Town of Cheektowaga, NY
Erie County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Cheektowaga 9-15-2008 by L.L. No. 8-2008.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Environmental impact review — See Ch. 107.
Zoning — See Ch. 260.
[1]
Editor's Note: This chapter also provided for the repeal of § 260-48, Communications facilities. See also § 255-30A.
The telecommunications Act of 1996 affirmed the Town of Cheektowaga's authority concerning the placement, construction and modification of wireless telecommunications facilities. The Town of Cheektowaga 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 insure that the placement, construction or modification of wireless telecommunications facilities is consistent 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 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 Cheektowaga.
This chapter shall be known and cited as the "Wireless Telecommunications Facilities Siting Local Law for the Town of Cheektowaga."
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.
ACCESSORY FACILITY OR STRUCTURE
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.
ANTENNA
A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals.
APPLICANT
Any wireless service provider submitting an application for a special use permit for wireless telecommunications facilities.
APPLICATION
All necessary and appropriate documentation that an applicant submits in order to receive a special use permit for wireless telecommunications facilities.
BOARD
The Town Board of the Town of Cheektowaga.
CO-LOCATION
The use of an existing tower or structure to support antennas for the provision of wireless services. A replacement tower that is constructed on the same site as an existing tower will be considered a co-location as long as the new tower is no taller than the old tower and that the old tower is removed in a reasonably short time frame after the new tower is constructed.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
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.
COMPLETED APPLICATION
An application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.
FAA
The Federal Aviation Administration, or its duly designated and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated and authorized successor agency.
HEIGHT
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.
MODIFICATION or MODIFY
The addition, removal or change of any of the physical and visually discernible 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 discernible components, vehicular access, parking and/or an upgrade or changeout of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site as a co-location is a modification. "Modification" shall not include the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or any matters that involve the normal repair and maintenance of a wireless facility without adding, removing or changing anything.
NIER
Nonionizing electromagnetic radiation.
PERSON
Any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons having a joint common interest, or any other entity.
PERSONAL WIRELESS FACILITY
See the definition for "wireless telecommunications facilities."
PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS
Shall have the same meaning as defined and used in the 1996 telecommunications Act.
REPAIRS AND MAINTENANCE
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 the addition, removal or change of any of the physical or visually discernible components or aspects of a wireless facility that will add to the visible appearance of the facility as originally permitted.
SPECIAL USE PERMIT
The official document or permit by which an applicant is allowed to file for a building permit to construct and use wireless telecommunications facilities as granted or issued by the Town.
STATE
The State of New York.
STEALTH or 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.
TELECOMMUNICATIONS
The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
TELECOMMUNICATIONS SITE
See the definition for "wireless telecommunications facilities."
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in the definition of "wireless telecommunications facilities."
TEMPORARY
Temporary in relation to all aspects and components of this chapter, something intended to, or that does not exist, for more than 90 days.
TOWER
Any structure designed primarily to support an antenna for receiving and/or transmitting a wireless signal.
WIRELESS TELECOMMUNICATIONS FACILITIES
Means and includes a telecommunications site and personal wireless facility. A structure, facility or location designed, 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, including, but not limited to, buildings, church steeples, silos, water towers, signs or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes 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, SMR, paging, 911, personal communications services (PCS), commercial satellite services, microwave services and any commercial wireless telecommunications service not licensed by the FCC.
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. 
Requiring a special use permit for any new co-location or modification of a wireless telecommunications facility.
B. 
Implementing an application process for person(s) seeking a special use permit for wireless telecommunications facilities.
C. 
Establishing a policy for examining an application for and issuing a special use permit for wireless telecommunications facilities that is both fair and consistent.
D. 
Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless telecommunications facilities among service providers.
E. 
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.
F. 
That in granting a special use permit, the Town has found that the facility shall be the most appropriate site as regards being the least visually intrusive among those available in the Town.
A. 
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 § 255-6.
B. 
All legally permitted wireless telecommunications facilities, constructed as permitted, 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 will require the complete facility and any new installation to comply with this chapter.
C. 
Any repair and maintenance of a wireless facility does not require an application for a special use permit.
The following shall be exempt from this chapter:
A. 
The Town's fire, police, Department of Transportation or other public service facilities owned and operated by the local government.
B. 
Any facilities expressly exempt from the Town's siting, building and permitting authority.
C. 
Over-the-air reception devices, including the reception antennas for direct broadcast satellites (DBS), multichannel multipoint distribution (wireless cable) providers (MMDS), television broadcast stations (TVBS) and other customer-end antennas that receive and transmit fixed wireless signals that are primarily used for reception.
D. 
Facilities exclusively for private, noncommercial radio and television reception and private citizen's bands, licensed amateur radio and other similar noncommercial telecommunications.
E. 
Facilities exclusively for providing unlicensed spread-spectrum technologies [such as IEEE 802.11a, b, g (Wi-Fi) and Bluetooth] where the facility does not require a new tower.
A. 
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 Board is the officially designated agency or body of the Town to which 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 or revoking special use permits for wireless telecommunications facilities. The Town may, at its discretion, delegate or designate other official agencies or officials of the Town to accept, review, analyze, evaluate and make recommendations to the Town Board with respect to granting or not granting or revoking special use permits for wireless telecommunications facilities.
B. 
The Town may reject applications not meeting the requirements stated herein or which are otherwise incomplete.
C. 
No wireless telecommunications facilities shall be installed, constructed or modified until the application is reviewed and approved by the Town and the special use permit has been issued.
D. 
