[HISTORY: Adopted by the Town Board of the Town of Hamptonburgh 2-6-2001
by L.L. No. 2-2001. Amendments noted where applicable.]
The Telecommunications Act of 1996 affirmed the Town of Hamptonburgh's
authority concerning the placement, construction, and modification of wireless
telecommunications facilities. The Town Board finds that wireless telecommunications
facilities and related equipment may pose a unique hazard to the health, safety,
public welfare and environment of the Town and its inhabitants, and may also
have an adverse visual impact on the community, its character, and thus the
quality of life in the Town. The intent of this chapter is to ensure that
the placement, construction or modification of wireless telecommunications
facilities and related equipment is consistent with the Town's land use policies
and Zoning Code[1] to minimize the negative and adverse visual impact of wireless
telecommunications facilities; to assure a comprehensive review of the environmental
impacts of such facilities; to protect the health, safety and welfare of the
Town of Hamptonburgh; and to encourage shared use of wireless telecommunications
facilities. 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.
This chapter may be known and cited as the "Wireless Telecommunications
Facilities Siting and Special Use Permit law for the Town of Hamptonburgh,"
or may otherwise be known as the "Wireless Facilities Law."
For purposes of this chapter, and where not inconsistent with the context
of a particular section, the defined terms, phrases, words, abbreviations
and their derivations shall have the meanings given in this section. When
not inconsistent with the context, words in the present tense include the
future tense, words used in the plural number include words in the singular
number and words in the singular number include the plural number. The word
"shall" is always mandatory and not merely directory.
A system of electrical conductors that transmit or receive electromagnetic
waves or radio frequency signals. Such waves shall include, but not be limited
to, radio, television, cellular, paging, personal telecommunications services
(PCS) and microwave telecommunications.
An accessory facility or structure serving or being used in conjunction
with a telecommunications facility and located on the same property or lot
as the telecommunications tower, including but not limited to utility or transmission
equipment storage sheds or cabinets.
Includes any individual, corporation, estate, trust partnership,
joint-stock company, association of two or more persons, limited liability
company, or entity submitting an application to the Town of Hamptonburgh for
a special use permit for a telecommunications facility.
The form approved by the Town, together with all necessary and appropriate
documentation that an applicant submits in order to apply for site plan approval
and for a special use permit for a telecommunications facility.
The location on a telecommunications tower (tower) which, in the
event of a failure of the tower, would result in the tower falling or collapsing
within the boundaries of the property on which the tower is placed.
The use of the same telecommunications tower or structure to carry
two or more antennas for the provision of wireless services by
two or more persons or entities.
The meaning in this chapter and any special use permit granted hereunder
as is defined and applied under the United States Uniform Commercial Code
(UCC).
An application that contains all information and/or data necessary
to enable the Town Board and Planning Board to evaluate the merits of the
application and to make an informed decision with respect to the effect and
impact of the telecommunications tower on the Town in the context of the permitted
land use for the particular location requested.
The environmental assessment form approved by the New York Department
of Environmental Conservation.
The Federal Aviation Administration or its duly designated and authorized
successor agency.
The Federal Communications Commission or its duly designated and
authorized successor agency.
A tower that is not supported by guy wires and ground anchors or
other means of attached or external support.
When referring to a tower or structure, the distance measured from
the preexisting grade level to the highest point on the tower or structure,
even if said highest point is an antenna.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership, joint-stock
company, association of two or more persons having a joint common interest
or governmental entity.
See definition for "telecommunications tower."
Shall have the same meaning as defined and used in the 1996 Federal
Telecommunications Act.
The Planning Board of the Town of Hamptonburgh is the officially
designated agency or body of the community to whom applications for site plan
review for a telecommunications facility must be made.
See definition for "telecommunications tower."
The official document an applicant is given by the Planning Board
allowing the construction and use of a telecommunications tower, subject to
the conditions set forth therein, if any.
