[Added 11-8-1999 by L.L. No. 3-1999]
A.
The Telecommunications Act of 1996 (herein after referred to as the
"Act"), in effect, affirmed the authority of a local government, such
as the Town of Dickinson (hereinafter referred to as "Town"), over
decisions regarding the placement, construction and modification of
wireless telecommunications facilities.
B.
The Town Board of the Town finds and determines that wireless telecommunications
facilities and related facilities may pose a unique hazard to the
safety, public welfare and environment of the Town and its inhabitants.
The Town also recognizes that facilitating the development of wireless
service technology can be an economic development asset to the Town
and of significant benefit to the Town and its residents. In order
to ensure that the placement, construction and 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 article
is to minimize the negative impact of wireless telecommunications
facilities, establish a fair and efficient process for review and
approval of applications, assure an integrated, comprehensive review
of the environmental impacts of such facilities, and protect the health
(consistent with the Act), safety and welfare of the Town and its
residents.
This article may be known, cited, and referred to as the "Wireless Telecommunications Facilities Siting Law of the Town of Dickinson." For purposes of Chapter 600, Zoning, this article may be known, cited and referred to as the "Cell Tower Law."
A.
If any word, phrase, sentence, part, section, subsection, or other
portion of this article 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 article, and all applications
thereof, not having been declared void, unconstitutional, or invalid,
shall remain in full force and effect. The invalidity of any provision
of this article shall not affect the validity of any other provision
of this article which can be given effect without such invalid provision.
B.
Any tower special use permit issued under this article shall be comprehensive
and not severable. If any part of a tower special use permit issued
hereunder 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 election
by the Town Board.
For purposes of this article, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meaning given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including but not limited to, utility or transmission equipment storage
sheds or cabinets.
The Telecommunication Act of 1996.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency signals. Such waves shall
include, but not be limited to, radio, television, cellular, paging,
personal telecommunications services (PCS), and microwave telecommunications.
Any person submitting an application to the Town for a tower
special use permit for wireless telecommunications facilities.
The form approved by the Town Board, together with all necessary
and appropriate documentation that an applicant submits in order to
receive a tower special use permit for wireless telecommunications
facilities.
The Town Board of the Town of Dickinson, which is the officially
designated board of the Town of Dickinson to which applications for
a tower special use permit for wireless telecommunications facilities
must be made, and which is authorized to review, analyze, evaluate
and make decisions with respect to granting or not granting, recertifying
or not recertifying, or revoking tower special use permits for wireless
telecommunications facilities. The Board may, at its discretion, request
that other official agencies of the Town accept, review, analyze,
evaluate and make recommendations to the Board with respect to the
granting or not granting, recertifying or not recertifying or revoking
tower special use permits for wireless telecommunications facilities.
The location on a telecommunications structure which, in
the event of a failure of the telecommunications structure, would
result in the telecommunications structure failing or collapsing within
the boundaries of the property or lot on which the telecommunications
structure is placed.
Any tower or supporting structure that, due to design, location,
or appearance, partially or completely hides, obscures, conceals,
or otherwise disguises the presence of the tower and one or more antennas
or antenna arrays affixed thereto.
The area in which any portion of a telecommunications structure
could or would fall, collapse or plunge to the ground or into a river
or other body of water. The collapse zone shall be no less than the
lateral equivalent of the distance from the break point to the top
of the structure plus 10 feet, such being not less than 1/2 times
the height of the structure.
The use of the same wireless telecommunications facilities
or telecommunications structure to carry two or more antennas for
the provision of wireless services by two or more persons or entities.
These terms shall have the meaning in this article and any
tower special use permit granted hereunder as is given to those terms
and applied under § 2-615 of the New York Uniform Commercial
Code (UCC).
An application that contains all information and/or data
necessary to enable the Board to evaluate the merits of the application,
and to make an informed decision with respect to the effect and impact
of the wireless telecommunications facilities on the Town in the context
of the permitted land use for the particular location requested.
Broome County.
Only programming transmitted or broadcast by satellite directly
to subscribers' premises without the use of ground receiving equipment,
other than such equipment at the subscribers' premises or in the uplink
process to the satellite.
The United States Environmental Protection Agency, or its
duly designated and authorized successor agency.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
A tower that is not supported by guy wires and ground anchors
or other means of attached or external support.
The full environmental assessment form approved by the New
York Department of Environmental Conservation.
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint venture, association of two or more persons having a joint common
interest, limited-liability company, or any other entity.
See definition for "wireless telecommunications facilities."
These terms shall have the same meaning given to those terms
or used in the Telecommunications Act of 1996.
See definition for "wireless telecommunications facilities."
The State of New York.
The transmission and reception of audio, video, data, and
other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
A structure, tower or location designed, intended to be used,
or used in the provision of services described in the definition of
"wireless telecommunications facilities."
