[HISTORY: Adopted by the Town Board of the
Town of Ghent 6-17-2004 by L.L. No. 5-2004. Amendments noted where
applicable.]
GENERAL REFERENCES
Zoningย โย See Ch. 190.
The Telecommunications Act of 1996 affirmed
the Town of Ghent's authority concerning the placement, construction
and modification of wireless telecommunications facilities. The Town
of Ghent finds that wireless telecommunications facilities may pose
significant concerns to the health, safety, public welfare, character
and environment of the Town and its inhabitants. The Town also recognizes
that facilitating the development of wireless service technology can
be an economic development asset to the Town and of significant benefit
to the Town and its residents. In order to ensure that the placement,
construction or modification of wireless telecommunications facilities
is cosistent with the Town's land use policies, the Town is adopting
a single, comprehensive, wireless telecommunications facilities application
and permit process. The intent of this chapter is to minimize the
negative impact of wireless telecommunications facilities, establish
a fair and efficient process for review and approval of applications,
assure an integrated, comprehensive review of environmental impacts
of such facilities, and protect the health, safety and welfare of
the Town of Ghent.
This chapter shall be known and cited as the
"Wireless Telecommunications Facilities Siting Law for the Town of
Ghent."
A.ย
If any word, 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.
B.ย
Any special use permit issued under this chapter shall
be comprehensive and not severable. If part of a permit is deemed
or ruled to be invalid or unenforceable in any material respect, by
a competent authority, or is overturned by a competent authority,
the permit shall be void in total, upon determination by the Town.
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 meaning 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.
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets.
Any wireless service provider submitting an application for
a special use permit for wireless telecommunications facilities.
All necessary and appropriate documentation that an applicant
submits in order to receive a special use permit for wireless telecommunications
facilities.
A system of electrical conductors that transmits or receives
electromagnetic waves or radio frequency or other wireless signals.
Such shall include but not be limited to radio, television, cellular,
paging, personal telecommunications services (PCS), microwave telecommunications
and services not licensed by the FCC but not expressly exempt from
the Town's siting, building and permitting authority.
The Town of Ghent Planning Board.
The use of a tower or structure to support antennae for the
provision of wireless services without increasing the height of the
tower or structure.
The inability to perform an act on terms that are reasonable
in commerce; the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be "commercial impracticable" and shall not render an act or the
terms of an agreement "commercially impracticable."
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
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 or lightening
protection device.
The addition, removal or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernable
components, vehicular access, parking and/or an upgrade or change
out of equipment for better or more modern equipment. Adding a new
wireless carrier or service provider to a telecommunications tower
or telecommunications site is a modification. A modification shall
not include the replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or for any matters that involve the normal repair and maintenance
of a wireless facility without adding, removing or changing anything.
Nonionizing electromagnetic radiation.
Any individual, corporation, limited liability company, estate,
trust, partnership, joint-stock company, association of two or more
persons having a joint common interest, or any other entity.
See definition for "wireless telecommunications facilities."
The same meaning as defined and used in the 1996 Telecommunications
Act.
The official document or permit by which an applicant is
allowed to construct and use wireless telecommunications facilities
as granted or issued by the Town.
To minimize adverse aesthetic and visual impacts on the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances,.
The State of New York.
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
See definition for "wireless telecommunications facilities."
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
In relation to all aspects and components of this chapter,
means something intended to, or that does, exist for fewer than 90
days.
Includes a "telecommunications tower" and "tower" and "telecommunications
site" and "personal wireless facility," and means a structure, facility
or location designed, or intended to be used as, or used to support,
antennas or other transmitting or receiving devices. This includes
without limit, towers of all types and kinds and structures that employ
stealth technology, including, but not limited to, structures such
as a multistory building, church steeple, silo, water tower, sign
or other structures that can be used to mitigate the visual impact
of an antenna or the functional equivalent of such, including all
related facilities and equipment such as cabling, equipment shelters
and other structures associated with the site. It is a structure and
facility intended for transmitting and/or receiving radio, television,
cellular, paging, 911, personal telecommunications services, commercial
satellite services, microwave services and services not licensed by
the FCC, but not expressly exempt from the Town's siting, building
and permitting authority, excluding those used exclusively for the
Town's fire, police or exclusively for private, noncommercial radio
and television reception and private citizens' bands, amateur radio
and other similar noncommercial telecommunications.
