A.
The Town of Wheatfield recognizes the increased demand
for wireless communications transmitting facilities and the need for
the services they provide. Often these facilities require the construction
of telecommunications towers, radios, television towers and/or similar
facilities. The intent of this article is to regulate the location,
construction, siting and modification of telecommunications facilities
in accordance with the guidelines of the Telecommunications Act of
1996 and other applicable laws, by:
(1)
Regulating and establishing predictable and
balanced regulations for the siting of telecommunications facilities
in order to accommodate the growth of such facilities within the Town
of Wheatfield;
(2)
Protecting the public against any adverse impacts,
including visual impacts, on aesthetic resources and the public safety
and welfare;
(3)
Accommodating the need for telecommunications
facilities;
(4)
Regulating the location and number of telecommunications
facilities, minimizing adverse visual impacts through proper design,
siting and screening;
(5)
Providing for the health, safety, quality of
the environment and general welfare of the community by avoiding potential
damage or other negative impact to adjacent properties from tower
failure, falling ice, etc., through proper siting and engineering;
(6)
Requiring the joint sharing of existing and
future towers when possible; and
(7)
Maximizing the use of existing towers, tall
buildings and other high structures in order to further minimize adverse
visual effects from telecommunications towers.
B.
This article is not intended to prohibit or have the
effect of prohibiting the provision of personal wireless services
nor shall it be used to unreasonably discriminate among the providers
of functionally equivalent services consistent with current federal
regulations.
As used in this article, the following
words shall have the meanings indicated:
A nonhabitable accessory facility or structure serving or
being used in conjunction with a telecommunications tower and/or similar
facility and usually located on the same lot as the telecommunications
tower. Examples of such structures include utility or transmission
equipment storage sheds or cabinets.
Any device or exterior-mounted apparatus mounted on a tower,
building, utility pole, light pole or other structure designed for
telephonic, radio, data, Internet or television communications to
transmit or receive communications signals or electromotive waves
for the purpose of providing cellular services, telecommunications
services, personal communications services, personal wireless services,
wireless cable, commercial paging, data or wireless services and its
attendant base station, utilizing microcells or frequencies authorized
by the Federal Communications Commission.
Service provider seeking to establish a tower or facility
in the Town of Wheatfield.
The lines that connect a provider's towers/cell sites to
one or more cellular telephone switching offices and/or long distance
providers or the public switched telephone network.
Communications facilities which utilize existing towers,
buildings or other structures for placement of antenna(s) and do not
require construction of a new tower, a significant modification to
an existing telecommunications facility or the construction of a new
antenna at a height in excess of any existing antennas located on
any such tower, building or other structure.
Multiple use of preexisting towers by one or more telecommunications
companies, primarily to minimize proliferation of any additional new
towers.
A study which demonstrates the existing signal coverage and
signal coverage resulting from the proposed telecommunications tower/pole.
A facility other than a telecommunications tower or telecommunications
antenna for the provision of public utility services, including facilities
constructed, altered or maintained by utility corporations, either
public or privately owned, or government agencies, necessary for the
provision of electricity, gas, steam, heat, communications, water,
sewage collection or other such service to the general public. Such
facilities shall include poles, wire, mains, drains, sewers, pipes,
conduits, cables, alarms and call boxes, and other similar equipment,
but shall not include office or administrative buildings.
A system of electrical conduction that transmits or receives
radio frequency waves.
Any or all of the physical elements of the central facility
that contains all the receivers, transmitters and other apparatus
needed for cellular/personal communications services operations [also
known as a "Base Transceiver Station (BTS)"].
A structure, tower, edifice, pole or other structure, including
dish antennas, whether attached to a building or freestanding and
whether guyed or self-supporting, designed to be used as/for the support
of devices used for the transmission and/or reception of radio frequency
signals, such as but not limited to broadcast, short-wave, citizens
band, FM or television signals, on which one or more antenna will
be located, that is intended for transmitting and/or receiving radio,
television, telephone, wireless or microwave communications for a
Federal Communications Commission (FCC) licensed carrier.
A structure designed to support antennas. It includes, without
limit, freestanding towers, guyed towers, monopoles and similar structures
which do or which do not employ camouflage technology.