In relation to all aspects and components of this article,
something intended to, or that does, exist for fewer than 90 days.
The authorization by which an applicant is permitted to place,
construct, use, or modify wireless telecommunications facilities,
subject to the requirements imposed by the law and the conditions
attached to the issuance of the tower special use permit by the Town
Board.
The Town of Dickinson, New York.
The Town Board of the Town of Dickinson.
A visual environmental assessment form.
A structure or location designed, or intended to be used,
or used to support antennas. It includes without limit, freestanding
towers, guyed towers, monopoles, and similar structures that employ
camouflage technology, including but not limited to structures such
as a church steeple, silo, water tower, sign or other similar structures
intended to mitigate the visual impact of an antenna or the functional
equivalent of such. It is a structure intended for transmitting and/or
receiving radio, television, cellular, paging, personal telecommunications
services, or microwave telecommunications, but excluding those used
exclusively for fire, police or other dispatch telecommunications,
or exclusively for private radio or television reception or exclusively
for private citizen's bands, amateur radio or other similar telecommunications.
In order to ensure that the placement, construction, and modification
of wireless telecommunications facilities conform to the Town's purpose
and intent of this article, the Town Board (acting pursuant to § 274-b
of the Town Law and other applicable provisions) hereby authorizes
the Town Board to grant tower special use permits pursuant to this
article. The Town Board hereby adopts an overall policy with respect
to a tower special use permit for wireless telecommunications facilities
for the express purpose of achieving the following goals:
A.
Implementing an application process for person(s) seeking a tower
special use permit for wireless telecommunications facilities.
B.
Establishing a policy for examining an application for, and issuing
a tower special use permit for, wireless telecommunications facilities
that is both fair and consistent.
C.
Establishing reasonable time frames for granting or not granting
a tower special use permit for wireless telecommunications facilities,
or recertifying or not recertifying, or revoking the tower special
use permit granted under this article.
D.
Promoting and encouraging, wherever possible, the sharing and/or
collocation of wireless telecommunications facilities among service
providers.
E.
Promoting and encouraging, wherever possible, the placement of wireless
telecommunications facilities in such a manner as to cause minimal
disruption to aesthetic considerations of the land, lot, property,
buildings, and other facilities adjacent to, surrounding, and in generally
the same area as the requested location of such wireless telecommunications
facilities.
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 section. The Town Board is the
officially designated agency or body of the community to whom applications
for a special use permit for wireless telecommunications facilities
must be made, and that is authorized to review, analyze, evaluate
and make decisions with respect to granting or not granting, recertifying
or not recertifying, or revoking special use permits for wireless
telecommunications facilities. The Town Board may, at its discretion,
delegate or designate other official agencies of the Town to accept,
review, analyze, evaluate and make recommendations to the Town Board
with respect to the granting or not granting, recertifying or not
recertifying or revoking special use permits for wireless telecommunications
facilities.
B.
An application for a tower special use permit for wireless telecommunications
facilities shall be signed by the applicant (or by a person acting
on behalf of the applicant who has prepared the same and who has knowledge
of the contents and representations made therein), attesting to the
truth and completeness of the information. The owner of the land on
which the wireless telecommunications facilities is proposed to be
located, if different from the applicant, shall also sign the application.
At the discretion of the Town Board, any material false or misleading
statement in the application may subject the applicant to denial of
the application, without further consideration or opportunity for
correction.
C.
Applications not meeting the requirements stated herein or which
are otherwise incomplete, may be rejected by the Board.
D.
The applicant shall include a statement, in writing:
(1)
That the applicant's proposed wireless telecommunications facilities
will be maintained in a safe manner, and in compliance with all conditions
of the tower special use permit, without exception, (unless specifically
granted relief by the Town Board in writing) as well as all applicable
local codes, ordinances, and regulations, and all applicable county,
state and federal statutes, laws, codes, rules, and regulations; and
(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 New York State.
E.
No wireless telecommunications facilities shall be placed, constructed,
used or modified in the Town unless and until a tower special use
permit therefor has been granted by the Town Board pursuant to this
article. No construction or modification of wireless telecommunications
facilities, for which a tower special use permit has been issued,
shall take place unless and until a building permit therefor has been
issued by the Town Building and Code Inspector.
F.
Licensed professional engineer.
(1)
All applications for a tower special use permit for the construction
or installation of new wireless telecommunications facilities shall
be accompanied by a report containing the information hereinafter
set forth, which said report shall be signed by a licensed professional
engineer registered in the state.
(a)
Name, address, and phone number of the person preparing the
report.
(b)
Name, address, and phone number of the property owner, operator
and applicant, including information about the legal status of the
applicant.
(c)
The 911 address and Tax Map parcel number of the property.