In order to ensure that the placement, construction,
and modification of wireless telecommunications facilities protects
the Town's health, safety, public welfare, environmental features,
the nature and character of the community and neighborhood and other
aspects of the quality of life specifically listed elsewhere in this
chapter, the Town hereby adopts an overall policy with respect to
a special use permit for wireless telecommunications facilities for
the express purpose of achieving the following goals:
A.ย
Implementing an application process for person(s)
seeking a special use permit for wireless telecommunications facilities;
B.ย
Establishing a policy for examining an application
for and issuing a special use permit for wireless telecommunications
facilities that is both fair and consistent.
C.ย
Promoting and encouraging, wherever possible, the
sharing and/or collocation of wireless telecommunications facilities
among service providers;
D.ย
Promoting and encouraging, wherever possible, the
placement, height and quantity of wireless telecommunications facilities
in such a manner, including but not limited to the use of stealth
technology, to minimize adverse aesthetic and visual impacts on the
land, property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
A.ย
All applicants for a special use permit for wireless
telecommunications facilities or any modification of such facility
shall comply with the requirements set forth in this chapter. The
Town of Ghent Planning Board is the officially designated agency or
body of the Town to whom applications for a special use permit for
wireless telecommunications facilities must be made, and that is authorized
to review, analyze, evaluate and make decisions with respect to granting
or not granting, recertifying or not recertifying, or revoking special
use permits for wireless telecommunications facilities. The Town may,
at its discretion, delegate or designate other official agencies of
the Town to accept, review, analyze, evaluate and make recommendations
to the Planning Board with respect to the granting or not granting,
recertifying or not recertifying or revoking special use permits for
wireless telecommunications facilities.
B.ย
An application for a special use permit for wireless
telecommunications facilities shall be signed on behalf of the applicant
by the person preparing the same and with knowledge of the contents
and representations made therein and attesting to the truth and completeness
of the information.
(1)ย
If the application is for a new tower, the landowner,
if different than the applicant, shall also sign the application.
(2)ย
If the application is for a collocation or modification,
the applicant must provide documentation to verify it has the right
to proceed as proposed on the site. This would require an executed
copy of the lease with the landowner or landlord.
(3)ย
A copy of the deed showing ownership of the site shall
accompany the application.
(4)ย
The application shall state whether there are any
covenants or restrictions with respect to the site, and, if so, shall
set forth a detailed list of all such covenants and restrictions affecting
the site.
C.ย
The Town may reject applications not meeting the requirements
stated herein or which are otherwise incomplete.
D.ย
The applicant shall include a statement in writing:
(1)ย
That the applicant's proposed wireless telecommunications
facilities shall be maintained in a safe manner, and in compliance
with all conditions of the special use permit, without exception,
unless specifically granted relief by the Town in writing, as well
as all applicable and permissible local codes, laws, and regulations,
including any and all applicable Town, state and federal laws, rules,
and regulations;
(2)ย
That the construction of the wireless telecommunications
facilities is legally permissible, including, but not limited to,
the fact that the applicant is authorized to do business in the state.
E.ย
No wireless telecommunications facilities shall be
installed or constructed until the application is reviewed and approved
by the Town Planning Board, and the special use permit has been issued.
Reference hereafter to review or approval by the Town shall refer
to the Town of Ghent Planning Board.
F.ย
All applications for the construction or installation of new wireless
telecommunications facilities shall contain the information hereinafter
set forth. Where a certification is called for in this chapter, such
certification shall bear the signature and seal of a professional
engineer licensed in the state. The application shall include the
following information:
[Amended 11-19-2009 by L.L. No. 1-2009]
(1)ย
Documentation that demonstrates the need for the wireless telecommunications
facility to provide service primarily and essentially within the Town.