The official document or permit an applicant is given by the Town
Board allowing the construction and use of a telecommunications tower, subject
to the conditions set forth therein, if any.
The transmission and reception of audio, video, data and other information
by wire, radio frequency, light and other electronic or electromagnetic systems.
Any structure used in, associated with or necessary for the provision
of wireless services and as described in the definition of "wireless telecommunications
facility."
In relation to all aspects and components of this chapter, fewer
than 90 days.
The Town of Hamptonburgh, New York.
The Town Board of the Town of Hamptonburgh is the officially designated
agency or body of the community to whom applications for a special use permit
for a telecommunications facility must be made, and that is authorized to
review, analyze, evaluate and make decisions with respect to granting or revoking
special use permits for telecommunications facilities. The Town Board may,
at its discretion, delegate or designate other official agencies of the Town
to accept, review, analyze, evaluate and make recommendations to the Town
Board with respect to the granting or not granting, recertifying or revoking
special use permits for telecommunications facilities.
A structure or location designed or intended to be used or used to
support antennas. It includes without limit antennas applied to the facade
of a building or roof-mounted antennas, freestanding towers, guyed towers,
monopoles and similar structures that employ camouflage technology and including,
but not limited to, structures such as a church steeple, water tower, sign
or other similar structures intended to mitigate the visual impact of an antenna
or the functional equivalent of such. It is a facility or structure intended
for transmitting and/or receiving radio, television, cellular, paging, personal
telecommunications services or microwave telecommunications, but excluding
those used exclusively for private radio and television reception and private
citizens' bands, amateur radio and other similar telecommunications.
Telecommunications facilities and towers shall be permitted within the
Town subject to regulation pursuant to this chapter, special use permit approval,
site plan approval, and coordinated SEQRA review, pursuant to the Environmental
Conservation Law of New York.
All applicants for special use permit and site plan approval for a wireless
telecommunications facility or any modification of such facility shall comply
with the requirements set forth in this section.
A.
Applications for a special use permit and site plan approval
for a wireless telecommunications facility shall be signed on behalf of the
applicant by the person preparing the same and with the knowledge of the contents
and representations made therein and attesting to the truth and completeness
of the information. The landowner, if different than the applicant, shall
also sign the application. At the discretion of the Town Board and/or Planning
Board, any false or misleading statement in the application may subject the
applicant to denial of the application without further consideration or opportunity
for correction.
B.
Applications not meeting the requirements stated herein
or which are otherwise incomplete may be rejected by the Town Board and/or
Planning Board.
D.
No wireless telecommunications facility or tower or other
structure shall be installed or constructed for the purpose of providing wireless
telecommunications services until special use permit approval is received
from the Town Board and site plan approval is received by the Planning Board.
E.
All applications for special use permit approval and
site plan approval shall be prepared by a New York licensed professional engineer
and land surveyor and shall address, either on the site plan or on a narrative
report which may accompany the site plan submission, the following:
(1)
The need for the wireless telecommunications facility
to provide service primarily within the Town.
(2)
Name and address of person preparing the report.
(3)
Name and address of the property owner, operator and
applicant, to include the legal form of the applicant.
(4)
Postal address and tax map parcel number of the property.
(5)
Zoning district or designation in which the property
is situated.
(6)
Size of the property stated both in square feet and lot
line dimensions and a diagram showing the location of all lot lines.
(7)
Location of all residential structures within 750 feet.
(8)
Location of all occupied structures within 750 feet.
(9)
Location of all structures on the property which is the
subject of the application.
(10)
Location, size and height of all proposed and existing
antennas and all appurtenant structures.
(11)
Type, size and location of all proposed and existing
landscaping.
(12)
The number, type and design of the wireless telecommunications
facility(ies) antenna(s) proposed and the basis for the calculations of the
wireless telecommunications facility's capacity to accommodate multiple users.
(13)
The make, model, and manufacturer of the wireless facility
and antenna(s).