(d)
Zoning district or designation in which the property is situated.
(e)
Size of the property stated both in square feet and lot line
dimensions, and diagram showing the location of all lot lines.
(f)
Location of nearest residential structure.
(g)
Location of nearest habitable structure.
(h)
Location and dimensions of all structures currently on the property
and those proposed for the property which is the subject of the application.
(i)
Location and dimensions of all proposed and existing antennas
and all appurtenant structures.
(j)
Type, locations and dimensions of all proposed and existing
landscaping and fencing.
(k)
The number, type and design of the wireless telecommunications
facilities antenna(s) proposed and the basis for the calculations
of the telecommunications tower's capacity to accommodate multiple
users.
(l)
The make, model and manufacturer of the tower and antenna(s).
(m)
A description of the proposed tower and antenna(s) and all related
fixtures, structures, appurtenances and apparatus, including height
above preexisting grade, materials, color and lighting.
(n)
The frequency, modulation and class of service of radio or other
transmitting equipment.
(o)
Transmission and maximum effective radiated power of the antenna(s).
(p)
Direction of maximum lobes and associated radiation of the antenna(s).
(q)
Applicant's proposed tower maintenance and inspection procedures
and related system of records.
(r)
Certification that NIER levels at the proposed site are within
the threshold levels adopted by the FCC, though the certifying engineer
need not be approved by the Board.
(s)
Certification that the proposed antenna(s) will not cause interference
with existing telecommunications devices, though the certifying engineer
need not be approved by the Town Board.
(t)
A copy of the FCC license applicable for the use of the wireless
telecommunications facilities.
(u)
Certification that a topographic and geomorphologic study and
analysis has been conducted, and that taking into account the subsurface
and substrata, and the proposed drainage plan, the site is adequate
to assure the stability of the proposed wireless telecommunications
facilities on the proposed site, though the certifying engineer need
not be approved by the Town Board.
(v)
Propagation studies of the proposed site and all adjoining proposed
or in-service or existing sites.
(w)
Location, layout, and dimensions of off-street parking and loading
facilities; vehicular entry, exit, and circulation on the site and
neighboring roads.
(x)
Grading and drainage plan for the site.
(y)
Type, size and location of all proposed screening, signs and
physical features meant to protect adjacent land uses.
(z)
Applicant shall disclose, in writing, any agreement in existence
prior to submission of the application that would limit or preclude
the ability of the applicant to share any new wireless telecommunications
facilities that it constructs.
(2)
Where this section calls for a certification, such certification
shall be by a qualified New York State licensed professional engineer,
acceptable to the Town Board, unless otherwise noted.
G.
In the case of new wireless telecommunications facilities, the applicant
shall be required to submit a written report demonstrating its efforts
to secure shared use of existing telecommunications tower(s) or use
of existing building or other structures within the Town. Copies of
written requests and responses for shared use shall be provided to
the Town Board.
H.
The applicant shall furnish written certification that the wireless
telecommunications facilities, foundation and attachments both are
designed and constructed ("as-built") to meet all applicable county,
state and federal structural requirements for loads, including wind
and ice loads.
I.
After construction and prior to receiving a certificate of occupancy,
applicant shall furnish written certification that the wireless telecommunications
facilities and related facilities are grounded, bonded so as to protect
persons and property, and installed with appropriate surge protectors.
J.
The applicant shall submit a completed full EAF and a completed visual
EAF addendum. The Town Board may require submission of a more detailed
visual analysis based on the results of the visual EAF addendum. Applicants
are encouraged to seek preapplication meetings with the Town Board
to address the scope of the required visual assessment. The applicant
shall submit a completed environmental impact statement (EIS) if the
same is required by applicable provisions of law.
K.
If requested by the Town Board, the applicant shall furnish a visual
impact assessment which shall include:
(1)
A zone of visibility map which shall be provided in order to determine
locations where the tower may be seen.
(2)
Pictorial representations of before and after views from key viewpoints
both inside and outside of the Town, including but not limited to
state highways and other major roads; state and local parks; other
public lands; 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. If
requested by the applicant, the Town Board, acting in consultation
with its consultants or experts, will provide guidance concerning
the appropriate key sites at a preapplication meeting.
(3)
An assessment of the visual impact of the tower base, guy wires and
accessory buildings from abutting and adjacent properties and streets.
L.
Any and all representations made by applicant to the Town Board,
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 Board.
M.
The applicant shall, in a manner approved by the Town Board, demonstrate
in writing how it will effectively screen from view its proposed wireless
telecommunications facilities base and all related facilities and
structures.
N.