The Planning Board, in its discretion, may request propagation studies
of the proposed site and all adjoining planned, proposed, in-service
or existing sites;
(2)ย
The name, address and phone number of the person preparing the report;
(3)ย
The name, address, and phone number of the property owner and applicant,
and to include the legal name of the applicant. If the site is a tower
and the owner is different than the applicant, provide the name and
address of the tower owner;
(4)ย
The postal address and tax map parcel number of the property;
(5)ย
The zoning district or designation in which the property is situated;
(6)ย
Size of the property stated both in square feet and lot line dimensions,
and a diagram showing the location of all lot lines;
(7)ย
The location of the nearest residential structure;
(8)ย
The location, size and height of all structures on the property which
is the subject of the application;
(9)ย
The location, size and height of all proposed and existing antennas
and all appurtenant structures;
(10)ย
The type, locations and dimensions of all proposed and existing
landscaping, and fencing;
(11)ย
The number, type and design of the tower(s) and antenna(s) proposed
and the basis for the calculations of the tower's capacity to
accommodate multiple users;
(12)ย
A description of the proposed tower and antenna(s) and all related
fixtures, structures, appurtenances and apparatus, including height
above preexisting grade, materials, color and lighting;
(13)ย
A signed statement that the proposed installation will not cause
physical or RF interference with other telecommunications devices;
(14)ย
A copy of the FCC license applicable for the intended use of
the wireless telecommunications facilities;
(15)ย
Such other documentation reports and studies as the Planning
Board shall determine are reasonably necessary in order to effect
a complete review of the application.
G.ย
In the case of a new tower, the applicant shall be
required to submit a written report demonstrating its meaningful efforts
to secure shared use of existing tower(s) or the use of alternative
buildings or other structures within the Town. Copies of written requests
and responses for shared use shall be provided to the Town in the
application, along with any letters of rejection stating the reason
for rejection.
H.ย
The applicant shall certify that the telecommunication
facility, foundation and attachments are designed and will be constructed
to meet all local, Town, state and federal structural requirements
for loads, including wind and ice loads.
I.ย
The applicant shall furnish a visual impact assessment,
which shall include:
(1)ย
A "zone of visibility map" which shall be provided
in order to determine locations from which the tower may be seen.
(2)ย
Pictorial representations of "before and after" views
from key viewpoints both inside and outside of the Town as may be
appropriate, including but not limited to state highways and other
major roads; state and local parks; other public lands; historic districts;
preserves and historic sites normally open to the public; and from
any other location where the site is visible to a large number of
visitors, travelers or residents. Guidance will be provided, concerning
the appropriate key sites at a preapplication meeting.
(3)ย
An assessment of the visual impact of the tower base,
guy wires and accessory buildings from abutting and adjacent properties
and streets as relates to the need or appropriateness of screening.
J.ย
The applicant shall demonstrate and provide in writing
and/or by drawing how it shall effectively screen from view the base
and all related facilities and structures of the proposed wireless
telecommunications facilities.
K.ย
Any and all representations made by the applicant
to the Town on the record during the application process, whether
written or verbal, shall be deemed a part of the application and may
be relied upon in good faith by the Town.
L.ย
All utilities at a wireless telecommunications facilities
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.ย
All wireless telecommunications facilities shall contain
a demonstration that the facility be sited so as to be the least visually
intrusive reasonably possible and thereby have the least adverse visual
effect on the environment and its character, on existing vegetation,
and on the residences in the area of the wireless telecommunications
facility.
N.ย
Both the wireless telecommunications facility and
any and all accessory or associated facilities shall maximize the
use of building materials, colors and textures designed to blend with
the structure to which it may be affixed and/or to harmonize with
the natural surroundings, this shall include the utilization of stealth
or concealment technology as may required by the Town.
O.ย
At a telecommunications site, an access road, turnaround
space and parking shall be provided to assure adequate emergency and
service access. Maximum use of existing roads, whether public or private,
shall be made to the extent practicable. Road construction shall at
all times minimize ground disturbance and the cutting of vegetation.
Road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion.
P.ย
All wireless telecommunications facilities shall be
constructed, operated, maintained, repaired, provided for removal
of, modified or restored in strict compliance with all current applicable
technical, safety and safety-related codes adopted by the Town, state,
or United States, including but not limited to the most recent editions
of the ANSI Code, National Electrical Safety Code and the National
Electrical Code, as well as accepted and responsible 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.
Q.ย
A holder of a special use permit granted under this
chapter shall obtain, at its own expense, all permits and licenses
required by applicable law, rule, regulation or code, 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.
