback distance, a setback of the tower from
any adjacent residential property line equal to the tower height and
setback of at least 50 feet from any other adjacent property line
shall be deemed adequate. The required setbacks may be decreased in
those instances when the applicant has submitted plans for a tower
designed to minimize damage to adjacent property in the event of a
structural failure. Accessory structures and guy anchors must comply
with the minimum setback requirements of the underlying district.
(2)
Future shared use of new towers. In the interest of
minimizing the number of new towers, the Planning Board may require,
as a condition of either site plan or tower permit approval, that
the applicant indicate in writing its commitment to co-location of
telecommunications facilities and that the applicant will design the
tower to have a minimum height and carrying capacity needed to provide
future shared usage. The condition for co-location may not be required
if the applicant demonstrates that provisions of future share usage
are not feasible or impose an unnecessary burden based upon:
(a)
The number of Federal Communications Commissions
(FCC) licenses foreseeably available for the area;
(b)
The kind of tower site and structure proposed;
(c)
The number of existing and potential licensees
without tower spaces;
(d)
Available spaces on other existing and approved
towers; and
(e)
Potential adverse visual impacts by a tower
designed for shared usage.
(3)
Aesthetics. Telecommunications facilities shall be
located and buffered to the maximum extent which is practical and
technologically feasible to help insure compatibility with surrounding
land uses. In order to minimize adverse aesthetic effects on neighboring
residences to the extent possible, the Planning Board may impose reasonable
conditions on the applicant, including the following:
(a)
The Planning Board may require reasonable landscaping
consisting of trees or shrubs to screen the base of the tower and
accessory structures to the extent possible from adjacent residential
property. Existing on-site trees and vegetation shall be preserved
to the maximum extent possible.
(b)
The Planning Board may require that the tower
be designed and sited so as to avoid, if possible, application of
Federal Aviation Administration (FAA) lighting and painting requirements,
it being generally understood that towers should not be artificially
lighted, except as required by the FAA;
(c)
The tower shall be of a galvanized finish or
painted matte gray unless otherwise required by the FAA and accessory
facilities should maximize use of building materials, colors and textures
designed to blend with the natural surroundings; and
(d)
No tower shall contain any signs of advertising
devices.
(4)
Traffic, access and safety.
(a)
A road turnaround and two parking spaces shall
be provided to assure adequate emergency and service access. Maximum
use of existing roads, public or private, shall be made. Road construction
shall, at all times, minimize ground disturbance and vegetation cutting
and road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion potential.
(b)
All towers and guy anchors, if applicable, shall
be enclosed by a fence not less than six feet in height or otherwise
sufficiently secured to protect them from trespassing or vandalism.
(c)
The applicant must comply with all applicable
state and federal regulations including, but not limited to, FAA and
FCC regulations.
(d)
The applicant shall provide a certification
from a qualified, licensed engineer, certifying that the tower or
telecommunications facility meets applicable structural safety standards
and upon operation does not interfere with local radio and/or television
frequencies.
(5)
Removal of obsolete/unused facilities. The applicant
shall agree, in writing, to remove the tower or antennas if the telecommunications
facility becomes obsolete or ceases to be used for its intended purpose
for 12 consecutive months. Removal of such obsolete and/or unused
towers or antennas shall take place within six months of cessation
of use. Such agreement shall also include a commitment by the applicant
to impose a similar obligation to remove any unused and/or obsolete
tower or antennas upon any person subsequently securing rights to
co-locate on the tower or telecommunications facility.
(6)
Public involvement. The Planning Board shall notify
adjacent property owners within 500 feet of any application for any
telecommunications facility permit and shall allow input from such
property owners upon its site plan review.
B.
The following criteria and additional requirements
shall apply to each application for a tower permit:
(1)
Height. The building height regulations otherwise
applicable in the underlying district shall not apply to towers, provided
that the applicant submits sufficient information to justify the proposed
height as the minimum necessary to achieve its coverage objectives.
In no event, however, shall any tower exceed a height of 250 feet
without first obtaining a height variance from the Zoning Board of
Appeals.