All utilities leading to and away from any wireless telecommunications
facilities site shall be installed in compliance with the New York
State Uniform Fire Prevention and Building Code and shall be installed
underground and in compliance with all applicable ordinances, local
laws, codes, rules and regulations of the Town, including specifically,
but not limited to, the National Electrical Safety Code and the National
Electrical Code, where appropriate. The Town Board may waive or vary
the requirements of undergrounding installation of utilities whenever,
in the opinion of the Town Board, such variance or waiver shall not
be detrimental to the health, safety, general welfare or environment,
including the visual and scenic characteristics of the area.
O.
All wireless telecommunications facilities and accessory facilities
shall be sited so as to have the least practical adverse visual effect
on the environment and its character, and the residences in the area
of the wireless telecommunications facilities site.
P.
Both the wireless telecommunications facilities and accessory facilities
shall maximize use of building materials, colors and textures designed
to blend with the natural surroundings.
Q.
At a telecommunications site, an access road 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 vegetation cutting. Road grades shall closely
follow natural contours to assure minimal visual disturbance and reduce
soil erosion potential.
R.
A person who holds a tower special use permit for wireless telecommunications
facilities shall construct, operate, maintain, repair, modify or restore
the permitted wireless telecommunications facilities in strict compliance
with all current technical, safety and safety-related codes adopted
by the Town, county, state or United States, including but not limited
to the most recent editions of the New York State Uniform Fire Prevention
and Building Code, National Electrical Safety Code and the National
Electrical Code, as well as accepted and responsibly workmanlike industry
practices and recommended practices of the National Association of
Tower Erectors. The codes referred to are codes that include, but
are not limited to, construction, building, electrical, fire, safety,
health and land use codes. In the event of a conflict between or among
any of the preceding, the more stringent shall apply.
S.
A person holding a tower special use permit granted under this article
shall obtain, at his own expense, all permits and licenses required
by applicable law, rule, regulation or law, 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.
T.
Subject to, and in accordance with, the State Environmental Quality
Review Act (SEQRA),[1] the Town Board shall be the lead agency for the purpose
of conducting the environmental review of the application for tower
special use permits. The Town Board shall conduct an integrated, comprehensive
environmental review of the proposed project in combination with its
review of the application under this article.
[1]
Editor's Note: See Environmental Conservation Law § 8-0101
et seq.
U.
An applicant shall submit no fewer than eight copies of the entire
completed application to the Town Board and a copy of the application
to the town boards of all towns which adjoin the Town, any adjacent
municipality, the Broome County Department of Planning and Economic
Development, the Clerk of the Broome County Legislature and the Clerk
of the Tioga County Legislature.
V.
The applicant shall examine the feasibility of designing a proposed
wireless telecommunications facilities to accommodate future demand
for at least two additional commercial applications, for example,
future collocations. The scope of this examination shall be determined
by the Town Board. The wireless telecommunications facilities shall
be structurally designed to accommodate at least two additional antenna
arrays equal to those of the applicant, and located as close to the
applicant's antenna as possible without causing interference. This
requirement may be waived by the Town Board, provided that the applicant,
in writing, demonstrates that the provisions of future shared usage
of the wireless telecommunications facilities is not technologically
feasible, or is commercially impracticable and creates an unnecessary
and unreasonable burden, based upon:
(1)
The foreseeable number of FCC licenses available for the area.
(2)
The kind of wireless telecommunications facilities site and structure
proposed.
(3)
The number of existing and potential licenses without wireless telecommunications
facilities spaces/sites.
(4)
Available space on existing and approved wireless telecommunications
facilities.
W.
The applicant shall submit to the Town Board a letter of intent committing
the owner of the proposed new tower, and his/her successors in interest,
to negotiate in good faith for shared use of the proposed tower by
other telecommunications providers in the future. This letter shall
be filed with the Town Board. Failure to abide by the conditions outlined
in the letter may be grounds for revocation of the special use permit.
The letter shall commit the new tower owner and their successors in
interest to:
(1)
Respond within 60 days to a request for information from a potential
shared-use applicant.
(2)
Negotiate in good faith concerning future requests for shared use
of the new tower by other telecommunications providers.
(3)
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.
X.
Unless waived by the Town Board, there shall be a preapplication
meeting. The purpose of the preapplication meeting will be to address
issues which will help to expedite the review and permitting process.
A preapplication meeting may also include a site visit if required.
Where the application is for the shared use of an existing telecommunications
tower(s) or other high structure, the applicant should seek to waive
any section or subsection of this article that may not be required.
At the preapplication meeting, the waiver requests, if appropriate,
will be decided by the Town Board. Costs of the Town's consultants
to prepare for and attend the preapplication meeting will be borne
by the applicant.
Y.
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.
Z.
If applicable, a stormwater pollution prevention plan consistent with the requirements of Articles I and II of Chapter 476, Stormwater Management and Erosion and Sediment Control, of the Code of the Town of Dickinson shall accompany a special use application for wireless telecommunications facilities. The proposed wireless telecommunications facilities shall be consistent with the requirements of Articles I and II of Chapter 476, Stormwater Management and Erosion and Sediment Control.