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
E. 
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.
F. 
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 or a signed letter acknowledging authorization. If the applicant owns the site, a copy of the ownership record is required.
G. 
The applicant shall include a statement in writing:
(1) 
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, zoning laws, and regulations, including any and all applicable Town, state and federal laws, rules, and regulations;
(2) 
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.
H. 
Where a certification is called for in this chapter, such certification shall bear the signature and seal of a registered professional engineer licensed in the state.
I. 
In addition to all other required information as stated in this chapter, all applications for the construction or installation of new wireless telecommunications facilities or modification of an existing facility shall contain the information hereinafter set forth:
(1) 
A descriptive statement of the objective(s) for the new facility or modification including and expanding on a need such as coverage and/or capacity requirements.
(2) 
Documentation that demonstrates and proves the need for the wireless telecommunications facility to provide service primarily and essentially within the Town. Such documentation shall include propagation studies of the proposed site and all adjoining planned, proposed, in-service or existing sites that demonstrate a significant gap in coverage and/or if a capacity need, including an analysis of current and projected usage.
(3) 
The name, address and phone number of the person preparing the report.
(4) 
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 from the applicant, provide the name and address of the tower owner.
(5) 
The postal address and Tax Map parcel number of the property.
(6) 
The Zoning District or designation in which the property is situated.
(7) 
Size of the property stated both in square feet and lot line dimensions, and a survey showing the location of all lot lines.
(8) 
The location of the nearest residential structure.
(9) 
The location, size and height of all existing and proposed structures on the property which is the subject of the application.
(10) 
The type, locations and dimensions of all proposed and existing landscaping, and fencing.
(11) 
The azimuth, size and center-line height location of all proposed and existing antennas on the supporting structure.
(12) 
The number, type and model of the antenna(s) proposed, with a copy of the specification sheet.
(13) 
The make, model, type and manufacturer of the tower and design plan stating the tower's capacity to accommodate multiple users.
(14) 
A site plan describing the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above preexisting grade, materials, color and lighting.
(15) 
The frequency, modulation and class of service of radio or other transmitting equipment.
(16) 
The actual intended transmission power stated as the maximum effective radiated power (ERP) in watts.
(17) 
Signed documentation such as the "Checklist to Determine Whether a Facility is Categorically Excluded" to verify that the wireless telecommunications facility with the proposed installation will be in full compliance with the current FCC RF emissions guidelines (NIER). If not categorically excluded, a complete RF emissions study is required to provide verification.
(18) 
A signed statement that the proposed installation will not cause physical or RF interference with other telecommunications devices.
(19) 
A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities.
(20) 
A copy of the geotechnical subsurface soils investigation, evaluation report and foundation recommendation for a proposed or existing tower site, and if an existing tower or water tank site, a copy of the installed foundation design.
J. 
The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the proposed new tower or existing structure intended to support wireless facilities is in compliance with Federal Aviation Administration Regulation Part 77 and if it requires lighting. This requirement shall also be for any existing structure or building where the application increases the height of the structure or building. If this analysis determines that an FAA determination is required, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided with the application.
K. 
Application for new tower.
(1) 
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.
(2) 
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 days 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 sometime 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. A report with pictures from various locations of the balloon shall be provided with the application.
(3) 
The applicant shall examine the feasibility of designing the proposed tower to accommodate future demand for at least four additional commercial applications, for example, future co-locations. The tower shall be structurally designed to accommodate at least four 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 provision of future shared usage of the tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:
(a) 
The foreseeable number of FCC licenses available for the area.
(b) 
The kind of wireless telecommunications facilities site and structure proposed.
(c) 
The number of existing and potential licenses without wireless telecommunications facilities spaces/sites.
(d) 
Available space on existing and approved towers.
(4) 
The owner of a 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:
(a) 
Respond within 60 days to a request for information from a potential shared-use applicant.
(b) 
Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers.
(c) 
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.
(d) 
Failure to abide by the conditions outlined above may be grounds for revocation of the special use permit.
L. 
The applicant shall provide certification with documentation (structural analysis) including calculations that the telecommunications facility tower and foundation and attachments, rooftop support structure, water tank structure, and any other supporting structure as proposed to be utilized are designed and will be constructed to meet all local, Town, state and federal structural requirements for loads, including wind and ice loads.
M. 
If the proposal is for a co-location or modification on an existing tower, the applicant is to provide signed documentation of the tower condition such as an ANSI report as per Annex E, tower Maintenance and Inspection Procedures, ANSI/TIA/EIA-222F or most recent version. The inspection report must be performed every three years for a guyed tower and five years for monopoles and self-supporting towers.
N. 
All proposed wireless telecommunications facilities shall contain a demonstration that the facility be sited so as to be the least visually intrusive reasonably possible, given the facts and circumstances involved, 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.
O. 
If a new tower, proposal for a new antenna attachment to an existing structure, or modification adding to a visual impact, the applicant shall furnish a visual impact assessment, which shall include:
(1) 
If a new tower or increasing the height of an existing structure is proposed, a computer-generated "Zone of Visibility Map" at a minimum of a one-mile radius from the proposed structure, with and without foliage, shall be provided to illustrate locations from which the proposed installation may be seen.
(2) 
Pictorial representations of "before and after" (photo simulations) 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 the preapplication meeting. Provide a map showing the locations of where the pictures were taken and distance from the proposed structure.
(3) 
A written description of the visual impact of the proposed facility, including, and as applicable, the tower base, guy wires, fencing and accessory buildings from abutting and adjacent properties and streets as relates to the need or appropriateness of screening.