R.ย
With respect to this application process, the Town
of Ghent Planning Board will normally seek to have lead agency status
pursuant to SEQRA. The Board shall conduct an environmental review
of the proposed project pursuant to SEQRA in combination with its
review of the application pursuant to this chapter.
S.ย
An applicant shall submit to the Town the number of
completed applications determined to be needed at the preapplication
meeting. Written notification of the application shall be provided
to the legislative body of all adjacent municipalities.
T.ย
The applicant shall examine the feasibility of designing
a proposed tower to accommodate future demand for at least five additional
commercial applications, for example, future collocations. The tower
shall be structurally designed to accommodate at least five 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, in writing,
demonstrates that the provisions of future shared usage of the tower
is not technologically feasible, is commercially impracticable or
creates an unnecessary and unreasonable burden, based upon:
(1)ย
The foreseeable number of FCC licenses available for
the area;
(2)ย
The kind of wireless telecommunications facilities
site and structure proposed;
(3)ย
The number of existing and potential licenses without
wireless telecommunications facilities spaces/sites;
(4)ย
Available space on existing and approved towers.
U.ย
The owner of the proposed new tower, and his/her successors
in interest, shall negotiate in good faith for the shared use of the
proposed tower by other wireless service providers in the future and
shall:
(1)ย
Respond within 60 days to a request for information
from a potential shared-use applicant;
(2)ย
Negotiate in good faith concerning future requests
for shared use of the new tower by other telecommunications providers;
(3)ย
Allow shared use of the new tower if another telecommunications
provider agrees in writing to pay reasonable charges. The charges
may include, but are not limited to, a pro rata share of the cost
of site selection, planning, project administration, land costs, site
design, construction and maintenance financing, return on equity,
less depreciation, and all of the costs of adapting the tower or equipment
to accommodate a shared user without causing electromagnetic interference.
(4)ย
Failure to abide by the conditions outlined above
may be grounds for revocation of the special use permit for the tower.
V.ย
There shall be a preapplication meeting. The purpose
of the preapplication meeting will be to address issues that will
help to expedite the review and permitting process. A preapplication
meeting shall also include a site visit if there has not been a prior
site visit for the requested site. Costs of the Town's consultants
to prepare for and attend the preapplication meeting will be borne
by the applicant.
W.ย
The holder of a special use permit shall notify the
Town of any intended modification of a wireless telecommunications
facility and shall apply to the Town to modify, relocate or rebuild
a wireless telecommunications facility.
X.ย
In order to better inform the public, in the case
of a new telecommunications tower, the applicant shall, prior to the
public hearing on the application, hold a "balloon test." The applicant
shall arrange to fly, or raise upon a temporary mast, a minimum of
a three-foot-in-diameter brightly colored balloon at the maximum height
of the proposed new tower. The dates (including a second date in case
of poor visibility on the initial date), times and location of this
balloon test shall be advertised by the applicant seven and 14 days
in advance of the first test date in a newspaper with a general circulation
in the Town. The applicant shall inform the Town, in writing, of the
dates and times of the test, at least 14 days in advance. The balloon
shall be flown for at least four consecutive hours some time between
7:00 a.m. and 4:00 p.m. on the dates chosen. The primary date shall
be on a weekend but, in case of poor weather on the initial date,
the secondary date may be on a weekday.
Y.ย
The applicant will provide a written copy of an analysis,
completed by a qualified individual or organization, to determine
if the tower or existing structure intended to support wireless facilities
requires lighting under Federal Aviation Administration Regulation
Part 77. This requirement shall be for any new tower or for an existing
structure or building where the application increases the height of
the structure or building. If this analysis determines that the FAA
must be contacted, then all responses from the FAA and any related
correspondence shall be provided in a timely manner.
A.ย
Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities
in accordance with the following priorities, (1) being the highest
priority and (6) being the lowest priority.
(1)ย
On existing towers or other structures without increasing
the height of the tower or structure.
(2)ย
On municipality owned properties.
[Amended 11-19-2009 by L.L. No. 1-2009]
(3)ย
On properties in areas zoned for commercial or industrial
use.
(4)ย
On properties in areas zoned for business use or limited
commercial/business.