(14)
A description of the proposed wireless facility and antenna(s)
and all related fixtures, structures, appurtenances and apparatus, including
height above preexisting grade, materials, color and lighting.
(15)
The frequency, modulation, and class of service of radio
or other transmitting equipment.
(16)
Transmission and maximum effective radiated power of
the antenna(s).
(17)
Direction of maximum lobes and associated radiation of
the antenna(s).
(18)
Applicant's proposed wireless facility maintenance and
inspection procedures and related system of records.
(19)
Certification that NIER levels at the proposed site are
within the threshold levels adopted by the FCC.
(20)
Certification that the proposed antenna(s) will not cause
interference with existing telecommunications devices. The certifying engineer
need not be approved by the Town.
(21)
A copy of the FCC license applicable for the use of the
wireless telecommunications facility.
(22)
Certification that topographic and geologic conditions
which are to be confirmed by field tests are sufficient to assure the stability
of the proposed wireless telecommunications tower.
(23)
Propagation studies of the proposed site and all adjoining
proposed or in-service or existing sites.
(24)
Applicant shall disclose, in writing, any agreement in
existence prior to submission of the application that would limit or preclude
the ability of the applicant to share any new wireless telecommunications
facility that it constructs.
F.
In the case of a new wireless telecommunications facility,
the applicant shall be required to submit a report demonstrating its efforts
to secure shared use of existing wireless telecommunications facility(ies).
Copies of written requests and responses for shared use shall be provided
to the Town Board and the Planning Board.
G.
Certification that the wireless telecommunications facility
and attachments both are designed and constructed ("as built") to meet all
county, state and federal structural requirements for loads, including wind
and ice.
H.
After receipt of special use permit approval and site
plan approval and prior to issuance of a certificate of compliance or certificate
of occupancy, the applicant shall post with the Town a cash bond or surety
for the cost of removal of the tower in the event it should be abandoned or
become a hazard or otherwise be subject to removal pursuant to valid exercise
of police power of the Town.
I.
The applicant shall submit a completed long form EAF
and a completed visual EAF addendum.
J.
The visual EAF addendum shall be in the form of a visual
impact assessment which may include:
(1)
A Zone of Visibility Map, indicating the full range and
line of sight within which the proposed facility will be visible.
(2)
Pictorial representations of before and after views from
key viewpoints to be determined by the Town Board and/or Planning Board, as
the case may be, 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.
(3)
An assessment of the visual impact of the facility base,
guy wires and accessory buildings from abutting and adjacent properties and
streets.
K.
The applicant shall provide a plan for mitigation of
the visual impacts which shall include a screening plan and such other methods
as the applicant may employ to diminish any adverse visual impact attributable
to the proposal.
L.
Unless otherwise directed by the Town Board, all utilities
servicing any wireless telecommunications facility site shall be installed
underground and in compliance with all laws, rules and regulations of the
Town, including specifically, but not limited to, the National Electrical
Safety Code and the National Electrical Code, where appropriate.
M.
Both the wireless telecommunications facility and any
and all accessory or associated facilities shall to the maximum extent employ
building materials, colors and textures which are compatible with the natural
surroundings of the site.
N.
An access road and parking to assure adequate emergency
and service access shall be provided, should such be deemed necessary by the
Town Board and/or Planning Board. Existing roads, whether public or private,
shall be utilized to the extent possible.
O.
All wireless telecommunications facilities shall be constructed,
operated, maintained, repaired, modified or restored 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 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.
P.
Each applicant shall obtain all other 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.
Q.
All new towers shall demonstrate the feasibility of accommodation
of future demand. The scope of this examination shall be determined by the
Town Board. The wireless telecommunications facility 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, provided that
the applicant demonstrates that the provisions of future shared usage of the
wireless telecommunications facility is not technologically feasible, or is
commercially impracticable and creates an unnecessary and unreasonable burden,
based upon:
(1)
The number of FCC licenses available for the area.
(2)
The kind of wireless telecommunications facility site
and structure proposed.