P. 
The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related equipment and structures of the proposed wireless telecommunications facility.
Q. 
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 be required by the Town.
R. 
All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, ordinances, rules and regulations of the Town, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate.
S. 
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.
T. 
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.
U. 
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.
V. 
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. 
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 as applicable and/or requested.
X. 
The holder of a special use permit shall notify the Town of any intended modification of a wireless telecommunication facility and shall apply to the Town to modify, relocate or rebuild a wireless telecommunications facility.
Y. 
With respect to this application process, the 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.
A. 
Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, Subsection A(1) being the highest priority and seven being the lowest priority.
(1) 
On existing towers or other structures on Town-owned properties.
(2) 
On existing towers or other structures on other property in the Town.
(3) 
A new tower on municipal or government-owned properties (and properties in the CF Community Facilities District).
(4) 
A new tower on properties in areas zoned for manufacturing (M1, M2 Districts) use.
(5) 
A new tower on properties in areas zoned for business (CM, C, NS Districts) use.
(6) 
A new tower on properties in areas zoned for residential use.
B. 
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. 
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 co-location as an option. If such option is not proposed, the applicant must explain to the reasonable satisfaction of the Town why co-location is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting co-location shall not be a valid basis for any claim of commercial impracticability or hardship.
D. 
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. 
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. 
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) 
Conflict with safety and safety-related codes and requirements.
(2) 
Conflict with the historic nature or character of a neighborhood or historical district.
(3) 
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) 
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) 
Conflicts with the provisions of this chapter.
A. 
The Town, as opposed to the construction of a new tower, shall prefer locating on existing towers or others structures without increasing the height. The applicant shall submit a comprehensive report inventorying existing towers and other suitable structures within two 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. 
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.
C. 
Such shared use shall consist only of the minimum antenna array technologically required to provide service primarily and essentially within the Town, to the extent practicable, unless good cause is shown.
A. 
The applicant shall submit documentation justifying the total height of any tower, facility and/or antenna requested and the basis therefor. Documentation in the form of propagation studies must include all backup data used to perform at requested height and a minimum of 10 feet lower height to allow verification of this height need. 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. 
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 Town, state, and/or any federal statute, law,[1] local law, Town zoning law, code, rule or regulation.
[1]
Editor's Note: See Ch. 260, Zoning.
A. 
Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.
B. 
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. 
If lighting is required, the applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under state and federal regulations.
All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner that prevents unauthorized access. Specifically:
A. 
All antennas, towers and other supporting structures, including guy anchor points and 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. 
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 access point 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. 
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 site inspections.
B. 
An applicant shall deposit with the Town funds sufficient to reimburse the Town for all reasonable costs of consultant and expert evaluation and consultation to the Town in connection with the review of any application, including, where applicable, the lease negotiation, the preapproval evaluation, and the construction and modification of the site, once permitted. The initial deposit shall be $8,500. The placement of the $8,500 with the Town shall precede the preapplication meeting. The Town will maintain a separate escrow account for all such funds. The Town's consultants/experts shall invoice the Town for its services related to the application. If at any time during the process this escrow account has a balance less than $2,500, the applicant shall immediately, upon notification by the Town, replenish said escrow account so that it has a balance of at least $5,000. 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, upon request of the applicant, be promptly refunded to the applicant.
C. 
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope (lease negotiations and/or review) 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. 
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 newspaper in general circulation in of the Town no less than 10 calendar days prior to the scheduled date of the public hearing. In order that the Town may notify nearby landowners, the application shall contain the names and address 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.
B. 
There shall be no public hearing required for an application to co-locate on an existing tower or other structure, or a modification at an existing site, as long as there is no proposed increase in the height of the tower or structure, including attachments thereto.
C. 
The Town shall schedule the public hearing referred to in Subsection A of this section once it finds the application is complete; the Town, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary.
A. 
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. 
The Town may refer any application or part thereof to any advisory, other committee or commission for a nonbinding recommendation.
C. 
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 granting of the permit shall always be upon the applicant.
D. 
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. 
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. 
Such special use permit shall not be assigned, transferred or conveyed without the express prior written notification to the Town.
B. 
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.
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 $2,500.
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 of at least $75,000 for a tower facility and $25,000 for a co-location on an existing tower or other structure and with such sureties as are deemed sufficient by the Town 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 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, zoning laws and regulations and other applicable requirements, the Town may inspect all facets of said permit holder'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. 
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:
(1) 
Commercial general liability covering personal injuries, death and property damage: $1,000,000 per occurrence/$2,000,000 aggregate.
(2) 
Automobile coverage: $1,000,000 per occurrence/ $2,000,000 aggregate.
(3) 
Workers' compensation and disability: statutory amounts.
B. 
For a wireless telecommunications facility on Town property, the commercial general liability insurance policy shall specifically include the Town and its officers, boards, employees, committee members, attorneys, agents and consultants as additional insureds.
C. 
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. 
The Town of Cheektowaga shall be named as a certificate holder on any binder of insurance. 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. 
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. 
Before construction of a permitted wireless telecommunications facility is initiated, but in no case later than 15 days after the granting 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. 
Any application for wireless telecommunications 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, boards, 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.
B. 
Notwithstanding the requirements noted in Subsection A of this section, an indemnification provision will not be required in those instances where the Town itself applies for and secures a special use permit for wireless telecommunications facilities.
A. 
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 set forth below.
B. 