(5)ย
On properties in areas zoned for residential agricultural
use.
(6)ย
On properties in areas zoned for residential use.
B.ย
If the proposed site is not proposed for the highest
priority listed above, then a detailed explanation must be provided
as to why a site of a higher priority was not selected. The person
seeking such an exception must satisfactorily demonstrate the reason
or reasons why such a permit should be granted for the proposed site,
and the hardship that would be incurred by the applicant if the permit
were not granted for the proposed site.
C.ย
An applicant may not bypass sites of higher priority
by stating the site proposed is the only site leased or selected.
An application shall address collocation as an option. If such option
is not proposed, the applicant must explain to the reasonable satisfaction
of the Town why collocation is commercially or otherwise impracticable.
Agreements between providers limiting or prohibiting collocation shall
not be a valid basis for any claim of commercial impracticability
or hardship.
D.ย
Notwithstanding the above, the Town may approve any
site located within an area in the above list of priorities, provided
that the Town finds that the proposed site is in the best interest
of the health, safety and welfare of the Town and its inhabitants
and will not have a deleterious effect on the nature and character
of the community and neighborhood.
E.ย
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
appropriate, based on selecting a site of lower priority, a detailed
written explanation as to why sites of a higher priority were not
selected shall be included with the application.
F.ย
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the
Town may disapprove an application for any of the following reasons:
(1)ย
Conflict with safety and safety-related codes and
requirements;
(2)ย
Conflict with the historic nature or character of
a neighborhood or historical district;
(3)ย
The use or construction of wireless telecommunications
facilities which is contrary to an already stated purpose of a specific
zoning or land use designation;
(4)ย
The placement and location of wireless telecommunications
facilities which would create an unacceptable risk, or the reasonable
probability of such, to residents, the public, employees and agents
of the Town, or employees of the service provider or other service
providers;
(5)ย
Conflicts with the provisions of this chapter.
A.ย
The Town, as opposed to the construction of a new
tower, shall prefer locating on existing towers or other structures
without increasing the height. The applicant shall submit a comprehensive
report inventorying existing towers and other suitable structures
within four miles of the location of any proposed new tower, unless
the applicant can show that some other distance is more reasonable
and demonstrate conclusively why an existing tower or other suitable
structure cannot be used.
B.ย
An applicant intending to locate on an existing tower
or other suitable structure shall be required to document the intent
of the existing owner to permit its use by the applicant.[1]
[1]
Editor's Note: Former Subsection C, regarding antenna array
of shared use, which immediately followed this subsection, was repealed
11-19-2009 by L.L. No. 1-2009.
A.ย
The applicant shall submit documentation justifying
the total height of any tower, facility and/or antenna and the basis
therefor. Such documentation will be analyzed in the context of the
justification of the height needed to provide service primarily and
essentially within the Town, to the extent practicable, unless good
cause is shown.
B.ย
No tower constructed after the effective date of this
chapter, including allowing for all attachments, shall exceed that
height which shall permit operation without required artificial lighting
of any kind in accordance with municipal, Town, state, and/or any
federal statute, law, local law, Town law, code, rule or regulation.
A.ย
Wireless telecommunications facilities shall not be
artificially lighted or marked, except as required by law.
B.ย
Towers shall be galvanized and/or painted with a rust-preventive
paint of an appropriate color to harmonize with the surroundings and
shall be maintained in accordance with the requirements of this chapter.
C.ย
If lighting is required, applicant shall provide a
detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
that prevents unauthorized access. Specifically:
A.ย
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 collided with; and
B.ย
Transmitters and telecommunications control points
shall be installed in such a manner that they are readily accessible
only to persons authorized to operate or service them.
Wireless telecommunications facilities shall
contain a sign no larger than four square feet in order to provide
adequate notification to persons in the immediate area of the presence
of RF radiation or to control exposure to RF radiation within a given
area. A sign of the same size is also to be installed to contain the
name(s) of the owner(s) and operator(s) of the antenna(s) as well
as emergency phone number(s). The sign shall be on the equipment shelter
or cabinet of the applicant and be visible from the accesspoint of
the site and must identify the equipment owner of the shelter or cabinet.
