Town of Fishkill, NY
Dutchess County
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Table of Contents
Table of Contents
[Added 12-29-1998 by L.L. No. 4-1998]
A. 
Purpose. The purpose of this article is to promote the health, safety and general welfare of the residents of the Town of Fishkill; and to preserve the scenic, historic, natural and man-made character and appearance of the Town, while simultaneously providing standards for the safe provision, monitoring and removal of wireless telecommunications towers and facilities consistent with applicable federal and state regulations; to minimize the total number of telecommunications towers in the community by encouraging shared use of existing and future towers and the use of existing tall buildings and other high structures; to minimize adverse visual effects from telecommunications towers by requiring careful siting and configuration, visual impact assessment and appropriate landscaping; to provide a procedural basis for action within a reasonable period of time for requests for authorization to place, construct, operate or modify telecommunications towers; and to encourage camouflaging of telecommunications towers.
B. 
Permit regulations.
(1) 
No telecommunications tower, except those approved prior to the effective date of this chapter, shall be constructed, maintained or used unless in conformity with this article. No telecommunications tower shall hereafter be erected, moved, reconstructed, expanded, changed or structurally altered unless in conformity with this article. The construction, maintenance, use, erection, movement, reconstruction, expansion, change or structural alteration of telecommunications towers shall be governed by this article, and any provisions of Chapter 150, Zoning, which are inconsistent with this article shall be superseded by the terms of this article.
(2) 
Location or co-location in PI, POL, GB, PSC, PB, R-4A and RB Districts.
(a) 
The location or co-location of communications equipment on an approved communications tower or a tall structure on property within Industrial, Planned Office, General Business, Planned Shopping, Planned Business, R-4A and Restricted Business Zoning Districts is a permitted use subject to the issuance of a building permit, provided that the Building Inspector determines that the location or co-location does not:
[1] 
Increase the original approved height of the supporting structure by more than 15%;
[2] 
Cause the original approved number of antennas to be exceeded by more than 50%;
[3] 
Increase the original approved square footage of accessory buildings by more than 200 square feet; or
[4] 
Add new or additional microwave antenna dishes; and that there will be no expansion of the footprint of said support structure and no adverse impacts on the existing support structure or the surrounding area.
(b) 
If the Building Inspector cannot make these findings, site plan approval will be required from the Planning Board in accordance with Article XI of this chapter, and the Building Inspector shall refer the matter to the Planning Board where the application will be subject to the terms and conditions specified in Subsection F(1) below as part of the site plan review process.
(3) 
New telecommunications tower construction within Industrial, Planned Office, General Business, Planned Shopping, Planned Business, R-4A and Restricted Business Zoning Districts is subject to obtaining a special use permit from the Planning Board pursuant to Subsection F and Article VIII of this chapter. Such construction shall also comply with the requirements set forth in Subsections F through S below, as determined by the Planning Board as part of the special permit process.
(4) 
New telecommunications tower construction or the location or co-location of communications equipment on an approved communications tower or tall structure within Zoning Districts R-2A, R-MF-3 and R-MF-5 is subject to obtaining a special use permit from the Planning Board in accordance with Subsection F and Article VIII. Such construction and co-location shall also comply with the requirements set forth in Subsections F through S below, as determined by the Planning Board as part of the special permit process.
(5) 
New telecommunications towers and co-location upon existing tall structures are prohibited in Zoning Districts R-15, R-20, R-40, LHC and HRWRD.
(6) 
Applications for construction of telecommunications towers shall comply with the Code of Federal Regulations pertaining to objects affecting navigable airspace as delineated with Federal Aviation Regulation (FAR) Part 77. Additionally, no application for construction of a telecommunications tower will be approved if the proposed tower violates the criteria for obstructions to air navigation as established by FAR Part 77, Subpart C, Obstruction Standards.
(7) 
Pending applications. Applications to construct or co-locate on a communications tower pending before any board of the Town at the time of adoption of this article shall continue to be processed to minimize delay and expense to the applicant as much as possible. Information already on file with the reviewing board shall be used to the extent applicable to satisfy submission requirements under this article. Any additional information required by this article shall be specified, upon request of the applicant, by the reviewing board within 45 days after request. All pending applications shall be decided under the provisions of this article. If a public hearing has already been held on the application, no further public hearing shall be required. If a public hearing has not been held, then a public hearing shall be held as required under the terms of this article.
C. 