The holder of a special use permit's failure to comply with provisions of this chapter shall constitute a violation of this chapter and shall subject the applicant to the code enforcement provisions and procedures as provided in § 260-72 of the Town of Cheektowaga Code.
C. 
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 a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special use permit, then the Town shall notify the holder of the special use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in § 255-24, and if a violation is not corrected to the satisfaction of the Town in a reasonable period of time, the special use permit is subject to revocation.
A. 
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) 
Wireless telecommunications facilities with a permit have been abandoned (i.e., not used as wireless telecommunications facilities) for a period exceeding ninety consecutive 90 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) 
Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard.
(3) 
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 and the special permit may be revoked.
B. 
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. 
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. 
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 notify the appropriate bond company to demand the bond company remove said facilities or 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. 
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. 
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.
Any applicant desiring relief, waiver or exemption from any aspect or requirement of this chapter may request such at the preapplication meeting, provided that the relief or exemption is contained in the submitted application for either a special use permit or, in the case of an existing or previously granted special use permit, a request for modification of its tower and/or facilities. 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 no significant affect on the health, safety and welfare of the Town, its residents and other service providers.
A. 
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. 
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.
A. 
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. 
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.
A. 
Section 260-48 of the Code of the Town of Cheektowaga Zoning Law, (Communications facilities), shall be repealed.
B. 
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.
This chapter shall be effective immediately upon passage, pursuant to applicable legal and procedural requirements, and upon filing with the Secretary of State.
This chapter is enacted pursuant to applicable authority granted by the state and federal government.
[Added 8-27-2019 by L.L. No. 5-2019]
A. 
Conditions applying to all small wireless facilities.
(1) 
Definitions. As used in this section, the following terms shall have the meanings indicated:
APPLICANT
A person or entity submitting an application to the Town for a special use permit under this section.
CAMOUFLAGE
To use concealment techniques to blend the installation of the structure into the surrounding area by mimicking its surroundings or otherwise disguising it in the environment.
CO-LOCATE
For purposes of this section, co-locate or co-location shall mean mounting or installing a small wireless facility on a preexisting structure and/or modifying a structure for the purpose of mounting or installing a small wireless facility on that structure.
CONCEALED INSTALLATION ON BUILDING
Building-mounted small wireless facilities that completely screen all associated equipment and facilities from public view by approved methods that are in keeping with the character of the building, surrounding area and any applicable design guidelines or standards, as determined by the Town.
GROUND-BASED EQUIPMENT or GROUND-BASED ENCLOSURES
Any equipment associated with installation of a small wireless facility and/or support structure that will be located on the surface of the ground with some or all of the facility located above grade.
LICENSE
The document granted to an individual under this section, which permits its holder, the licensee (see definition), to have all the rights, privileges, and obligations arising under this section. Any license issued under this section is nonexclusive and is subject to the limitations provided herein.
LICENSEE
Any person having applied for a license under this section and holding such a license.
PERMITTEE
An applicant that has received a special use permit under this section.
POLE
A legally constructed pole, such as a utility, lighting, traffic, or similar pole.
RF
Radio frequency.
RIGHT-OF-WAY or ROW
The area on, below, or above a public roadway, highway, street, sidewalk, alley, utility easement, or similar property, under the jurisdiction of the Town.
SMALL WIRELESS FACILITY or MICRO WIRELESS FACILITY, SMALL CELL, SWF
A wireless facility that meets both of the following qualifications: each antenna is located inside an enclosure measuring no more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six cubic feet; and all other wireless equipment associated with the facility measuring no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cutoff switch, and vertical cable runs for the connection of power and other services.
SUPPORT STRUCTURE
A freestanding structure, such as a utility pole, monopole, or other existing or proposed structure, designed to support, or be capable of supporting, wireless facilities.
UTILITY POLE
A pole or similar structure that is used in whole or in part for the purpose of carrying electric distribution lines or cables or wires for telecommunications; cable or electric service; or for lighting, traffic control, signage, or a similar function regardless of ownership, including Town-owned poles. Such term shall not include structures supporting only small wireless facilities.
(2) 
Purpose and legislative intent.
(a) 
The Town desires to encourage small-cell wireless telecommunication infrastructure investment by providing a fair and predictable process for the deployment, while enabling the Town to promote the management of its public ROW in the overall interests of the public health, safety, and welfare. The Town recognizes that wireless facilities are critical to delivering wireless access to advanced technology, broadband, and 911 services to homes, businesses, and schools within the Town, and new technology has increased the need for towers and antennas to serve the Town. The Town further recognizes that SWF often may be deployed most effectively in the ROW. The Town desires to enact a legal framework which will permit the expedited review process for the deployment of such SWF when specified criteria are met and to permit placement of towers and antennas in locations which will allow telecommunications services to be rendered in conformity with both the Federal Telecommunications Act of 1996 and with the goals of local comprehensive plans and zoning ordinances.
(b) 
In enacting this section, the Town is establishing uniform standards to address issues presented by SWF, including, without limitation, to:
[1] 
Prevent interference with the use of streets, sidewalks, alleys, parkways, and other public ways and places;
[2] 
Prevent the creation of visual and physical obstructions and other conditions that are hazardous to vehicular and pedestrian traffic;
[3] 
Prevent interference with existing facilities and operations of facilities presently lawfully located in rights-of-way or public property;
[4] 
Ensure reasonable efforts are made to preserve the character of neighborhoods in which facilities are installed;
[5] 
Protect community aesthetics and visual and historic resources;
[6] 
Protect against environmental damage, including damage to trees;
[7] 
Facilitate the installation of SWF to provide benefits of reliable access to wireless telecommunications technology, broadband, and 911 services to homes, business, and schools within the Town.