A.
No person, firm or corporation being the owner or occupant of land or premises within the Town of Wheatfield shall use or permit the use of said land or premises for the construction of a telecommunications facility or tower without obtaining an approved special use permit and building permit and such other permits or approvals as prescribed in this article. (See § 200-109D.)
(1)
The application fee for the construction of
a communications tower or similar facility shall be $1,500. This is
the basic fee. There is an annual renewal fee of $1,000. The application
fee for any co-location shall be $500, with an annual renewal fee
of $1,000. Permit fees are nonrefundable and may be changed from time
to time by Town Board resolution.
(a)
When the applicant files its annual request for renewal of the permit, the applicant shall provide a copy of the most recent annual inspection report documenting required annual inspection by the company's designated personnel. Said report shall be provided to the Town Building Inspector. (See § 200-122A and B.)
(2)
Any applicant wishing to construct a new tower
or antenna which is in excess of 100 feet or increase the height of
any existing tower in excess of 100 feet shall pay to the Town an
additional annual fee of $5 for each additional foot of height.
(3)
Any applicant wishing to co-locate on an existing
tower or antenna which is in excess of 100 feet, taking into account
the height of any existing tower, antenna or other structure or facility
upon which the newly proposed tower or antennae is constructed, shall
pay to the Town an additional fee of $5 for each additional foot of
height.
(4)
The applicant is responsible for all reasonable
costs incurred to the Town of Wheatfield, including but not limited
to the employment of consulting assistance in reviewing and analyzing
any engineering or technical reports of studies submitted by the applicant
relative to its application.
B.
The applicant will include a description of what the
communications towers and/or similar facilities will be used for and
the services such a facility will provide, including a description
of the applicant's long-range plans which project market demand on
long-range facility expansion needs within the Town.
(1)
The applicant will furnish the Planning Board
a copy of the technical data used to determine the tower/pole height
and provide evidence to demonstrate that the height requested for
the proposed communications tower/antenna is the minimum height necessary.
C.
All applications shall be processed with due regard to lighting and safety requirements of federal, state or local agencies and/or emergency services. The applicant will send courtesy letters to the local Air Force Reserve and Air National Guard flying units at the Niagara Falls Air Reserve Base notifying them of the tower/pole construction. A similar letter will be addressed to the Niagara Frontier Transportation Authority, Mercy Flight and the Niagara County Sheriff's Department. Copies of all correspondence will be sent to the Town Building Department. (See § 200-108F.)
D.
Exemption from the permit requirements. The following
are exempted from permit requirements:
(1)
Towers in existence prior to enactment of the Telecommunications Facilities Law, dated May 2002, shall be exempt until such time as major repairs or replacement becomes necessary. At that time, conformance with this article, including obtaining any necessary permits, shall be required. (See § 200-114.)
E.
Dish antennas mounted on a resident's home are exempt
from these provisions.
F.
Before permits are issued for new towers in the Town
of Wheatfield or any upgrades of existing towers, wireless carriers
must inform the Planning Board where emergency calls in the Town are
routed. In cooperation with the Niagara County Sheriff, the Town requires
that all 9-1-1 calls be routed to the nearest Public Safety Answering
Point.
G.
No cutting of trees exceeding four inches in diameter
(measured at the height of four feet off the ground) shall take place
prior to approval of the special use permit. Clear-cutting of all
trees, in a single contiguous area exceeding 20,000 square feet is
prohibited.
H.
Required landscaping around towers and/or similar
facilities shall be maintained at all times. Dead trees shall be replaced
within 90 days with similar sized trees, if possible. Property shall
be mowed regularly to a height of six inches or less during the growing
season.
The Planning Board is hereby authorized to review
and approve, approve with modifications or disapprove special use
permits for telecommunications facilities pursuant to this article.
A.
The Planning Board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed telecommunications facility, including the use of camouflage of the tower structure and/or antenna to reduce visual impact. (See § 200-116.)
B.
The Planning Board is authorized to secure independent professional assistance to address the specific community planning, legal, aesthetic and technical issues related to wireless telecommunications facility development, when deemed appropriate, at the applicant's expense, in accordance with § 200-108A(4).
C.