On tower sites, an FCC registration site as applicable is also to
be present. The signs shall not be lighted, unless applicable law,
rule or regulation requires lighting. No other signage, including
advertising, shall be permitted.
All proposed towers and any other proposed wireless
telecommunications facility structures shall be set back from abutting
parcels, recorded rights-of-way and road and street lines by the greater
of the following distances: A distance equal to the height of the
proposed tower or wireless telecommunications facility structure plus
10% of the height of the tower or structure or the existing setback
requirement of the underlying zoning district, whichever is greater.
Any accessory structure shall be located so as to comply with the
applicable minimum setback requirements for the property on which
it is situated.
A.ย
The Town may hire any consultant and/or expert necessary
to assist the Town in reviewing and evaluating the application, including
the construction and modification of the site, once permitted, and
any requests for recertification.
B.ย
An applicant shall deposit with the Town funds in
an amount as shall be determined by the Town Planning Board, in its
discretion, in consideration of the scope of the project and the priority
for location, which amount shall be sufficient to reimburse the Town
for all reasonable costs of consultant and expert evaluation and consultation
to the Town in connection with the review of any application including
the construction and modification of the site, once permitted. Such
deposit will be placed with the Town preceeding the preapplication
meeting. The Town will maintain a separate escrow account for all
such funds. The Townโs consultants/experts shall invoice the
Town for its services in reviewing the application including the construction
and modification of the site, once permitted. If at any time during
the process this escrow account has a balance less than $1,000, the
applicant shall immediately, upon notification by the Town, replenish
said escrow account so that it has a balance of at least $3,000. Such
additional escrow funds shall be deposited with the Town before any
further action or consideration is taken on the application. In the
event that the amount held in escrow by the Town is more than the
amount of the actual invoicing at the conclusion of the project, the
remaining balance shall be promptly refunded to the applicant.
[Amended 11-19-2009 by L.L. No. 1-2009]
C.ย
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
A.ย
No person shall be permitted to site, place, build,
construct, modify or prepare any site for the placement or use of
wireless telecommunications facilities as of the effective date of
this chapter without having first obtained a special use permit for
wireless telecommunications facilities. Notwithstanding anything to
the contrary in this section, no special use permit shall be required
for those noncommercial exceptions noted in the definition of wireless
telecommunications facilities.
B.ย
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 visible
modification of an existing wireless telecommunications facility must
comply with this chapter.
A.ย
Prior to the approval of any application for a special
use permit for wireless telecommunications facilities, a public hearing
shall be held by the Town, notice of which shall be published in the
official newspaper of the Town no less than 10 calendar days prior
to the scheduled date of the public hearing. In the case where the
application is for location on an existing structure or tower, the
application shall contain the names and addresses of all landowners
whose property is located within 500 feet of any property line of
the lot or parcel on which the new wireless telecommunications facilities
are proposed to be located. Where the application is for wireless
telecommunications facilities to be placed on a new structure or tower,
the application shall contain the names and addresses of all landowners
whose property is located within 1,500 feet of any property line of
the lot or parcel on which the new wireless telecommunications facilities
are proposed to be located.
[Amended 11-19-2009 by L.L. No. 1-2009]
A.ย
The Town will undertake a review of an application
pursuant to this chapter in a timely fashion, consistent with its
responsibilities, 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.ย
The Town may refer any application or part thereof
to any advisory or other committee for a nonbinding recommendation.
C.ย
After the public hearing and after formally considering
the application, the Town may approve, approve with conditions, or
deny a special use permit. Its decision shall be in writing and shall
be supported by substantial evidence contained in a written record.
The burden of proof for the grant of the permit shall always be upon
the applicant.
D.ย
If the Town approves the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such approval in writing within 10 calendar days of the Town's
action, and the special use permit shall be issued within 30 days
after such approval. Except for necessary building permits, and subsequent
certificates of compliance, once a special use permit has been granted
hereunder, no additional permits or approvals from the Town, such
as site plan or zoning approvals, shall be required by the Town for
the wireless telecommunications facilities covered by the special
use permit.
E.ย
If the Town denies the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such denial in writing within 10 calendar days of the Town's action.
The extent and parameters of a special use permit
for wireless telecommunications facilities shall be as follows:
A.ย
Such special use permit shall not be assigned, transferred
or conveyed without the express prior written notification to the
Town.