Co-location use of tall structures or communications towers. At all times, shared use of tall structures and existing or approved communications towers in accordance with Subsection B(2) above shall be preferred to the construction of new telecommunications towers.
(1) 
Applications pursuant to Subsection B(2) shall be made to the Building Inspector and shall include the following:
(a) 
A completed application for a building permit.
(b) 
Documentation of consent from the owner of the existing facility to allow shared use.
(c) 
A site plan in accordance with Article XI, § 150-58, of this chapter. The site plan shall also show all existing and proposed structures and improvements, including antennas, roads, buildings, guy wires and anchors, parking and landscaping, and shall include grading plans for new facilities and roads. Any methods used to conceal the modification of the existing facility shall be indicated on the site plan.
(d) 
An engineer's report certifying that the proposed shared use will not diminish the structural integrity and safety of the tall structure and explaining what modifications, if any, will be required in order to certify to the above.
(e) 
A completed environmental assessment form (EAF) and a completed visual EAF addendum.
(f) 
A copy of applicable Federal Communications Commission license.
(2) 
If the Building Inspector determines that the application is complete in accordance with Subsection C(1), and provided that the Building Inspector determines that the location or co-location does not increase the original approved height of the supporting structure by more than 15%; cause the original approved number of antennas to be exceeded by more than 50%; increase the original approved square footage of accessory buildings by more than 200 square feet; or add new or additional microwave antenna dishes; and that there will be no expansion of the footprint of the said support structure and no adverse impacts on the existing support structure or the surrounding area, then a building permit shall be issued; otherwise site plan approval will be required from the Planning Board in accordance with Article XI. Such application will be subject to the terms and conditions specified in Subsection F(1) below as part of the site plan review process. The Planning Board shall conduct a public hearing and process the application pursuant to this article, the New York State Environmental Quality Review Act and other applicable laws. If the Board concludes that the application complies with this article, all SEQR requirements and other applicable laws, the Board shall grant site plan approval without further review under this section.
D. 
New telecommunications towers pursuant to Subsection B(3) or (4). The Planning Board may consider a request to locate a new telecommunications tower if the applicant can demonstrate that shared use of existing tall structures and existing or approved communications towers or communications tower sites are undesirable due to structural deficiencies, documented evidence that a site is unavailable because the owner is not willing to participate in a lease or ownership agreement or documented evidence that the site will not work from a technological aspect or that the applicant's proposed location or co-location on the site would have an adverse impact on the surrounding area. An applicant shall be required to present an adequate report with an inventory of all existing tall structures and existing or approved communications towers within a two-mile radius of the proposed site.
(1) 
The site inventory shall include a map showing the exact location of each site inventoried, including latitude and longitude (degrees, minutes, seconds), ground elevation above sea level, height of the structure and/or tower and accessory buildings on the site of the inventoried location.
(2) 
The report shall outline opportunities for shared use of these facilities as an alternative to a proposed new communications tower.
(3) 
The report shall demonstrate good-faith efforts to secure shared use from the owner of each potential existing tall structure and existing or approved communications tower as well as documentation of the physical, technical and/or financial reasons why shared usage is not practical in each case. Written requests and responses for shared use shall be provided.
(4) 
The report shall include the following information to permit the Town to evaluate the need for the new telecommunications tower site:
(a) 
Information establishing the present need for the proposed tower. Special permits are to be based on actual need and not on speculation of future needs.
(b) 
Radio frequency (RF) signal coverage plots depicting the anticipated radio frequency coverage for the proposed site.
(c) 
Radio frequency (RF) coverage plots depicting evidence that the proposed area to be provided coverage by the proposed new tower is currently deficient in radio frequency coverage.
(d) 
The frequency spectrum (output frequency) to be used at the proposed site (cellular, personal communications systems, broadcast frequency, analog or digital, etc.) A copy of a current FCC license that authorizes the applicant to provide service is required.
(e) 
The type, manufacturer and model number of the proposed tower.
(f) 
The height of the proposed tower, including the height of any antenna structure above the supporting structure of the tower.
(g) 
The number of proposed antennas and the type, manufacturer, model number, dB gain, size and orientation on the proposed tower.
(h) 
Such other information as may be deemed necessary by the Board so as to make a thorough evaluation of the applicant's proposal.
E. 