(2)
Shared use of existing towers and/or structures. At
all times, shared use of existing towers and/or structures, e.g.,
municipal water tank, buildings, towers, etc., shall be preferred
to the construction of new towers. An applicant for a tower permit
shall present a report inventorying existing towers and/or structures
within a reasonable distance of the proposed site and outlining opportunities
for shared use of existing facilities as an alternative to a proposed
new tower. The applicant shall submit documentation demonstrating
good faith efforts to secure shared use on existing towers or structures
as well as documentation of the technical, physical and/or financial
reasons why shared usage is not proposed. Written request for shared
use shall be provided where applicable. The applicant shall also demonstrate
efforts to locate a new tower on the same site as an existing tower
or structure, if it is not co-locating on the existing tower or structure.
[Added 12-11-2019 by L.L. No. 5-2021]
A.
Purpose and definitions.
(1)
Purpose and intent.
(a)
Purpose.
[1]
The purpose of this chapter is to regulate the placement of
certain wireless communication facilities in the Town. The standards
set forth herein are created to provide objective, technically feasible
criteria applied in a nondiscriminatory manner that reasonably match
the aesthetics and character of the immediate area regarding all of
the following, which the Town shall consider when reviewing an application:
[a]
The location of the ground-mounted communication facilities;
[b]
The location of a wireless facility on a pole or other device;
[c]
The appearance and concealment of communication facilities,
including those relating to materials used for arranging, screening
and landscaping;
[d]
The design and appearance of a wireless support structure including
any height requirements adopted in accordance with this chapter.
[2]
This chapter applies to the public ROW but does not restrict
the Town's right to regulate communication facilities on non-Town-owned
property or outside of the public ROW under the same terms and conditions
set forth herein.
(b)
Intent. In enacting this chapter, the Town is establishing uniform
standards to address issues presented by certain wireless facilities,
including without limitation, to:
[1]
Prevent interference with the use of streets, sidewalks, alleys,
parkways and other public ways and places;
[2]
Prevent the creation of visual and physical obstructions and
other conditions that are hazardous to vehicular and pedestrian traffic;
[3]
Prevent interference with existing facilities and operations
of facilities presently lawfully located in rights-of-way or public
property;
[4]
Ensure efforts are made to preserve the character of neighborhoods
in which facilities are installed;
[5]
Protect against environmental damage, including damage to trees,
public and private property; and
[6]
Facilitate the appropriate and reasonable deployment of small
wireless facilities to provide the benefits of reliable access to
wireless telecommunications technology, broadband and 9-1-1 services
to homes, businesses and schools within the Town.
(2)
ADMINISTRATIVE REVIEW
ANTENNA
APPLICABLE CODES
APPLICANT
APPLICATION
AUTHORITY or TOWN
COLLOCATE
COMMUNICATIONS FACILITY
COMMUNICATIONS SERVICE
COMMUNICATIONS SERVICE PROVIDER
DECORATIVE POLE
DISCRETIONARY REVIEW
ELIGIBLE FACILITIES REQUEST
FCC
LAWS
ORDINARY MAINTENANCE AND REPAIR
PERMIT
PERMITTEE
PERSON
POLE
PROVIDER
PUBLIC RIGHT-OF-WAY or PUBLIC ROW
PUBLIC UTILITY EASEMENT
REPLACE or REPLACEMENT
SMALL WIRELESS FACILITY
(a)
[1]
[2]
[3]
(b)
(c)
(d)
(e)
(f)
STATE
SUPPORT STRUCTURE
TOWER
WIRELESS FACILITY
WIRELESS INFRASTRUCTURE PROVIDER
WIRELESS SERVICES
WIRELESS SERVICES PROVIDER
Definitions. As used in this section, the following terms shall have
the meanings indicated:
Ministerial review of an application by the Town relating
to the review and issuance of a permit, including review by the Code
Enforcement Officer to determine whether the issuance of a permit
is in conformity with the applicable provisions of this chapter.
Communications equipment that transmits and/or receives electromagnetic
radio frequency signals used in the provision of wireless services.
This definition does not apply to broadcast antennas, antennas designed
for amateur radio use, or satellite dishes for residential or household
purposes.
Uniform building, fire, safety, electrical, plumbing, or
mechanical codes adopted, or incorporated, by the Town.