Except as provided below, no telecommunications facility shall hereafter be erected, moved, reconstructed, changed or altered and no existing structure shall be modified to serve as a telecommunications facility, except after obtaining a special use permit in conformity with this article. (See § 200-108A.)
D.
Telecommunications antennas placed on existing telecommunications
towers or on existing structures do not require a special use permit,
unless the existing tower or structure is located in a residential
district or unless is will be modified in such a way as to increase
its height or area designated to house a new accessory structure.
E.
The Planning Board may waive any or all of the requirements
for approval for applicants proposing minor changes to existing facilities
and for applicants proposing the use of camouflage for a telecommunications
tower when the Board finds that such camouflage significantly reduces
visual impact to the surrounding area. However, the Board may not
waive the requirement that a public hearing be held on the application.
F.
No building permit shall be issued until the applicant provides proof that space on the facility has been leased and will be operated by a provider licensed by the FCC to provide service in the area. (See § 200-110B.)
G.
The Planning Board may require a monopole or guyed
tower (if sufficient land is available to the applicant) instead of
a freestanding tower. Monopoles are a preferred design.
A.
The Planning Board shall not authorize a special use
permit relating to a telecommunications facility unless it finds that
such facility:
(1)
Is necessary to provide adequate service to
locations that the applicant is not able to serve with existing facilities;
(2)
Conforms to all applicable regulations promulgated
by the FCC, FAA and other federal agencies;
(3)
Will be designed and constructed in a manner that minimizes visual impact to the extent practical [see § 200-110B(13)]; and
(4)
Is the most appropriate site among those available
within the technically feasible area for the location of a telecommunications
facility.
B.
Other considerations:
(1)
Telecommunications facilities are permitted
in any zoning district of the Town of Wheatfield by special use permit
approved by the Planning Board.
(2)
The number of towers shall be limited to one
tower per acre except that amateur radio towers may number no more
that two towers per 20,000 square feet of a lot area.
(3)
The Planning Board requires as part of the application
process proof (such as a letter of intent from a provider) that the
proposed tower will serve a wireless telecommunications provider with
a valid FCC license to provide service to the area. (See 200-109F.)
(4)
Towers being proposed by companies that do not
have immediate plans for installation of antenna (towers built on
speculation) do not fit under the definition of "personal wireless
service facilities" in the federal act and do not receive the same
treatment under federal law. They have no protection under federal
law and, likewise, would not be considered a public utility under
state law. Until the company shows proof of an agreement for attachment
by a provider with FCC license approval, it is subject to the same
zoning laws as nonwireless applicants.
(5)
In all zoning districts, new towers must be
set back a minimum of 500 feet from all residential dwellings, schools
and historic structures where applicable.
(6)
On municipal or government-owned property or
in industrial districts, the tower must be set back a minimum of the
height of the tower from all property lines and any existing building(s).
The Planning Board may require an additional setback area in the case
of guyed towers taking into consideration the length of guy wires
and the location of ground anchors.
(7)
In all zoning districts except residential, freestanding towers shall be located in rear yards only, with a maximum height of 195 feet. Maximum tower height in residential districts is limited to 100 feet. These maximum heights can only be modified if the Zoning Board of Appeals determines that extenuating circumstances warrant the towers to be higher. In evaluating these extenuating circumstances, the Zoning Board of Appeals will consider the aesthetic impacts of the taller towers, including increased visibility. Guy wires and anchors for towers shall not be located closer than 1/2 the height of the tower to any property line and shall not extend into any required front or side yard. A freestanding tower shall be no closer to any lot line or public utility than the distance equal to the height of the tower. (See §§ 200-113 and 200-114.)[1]
(8)
The height of co-located towers/antennas and
towers attached to a roof shall not extend above the height of the
existing structure by more than 50 feet and shall be integrated into
said structure in such a manner as to minimize its visual impact to
the greatest extent possible.
(9)
The location and design of a dish antenna shall attempt to reduce to a minimum danger to the public and visual impact on surrounding properties. To ensure public safety, a property owner may be required to use architectural features, earth berms, screenings and/or landscaping that harmonize the installation with the elements and characteristics of the surrounding property. The materials used in the construction of the antenna shall not be unnecessarily shiny, bright or reflective. Said antenna shall be located at ground level only. (See § 200-116.)