(3)
The number of existing and potential licenses without
wireless telecommunications facility spaces/sites.
(4)
Available space on existing and approved telecommunications
towers.
A.
Priority of location.
(1)
Applicants for wireless telecommunications facilities, including towers or other tall structures, shall locate, site and erect said wireless telecommunications facility in accordance with the following priorities, Subsection A(l)(a) being the highest priority and Subsection A(1)(e) being the lowest priority:
(a)
Industrially zoned property.
(b)
On existing tall structures or telecommunications towers
that are appropriately sited and consistent with this provision and other
applicable provisions of the Town Code.
(c)
Collocation on a site with existing telecommunications
towers or structures.
(d)
In nonresidential areas.
(e)
On other property in the Town.
(2)
If the proposed property site is not the highest priority
listed above, an explanation shall be provided.
(3)
Sites with superior priority may not be bypassed absent
a demonstration that such site is unavailable. Each applicant shall address
collocation as an option, and if such option is not proposed, the applicant
must explain. Agreements between providers limiting or prohibiting collocation
shall not be a valid basis for any claim of commercial impracticability or
hardship.
(4)
Notwithstanding the above, the Town Board may approve
any site located within an area in the above list of priorities, provided
it finds that such approval is in the best interest of the health, safety
and welfare of the Town.
(5)
Notwithstanding any contrary provision contained herein,
no such facility shall be located within any portion of the Gateway Road Overlay
Subdistrict or within any recreational area owned by the Town.
[Amended 9-2-2003 by L.L. No. 2-2003]
B.
The applicant shall submit a written report demonstrating
the applicant's review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If the site selected is not
the highest priority, then a detailed written explanation as to why sites
of a higher priority were not selected shall be included with the application.
C.
The applicant shall identify the locations of any additional
sites that the applicant has, is or will be considering, reviewing or planning
for wireless telecommunications facilities in the vicinity of the Town.
D.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the Town Board
and/or Planning Board may deny an application if the applicant shall fail
to satisfy for any of the following reasons:
E.
Notwithstanding the foregoing, such facility may not
be located within any portion of the Gateway Road Overlay Subdistrict or on
any Town-owned recreational property.
[Amended 9-2-2003 by L.L. No. 2-2003]
A.
Location of antennas on preexisting structures shall
be considered and preferred. Shared use of existing telecommunications towers
or other existing structures shall be preferred by the Town.
(1)
Where such shared use is unavailable, the applicant shall
submit a comprehensive report inventorying existing towers and other appropriate
structures within four miles of any proposed new tower site; and
(2)
The applicant shall provide analysis of the feasibility
of shared use of any facility so identified.
B.
An applicant intending to share use of an existing telecommunications
tower or other tall structure shall be required to document the feasibility
of same.
C.
In the event that an application to share the use of
an existing telecommunications tower does not increase the height of the telecommunications
tower, the Town Board may waive any portion of this Chapter deemed by the
Board to be redundant of prior review.
A.
The applicant shall submit documentation justifying to
the Town Board and/or Planning Board the total height of any wireless telecommunications
facility and/or antenna and the basis therefor.
B.
Wireless telecommunications facilities shall be no higher
than the minimum height necessary. Unless waived by the Town Board upon good
cause shown, the maximum height shall be 100 feet, based on three collocated
antenna arrays and ambient tree height of 70 feet.
C.
The maximum height of any wireless telecommunications
facility and attached antennas constructed after the effective date of this
chapter shall not exceed that which shall permit operation without artificial
lighting of any kind in accordance with municipal, county, state and/or any
federal law and/or regulation.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.
Unless otherwise directed by the Town Board or Planning
Board, towers and facilities shall contain a galvanized finish, or be painted
with a rust-preventative paint of an appropriate color to harmonize with the
surroundings as approved by the Town Board. To the extent available, the facility
shall employ available technology to obscure the facility from public view.
C.