New towers: future shared use. Applicants shall design proposed new telecommunications towers to accommodate future demand for reception and transmitting facilities. Applications for new telecommunications towers shall include an agreement committing the owner of the proposed new telecommunications tower, and its successors in interest, to negotiate in good faith for shared use of said tower by other providers of communications in the future. This agreement shall be filed with the Building Inspector prior to issuance of a building permit. Failure to abide by the conditions outlined in the agreement shall be grounds for the revocation of the special use permit. The agreement shall commit the telecommunications tower owner and lessee and its successors in interest to:
(1) 
Respond within 45 days to a request for information from a potential shared-use applicant.
(2) 
Negotiate in good faith concerning future requests for shared use of the telecommunications tower by other providers of communications.
(3) 
Allow shared use of the telecommunications tower if another provider of communications agrees, in writing, to pay reasonable and customary charges in the prevailing market. The charges may include, for instance, a pro-rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity and depreciation and all of the costs of adapting the tower or equipment to accommodate shared use without causing electromagnetic interference.
F. 
Site plan/special use permit review; submission requirements.
(1) 
Site plan applications.
(a) 
Applications to the Planning Board for site plan approval shall include a site plan in accordance with Article XI. In addition, the site plan shall show all existing and proposed structures and improvements, including roads, buildings, tower(s), guy wires and anchors, antennas, parking and landscaping, and shall include grading plans and drainage plans for new facilities and roads.
(b) 
Supporting documentation. The applicant shall submit a completed long-form EAF, a complete visual environmental assessment form (visual EAF addendum) and documentation on the proposed extent and capacity of use as well as supporting the need for the requested height of any tower and for any clearing required. The applicant shall also submit a copy of its Federal Communications Commission (FCC) license.
(2) 
Special use permit applications. Applications to the Planning Board for a special use permit shall be made in accordance with Article VIII and shall include the following:
(a) 
Where shared use of tall structures or existing or approved communications towers is found to be impractical, applicants shall also investigate the possibility of constructing a new telecommunications tower on property occupied by an existing communications tower in accordance with Subsection D above. In such case the Board may allow more than one tower on a lot. Any proposal for a new telecommunications tower on an existing communications tower site shall also be subject to the requirements of Subsections F through S.
(b) 
The Planning Board may consider a new telecommunications tower on a site not previously developed with a telecommunications tower when the applicant demonstrates that shared use of existing tall structures and existing or approved towers is impractical and submits a report as described in Subsection D above, and when the Planning Board determines that shared use of an existing telecommunications tower site for a new telecommunications tower is undesirable based upon the investigation in accordance with Subsection F(2)(a) above. Any proposal for a new telecommunications tower shall also be subject to the requirements of Subsections F through S below.
(3) 
The Planning Board may require an applicant to submit information and documentation indicating and identifying areas within the Town where communications coverage by the applicant remains unsatisfactory. Applicants may be required to provide sufficient information to the Town so as to clearly identify and describe the applicant's communications coverage master plan or siting and/or communication coverage plan.
(4) 
The Planning Board may require the applicant to submit to the Town a qualified engineer's report regarding nonionizing electromagnetic radiation for the proposed site. Such report will provide sufficient information to detail the amount of radio frequency radiation expected from the proposed site. Additionally, the engineer's report will comply with FCC reporting criteria, as amended, for a cumulative report, reporting levels of anticipated exposure from all users on the site. The report must indicate whether or not the proposed telecommunications tower will comply with FCC emission standards.
(5) 
The approving Board may require the applicant to perform emission tests every six months and report the findings to the Building Inspector. The results of the emission test shall be reported to the Building Inspector within 30 days of the test being completed. The approving board may require reasonably periodic safety inspections of the telecommunications tower. The results of that safety inspection shall also be reported to the Building Inspector within 30 days of its completion. The safety inspection shall consist of, but may not be limited to, an inspection of the condition of the tower, its supports, foundations, anchor bolts, coaxial cable, cable supports, ice shields, cable trays, guy wires and antennas affixed to the tower. Other aspects of the inspection shall include inspection for fire, electrical, natural and other man-made hazards that could pose a potential hazard to the telecommunications tower site or the surrounding area. Unsafe conditions shall be corrected immediately by the applicant.
G. 
Lot size and setbacks. Each proposed telecommunications tower and telecommunications facilities structure shall be located on a single lot and shall comply with applicable setback requirements. Adequate measures shall be taken to contain on-site all icefall or debris from tower failure and preserve the privacy of any adjoining residential properties.