[Added 7-9-2007 by L.L. No. 6-2007]
A.
Siting priorities.
(1)
Applicants for tower special use permits for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities or other tall structures in accordance with the following priorities, Subsection A(1)(a) being the highest priority and Subsection A(1)(h) being the lowest priority:
[Amended 5-8-2000 by L.L. No. 5-2000]
(a)
On existing wireless telecommunications facilities or other
tall structures.
(b)
Collocation on a site with existing wireless telecommunications
facilities or structures.
(c)
On any property used for a municipal purpose, such as for a
municipal park, a municipal highway garage, a municipal gavel pit,
a municipal hall, a school, or a school bus garage.
(d)
Within a Highway Interchange Commercial District (H-C) within
the Town.
(e)
Within a Commercial District (C-2) within the Town.
(f)
Within a Commercial District (C-1) within the Town.
(g)
Within a Residential District (R-M) within the Town.
(h)
Within a Residential District (R-2) within the Town.
(i)
Within a Residential District (R-1) within the Town.
(j)
Within any other zoning district within the Town.
(2)
If the proposed property site is not 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.
(3)
An applicant may not bypass sites of higher priority by stating the
site presented is the only site leased or selected. An application
shall address collocation as an option and if such option is not proposed,
the applicant must explain why collocation is commercially impracticable
or otherwise impracticable. Agreements between providers limiting
or prohibiting collocation shall not be a valid basis for any claim
of commercial impracticability or hardship.
B.
The applicant shall submit a written report demonstrating the applicant's
review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If the site selected
is not the highest priority, then a detailed written explanation,
as to why sites of a higher priority were not selected, shall be included
with the application.
C.
The applicant shall, in writing, identify and disclose the number
and locations of any additional sites that the applicant has, is or
will be considering, reviewing or planning for wireless telecommunications
facilities in the Town, and all municipalities adjoining the Town,
for a two-year period following the date of the application.
D.
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Town Board
may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with traffic needs or traffic laws, or definitive plans
for changes in traffic flow or traffic laws;
(3)
Conflict with the historic nature of a neighborhood or historical
district;
(4)
The use or construction of wireless telecommunications facilities
which is contrary to an already stated purpose of a specific zoning
or land use designation;
(5)
The placement and location of wireless telecommunications facilities
which would create an unacceptable risk, or the probability of such,
to residents, the public, employees and agents of the Town, or employees
of the service provider or other service providers; or
(6)
Conflicts with the provisions of the Act or this article.
A.
Shared use of existing wireless telecommunications facilities shall
be preferred by the Town Board, as opposed to the proposed construction
of new wireless telecommunications facilities. Where such shared use
is unavailable, location of antennas on other preexisting structures
shall be considered and preferred. The applicant shall submit a comprehensive
report inventorying existing towers and other appropriate structures
within four miles of any proposed new tower site, unless the applicant
can show that some other distance is more reasonable, and outlining
opportunities for shared use of existing facilities and the use of
other preexisting structures as a preferred alternative to new construction.
An applicant intending to share use of an existing wireless telecommunications
facilities or other tall structure shall be required to document the
intent of the existing owner to share use. In the event of an application
to share the use of existing wireless telecommunications facilities
that does not increase the height of the wireless telecommunications
facilities, the Town Board may waive such requirements of the application
required by this article as may, for good cause, be shown.
B.
Such shared use shall consist only of the minimum antenna array technologically
required to provide service within the Town, to the extent practicable,
unless good cause is shown.
A.
The applicant must submit documentation justifying to the Town Board
the total height of any wireless telecommunications facilities and/or
antenna and the basis therefor. Such justification shall be to provide
appropriate service within the Town, to the extent practicable, unless
good cause is shown.
B.
Wireless telecommunications facilities shall be no higher than the
minimum height necessary. Unless waived by the Town Board upon good
cause shown, the maximum height shall be 110 feet, based on three
collocated antenna arrays and ambient tree height of 80 feet.
C.
The maximum height of any wireless telecommunications facilities
and attached antennas constructed after the effective date of this
article shall not exceed that which shall permit operation without
artificial lighting of any kind or nature, in accordance with municipal,
county, state, and/or any federal statute, law, local law, Town ordinance,
code, rule or regulation.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by applicable provisions of
law.
B.
Wireless telecommunications facilities shall be of a galvanized finish,
or painted with a rust-preventive paint of an appropriate color to
harmonize with the surroundings as approved by the Town Board, and
shall be maintained in accordance with the requirements of this article.