The Town Board or Planning Board may impose such conditions
for maintenance as are deemed necessary to preserve the appearance of the
structure.
D.
If lighting is required, the applicant shall provide
a detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations, and an artist's
rendering or other visual representation showing the effect of light emanating
from the site on neighboring habitable structures within 1,500 feet of all
property lines of the parcel on which the wireless telecommunications facility
is located.
All wireless telecommunications facilities and antennas shall be located,
fenced or otherwise secured in a manner which prevents unauthorized access.
Specifically:
A.
All antennas, towers and other supporting structures,
including guy wires, shall be made inaccessible to individuals and constructed
or shielded in such a manner that they cannot be climbed or run into; and
B.
Transmitters and telecommunications control points must
be installed such that they are readily accessible only to persons authorized
to operate or service them.
Signage shall be governed by the regulation of the particular district
within which the facility is to be located. In no circumstances may the facility
be utilized for advertising purposes.
In addition to the bulk requirements of the Town Zoning Law,[1] any proposed telecommunications towers and associated equipment
shall satisfy the following additional requirements:
A.
Be additionally set back from abutting parcels, recorded
rights-of-way and road and street lines a distance sufficient to contain on
site all icefall or debris from a tower or tower failure and to preserve the
privacy and sanctity of any adjoining properties.
B.
Have a minimum setback from any property line a distance
equal to 1 1/2 times the height of the facility, or the existing setback
requirement of the underlying zoning district, whichever is greater. All accessory
structures shall be located so as to comply with the minimum setback requirements
for the property on which it is situated.
C.
No wireless telecommunications tower or installation shall produce noise or vibration that exceeds the standards for nonnuisance industry as set forth in § 150-15D(3).
A.
In addition to the provisions of NYCRR § 617.17
et seq., the Town Board or Planning Board may engage such consultants as it
may deem necessary to assist the Boards in reviewing and evaluating the application
and any request for recertification.
B.
An applicant shall deposit with the Town funds sufficient
to reimburse the Town for all reasonable costs of consultant and expert evaluation
and consultation to the Town Board and Planning Board in connection with the
review of any application.
C.
Upon receipt of an application pursuant to this chapter,
the Town Board shall establish a review fee account in accordance with the
Town Schedule of Fees.
In addition to the requirements of Town Code § 150-16 governing site plans:
A.
No person shall be permitted to site, place, build, construct
or modify or prepare any site for the placement or use of a wireless telecommunications
facility as of the effective date of this chapter without having first obtained
the approvals required for a wireless telecommunications facility. Notwithstanding
anything to the contrary in this section, no approval shall be required for
those exceptions noted in the definition of a "wireless telecommunications
facility," such as those used exclusively for fire, police and other dispatch
telecommunications, or exclusively for private radio and television reception
and private citizens' bands, amateur radio and other similar telecommunications.
B.
New construction, including routine maintenance on an
existing wireless telecommunications facility, shall comply with the requirements
of this chapter.
C.
All wireless telecommunications facilities existing on
or before the effective date of this chapter shall be allowed to continue
as they presently exist; provided, however, that any modification to existing
facilities must comply with this chapter.
A.
The Town Board and Planning Board will undertake a review
of the application pursuant to this chapter in a timely fashion and shall
act within a reasonable period of time given the relative complexity of the
application and the circumstances with due regard for the public's interest
and need to be involved and the applicant's desire for a timely resolution.
B.
Except for necessary building permits, and subsequent
certificates of compliance, no additional permits or approvals from the Town
other than the special use permit and site plan granted under this chapter
shall be required for telecommunications facilities covered by this chapter.
C.
After the public hearing and after formally considering
the site plan application, the Planning Board may approve and issue or deny
the site plan application. Its decision shall be in writing and shall be based
on substantial evidence in the record. The burden of proof for the grant of
site plan approval shall always be upon the applicant.
D.
If the Planning Board approves the site plan for a wireless
telecommunications facility, then the applicant shall be notified of such
approval, in writing, within 10 calendar days of the Board's action.