Any person who submits an application under this chapter.
A written request, on a form provided by the Town, for a
permit.
The Town of Cicero or any agency, subdivision or any instrumentality
thereof.
To install or mount a small wireless facility on an existing
support structure, an existing tower, or on an existing pole. "Collocation"
has a corresponding meaning.
Collectively, the equipment at a fixed location(s) within
the public ROW or on public or private property that enables communications
services, including: (i) radio transceivers, antennas, coaxial, fiber-optic
or other cabling, power supply (including backup battery), and comparable
equipment, regardless of technological configuration; and (ii) all
other equipment associated with any of the foregoing. A communications
facility does not include the pole, tower or support structure to
which the equipment is attached.
Cable service, as defined in 47 U.S.C. § 522(6);
information service or broadband, as defined in 47 U.S.C. § 153(24);
or telecommunications service, as defined in 47 U.S.C. § 153(53).
A provider of communications services and includes a cable
operator, as defined in 47 U.S.C. § 522(5).
A pole that is specially designed and placed for aesthetic
purposes.
Review of an application by the Town Planning Board relating
to the review and issuance of a permit that is other than an administrative
review.
An eligible facility request as set forth in 47 C.F.R. 1.40001(b)(3),
as that section may be amended from time to time.
The Federal Communications Commission of the United States.
Collectively, any and all federal, state, or local law, statute,
common law, code, rule, regulation, order, or ordinance.
Inspections, testing and/or repair of existing communication
facilities that maintain functional capacity, aesthetic and structural
integrity of a communications facility and/or the associated support
structure, pole or tower, that does not require blocking, damaging
or disturbing any portion of the public ROW.
A written authorization (in electronic or hard copy format)
to install, at a specified location(s) in the public ROW or at a specific
location on public or private property, a communications facility,
tower or a pole to support a communications facility.
An applicant who has received a permit under this chapter.
An individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including a governmental
entity.
A legally constructed pole, such as a utility, lighting,
traffic, or similar pole made of wood, concrete, metal or other material,
located or to be located within the public right-of-way. A pole does
not include a tower or support structure.
A communications service provider or a wireless services
provider and includes any person who owns and/or operates within the
public ROW any communications facilities, wireless facilities, poles
built for the sole or primary purpose of supporting communications
facilities, or towers.
The area on, below, or above property that has been designated
for use as or is used for a public roadway, highway, street, sidewalk,
alley or similar purpose, and for purposes of this chapter shall include
public utility easements, but only to the extent the Town has authority
to permit use of the area or public utility easement for communications
facilities or poles, towers and support structures that support communications
facilities. The term does not include a federal interstate highway
or other areas that are not within the legal jurisdiction, ownership
or control of the Town.
Unless otherwise specified or restricted by the terms of
the easement, the area on, below, or above a property in which the
property owner has dedicated an easement for use by utilities. "Public
utility easement" does not include an easement dedicated solely for
the Town's use, or where the proposed use by the provider is
inconsistent with the terms of any easement granted to the Town.
In connection with an existing pole, support structure or
tower, to replace (or the replacement of) same with a new structure,
substantially similar in design, size and scale to the existing structure
and in conformance with this chapter and any other applicable Town
regulations, in order to address limitations of the existing structure
to structurally support collocation of a communications facility.
A wireless facility that meets each of the following conditions:
The facilities:
Are mounted on structures 50 feet or less in height including
their antennas as defined in 47 CFR 1.1320(d); or
Are mounted on structures no more than 10% taller than other
adjacent structures; or
Do not extend existing structures on which they are located
to a height of more than 50 feet or by more than 10%, whichever is
greater;
Each antenna associated with the deployment, excluding associated
antenna equipment [as defined in the definition of "antenna" in 47
CFR 1.1320(d)], is no more than three cubic feet in volume;
All other wireless equipment associated with the structure,
including the wireless equipment associated with the antenna and any
pre-existing associated equipment on the structure, is no more than
28 cubic feet in volume;
The facilities do not require antenna structure registration
under 47 CFR Part 17;
The facilities are not located on tribal lands, as defined under
36 CFR 800.16(x); and
The facilities do not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified in
47 CFR 1.1307(b).
The State of New York.