(3) 
Applicability. This section applies to all existing SWF and all applications and requests for approval to construct, install, modify, co-locate, relocate, or otherwise deploy SWF.
(4) 
Application requirements.
(a) 
Special use permit application. All persons wishing to construct, install, modify (except for in-kind replacements of previously permitted SWF), co-locate, relocate, or otherwise deploy SWF must submit an application for a special use permit for approval by the Town Board of the Town of Cheektowaga. The Town Board shall follow the procedures set forth in New York Town Law § 274-b for consideration of the special use permit applications. The SWF special use permit application shall contain the following, to include nine hard copies and one digital copy:
[1] 
Letter application and applicable application fee(s). The letter application must contain a detailed description of the proposal, the number of SWFs involved in the subject application, their proposed locations, and a description of the proposed locations, including the zoning districts and nearby land uses. The letter application must also contain the applicant's name and contact information, as well as the names and contact information for all consultants acting on behalf of the applicant, if any.
[2] 
Owner's authorization and/or evidence of property rights. The applicant must demonstrate it has adequate real property rights for the installation and maintenance of the SWF. This would include, but not be limited to, owner authorization, an easement, a lease, and/or a license issued pursuant to this section. The applicant bears all risk that it has the legal right to construct the SWF in the designated location.
[3] 
Project plans. The applicant must provide a fully dimensioned site plan and elevation drawings, prepared and sealed by a New York-licensed engineer, showing any existing wireless facilities with all existing transmission equipment and other improvements, the proposed SWF with all proposed transmission equipment and other improvements and the legal boundaries of the leased, licensed, or owned area in the general vicinity surrounding the proposed SWF and any associated access or utility easements.
[4] 
Site photos and photo simulations. The applicant must provide photographs and simulations that show the proposed SWF in context of the site from reasonable line-of-sight locations from public streets or other adjacent viewpoints, together with a map that shows the photo location of each view angle. These simulations must indicate both location of the proposed SWF, as well as design aesthetics that reflect compliance with this section.
[5] 
RF compliance demonstration. The applicant must provide an RF exposure compliance report, prepared and certified by a New York licensed engineer, acceptable to the Town that certifies that the proposed SWF, as well as any co-located SWF, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels [in watts effective radiated power ("ERPP")] for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas, the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC), and also the boundaries of the areas with RF exposures in excess of the controlled/occupations limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site in accordance with FCC requirements, if applicable.
[6] 
Acoustic analysis. The applicant must provide a written report that analyzes acoustic levels for the proposed SWF and all associated equipment. The acoustic analysis must be prepared and certified by an engineer and include an analysis of the manufacturer's specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines. This requirement may be satisfied by providing manufacturer's specifications of the SWF demonstrating that the equipment does not generate noise, or generates noise at an imperceptible level.
[7] 
Project purpose statement/need demonstration. The applicant must provide a written statement that includes:
[a] 
A description of the technical objectives to be achieved, including the services to be offered and/or improvement of existing services;
[b] 
An annotated topographical map that identifies the targeted service area to be benefited;
[c] 
The estimated number of potentially affected users in the targeted service area; and
[d] 
Full-color signal propagation maps with objective units of signal strength measurements that show the applicant's current service coverage levels from all adjacent sites without the proposed site, predicted service coverage levels from all adjacent sites with the proposed site, and predicted service coverage levels from the proposed site without all adjacent sites (or a statement that the objectives are other than coverage related).
[8] 
Alternatives analysis. The applicant must list all existing structures considered as alternatives to the proposed location, together with a general description of the site design considered at each location. The applicant must also provide a written explanation for why the alternatives considered were unacceptable, not feasible, unavailable, or not as consistent with the design standards. This explanation must include a comparative analysis and such technical information and other factual justification as are necessary to document the reasons why each alternative is unacceptable, not feasible, unavailable, or not as consistent with the design standards in this section as the proposed location. This would include an analysis of the siting preferences set forth in this section.
[9] 
The applicant shall provide manufacturer's information for the SWF and support structure, if applicable.
[10] 
The applicant shall provide technical specifications of the SWF and support structure, if applicable, and evidence that such structure is capable of handling the addition of SWF.
[11] 
The applicant shall provide a written maintenance and removal plan, made to and acceptable by the Town, to include an agreement by the applicant and/or owner to remove all the components of the SWF in the event the facility becomes nonfunctional, ceases to be used for its originally intended purposes or is otherwise abandoned, as determined by the Town. The maintenance and removal plan shall remain in full force for the life of the SWF. An acceptable bond and/or surety, for the purposes of removing the SWF, submitted to the Town for review, shall be purchased and remain in force for the life of the SWF.
[12] 
The applicant shall provide any other items that the Town shall deem necessary for a thorough and complete review of the proposal.
(b) 
One application required. Although each SWF requires its own special use permit, the applicant need submit only one application, regardless of the number of proposed SWFs or locations. The Board may, in its sole discretion, deny the application, grant the application in full, or partially grant the application by issuing special use permits for only some of the SWFs proposed in the application.
(c) 
Maintenance. Subject to the requirements for the initial application, an application shall not be required for routine maintenance or in-kind replacement, unless otherwise specified within this section. In-kind replacement shall mean replacement of an existing permitted SWF with another SWF of the substantially same dimensions, appearance, and characteristics. Any other modifications or replacements of any portion of an SWF shall require an amendment to the special use permit, requiring compliance with all applicable requirements and procedures set forth in this section.