(1) 
Each lot containing a telecommunications tower shall have the minimum area, shape and frontage requirements generally prevailing for the zoning district where located, in the Schedules of Regulations for Nonresidential and Residential Districts of this chapter,[1] and such additional land if necessary to meet the setback requirements of this section.
[1]
Editor's Note: Said schedules are included as attachments to this chapter.
(2) 
Telecommunications towers shall comply with the following special minimum setback requirements within Industrial, Planned Office, General Business, Planned Shopping, Planned Business and Restricted Business Zoning Districts:
(a) 
Street line: height of tower plus 50 feet.
(b) 
Side and rear lines: half the height of the tower.
(c) 
Setback from adjoining residential zoning district: height of tower plus 50 feet.
(3) 
The setback requirements for telecommunications towers located within R-4A, R-2A, R-MF-3 and R-MF-5 Zoning Districts shall be:
(a) 
From side and rear lot lines: 150 feet or half the height of the telecommunications tower, whichever is greater.
(b) 
Distance from street line: 150 feet.
H. 
Visual impact assessment. The approving Board may require the applicant to undertake a visual impact assessment which may include:
(1) 
A "zone of visibility" map shall be provided in order to determine locations where the telecommunications tower may be seen.
(2) 
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, preserves and historic sites normally open to public, and from any other location where the telecommunications tower is visible to a large number of visitors, travelers or persons. The approving Board shall determine the appropriate key sites at a presubmission conference with the applicant.
(3) 
Assessment of alternative telecommunications tower designs and color schemes, as described in Subsection I.
(4) 
Assessment of the visual impact of the telecommunications tower base, guy wires, accessory buildings and overhead utility lines from abutting properties and streets.
I. 
New tower design and height. Alternative designs shall be considered for new telecommunications towers, including lattice and single pole structures. The design of a proposed new telecommunications tower shall comply with the following:
(1) 
Any new telecommunications tower shall be designed to accommodate future shared use by other providers of communications.
(2) 
Unless specifically required by other regulations, a telecommunications tower shall have a finish (either painted or unpainted) that minimizes its degree of visual impact.
(3) 
Notwithstanding the height restrictions listed elsewhere in this chapter, the maximum height of any new telecommunications tower shall not exceed that which shall permit operation without artificial lighting of any kind or nature, in accordance with municipal, state and/or federal law and/or regulation.
(4) 
The maximum height of a telecommunications tower in Industrial, Planned Office, General Business, Planned Shopping, Planned Business, and Restricted Business Zoning Districts shall not exceed a height of 185 feet above ground elevation. The maximum height of a communications tower within R-4A, R-2A, RMF-3, R-MF-5 Zoning Districts shall not exceed a height of 110 feet above ground elevation.
(5) 
The Planning Board may request a review of the application at the applicant's expense by a qualified engineer and/or consultant in order to evaluate the application. Fees for the review of the application by a qualified engineer and/or consultant are in addition to the application fee, shall be the responsibility of the applicant and shall be deposited with the Town in the manner provided in Article XX, § 150-98.
(6) 
Accessory structures.
(a) 
Accessory structures shall maximize the use of building materials, colors and textures designed to blend with the natural surroundings. The use of camouflage communications towers may be required by the Planning Board to further blend the communications tower and/or its accessory structures into the natural surroundings. "Camouflage" is defined as the use of materials incorporated into the communications tower design that give communications towers the appearance of tree branches and bark coatings, church steeples and crosses, sign structures, lighting structures or other similar structures.
(b) 
Accessory structures shall be designed to be architecturally similar and compatible with each other, and shall be no more than 12 feet high. The buildings shall be used only for housing of equipment related to the particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one building.
(7) 
No portion of any telecommunications tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to company name, phone numbers, banners and streamers, except the following. A sign of no greater than two square feet indicating the name of the facility owner(s) and twenty-four-hour emergency telephone shall be posted adjacent to any entry gate. In addition, "No Trespassing" or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of the Town.
(8) 
Towers must be placed to minimize visual impacts. Applicants shall place towers on the side slope of the terrain so that, as much as possible, the top of the tower does not protrude over the ridgeline, as seen from public ways.
J. 
Existing vegetation. Existing on-site vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this article prior to the approval of the special use permit.
K. 
Screening.
(1) 
Deciduous or evergreen tree plantings may be required to screen portions of the telecommunications tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas.