E.
If the Planning Board denies the site plan application
for a wireless telecommunications facility, then the applicant shall be notified
of such denial, in writing, within 10 days of the Board's actions.
F.
The Town's decision on an application for site plan approval
for a wireless telecommunications facility shall be supported by substantial
evidence contained in a written record.
G.
After the public hearing and after formally considering
the application, and after the Planning Board issues site plan approval, the
Town Board may approve and issue or deny the special use permit application.
Its decision shall be in writing and shall be based on substantial evidence
in the record. The burden of proof for the grant of the permit shall always
be upon the applicant.
H.
If the Town Board approves the special use permit for
a wireless telecommunications facility, then the applicant shall be notified
of such approval, in writing, within 10 calendar days of the Board's action.
I.
If the Town Board denies the special use permit for a
wireless telecommunications facility, then the applicant shall be notified
of such denial, in writing, within 10 calendar days of the Board's actions.
J.
The Town's decision on an application for a special use
permit for a wireless telecommunications facility shall be supported by substantial
evidence contained in a written record.
A.
The special use permit and site plan approvals, hereinafter
referred to, collectively, as the "approvals," granted pursuant to this chapter
shall be valid for a period of five years measured from the date of final
action by the Town Board and/or Planning Board, as the case may be.
B.
Prior to the expiration of the approvals granted pursuant
to this chapter, a holder may seek extension/renewal for a period not to exceed
five years. The holder of the approvals for such tower shall submit a written
request for extension/renewal at least six months prior to expiration of said
approvals. In the written request for recertification, the holder of such
approvals shall submit a renewal application in a form to be established by
the Town, which form shall require the following information in support thereof:
(1)
The name of the holder of the approvals for the wireless
telecommunications facility.
(2)
The date of the original granting of the approvals.
(3)
Any physical changes to the site covered by the approvals.
(4)
A summary of the maintenance record of the facility during
the term of the approvals, which shall include any and all structural changes.
C.
Prior to taking any action with regard to the extension
or renewal of the approvals, public hearings shall be held by both the Planning
Board, for extension and/or renewal of site plan approval, and the Town Board
for extension and/or renewal of special use permit approval.
D.
If, after such review, the Town Board determines that
the permitted wireless telecommunications facility is in compliance with the
special use permit and all applicable codes, laws, and rules, then the Town
Board shall issue an extension/renewal of the special use permit for the wireless
telecommunications facility which may include any new provisions or conditions
established by the Town, or required by codes, law or regulation.
E.
If, after such review, the Planning Board determines
that the permitted wireless telecommunications facility is in compliance with
the site plan and all applicable codes, laws, and rules, then the Planning
Board shall issue an extension/renewal of the site plan approval for the wireless
telecommunications facility which may include any new provisions or conditions
established by the Town, or required by codes, law or regulation.
F.
If the holder of the approvals for a wireless telecommunications
facility does not submit a request for recertification of such approvals within
the time frame provided for herein, then and in that event the approvals shall
expire and the rights granted thereunder shall cease to exist on the date
of the fifth anniversary of the original granting of the approvals, or subsequent
fifth anniversaries, unless the holder of the approvals adequately demonstrates
that extenuating circumstances prevented a timely submission.
The extent and parameters of the approvals for a wireless telecommunications
facility shall be as follows:
A.
The approvals shall be nonexclusive.
B.
The approvals shall not be assignable or transferable
without the consent of the Town Board.
C.
The approvals may be revoked, cancelled, or terminated
for a violation of the conditions and provisions of the approvals for a wireless
telecommunications facility, or for a material violation of this chapter.
A.
At the time the person submits an application for a site
plan and special use permit for a new wireless telecommunications facility,
such person shall pay an application fee to the Town of Hamptonburgh of $5,000
or such other fee as the Town Board may establish.
B.
The application fee for extension/renewal shall be $2,500
or such other fee as the Town Board may establish.