(d) 
Application fees. The applicant shall pay the Town a fee for review of the special use permit application, in an amount to be determined by the Town Board by resolution, which may be amended from time to time by further resolution.
(e) 
Third-party professional consultants. The Town, in its sole discretion, may retain third-party consultant(s) to assist in the review of a proposed SWF. The cost of such third-party consulting services shall be reimbursed by the applicant to the Town within 30 days of the Town receiving an invoice for third-party consulting services.
(5) 
Exceptions to the special use permit requirement. The following SWFs shall be exempt from the special use permit requirements of § 255-33A and, upon compliance with the substantive requirements of this section, require only an approval determination from the Code Enforcement Officer. The fee for this review by the Code Enforcement Officer shall be in an amount to be determined by the Town Board by resolution, which may be amended from time to time by further resolution.
(a) 
SWFs that are concealed installations on buildings or camouflaged on existing buildings within the following zoning districts: CM, M2, M1, and MS.
(b) 
Co-location on existing poles that are within the following zoning districts: CM, M2, M1, and MS.
(6) 
Site location guidelines.
(a) 
Preferred locations. The Town prefers co-location and siting in manufacturing and/or commercial business districts, as defined in Chapter 260, over residential zoning districts. The Town prefers co-location as opposed to the construction of a new support structure. The Town prefers the siting on existing buildings, provided they are camouflaged or concealed.
(b) 
Discouraged locations. The Town discourages new support structures and the location in residential zoning districts, although siting in residential districts may be necessary if no alternatives are available to meet the provider's objectives. Where possible, efforts should be made to co-locate or to locate in manufacturing or business zoning districts. If location in a residential zoning district is necessary, techniques to minimize aesthetic impacts are mandatory, including camouflage.
(c) 
Prohibited locations. The Town prohibits any structures or parts of structures associated with SWF placement from obstructing access to above- or underground traffic control infrastructure, public transportation vehicles, shelters, street furniture, or other improvements, above- or underground utility infrastructure, fire hydrants, doors, gates, or other ingress and egress points to any building appurtenant to the ROW, or any fire escape. Ground-mounted equipment shall not be closer that 12 feet from any existing lawful encroachment in the ROW and driveway aprons.
(7) 
Design standards.
(a) 
Construction categories. Each SWF shall comply with the standards set forth for each location type.
[1] 
Existing support structure or replacement support structure of the same type, size, and height, in the same location.
[a] 
Equipment. All equipment must be installed as close to the support structure as technically feasible to minimize its visibility from public view to the greatest extent feasible. All conduits, conduit attachments, cables, wires, and other connectors shall be concealed from the public view to the greatest extent feasible. Ground-mounted equipment is not preferred and shall be minimized to the greatest extent feasible. Where used, ground-mounted equipment must incorporate concealment techniques in compliance with the requirements of Subsection A(7)(c) of this section.
[b] 
Minimum clear height. With the exception of any ground-mounted equipment, no part of the SWF shall be less than 10 feet above grade or the maximum height permitted by the owner of the utility pole, as confirmed by the utility pole owner in writing.
[c] 
Maximum height. No part of the SWF shall exceed 10 feet above the existing support structure. Ground-mounted cabinets shall be secured to a concrete slab and shall not exceed three feet in height.
[d] 
Maximum volume. The maximum volume of each antenna shall not exceed six cubic feet.
[e] 
Maximum equipment volume. The maximum equipment volume shall not exceed 28 cubic feet, or 15 cubic feet for ground-mounted equipment.
[f] 
Reservation of rights. The Town reserves its right to request additional information, analysis, studies, including further expert opinion, at the applicant's expense, pertaining to the application and any issues of concern.
[g] 
Each SWF shall be on one support structure.
[h] 
Each SWF shall be at least 500 feet from another SWF.
[2] 
New support structure.
[a] 
Basis. The Town will consider new poles only if the applicant can demonstrate that replacing or utilizing an existing pole is not possible or feasible. Any new poles must meet all Town and other applicable laws.
[b] 
Support structure requirements. All applicants shall propose new support structures that complement the community character of the area and any applicable design guidelines that may exist for the area. When existing utility poles exist, new support structures may feature a similar design and aesthetic. Where no existing utility poles exist, architecturally significant support structures shall be proposed, including, but not limited to, flag poles and decorative light standards.
[c] 
Equipment. All equipment must be installed as close to the support structure as technically feasible to minimize its visibility from public view. All conduits, conduit attachments, cables, wires, and other connectors shall be concealed from the public view to the greatest extent feasible. Ground-mounted equipment is not preferred and shall be minimized to the greatest extent feasible. Where used, ground-mounted equipment must incorporate concealment techniques in compliance with the requirements of Subsection A(7)(c) of this section.
[d] 
Minimum clear height. With the exception of any ground-mounted equipment, no part of the SWF shall be less than 10 feet above grade or the maximum height permitted by the owner of the utility pole, as confirmed by the utility pole owner in writing.
[e] 
Maximum height. No part of the SWF shall exceed 50 feet above ground level or 10 feet above the average height of all utility poles within a 500-foot radius, whichever is greater. This is the maximum height, and the Town may approve a lesser height depending on the surrounding structures and character. Ground-mounted cabinets shall be secured to a concrete slab and shall not exceed three feet in height.
[f] 
Maximum diameter. The maximum diameter of any new poles not intended for public distribution shall not exceed 24 inches at the base.