(2) 
Where a site adjoins a residential property or public property, including streets, screening suitable in type, size and quantity shall be required by the Planning Board.
(3) 
The applicant shall demonstrate to the approving board that adequate measures have been taken to screen and abate site noises such as heating and ventilating units, air conditioners and emergency power generators. Telecommunications towers shall comply with all applicable sections of this chapter as it pertains to noise control and abatement.
L. 
Lighting. Telecommunications towers shall not be lighted except where FAA/FCC required lighting of the telecommunications towers necessary. No exterior lighting shall spill from the site in an unnecessary manner.
M. 
Access.
(1) 
Adequate emergency and service access shall be provided and maintained. Maximum use of existing roads, public or private, shall be made. Road construction shall, at all times, minimize ground disturbance and vegetation cutting to the toe of fill, the top of cuts or no more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential.
(2) 
To the extent feasible, all network interconnections to and from the telecommunications site and all power to the site shall be installed underground. At the initial construction of the access road to the site, sufficient conduit shall be laid to accommodate the maximum possible number of telecommunications providers that might use the facility.
N. 
Parking. Parking shall be provided to assure adequate emergency and service access. The Planning Board shall determine the number of required spaces, but in no case shall the number of parking spaces be less than two spaces.
O. 
Fencing. The telecommunications tower and any accessory structures shall be adequately enclosed by a fence, the design of which shall be approved by the Planning Board. This requirement may be waived by the Planning Board if the applicant demonstrates that such measures are unnecessary to ensure the security of the facility.
P. 
Removal. Telecommunication towers and telecommunications facilities shall be dismantled and removed by the applicant or the owner of the subject premises when they are no longer used or needed for their original purpose.
(1) 
All applications for approval of new telecommunications towers shall be accompanied by a plan covering reclamation of the site after removal of the tower.
(2) 
No approvals shall be given under this article until all owners of the subject premises give the Town of Fishkill, in a form suitable to the Town Attorney, a recordable instrument, running with the land, granting the Town of Fishkill the right to enter upon the premises to dismantle and to remove the tower or facilities in the event of the owners' failure to comply, within three months, with the lawful written directive to do so by the Zoning Administrator and giving the Town the right, after fair notice and opportunity to be heard before the Town Board by the owner(s) of the premises, to charge the actual costs associated with disassembly or demolition, and of removal, including any necessary and reasonable engineering or attorneys fee incurred to carry out its rights hereunder, by adding that charge to and making it a part of the next annual real property assessment roll of the Town of Fishkill, to be levied and collected in the same manner and at the same time as Town-assessed real property taxes.
(3) 
The giving of such an agreement to the Town shall not preclude the Town from pursuing the alternative enforcement actions of:
(a) 
Seeking an injunction from a court of competent jurisdiction to compel removal; or
(b) 
Seeking judgment to recover the costs, together with reasonable and necessary engineering and attorneys fees, of dismantling and removal by the Town.
(4) 
The Town may secure removal of towers or facilities hereunder by requiring the applicant and/or the owner(s) of the premises to provide an undertaking and a continuing letter of credit covering the projected costs of dismantling and removal.
Q. 
Intermunicipal notification for new towers. In order to keep neighboring municipalities informed, and to facilitate consideration of an existing tall structure or existing telecommunications towers in a neighboring municipality for shared use, and to assist in the continued development of the county emergency service communications system, the Planning Board shall require that:
(1) 
An applicant who proposes a new telecommunications tower shall notify, in writing, the legislative body of each municipality that borders the Town of Fishkill and the Director of the Office of Emergency Management of Dutchess County. Notification shall include the exact location of the proposed tower and general description of the project, including but not limited to height of the tower and capacity for future use.
R. 
Notification of nearby landowners. Notice of any public hearing shall be posted, published and mailed to all landowners whose property is located within 500 feet of the property line of the parcel on which a new telecommunications tower is proposed as required by § 114-2 not less than 10 business days before said hearing is held. Notice shall also be mailed to the administrator of any state or federal park lands from which the proposed tower would be visible if constructed by the applicant. The cost of the public hearing notice mailing will be charged against the applicant's escrow account.
[Amended 4-15-2015 by L.L. No. 1-2015]
S. 
Proof of insurance. The applicant and the owner of the property where the communications tower is to be located shall provide the Town Clerk with proof of liability insurance in the amount not less than $3,000,000 to cover potential personal injury and property damage associated with construction and subsequent operation and maintenance.