B.ย
Such special use permit may, following a hearing upon
due prior notice to the applicant, be revoked, canceled, or terminated
for a violation of the conditions and provisions of the special use
permit or for a material violation of this chapter after prior written
notice to the holder of the special use permit.
A.ย
At the time that a person submits an application for
a special use permit for a new tower, such person shall pay a nonrefundable
application fee of $5,000 to the Town. If the application is for a
special use permit for co-locating on an existing tower or other suitable
structure, where no increase in height of the tower or structure is
required, the nonrefundable fee shall be $1,000.
[Amended 11-19-2009 by L.L. No. 1-2009]
B.ย
No application fee is required in order to recertify a special use permit for wireless telecommunications facilities, unless there has been a visible modification of the wireless telecommunications facility since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in Subsection A shall apply.
[Amended 11-19-2009 by L.L. No. 1-2009]
The applicant and the owner of record of any
proposed wireless telecommunications facilities property site shall,
at its cost and expense, 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 as determined by the Planning Board in its discretion based
upon the scope and magnitude of the project, which amount shall be
sufficient to assure the faithful performance of the terms and conditions
of this chapter and conditions of any special use permit issued pursuant
to this chapter. The Planning Board shall consult with the Town Engineer
for the project and/or with the Town Attorney for input as to the
amount of the bond or security. The full amount of the bond or security
shall remain in full force and effect throughout the term of the special
use permit and/or until any necessary site restoration is completed
to restore the site to a condition comparable to that which existed
prior to the issuance of the original special use permit.
In order to verify that the holder of a special
use permit for wireless telecommunications facilities and any and
all lessees, renters, and/or licensees of wireless telecommunications
facilities, place and construct such facilities, including towers
and antennas, in accordance with all applicable technical, safety,
fire, building, and zoning codes, laws and regulations and other applicable
requirements, the Town may inspect all facets of said permitholder's,
renter's, lessee's or licensee's placement, construction, modification
and maintenance of such facilities, including, but not limited to,
towers, antennas and buildings or other structures constructed or
located on the permitted site.
A.ย
A holder of a special use permit for wireless telecommunications
facilities shall secure and at all times maintain public liability
insurance for personal injuries, death and property damage, and umbrella
insurance coverage, for the duration of the special use permit in
amounts as set forth below:
B.ย
The commercial general liability insurance policy
shall specifically include the Town and its officers, councils, employees,
committee members, attorneys, agents and consultants as additional
named insureds.
C.ย
The insurance policies shall be issued by an agent
or representative of an insurance company licensed to do business
in the state and with a Best's rating of at least A.
D.ย
The insurance policies shall contain an endorsement
obligating the insurance company to furnish the Town with at least
30 days' prior written notice in advance of the cancellation of the
insurance.
E.ย
Renewal or replacement policies or certificates shall
be delivered to the Town at least 15 days before the expiration of
the insurance that such policies are to renew or replace.
F.ย
Before construction of a permitted wireless telecommunications
facilities is initiated, but in no case later than 15 days after the
grant of the special use permit, 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.
A.ย
Any application for wireless telecommunication facilities
that is proposed for Town property, pursuant to this chapter, shall
contain a provision with respect to indemnification. Such provision
shall require the applicant, to the extent permitted by the law, to
at all times defend, indemnify, protect, save, hold harmless, and
exempt the Town, and its officers, councils, employees, committee
members, attorneys, agents, and consultants from any and all penalties,
damages, costs, 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 placement, construction,
erection, modification, location, products performance, use, operation,
maintenance, repair, installation, replacement, removal, or restoration
of said facility, excepting, however, any portion of such claims,
suits, demands, causes of action or award of damages as may be attributable
to the negligent or intentional acts or omissions of the Town, or
its servants or agents. 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.ย
In the event of a violation of this chapter or any
special use permit issued pursuant to this chapter, the Town may impose
and collect, and the holder of the special use permit for wireless
telecommunications facilities shall pay to the Town, fines or penalties
as shall be determined by the Town of Ghent Justice Court, which shall
have jurisdiction over this matter; such fines or penalties are not
to exceed $2,000 per violation. Each week a violation continues without
remedy shall be deemed a separate and distinct violation, subject
to additional fines or penalties for each such continuing violation.