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, and an artist's
rendering or other visual representation showing the effect of light
emanating from the site on neighboring habitable structures within
1,500 feet of all property of the lot on which the wireless telecommunications
facilities are located.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner which prevents
unauthorized access. Specifically:
A.
All antennas, towers and other supporting structures, including guy
wires, shall be made inaccessible to individuals and constructed or
shielded in such a manner that they cannot be climbed or run into;
and
B.
Transmitters and telecommunications control points must be installed
such that they are readily accessible only to persons authorized to
operate or service them.
Wireless telecommunications facilities shall contain a sign
no larger than four square feet in area to provide adequate notification
to persons in the immediate area of the presence of an antenna that
has transmission capabilities. The sign shall 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 located so as to be visible from
the access point of the site. The sign shall not be lighted unless
the Town Board shall have allowed such lighting or unless such lighting
is required by applicable provisions of law. No other signage, including
advertising, shall be permitted on any antennas, antenna supporting
structures or antenna towers, unless required by law.
A.
All proposed wireless telecommunications facilities shall be set
back from abutting parcels, recorded rights-of-way and road and street
lines a distance sufficient to substantially contain on site all ice-fall
or debris from a tower or tower failure, and to preserve the privacy
of any adjoining properties.
B.
Wireless telecommunications facilities shall be located with a minimum
setback from any property line a distance equal to the height of the
wireless telecommunications facilities or the existing setback requirement
of the underlying zoning district, whichever is greater. Further,
any accessory structure shall be located so as to comply with the
applicable minimum zoning district setback requirements for the property
on which it is situated.
A.
The Board may hire any consultant and/or expert necessary to assist
the Town Board in reviewing and evaluating the application and any
requests for recertification.
B.
An applicant shall deposit with the Town funds sufficient to reimburse
the Town for all reasonable costs of consultant and expert evaluation
and consultation to the Town Board in connection with the review of
any application. The initial deposit shall be $3,500. These funds
shall accompany the filing of an application and the Town shall maintain
a separate escrow account for all such funds. The Town's consultants/experts
shall, in accordance with an agreement between the Town and its consultants
or experts, bill or invoice the Town no less frequently than monthly
for its services in reviewing the application and performing its duties.
If at any time during the review process this escrow account has a
balance less than $1,500, the applicant shall immediately, upon notification
by the Town, replenish said escrow account so that it has a balance
of at least $2,500. Such additional escrow funds must be deposited
with the Town before any further action or consideration is taken
on the application. If, at the conclusion of the review process, the
cost of such consultant/expert services is more than the amount escrowed
pursuant hereto, the applicant shall pay the difference to the Town
prior to the issuance of any tower special use permit. In the event
that the amount held in escrow by the Town is more than the amount
of the actual billing or invoicing by the Town's consultants or experts,
the difference shall be promptly refunded to the applicant.
C.
The total amount of the funds set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed by the Town Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as required and requested by the Town, shall be paid by the applicant. The initial amount of the escrow deposit shall be established at a preapplication meeting with the Town Board. Notice of the hiring of a consultant/expert shall be given to the applicant at or before this meeting.
A.
No person shall site, place, build, construct, modify, prepare, use
or repair any site for the placement or use of wireless telecommunications
facilities in the Town on or after the effective date of this article
without having first obtained hereunder a tower special use permit
for wireless telecommunications facilities. Notwithstanding anything
to the contrary in this section, no tower special use permit shall
be required for those towers used exclusively for fire, police or
other dispatch telecommunications, or exclusively for private radio
or television reception or exclusively for private citizen's bands,
amateur radio or other similar telecommunications.
B.
New construction, including routine maintenance on an existing wireless
telecommunications facilities, shall comply with the requirements
of this article.
C.
All wireless telecommunications facilities existing on or before
the effective date of this article shall be allowed to continue as
they presently exist; provided, however, that any modification, enlargement
or extension of existing wireless telecommunications facilities must
comply with this article.
A.
Prior to the approval of any application for a tower special use
permit for wireless telecommunications facilities, a public hearing
shall be held by the Town Board, notice of which shall be published
in the official newspaper of the Town no less than 10 days prior to
the scheduled date of the public hearing. In order that the Town may
notify nearby landowners, the applicant, at least three weeks prior
to the date of said public hearing, shall provide to the Town Board
the names and address of all landowners whose property is located
within 1,500 feet of any property line of the lot on which the new
wireless telecommunications facilities are proposed to be located.
A.
The Town Board shall, in accordance with the Act, undertake a review
of an application pursuant to this article 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 Board may refer any application or part thereof to any Town
advisory committee or other Town committee for a nonbinding recommendation.
C.
Except for necessary building permits, and subsequent certificates
of occupancy, once a tower 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 tower special use permit.
D.
After the public hearing and after formally considering the application,
the Town Board may approve and issue, or deny a tower special use
permit. Its decision shall be in writing and shall be supported by
substantial evidence contained in a written record. The burden of
proof for the grant of the permit shall always be upon the applicant.