(10)
In general, towers should be designed and constructed
so that they can accommodate expansion (increase in height) if necessary
in the future.
(11)
The tower should also be designed and constructed
to accommodate future demand for additional facilities. In general,
the tower must accommodate a minimum of three additional antenna arrays.
(12)
The applicant will describe the type of backhaul
network, if any, to be utilized to connect communications facilities
to one another, as well as provide a description of the backhaul network,
identifying the entity providing the service to the communications
tower and/or similar facility and describing the location of the lines
providing such service. Such description shall include information
sufficient for the Town to determine whether any portion of the backhaul
network is within the Town's right-of-way and describing where the
lines providing service to the communications tower and/or similar
facility cross the Town's right-of-way.
(13)
The applicant will conduct a visual impact study
which provides the following:
(a)
Realistic graphic views to scale from 1,500
feet away from the north, south, east and west and all natural and
man-made features and structures within those views, including the
proposed communications tower and/or similar facility and other improvements
to be made.
(14)
The Town through the Planning Board has the
authority to consider alternate sites. In this regard, applicants
are required to develop alternate sites for the Planning Board's edification
accompanied by viewshed maps for each alternate site. In the event
that an alternate site is requested by the Planning Board to better
fit the community, any additional application fees shall be waived.
A.
The Cellular Tower/Pole Construction Guidelines[1] require all items to be completed in writing, initialed
and signed by the applicant or authorized representative subsequent
to a preapplication conference meeting with the Planning Board.
[1]
Editor's Note: These guidelines are on file
in the Building Department.
B.
The Planning Board encourages service providers to
schedule a preapplication conference to meet with the Town's staff
to discuss the proposed project in general terms and to clarify the
application requirements. The conference, although informal, permits
the Town to share with the applicant the Town's siting goals and objectives
in addition to reviewing technical data, thus ensuring adequacy and
completeness prior to formal application. Once appropriate materials
are received, the application will be placed on the next appropriate
Planning Board meeting agenda. The procedures for a special use permit
will be followed.
C.
The Planning Board may waive any particular submission requirement(s) it determines unnecessary for review of a particular project (see § 200-109E). The Cellular Tower/Pole Construction Guidelines may be amended, as needed, by the Planning Board to reflect changing needs and compliance with governmental requirements. Applicants may obtain forms from the Town Building Department or duplicate the guidelines if more convenient. The forms are also available on the Town website, www.wheatfield.ny.us, under "forms." They include the following:
(1)
New Cellular Tower/Pole Construction Guidelines.
(2)
Cellular Tower/Pole Co-location Guidelines.
The shared use of existing telecommunications towers or other structures
shall be preferred to the construction of new facilities. An antenna
that is to be attached to existing electrical and communications towers,
smokestack, water tower or other existing structure is permitted in
all zoning districts.
(3)
Application for site development plan review
shall include information regarding tower height, location on lot,
appurtenances, distance from building, etc. Included in the application
shall be proof that the tower was designed to withstand all load requirements
for a structure as set forth in the New York State Uniform Fire Prevention
and Building Code. Where the applicant is not the owner of the premises,
the application shall also be accompanied by the original or a true
statement signed by all the owners of record consenting to the construction
of the tower on the premises.
(4)
The Planning Board shall be the issuing agency for all tower special use permits and shall also be the lead agency for New York State Environmental Quality Review Act (SEQRA) and a full EAF and visual assessment form shall be submitted. SEQRA is a valid exercise of the state and local authority. (See § 200-122.)
D.
Any special use permit application, renewal or modification
thereof shall include proof that reasonable efforts have been made
to co-locate within an existing telecommunications facility or upon
an existing structure within a reasonable distance, regardless of
municipal boundaries, of the site. The applicant must demonstrate
that the proposed telecommunications facility cannot be accommodated
on existing telecommunications facilities due to one or more of the
following reasons:
(1)
The planned equipment would exceed the structural
capacity of existing and approved telecommunications facilities or
other structures considering existing and planned use for those facilities;
(2)
The planned equipment would cause radio frequency
interference with other existing or planned equipment which cannot
be reasonable prevented;
(3)
Other technical reasons make it impracticable
to place the equipment proposed by the applicant on existing facilities
or structures; and
(4)
The property owner or owner of the existing
telecommunications facility or other structure refuses to allow such
co-location or requires an unreasonable high fee for such co-location
compared to current industry rates.