B.ย
Notwithstanding anything in this chapter, the holder
of the special use permit for wireless telecommunications facilities
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, without limiting other remedies available
to the Town.
If wireless telecommunications facilities are
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 special use Permit in writing of such violation.
A.ย
Under the following circumstances, the Town may determine
that the health, safety, and welfare interests of the Town warrant
and require the removal of wireless telecommunications facilities.
(1)ย
Wireless telecommunications facilities with a permit
have been abandoned (i.e., not used as wireless telecommunications
facilities) for a period exceeding 90 consecutive days or a total
of 180 days in any three-hundred-sixty-five-day period, except for
periods caused by force majeure or acts of God, in which case, repair
or removal shall commence within 90 days;
(2)ย
Permitted wireless telecommunications facilities fall
into such a state of disrepair that it creates a health or safety
hazard;
(3)ย
Wireless telecommunications facilities have been located,
constructed, or modified without first obtaining, or in a manner not
authorized by, the required special use permit or any other necessary
authorization.
B.ย
If the Town makes such a determination as noted in Subsection A of this section, then the Town shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed, the Town may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.ย
The holder of the special use permit, or its successors
or assigns, shall dismantle and remove such wireless telecommunications
facilities 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 impracticability,
within 90 days of receipt of written notice from the Town. However,
if the owner of the property upon which the wireless telecommunications
facilities are located wishes to retain any access roadway to the
wireless telecommunications facilities, the owner may do so with the
approval of the Town.
D.ย
If wireless telecommunications facilities are not
removed or substantial progress has not been made to remove the wireless
telecommunications facilities within 90 days after the permit holder
has received notice, then the Town may order officials or representatives
of the Town to remove the wireless telecommunications facilities at
the sole expense of the owner or special use permit holder.
E.ย
If the Town removes or causes to be removed wireless
telecommunications facilities, and the owner of the wireless telecommunications
facilities does not claim and remove it from the site to a lawful
location within 10 days, then the Town may take steps to declare the
wireless telecommunications facilities abandoned and sell them and
their components.
F.ย
Notwithstanding anything in this section to the contrary,
the Town may approve a temporary use permit/agreement for the wireless
telecommunications facilities for no more 90 days, during which time
a suitable plan for removal, conversion, or relocation of the affected
wireless telecommunications facilities shall be developed by the holder
of the special use permit, subject to the approval of the Town, and
an agreement to such plan shall be executed by the holder of the special
use permit and the Town. If such a plan is not developed, approved
and executed within the ninety-day time period, then the Town may
take possession of and dispose of the affected wireless telecommunications
facilities in the manner provided in this section.
[Amended 11-19-2009 by L.L. No. 1-2009]
Any applicant desiring relief, waiver or exemption
from any aspect or requirement of this chapter may request such relief,
waiver or exemption in accordance with the provisions and criteria
of this section. Such relief may be temporary or permanent, partial
or complete. However, the burden of proving the need for the requested
relief, waiver or exemption is solely on the applicant to prove. The
applicant shall bear all costs of the Town in considering the request
and the relief, waiver or exemption. No such relief or exemption shall
be approved unless the applicant demonstrates by clear and convincing
evidence that, if granted, the relief, waiver or exemption will have
not significant effect on the health, safety and welfare of the Town
or its residents.
A.ย
The Town may at any time conduct a review and examination
of this entire chapter.
B.ย
If after such a periodic review and examination of
this chapter, the Town determines that one or more provisions of this
chapter should be amended, repealed, revised, clarified or deleted,
then the Town may take whatever measures are necessary in accordance
with applicable law in order to accomplish the same. It is noted that
where warranted, and in the best interests of the Town, the Town may
repeal this entire chapter at any time.
A.ย
To the extent that the holder of a special use permit
for wireless telecommunications facilities has not received relief,
or is otherwise exempt, from appropriate State and/or Federal agency
rules or regulations, then the holder of such a special use permit
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.ย
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 a special use
permit for wireless telecommunications facilities, then the holder
of such a special use permit shall conform the permitted wireless
telecommunications facilities 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 Town, state or federal government, this chapter
shall apply.