E.
If the Town Board approves the tower 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 Board's
action, and the tower special use permit shall be issued within 30
days after such approval.
F.
If the Town Board denies the tower 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 Board's
action.
G.
The Town Board shall have the authority to impose such reasonable
conditions and restrictions as are directly related to and incidental
to the proposed tower special use permit. Upon its granting of such
tower special use permit for wireless telecommunications facilities,
any such conditions and restrictions must be met in connection with
the issuance of a building permit and any other required permits by
applicable enforcement officials of the Town.
A.
Request.
(1)
At any time between 12 months and six months prior to the five-year
anniversary date after the effect date of the tower special use permit
and all subsequent fifth anniversaries of the effective date of the
original tower special use permit for wireless telecommunications
facilities, the holder of a tower special use permit for such wireless
telecommunications facilities shall submit a signed written request
to the Town Board for recertification. In the written request for
recertification, the holder of such tower special use permit shall
include the following information:
(a)
The name of the holder of the tower special use permit for the
wireless telecommunications facilities;
(b)
If applicable, the number or title of the tower special use
permit;
(c)
The date of the original granting of the tower special use permit;
(d)
Whether the wireless telecommunications facilities has been
moved, relocated, rebuilt, repaired or otherwise modified since the
issuance of the tower special use permit;
(e)
If the wireless telecommunications facilities has been moved,
relocated, rebuilt, repaired, or otherwise modified, then whether
the Town Board approved such action, and under what terms and conditions,
and whether those terms and conditions were complied with;
(f)
Any requests for waivers or relief of any kind whatsoever from
the requirements of this article and any requirements for a tower
special use permit; and
(g)
A statement that the wireless telecommunications facilities
are in compliance with the tower special use permit and are in compliance
with all applicable statutes, laws, local laws, ordinances, codes,
rules and regulations.
(2)
Such recertification shall be by a qualified New York State licensed
professional engineer acceptable to the Town, and the costs thereof
shall be borne by the applicant.
B.
If, after such review, the Town Board determines that the permitted
wireless telecommunications facilities are in compliance with the
tower special use permit and all applicable statutes, laws, local
laws, ordinances, codes, rules and regulations, then the Town Board
shall issue a recertification tower special use permit for the wireless
telecommunications facilities, which may include any new provisions
or conditions that are mutually agreed upon, or required by applicable
statutes, laws, local laws, ordinances, codes, rules and regulations.
If, after such review, the Town Board determines that the permitted
wireless telecommunications facilities are not in compliance with
the tower special use permit and all applicable statutes, local laws,
ordinances, codes, rules and regulations, then the Town Board may
refuse to issue a recertification tower special use permit for the
wireless telecommunications facilities, and in such event, such wireless
telecommunications facilities shall not be used after the date that
the applicant receives written notice of such decision by the Town
Board. Any such decision shall be in writing and supported by substantial
evidence contained in a written record.
C.
If the Town Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the tower special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the tower special use permit for up to six months, in order for the Town Board to complete its review.
D.
If the holder of a tower special use permit for wireless telecommunications facilities does not submit a request for recertification of such tower special use permit within the time frame noted in Subsection A of this section, then such tower special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the tower special use permit, or subsequent fifth anniversaries, unless the holder of the tower special use permit adequately demonstrates to the Town Board that extenuating circumstances prevented a timely recertification request. If the Town Board agrees that there were legitimately extenuating circumstances, then the holder of the tower special use permit may submit a late recertification request under terms agreeable to the Town Board.
The extent and parameters of a tower special use permit for
wireless telecommunications facilities shall be as follows:
A.
Such tower special use permit shall be nonexclusive.
B.
Such tower special use permit shall not be assigned, transferred
or conveyed without the express prior written consent of the Town
Board, and such consent shall not be unreasonably withheld or delayed.
C.
Such tower 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 tower special use
permit for wireless telecommunications facilities, or for a material
violation of this article after prior written notice to the applicant
and the holder of the tower special use permit.
A.
Application fees for tower special use permits for new wireless telecommunication
facilities and for collocating on an existing telecommunication tower
or high structure shall be as set forth from time to time by resolution
of the Town Board.[1]
B.
No application fee is required in order to recertify a tower special use permit for wireless telecommunications facilities, unless there has been a modification of the wireless telecommunications facilities since the date of the issuance of the existing tower special use permit. In the case of any modification, the fees provided in Subsection A shall apply.