[g] 
Maximum volume. The maximum volume of each antenna shall not exceed six cubic feet.
[h] 
Maximum equipment volume. The maximum equipment volume shall not exceed 28 cubic feet, or 15 cubic feet for ground-mounted equipment.
[i] 
Installation. Any new poles not intended for public distribution shall:
[i] 
Be installed as far as practicable off the traveled way;
[ii] 
Meet the height requirements set forth herein;
[iii] 
Not be installed in the ROW, unless fixed objects exist at the same or closer distance from the roadway;
[iv] 
Not be any closer to the roadway than any existing pole line;
[v] 
Be buried with no foundation, unless an exception is justified and approved by the Town Engineer or designee; and
[vi] 
To the extent practicable, be located outside of residentially zoned neighborhoods.
[j] 
Reservation of rights. The Town reserves its right to:
[i] 
Reject new poles for any of the following reasons: traffic, safety, conflict with existing structure or utilities, conflict with pedestrian or complete street features, or future planned activities. Any notice of denial must be in writing, explain the basis for the denial, and be sent to the applicant and the authority controlling the ROW, if not controlled by the Town of Cheektowaga.
[ii] 
Request additional information, analysis and studies, including further expert opinion, at the applicant's expense, pertaining to the application and any issues of concern.
[3] 
Concealed installation on building.
[a] 
Equipment. All equipment must be installed such that its visual appearance is consistent with other accessory mechanical and/or building service appurtenances. All conduits, conduit attachments, cables, wires, and other connectors shall match the color of existing building mechanicals or the adjacent building material color. Ground-mounted equipment is not preferred and shall be minimized to the greatest extent feasible. Where used, ground-mounted equipment must incorporate concealment techniques in compliance with the requirements of Subsection A(7)(c) of this section.
[b] 
Minimum clear height. With the exception of any ground-mounted equipment, no part of the SWF shall be less than 10 feet above grade.
[c] 
Maximum height. No part of the SWF shall exceed 10 feet above the building roof or parapet wall. Ground-mounted cabinets shall be secured to a concrete slab and shall not exceed three feet in height.
[d] 
Maximum volume. The maximum volume of each antenna shall not exceed six cubic feet.
[e] 
Maximum equipment volume. The maximum equipment volume shall not exceed 28 cubic feet, or 15 cubic feet for ground-mounted equipment.
[f] 
Applications. Applicants must secure an approved building permit.
(b) 
Engineering requirements. The applicant must provide an installation design prepared by a professional engineer licensed in New York State that demonstrates the pole strength of the pole to be used.
(c) 
Aesthetic requirements. The character of the neighborhood and the visual quality of the surroundings must be taken into account when installing SWFs, whether to new or existing poles. In order to avoid unnecessary adverse visual impacts and to preserve the area in which the SWFs are being installed, and in addition to the conditions set forth above, all SWFs shall meet the following requirements:
[1] 
Poles and equipment shall be painted in a neutral color that is consistent with other new and existing poles in the general geographic area so as to reduce visual intrusiveness, unless existing surrounding poles are not painted.
[2] 
Poles shall be constructed of the same or similar material as other new and existing poles in the general geographic area.
[3] 
Poles shall be constructed in the same or similar shape as other new and existing poles in the general geographic area.
[4] 
Poles may be camouflaged or disguised as deemed appropriate by the Town Board.
[5] 
No artificial lighting is permitted on the pole unless otherwise required by law or permitted, e.g., where no existing utility poles exist and a decorative light pole is used with express permission. Any permitted lighting must be consistent in design and bulb type with other lighting fixtures in the general geographic area.
[6] 
Commercial signage is not permitted on any pole unless already existing at the time of the installation.
[7] 
Equipment shall be affixed to the pole in a tight, neat, and orderly fashion. Where possible, equipment shall be flush-mounted with the pole, and in no case shall offset mounting exceed the greater of six inches or the minimum distance permitted by the owner of the pole, as confirmed by the owner of the pole in writing. No wires may be loose or dangling, with a preference that the wires be enclosed within the pole where possible.
[8] 
Equipment shall be consistent in size with the pole to which it is being attached and minimally shall be consistent with the suggested designs shown in the Appendix to this section.[1]
[a] 
Maximum volume. The maximum volume of each antenna shall not exceed six cubic feet.
[b] 
Maximum equipment volume. The maximum equipment volume shall not exceed 28 cubic feet.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
[9] 
Ground-mounted equipment shall be minimized to the greatest extent feasible. Where used, ground equipment shall incorporate camouflage techniques matching color and materials of the wireless support structure, unless other materials or colors are approved by the Town. Applications shall include proposed camouflage techniques for ground-mounted equipment, which may include, but are not limited to: strategic choice of color, paint, and/or materials, landscaping, placement in less visible locations, and placement within existing or replacement street furniture.
(8) 
Waiver. For good cause shown, the Town Board may grant a waiver of any of the provisions of this section. The burden of demonstrating good cause is on the applicant.
(9) 
Standard conditions of approval. In addition to any other conditions imposed by the Town Board or the Code Enforcement Officer in the case of applications exempt from the special use permit requirement, special use permits and approvals by the Code Enforcement Officer for the installation of SWFs shall be automatically subject to the conditions set forth herein. The Town Board and/or the Code Enforcement Officer shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances to allow for the proper operation of the approved facility, consistent with the goals of this section.