A freestanding structure other than a pole or a tower to
which a wireless facility is attached at the time of the application.
Any structure built for the sole or primary purpose of supporting
a wireless facility. A tower does not include a pole or a support
structure.
The equipment at a fixed location(s) that enables wireless
services. The term does not include: (i) the support structure, tower
or pole on, under, or within which the equipment is located or collocated;
or (ii) coaxial, fiberoptic or other cabling that is between communications
facilities or poles or that is otherwise not immediately adjacent
to or directly associated with a particular antenna. A small wireless
facility is one type of a wireless facility.
A person, including a person authorized to provide telecommunications
service in the state, that builds or installs wireless communication
transmission equipment, wireless telecommunications facilities or
wireless telecommunications support structures, but that is not a
wireless services provider.
Any services provided using wireless telecommunications facilities.
A person who provides wireless services and is authorized
to provide such services pursuant to an FCC license.
B.
Governance of deployment in ROW.
(1)
Access to public ROW:
(a)
Agreement. Prior to installing any communications facility in
a public ROW, or any pole built for the sole or primary purpose of
supporting a communications facility, or any tower, a person shall
enter into a license agreement ("license agreement") with the Town,
which shall be filed with the Onondaga County Clerk's Office,
expressly authorizing use of the public right-of-way for the purpose
of deploying small wireless facilities and necessary support structures.
[1]
General terms. The license agreement shall include:
[a]
Authorization of the provider's nonexclusive use of the
public ROW for the sole purpose of installing, maintaining and operating
communications facilities, including any pole built for the sole or
primary purpose of supporting the communications facilities and any
tower, to provide the services expressly authorized in the license
agreement, subject to applicable laws, this chapter and the terms
and conditions of the license agreement. The license agreement authorizes
use only of the public ROW in which the Town has an actual interest.
It is not a warranty of title or interest in any public ROW and it
does not confer on the provider any interest in any particular location
within the public ROW. No other right is granted except as expressly
set forth in the license agreement. Nothing herein shall authorize
the use of the Town's poles, towers, support structures, or other
structures in the public ROW. All use of Town poles, towers, support
structures, and other structures in the public ROW shall require the
execution of an "attachment agreement," and the payment of separate
fees for such use.
[b]
The provider shall, at its sole cost and expense, keep and maintain
its communications facilities, poles, support structures and towers
in the public ROW in a safe condition, and in good order and repair.
[c]
The provider shall keep and maintain liability insurance in
the amount of $1,000,000 for each incident and an umbrella policy
in the amount of $5,000,000 for each communication facility in a public
ROW. The Town shall be included as an additional insured on each policy
on a primary, noncontributory basis. The provider shall provide the
Town with proof of such insurance in a form acceptable to legal counsel
for the Town.
[d]
The license agreement shall include the name and contact information
for the provider to be called in cases of emergencies.
[e]
The provider's use of space in ducts, conduits and on poles
must comply with the terms of the license agreement, unless expressly
exempted by the Town.
[f]
The Town shall have the right to access books and records, including
audit rights, of the provider to determine that all applicable fees
and payments have been made to the Town.
[g]
The provider shall provide proof to the Town that it has a license
or authority from the owner to use an existing pole, tower or support
structure in the public ROW for a communications facility.
[h]
The terms and conditions are not exclusive and the Town reserves
the right to require additional terms and conditions in the license
agreement.
[2]
Public ROW construction and installation requirements.
[a]
ROW permit.
[i]
Unless expressly authorized in this chapter or
in writing by the Town, no person may construct, maintain or perform
any other work in the public ROW related to communications facilities,
poles built for the sole or primary purpose of supporting communications
facilities, or towers without first receiving a permit to the extent
required under this chapter, and any other permit or authorization
required by applicable laws.
[ii]
The Town shall not issue a permit unless the applicant,
or a provider on whose behalf the applicant is constructing communications
facilities, poles or towers, has executed a license agreement required
by this chapter, or otherwise has a current and valid franchise with
the Town expressly authorizing use of the public ROW for the communications
facilities, poles or towers proposed in the application, and all applicable
fees have been paid.