The applicant and the owner of record of any proposed wireless telecommunications
facility property site shall be jointly required to execute and file with
the Town a bond, or other form of security acceptable to the Town as to type
of security and the form and manner of execution, in an amount and with such
sureties as are deemed sufficient by the Town Board to assure the faithful
performance of the terms and conditions of this chapter and conditions of
any approvals permit issued pursuant to this chapter. The full amount of the
bond or security shall remain in full force and effect throughout the term
of the approvals and/or until the removal of the wireless telecommunications
facility and any necessary site restoration is completed. The failure to pay
any annual premium for the renewal of any such security shall be a violation
of the provisions of the approvals and shall entitle the Town to revoke the
approvals after prior written notice to the applicant and holder of the permit.
The Town may from time to time cause the inspection of facilities constructed
pursuant to a permit granted pursuant to this chapter in accordance with state
and local law and building codes to ensure the continued compliance with law
and conditions of the special use permit, if any.
The holder of the approvals shall, annually, certify to the Town that
NIER levels at the site are within the threshold levels adopted by the FCC.
A.
A holder of approvals for a wireless telecommunications
facility shall secure and at all times maintain public liability insurance,
property damage insurance and umbrella insurance coverage for the duration
of the special use permit in amounts as set forth below:
B.
The commercial general liability insurance policy shall
specifically include the Town and its officials, employees and agents as additional
insured.
C.
The insurance policies shall be issued by an agent or
representative of an insurance company licensed to do business in the state.
D.
The insurance policies shall contain an endorsement obligating
the insurance company to furnish the Town with at least 30 days' written notice
in advance of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall
be delivered to the Town at least 15 days before the expiration of the insurance
which such policies are to renew or replace.
F.
Prior to the issuance of a building permit for construction,
the holder of the special use permit shall deliver to the Town a copy of each
of the policies or certificates representing the insurance in the required
amounts.
Any approvals issued pursuant to this chapter shall contain a provision
with respect to indemnification. Such provision shall require the holder of
the approvals, to the extent permitted by the law, to at all times defend,
indemnify, protect, save, hold harmless and exempt the Town, officials of
the Town, its officers, agents, servants and employees from any and all penalties,
damage or charges arising out of any and all claims, suits, demands, causes
of action, or award of damages, whether compensatory or punitive, or expenses
arising therefrom, either at law or in equity, which might arise out of, or
are caused by, the construction, erection, modification, location, products
performance, operation, maintenance, repair, installation, replacement, removal
or restoration of a wireless telecommunications facility within the Town.
With respect to the penalties, damages or charges referenced herein, reasonable
attorneys' fees, consultants' fees and expert witness fees are included in
those costs that are recoverable by the Town.
A.
Civil sanctions. Any person who violates any of the provisions
of this chapter shall be liable for a civil penalty not to exceed $3,000 for
every such violation.
B.
Criminal sanctions. Any person, firm or corporation who
or which willfully violates any of the provisions of this chapter or permits
promulgated thereunder, excluding provisions set forth in the rules and regulations
promulgated thereunder, upon conviction thereof of the first offense, shall
be guilty of a violation punishable by a fine of not less than $500 and not
more than $1,000 and for a second offense and each subsequent offense, shall
be guilty of a violation punishable by a fine of not less than $1,000 nor
more than $2,000, or a term of imprisonment of not more than 10 days, or both.
C.
Notwithstanding anything in this chapter, the holder
of the special use permit for a wireless telecommunications facility may not
use the payment of fines, liquidated damages or other penalties to evade or
avoid compliance with this chapter or any section of this chapter. An attempt
to do so shall subject the holder of the special use permit to termination
and revocation of the special use permit. The Town may also seek injunctive
relief to prevent the continued violation of this chapter.
A.