(a) 
Approved plans. Before the permittee submits any applications to the Building Department, the permittee must incorporate the permit, all conditions associated with this permit and the approved photo simulations into the project plans. The permittee must construct, install and operate the SWF in strict compliance with the approved plans. Any alterations, modifications or other changes to the approved plans, whether requested by the permittee or required by other departments or public agencies with, must be submitted in a written request subject to the Building Department prior to review and approval, who may refer the request to the Town Board if it is found that the requested alteration, modification or other change implicates a significant or substantial land use concern.
(b) 
Build-out period. The permit will automatically expire one year from the issuance date unless the permittee obtains all other permits and approvals required to install, construct, and/or operate the approved SWFs and commences the installation and construction, which includes, without limitation, any permits or approvals required by any federal, state, or local public agencies with jurisdiction over the subject property, the SWF, or its use. The Town may grant extensions to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension, submitted at least 30 days prior to the automatic expiration date in this condition.
(c) 
Maintenance obligations: vandalism. The permittee shall keep the site, which includes, without limitation, any and all improvements, equipment, structures, and access routes, in a neat, clean, and safe condition in accordance with the approved plans and all conditions in the permit. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the Town, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.
(d) 
Compliance with laws. The permittee shall maintain compliance at all times with all federal, state, and local statutes, regulations, orders or other rules that carry the force of law applicable to the permittee, the subject property, the SWF or any use or activities in connection with the use authorized in the permit. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve, or otherwise lessen the permittee's obligations to maintain compliance with all applicable laws, regulations, orders, and rules.
(e) 
Inspections. The permittee expressly acknowledges and agrees that the Town or its designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the Town may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable, or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee will be permitted to supervise the Town or its designee while such inspection or emergency access occurs.
(f) 
Contact information. The permittee shall furnish the Town with accurate and up-to-date contact information for a person responsible for the SWF, which includes, without limitation, such person's full name, title, direct telephone number, facsimile number, mailing address, and email address. The permittee shall keep such contact information up-to-date at all times.
(g) 
Rescission of permit for noncompliance. The Town Board may rescind any permit issued under this section for review at any time due to noncompliance with applicable law or any approval conditions. At a duly noticed hearing and in accordance with all applicable laws, the Town Board may revoke any such permit or amend these conditions as the approval authority deems necessary or appropriate to correct any such noncompliance.
(h) 
Record retention. The permittee shall retain full and complete copies of all licenses, permits, and other regulatory approvals issued in connection with the SWF, which includes, without limitation, all conditions of approval, approved plans, resolutions, and other documentation associated with the license, permit, or regulatory approval.
B. 
Conditions applying to small wireless facilities located in the Town ROW.
(1) 
Applicability. The contents of this subsection are applied in addition to the contents of Subsection A for applicants proposing SWFs located in the Town ROW.
(2) 
License. Where the proposed SWF is in the Town ROW, before any application may be submitted, a nonexclusive license to place the SWF is required. No SWF is allowed in the Town ROW unless first a nonexclusive license is obtained from the Town by the applicant.
(a) 
No exclusive, irrevocable property right or any other interest is created by the license. There is no right to convey, express or implied, with the license.
(b) 
The license may not be assigned, except upon written consent of the Town, which shall not be unreasonably withheld, provided the assignee assumes all obligations of the license, agrees to abide by its terms, in writing, and meets all other criteria as set forth in this section.
(c) 
A general license will be granted per applicant for all Town ROWs, provided that the applicant meets the requirements for such a license.
(d) 
An applicant shall demonstrate the entitlement to use the land for the designated purpose, e.g., through demonstration that the Town owns the fee of the highway at issue, through the grant of an easement or a pole attachment agreement, and/or other legal mechanism that may be applicable. The applicant bears any and all risk that it has the legal right to construct the SWF in the location that it has chosen.
(e) 
The license agreement shall be in the general form as developed by the Town.
(f) 
Each license agreement is subject to approval by the Town Board.
(g) 
By issuance of a license, the Town does not represent or warrant title or ownership of the ROW. The applicant proceeds at its own risk.
(h) 
Indemnification. Any license agreement shall contain indemnification provisions, indemnifying the Town for the licensee's use of the Town ROW and related activities, to the maximum extent permitted by law.
(i) 
Performance bond/surety. Any license agreement shall contain the requirements that the licensee provide a performance bond or other appropriate surety, as approved by the Town Board, in an amount equal to or greater than a written estimate from a New York licensed engineer with experience in SWF removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without imitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings, and foundations, whether aboveground or belowground, constructed or installed, in connection with the SWF. In establishing or adjusting the bond amount required under this condition, and in accordance with New York Code, the Town shall take into consideration information provided by the licensee regarding the cost to remove the wireless facility.
(j) 
The license shall require compliance with this section, as may be amended by the Town Board.
(k) 
Insurance. Without limiting the indemnification provision herein, and in addition to the performance bond/surety required herein, the license agreement shall contain a requirement that the licensee procure, at the licensee's expense, insurance in an amount sufficient as determined by the Town Board, with the Town named as an additional insured.
(3) 
Rates and fees. In addition to the fees outlined in Subsection A of this section, the following fees apply for SWFs to be located in the Town ROW:
(a) 
License review fee. The applicant shall pay the Town a license review fee upon execution of the license, in the amount to be determined by the Town Board by resolution, which may be amended from time to time by further resolution.
(b) 
Annual license fee. A wireless provider authorized to place an SWF in the ROW shall pay to the Town an annual license fee in an amount to be determined by the Town Board by resolution, which may be amended from time to time by further resolution.