[b]
Location of new facilities.
[i]
The provider shall not locate or maintain its communications
facilities, poles and towers so as to unreasonably interfere with
the use of the public ROW by the Town, by the general public or by
other persons authorized to use or be present in or upon the public
ROW.
[ii]
Aboveground placement of new poles and equipment
cabinets shall meet the requirement set forth of this chapter.
[iii]
Unless otherwise agreed to in writing by the
Town or otherwise required by applicable laws, whenever any existing
electric utilities or communications facilities are located underground
within a public ROW, the provider with permission to occupy the same
portion of the public ROW shall, if technically feasible, locate its
communications facilities underground at its own expense. The Town
may, in its sole discretion, approve aboveground placement of equipment
cabinets, pedestals and similar equipment, pursuant to this chapter.
[c]
Construction standards. In performing any work in or affecting
the public ROW, the provider, and any agent or contractor of the provider,
shall comply with applicable provisions of this chapter and all other
applicable laws.
[d]
Restoration requirements.
[i]
The provider, or its agent or contractor, shall
restore, repair and/or replace any portion of the public ROW that
is damaged or disturbed by the provider's communications facilities,
poles, towers or work in or adjacent to the public ROW as required
in this chapter and all other applicable laws.
[ii]
If the provider fails to timely restore, repair
or replace the public ROW as required in this subsection, the Town
or its contractor may do so and the provider shall pay the Town's
costs and expenses in completing the restoration, repair or replacement.
[e]
Removal, relocation and abandonment.
[i]
Within 120 days following written notice from the
Town, the provider shall, at its own expense, protect, support, temporarily
or permanently disconnect, remove, relocate, change or alter the position
of any of its communications facilities, poles, support structures
or towers within the public ROW, including relocation of aboveground
communications facilities underground (consistent with the provisions
of this chapter), whenever the Town has determined, in its sole discretion,
that such removal, relocation, change or alteration is necessary to
preserve public safety and welfare. Where removal is required, the
Town will make a commercially reasonable effort to assist the provider
in identifying and permitting an alternate location. The provider
shall be responsible to the Town for any damages or penalties it may
incur as a result of the provider's failure to remove or relocate
communications facilities, poles, support structures or towers as
required in this subsection.
[ii]
The Town retains the right and privilege to cut
or move any communications facility, pole, support structure or tower
located within the public ROW, as the Town may determine, in its sole
discretion, to be necessary, appropriate or useful in response to
any public emergency. If circumstances permit, the Town shall notify
the provider and give the provider an opportunity to move its own
facilities prior to cutting or removing the communications facility,
pole, support structure or tower. In all cases the Town shall notify
the provider after cutting or removing the communications facility,
pole, support structure or tower as promptly as reasonably possible.
[iii]
A provider shall notify the Town of abandonment
of any communications facility, pole, support structure or tower at
the time the decision to abandon is made; however, in no case shall
such notification be made later than 30 days prior to abandonment.
Following receipt of such notice, the provider shall remove its communications
facility, pole, support structure or tower at the provider's
own expense, unless the Town determines, in its sole discretion, that
the communications facility, pole, support structure or tower may
be abandoned in place. The provider shall remain solely responsible
and liable for all of its communications facilities, poles, support
structures and towers until they are removed from the public ROW unless
the Town agrees in writing to take ownership of the abandoned communications
facilities, poles, support structures or towers. Upon the issuance
of a permit, the provider shall provide a removal bond in the amount
estimated for the removal of all of the communication facilities that
are the subject of an application, such estimated amount to be determined
by the Code Enforcement Officer, after consultation with the Engineer
for the Town.
[iv]
If the provider fails to timely protect, support,
temporarily or permanently disconnect, remove, relocate, change or
alter any of its communications facilities, poles, support structures
or towers or remove any of its abandoned communications facilities,
poles, support structures or towers as required in this subsection,
the Town or its contractor may do so and the provider shall pay all
costs and expenses related to such work, including any delay damages
or other damages the Town incurs arising from the delay.
[f]
Maps. Maps showing the location of equipment in ROW after construction
shall be provided to the Town within 30 days after completion of construction,
in conformance to the requirements of the Engineer for the Town.