E.
The Planning Board requests all service providers
who plan on filing applications to submit a two-year build-out plan.
The build-out plan must include propagation plots of existing and
planned future coverage over the geographic area of the Town and two
miles beyond the border. Existing and proposed towers and their search
rings should be identified on these plots. This information alerts
the Planning Board of future base station needs even if those sites
are not to be built right away and provides insight into how decisions
on current applications may be affected in the future.
F.
All telecommunications facilities shall be built,
operated and maintained to acceptable industry standards. Each application
shall contain a site plan for the facility containing the signature
of an engineer licensed by the State of New York.
A.
Preexisting towers that do not conform to this article
shall not be granted a transferable permit unless they are brought
up to code.
B.
No applicant shall lease or sublease any approved
telecommunications tower and/or similar facilities without the Town's
written consent, that will not be unreasonably withheld.
C.
Any lease or sublease between the applicant and the
landowner shall be subject to review and approval of the Town to ensure
that it is consistent with this article.
D.
An annual use tax of 10% of the revenue generated
by leasing or subleasing will be paid to the Town by March 1 of each
year.
Telecommunications facilities shall be constructed so as to minimize the potential safety hazards and located in such a manner that, if the facility should fall, it will remain within the property boundaries and avoid habitable structures, public streets, utility lines and other telecommunications facilities. (See § 200-110B.)
Telecommunications facilities shall comply with all existing setbacks within the affected zone. Setbacks shall apply to all tower parts including guy wire anchors and to any accessory facilities. Additional setbacks may be required by the Planning Board to contain on site substantially all icefall or debris from tower failure and/or to preserve privacy of adjoining residential and public property. (See § 200-110B.)
Towers shall not be artificially lighted except
to assure human safety as required by the FAA. Notwithstanding, an
applicant may be compelled to add FAA-style lighting and marking if,
in the judgment of the Planning Board, such a requirement would be
of direct benefit to public safety. The Board may choose the most
appropriate lighting and marking plan from the options acceptable
by the FAA at the location. The applicant must provide both standard
and alternate lighting and marking plans for the Board's review.
A.
The maximum height for telecommunications towers permitted under this article, including any antennas or other devices extending above the tower, measured from the ground surface, shall be 195 feet in nonresidential areas and 100 feet in residential areas. (See § 200-110B.)
B.
Towers shall be of galvanized finish or painted gray
above the surrounding treeline and painted gray, green, black or similar
colors designed to blend into the natural surroundings below the surrounding
treeline, unless the FAA requires other standards. Towers should be
designed and sited so as to avoid, wherever possible, application
of FAA lighting and painting requirements. Accessory uses shall maximize
use of building materials, colors and textures designed to blend with
the natural surroundings.
C.
The project shall be designed to blend with the natural
and/or man-made surroundings to the maximum extent possible.
D.
Structures offering slender silhouettes (i.e., monopoles
or guyed towers) may be preferable to freestanding lattice structures
except where such freestanding structures offer capacity for future
shared use. The Planning Board may consider the type of structure
being proposed and the surrounding area.
A.
Existing on-site vegetation shall be preserved to
the maximum extent possible and no cutting of trees exceeding four
inches in diameter shall take place prior to approval of the special
use permit. Clear-cutting of all trees in a single contiguous area
shall be minimized to the extent possible.
B.
The Planning Board may require appropriate vegetative
buffering around the fences of the tower base area, accessory structures
and the anchor points of guyed towers, to buffer their view from neighboring
residences, recreation areas, waterways, historic or scenic areas,
or public roads.
A.
A road and parking will be provided to assure adequate
emergency and service access. Maximum use of existing roads, public
or private, shall be made. Road construction shall be consistent with
standards for private roads and shall at all time minimize ground
disturbance and vegetation cutting. Road grades shall closely follow
natural contours to assure minimal visual disturbance and reduce soil
erosion potential.
B.
Equipment or vehicles shall not be stored on the facility
site.