If a wireless telecommunications facility is repaired,
rebuilt, placed, moved, relocated, modified or maintained in a way that is
inconsistent or not in compliance with the provisions of this chapter or of
the special use permit, then the Town shall notify the holder of the approvals,
in writing, of such violation. Such notice shall specify the nature of the
violation or noncompliance and that the violations must be corrected within
seven days of the date of the postmark of the notice, or of the date of personal
service of the notice, whichever is earlier. Notwithstanding anything to the
contrary in this subsection or any other section of this chapter, if the violation
causes, creates or presents an imminent danger or threat to the health or
safety of lives or property, the Town Board may, at its sole discretion, order
the violation remedied forthwith or may take such actions as may be authorized
pursuant to the Town Law and/or Executive Law of the State of New York.
B.
Failure to comply with the terms hereof may give rise
to revocation of the special use permit and/or site plan approval.
A.
In the event a facility shall be found in any of the
following conditions, it shall be subject to removal pursuant to the authority
of the Town pursuant to Town Law and Executive Law:
(1)
A wireless telecommunications facility which has been
abandoned (i.e., not used as a wireless telecommunications facility) for a
period exceeding 90 days or a total of 180 days in any three-hundred-sixty-five-day
period, except for periods caused by forces of nature or acts of God.
(2)
A permitted wireless telecommunications facility falls
into such a state of disrepair that it creates a health or safety hazard.
(3)
A wireless telecommunications facility has been located,
constructed or modified without first obtaining the required special use permit,
or any other necessary authorization.
B.
The holder of the special use permit, or its successors
or assigns, shall dismantle and remove such wireless telecommunications facility,
and all associated structures and facilities, from the site and restore the
site to as close to its original condition as is possible, such restoration
being limited only by physical or commercial impartibility, within 90 days
of receipt of written notice from the Town.
C.
If the Town removes, or causes to be removed, a wireless
telecommunications facility, and the owner of the wireless telecommunications
facility does not claim the property and remove the facility from the site
to a lawful location within 10 days, then the Town may take steps to declare
the facility abandoned and sell it and its components.
A.
To the extent that the holder of the approvals for a
wireless telecommunications facility has not received relief, or is otherwise
exempt, from the appropriate state and/or federal agency rules or regulations,
then the holder of such approvals shall adhere to and comply with all applicable
rules, regulations, standards and provisions of any state or federal agency,
including but not limited to the FAA and the FCC Specifically included in
this requirement are any rules and regulations regarding height, lighting,
security, electrical, and RF emission standards.
B.
To the extent that applicable rules, regulations, standards
and provisions of any state or federal agency, including, but not limited
to the FAA and the FCC, and specifically including any rules and regulations
regarding height, lighting and security, are changed and/or are modified during
the duration of the approvals for a wireless telecommunications facility,
then the holder of such approvals shall confirm the permitted wireless telecommunications
facility to the applicable changed and/or modified rule, regulation, standard,
or provision within a maximum of 24 months of the effective date of the applicable
changed and/or modified rule, regulation, standard or provision, or sooner
as may be required by the issuing entity.
Where this chapter differs or conflicts with other laws, rules and regulations,
unless the right to do so is preempted or prohibited by the county, state
or federal government, the more restrictive or protective of the Town and
public shall apply.
If any phrase, sentence, part, section, subsection or other portion
of this chapter or any application thereof to any person or circumstance is
declared void, unconstitutional or invalid for any reason, then such word,
phrase, sentence, part, section, subsection, or other portion, or the proscribed
application thereof, shall be severable, and the remaining provisions of this
chapter, and all applications thereof not having been declared void, unconstitutional
or invalid, shall remain in full force and effect.
This chapter shall be enforced by the Building Inspector in the same
manner as provided in the Town Code of the Town of Hamptonburgh, State Building
and Fire Codes and Town Law and Executive Law of the State of New York.
This chapter is enacted pursuant to the Municipal Home Rule Law. This
chapter shall supersede the provisions of Town Law to the extent it is inconsistent
with the same, and to the extent permitted by the New York State Constitution,
the Municipal Home Rule Law or any other applicable statute.