(b)
Fees and charges.
[1]
Permit application fee. Every applicant for a co-location shall
pay a permit application fee of $500 for a single up-front application,
which application may include up to five small wireless facilities,
and $100 per application for each additional small wireless facility
thereafter. The fee shall be paid upon submission of the application.
[2]
Every application for a new pole in the public ROW shall pay
a permit application fee of $1,000 for each new pole. The fee shall
be paid upon submission of the application.
[3]
Small wireless facility administration fee. To ensure recovery
of the Town's costs incurred in administering a provider's
occupancy of the public ROW, the provider shall pay the Town $250
per small wireless facility attached to a company pole, per year,
for as long as the license agreement is effective, and $270 per small
wireless facility attached to a Town-owned pole, per year, as long
as the license agreement is effective. The small wireless facility
administration fee shall be due and payable within 30 days of issuance
of the license agreement.
[4]
Other fees. The applicant or provider shall be subject to any
other generally applicable fees of the Town or other government body,
such as those required for electrical permits, building permits, or
street opening permits, which the applicant or provider shall pay
as required in the applicable laws, as well as attachment fees for
the use of Town-owned poles, towers, support structures, ducts, conduits
or other structures in the public ROW, as set forth in attachment
agreements authorizing such use.
[5]
No refund. Except as otherwise provided in a license agreement,
the provider may remove its communications facilities, poles or towers
from the public ROW at any time, upon not less than 30 days'
prior written notice to the Town, and may cease paying to the Town
any applicable recurring fees for such use, as of the date of actual
removal of the facilities and complete restoration of the public ROW.
In no event shall a provider be entitled to a refund of fees paid
prior to removal of its communications facilities, poles or towers.
(2)
Permit applications.
(a)
Permit required. Unless expressly authorized in this chapter
or in writing by the Town, no person may construct, install or maintain
in the public ROW any communications facilities or poles built for
the primary purpose of supporting communications facilities, or towers,
including the installation or collocation of communications facilities
on existing poles, towers, support structures or other structures
within the public ROW, without first receiving a permit. Notwithstanding
the foregoing, in the event of an emergency, a provider or its duly
authorized representative may work in the public ROW prior to obtaining
a permit, provided that the provider shall attempt to contact the
Town prior to commencing the work and shall apply for a permit as
soon as reasonably possible, but not later than 12 hours after commencing
the emergency work. For purposes of this subsection, an "emergency"
means a circumstance in which immediate repair to damaged or malfunctioning
facilities is necessary to restore lost service or prevent immediate
harm to persons or property. A provider may maintain, repair, replace
and make like-kind modifications to any small wireless facility that
do not materially change the overall size, height and weight of the
small wireless facility or exceed the structural capacity of the supporting
structure without requiring additional applications, permits or other
Town approval, other than any required electrical permit.
(b)
Permit application requirements. The application shall be made
by the provider or its duly authorized representative and shall contain
the following:
[1]
The applicant's name, address, telephone number, and e-mail
address, including emergency contact information for the applicant.
[2]
The names, addresses, telephone numbers, and e-mail addresses
of all consultants, if any, acting on behalf of the applicant with
respect to the filing of the application.
[3]
A description of the proposed work and the purposes and intent
of the proposed facility sufficient to demonstrate compliance with
the provisions of this chapter. The applicant shall state whether
the applicant believes the proposed work is subject to administrative
review or discretionary review and if the permit is an eligible facilities
request.
[4]
If applicable, a copy of the authorization for use of the property
from the pole, tower or support structure owner on or in which the
communications facility will be placed or attached.
[5]
Detailed construction drawings regarding the proposed communication
facility.
[6]
To the extent the proposed facility involves collocation on
a pole, tower or support structure, a structural report performed
by a duly licensed engineer evidencing that the pole, tower or support
structure will structurally support the collocation (or that the pole,
tower or support structure will be modified to meet structural requirements)
in accordance with applicable codes.
[7]
For any new aboveground facilities or structures, accurate visual
depictions or representations, if not included in the construction
drawings.
[8]
If new construction, a plan explaining how collocations on the
new pole, tower or support structure (if technically possible) would
be possible for other providers who may wish to deploy small cell
technology in the geographic area of the subject application.