The use of any portion of a telecommunications
facility for signs for promotional or advertising purposes, including,
but not limited to, company name, phone numbers, banners, streamers
and balloons is prohibited. The Planning Board requires the installation
of signage providing the name of the maintenance company, key points
of contact, addresses and phone numbers if maintenance of the communications
tower and associated facilities is to be contracted out or done by
someone other than the applicant/service provider, for safety consideration.
A.
The applicant will construct a six-foot chain fence
around the construction, angled outward by an additional two feet
for a total of eight feet to discourage climbing attempts. No barbed
wire will be employed. The chain fence will be painted to blend with
the surrounding environment. Other anti-climb fence design will be
considered.
B.
There shall be no permanent climbing pegs within 15
feet of the ground.
C.
Motion-activated or staff-activated security lighting
around the base of a tower or accessory structure entrance may be
provided if such lighting does not project off the site.
D.
A locked gate at the junction of the accessway and
a public thoroughfare is required to obstruct entry by unauthorized
vehicles. Such gate must not protrude into the public thoroughfare.
A.
The applicant at the time of obtaining a building
permit must provide a financial security bond for the construction,
maintenance and dismantling of the facility, with the Town of Wheatfield
as assignee, in an amount to be determined by the Town Engineer and
subject to renewal at five-year intervals.
B.
The applicant shall agree to continually renew the bond through the lifetime of the communications tower and/or similar facility. The sufficiency of the tower removal bond shall be confirmed at least every five years by an analysis of the cost of removal and property restoration performed by a New York State licensed professional engineer retained by the facility owner and/or operator(s). The results of such analysis shall be communicated to the Town Building Inspector. If the bond amount in force is insufficient to cover the costs of removal of the tower, etc., it shall be immediately increased to cover such amount. (See § 200-122.)
A.
A New York State licensed professional engineer specializing
in electrical engineering with expertise in radio communications facilities
or equivalent shall perform annual radio emission inspections. The
radio emission inspection shall describe the power density levels
of the electromagnetic energy generated from the facility, including
cumulative effects of co-located communications towers and/or similar
facilities. In the event that the radio emission inspection indicates
that the electromagnetic energy generated for the facility is above
allowable limits stated within applicable FCC or ANSI standards or
other applicable federal or state guidelines in effect at the time
of the inspection, the applicant shall have 90 days in which to come
into compliance until such time as it proves to the satisfaction of
the Town Building Inspector that the power density levels of the electromagnetic
energy to be generated at the facility are below the applicable standards.
(1)
The New York State licensed professional engineer
will prepare a report and convey his/her findings to the Town Building
Inspector.
(2)
Before-and-after propagation studies will be
prepared by a qualified radio frequency engineer demonstrating existing
signal coverage, contrasted with the proposed signal coverage resulting
from the proposed communications tower and/or similar facility.
(3)
Upon request of the Town Building Inspector,
but no more frequently than once per year, any person issued a permit
shall submit an updated safety analysis to ensure that the electromagnetic
radiation exposure and emissions surrounding the site do not exceed
applicable federal standards and continues to meet such standards.
Such analysis shall be prepared by a qualified electromagnetic engineering
specialist or health professional qualified to conduct such an analysis.
B.
A New York State licensed professional engineer specializing
in structural engineering shall inspect every facility at least every
second year for structural integrity at the owner's expense. A copy
of the inspection report shall be submitted to the Town Building Department
describing the structural integrity of the facility, maintenance issues
and repairs needed or made, if any.
At the time of submission of the application
for a telecommunications facility, the applicant shall submit an agreement
to remove all antennas, driveways, structures, building, equipment
sheds, lighting, utilities, fencing, gates and accessory equipment
or structures, as well as any tower used as a telecommunications facility
if such facility becomes technologically obsolete or ceases to perform
its originally intended function for more than 12 consecutive months.
Upon removal, the land shall be restored to its previous condition,
including but not limited to the seeding of exposed soils. Posting
a bond is mandatory.
In order to ensure that the facilities are maintained
and that necessary painting, landscaping and accessory buildings or
roads are kept in good order, the enforcement procedure will be similar
to Town enforcement of building code or zoning violations.