(c)
Proprietary or confidential information in application. Applications
are public records that may be made available pursuant to the New
York State Freedom of Information Law. Notwithstanding the foregoing,
the applicant may designate portions of its application materials
that it reasonably believes contains proprietary or confidential information
as "proprietary" or "confidential" by clearly marking each portion
of such materials accordingly, and the Town shall treat the information
as proprietary and confidential, subject to the requirements of the
New York State Freedom of Information Law and the Town's determination
that the applicant's request for confidential or proprietary
treatment of application materials is reasonable.
(d)
Ordinary maintenance and repair. A permit shall not be required
for ordinary maintenance and repair. The provider or other person
performing the ordinary maintenance and repair shall obtain any other
permits required by applicable laws and shall notify the Town in writing
at least 48 hours before performing the ordinary maintenance and repair.
(e)
Material changes. The Town may require payment of an additional
permit application fee in the event the Town determines, in its sole
discretion, that material changes to an application after submission
amount to a new application and will materially increase the time
and/or costs of the permit review process. Unless otherwise agreed
to in writing by the Town, any material changes to an application,
as determined by the Town in its sole discretion, shall be considered
a new application for purposes of the time limits set forth in this
chapter unless otherwise provided by applicable laws.
(f)
Application fees. Unless otherwise provided by applicable laws,
all applications pursuant to this chapter shall be accompanied by
the fees required under this chapter.
(g)
Effect of permit. A permit from the Town authorizes an applicant
to undertake only the activities in the public ROW specified in the
application and permit, and in accordance with this chapter and any
general conditions included in the permit. A permit does not authorize
attachment to or use of existing third-party-owned poles, towers,
support structures or other structures in the public ROW; a permittee
or provider must obtain all necessary approvals and pay all necessary
fees from the owner of any pole, tower, support structure or other
structure prior to any attachment or use. A permit does not create
a property right or grant authority to the applicant to interfere
with other existing uses of the public ROW.
(h)
Duration. Any permit for construction issued under this chapter
shall be valid for a period of 180 days after issuance and can be
extended for an additional 90 days upon written request of the applicant,
if the failure to complete construction is a result of circumstances
beyond the reasonable control of the applicant.
(i)
An applicant may simultaneously submit up to five applications
for communications facilities, or may file a single, consolidated
application covering a batch of not more than 30 such communications
facilities, provided that the proposed communications facilities are
to be deployed on the same type of structure using similar equipment
and within an adjacent, related geographic area of the Town.
(3)
Administrative review.
(a)
Permitted use. The following uses within the public ROW shall
be permitted uses, subject to administrative review and issuance of
a permit as set forth in this chapter. All such uses shall be in accordance
with all other applicable provisions of this chapter, including without
limitation, those set forth in this chapter below and the terms of
any license agreement.
[1]
Collocation of a small wireless facility that does not exceed
the maximum height set forth in this chapter or a collocation that
qualifies as an eligible facilities request.
[2]
Modification of a pole, tower or support structure or replacement
of a pole for collocation of a communications facility where the modification
or replacement qualifies as an eligible facilities request.
[3]
Construction of a new decorative pole or a monopole tower (but
no other type of tower) to be used for a small wireless facility that
does not exceed the maximum height set forth in this chapter, provided
that there are existing poles of similar height on the same block
or within 300 feet of either side of the proposed new pole or monopole
tower.
[4]
Construction of a communications facility, other than those set forth in Subsection B(3)(a)[1], [2] or [3] in this section, involving the installation of coaxial, fiber-optic or other cabling, that is installed underground or aboveground between two or more existing poles or an existing pole and an existing tower and/or existing support structure, and related equipment and appurtenances.
(b)
Application review.
[1]
The Town shall review the application either under the administrative
review or discretionary review, as the case may be, and, if the application
conforms with applicable provisions of this chapter and this section,
the Town shall issue the permit, subject to the design standards set
forth in this chapter.
[2]
Except as otherwise provided by applicable laws, the Town shall:
[a]
Within 10 days of receiving an application, notify the applicant
if the application is incomplete and identify the missing information.
The applicant may resubmit the completed application within 30 days
without additional charge, in which case the Town shall have 10 days
from receipt of the resubmitted application to verify the application
is complete, notify the applicant that the application remains incomplete
or, in the Town's sole discretion, deny the application; and
[b]
Make its final decision to approve or deny the application within
60 days for a collocation, and 90 days for any new structure, after
the application is submitted.
[3]
The Town shall advise the applicant in writing of its final
decision.
(c)
Maximum height of permitted use. Small wireless facilities,
and new, modified or replacement poles, towers and support structures
in the public ROW may be approved through administrative review as
provided in this chapter only if the following requirements are met:
(d)
Design standards. The design standards for communication facilities,
poles built for the sole or primary purpose of supporting communications
facilities, or towers shall be adopted by the Town Board and shall
be published on the official Town website and made available to all
applicants at their request. The design standards shall be subject
to change upon a majority vote of the Town Board.
(4)
Discretionary review and approval. All other uses within the public
ROW not expressly set forth or referenced in this chapter shall require
compliance with, and issuance of, a site plan approval pursuant to
the Town Code. In determining the deployment and placement of communication
facilities, the Planning Board shall consider the following criteria
and its impact on the surrounding neighborhood during the site plan
review process: (i) the design standards set forth in this chapter;
(ii) the compatibility of the proposed facilities with the character
of the surrounding neighborhood; and (iii) the potential for collocation
of other provider's communication facilities.
(5)
General public ROW installation requirements.
(a)
General work requirements.
[1]
General safety and compliance with laws. The permittee shall
employ due care during the installation, maintenance or any other
work in the public ROW, and shall comply with all safety and public
ROW protection requirements of applicable laws, applicable codes,
and any generally applicable Town guidelines, standards and practices,
and any additional commonly accepted safety and public-ROW-protection
standards, methods and devices (to the extent not inconsistent with
applicable laws).
[2]
Traffic control. Unless otherwise specified in the permit, the
permittee shall erect a barrier around the perimeter of any excavation
and provide appropriate traffic control devices, signs and lights
to protect, warn and guide the public (vehicular and pedestrian) through
the work zone. The manner and use of these devices shall be described
within a traffic control plan in accordance with the Uniform Manual
of Traffic Control Devices. The permittee shall maintain all barriers
and other traffic control and safety devices related to an open excavation
until the excavation is restored to a safe condition or as otherwise
directed by the Town.
[3]
Interference. The permittee shall not interfere with any existing
facilities or structures in the public ROW, and shall locate its lines
and equipment in such a manner as not to interfere with the usual
traffic patterns (vehicular or pedestrian) or with the rights or reasonable
convenience of owners of property that abuts any public ROW.
[4]
Utility. Before beginning any excavation in the public ROW,
the permittee shall comply with applicable provisions of Dig Safely
New York, Inc.
(b)
Compliance with permit.
[1]
All construction practices and activities shall be in accordance
with the permit and approved final plans and specifications. The Town
and its representatives shall be provided access to the work site
and such further information as they may require to ensure compliance
with such requirements. All work that does not comply with the permit,
the approved plans and specifications for the work, or the requirements
of this chapter, shall be removed at the sole expense of the permittee.
The Town may stop work in order to assure compliance with the provision
of this chapter.
[2]
In addition to obtaining a permit for installation of a communications
facility, poles built for the sole or primary purpose of supporting
communications facilities, or towers in the public ROW, an applicant
must obtain all other generally applicable permits.
(c)
Mapping data. At the Town's request, the permittee shall
provide to the Town a map depicting the location of communications
facilities, poles, support structures and towers within the Town boundaries.
(6)
Attachment to and replacement of decorative poles. Notwithstanding
anything to the contrary in this chapter, an applicant may not install
a small wireless facility on a decorative pole, or replace a decorative
pole with a new decorative pole, unless the Town has determined, in
its sole discretion as part of the administrative review process,
that each of the following conditions has been met:
(7)
Violation of this chapter. Violation of any of the provisions of
this chapter shall be a violation punishable with a civil penalty
of $250 for each violation. Each day that a violation occurs or is
permitted to exist by the applicant or provider constitutes a separate
offense.