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 the amount of $75,000 and
with such sureties as are deemed sufficient by the Town Board to assure
the faithful performance of the terms and conditions of this article
and conditions of any tower special use permit issued pursuant to
this article. The full amount of the bond or security shall remain
in full force and effect throughout the term of the tower special
use permit and/or until the removal of the wireless telecommunications
facilities, and any necessary site restoration is completed. The failure
by applicant to pay any annual premium for the renewal of any such
security shall be a violation of the provisions of the tower special
use permit and shall entitle the Town Board to revoke the tower special
use permit after prior written notice to the applicant and holder
of the tower special use permit, and after a hearing upon due prior
notice to the applicant and holder of the tower special use permit.
A.
In order to verify that the holder of a tower special use permit
for wireless telecommunications facilities and any and all lessees,
renters, and/or licensees of wireless telecommunications facilities
place, maintain, construct, modify and use such facilities, including
towers and antennas, in accordance with all applicable technical,
safety, fire, building and zoning codes, laws, ordinances and regulations
and other applicable requirements, the Town, and its consultants or
experts, may inspect all facets of said permit holder's, renter's,
lessee's or licensee's placement, construction, modification, maintenance
and use of such facilities, including, but not limited to towers,
antennas and buildings or other structures constructed or located
on the permitted site. If requested by the Town, the holder of the
tower special use permit shall assist the Town and its consultants
and experts in obtaining access to the site.
B.
The Town shall pay for costs associated with such an inspection,
except for those circumstances occasioned by said holder's, lessee's
or licensee's refusal to provide necessary information or necessary
access to such facilities, including towers, antennas and appurtenant
or associated facilities, or refusal to otherwise cooperate with the
Town with respect to an inspection, or if violations of this article
are found to exist, in which case the holder, lessee or licensee shall
reimburse the Town for the cost of the inspection.
C.
Payment of such costs shall be made to the Town within 30 days from
the date of the invoice or other demand for reimbursement. In the
event that the finding(s) of violation is/are appealed in accordance
with the procedures set forth in this article, said reimbursement
payment must still be paid to the Town and the reimbursement shall
be placed in an escrow account established by the Town specifically
for this purpose, pending the final decision on appeal.
The holder of the tower special use permit shall, annually,
certify in writing to the Town that NIER levels at the site are within
the threshold levels adopted by the FCC. (The certifying engineer
need not be approved by the Town.)
A.
A holder of a tower 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 tower special use permit
in the minimum amounts set forth below:
(1)
Commercial general liability covering personal injuries, death and
property damage: $2,000,000 per occurrence/$6,000,000 aggregate.
(2)
Automobile coverage: $2,000,000 per occurrence/$6,000,000 aggregate.
(3)
Excess liability: $1,000,000.
(4)
Workers compensation and disability insurance in accordance with
applicable statutory amounts.
B.
The commercial general liability insurance policy and excess liability
policy shall specifically include the Town and its officers, boards,
employees, committee members, attorneys, agents and consultants as
additional named insureds.
C.
The insurance policies shall be issued by an insurance company licensed
to do business in the state and with a Best's rating of at least A.
D.
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
which such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications facilities
is initiated, but in no case later than 15 days after the grant of
the tower special use permit, the holder of the tower 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 tower special use permit issued pursuant to this article shall
contain a provision with respect to indemnification. Such provision
shall require the holder of the tower special use permit, 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 a wireless telecommunications facilities
within the Town. With respect to the penalties, damages or charges
referenced herein, reasonable attorneys' fees, consultants' fees and
expert witness fees are included in those costs that are recoverable
by the Town. The holder of the tower special use permit shall not
be obligated to provide such indemnification in the case of any claims,
suits, demands, cause of action or award of damages which arise solely
as a result of the negligence or intentional acts or actions of the
Town or its officials, boards, employees, committee members, attorneys,
agents or consultants.
A.
For a violation of this article or any provision, term or condition of a tower special use permit issued pursuant to this article, the provisions of § 600-45 of this chapter shall be applicable.
B.
Notwithstanding anything in this article, the holder of the tower
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 article or any section of this
article. An attempt to do so shall subject the holder of the tower
special use permit to termination and revocation of the tower special
use permit, after prior written notice to the applicant and holder
of the tower special use permit and after a hearing upon due prior
notice to the applicant and holder. The Town may also seek injunctive
relief to prevent the continued violation of this article.
A.
If wireless telecommunications facilities are used, operated, repaired,
rebuilt, placed, moved, relocated, modified or maintained in a way
that is inconsistent or not in compliance with the provisions of this
article or of the tower special use permit, then the Town Board shall
notify the holder of the tower special use permit in writing of such
violation. Such notice shall specify the nature of the violation or
noncompliance and that the violations must be corrected within seven
days of the date of the postmark of the notice, or of the date of
personal service of the notice, whichever is earlier. Notwithstanding
anything to the contrary in this subsection or any other section of
this article, if the violation causes, creates or presents an imminent
danger or threat to the health or safety of lives or property, the
Town Board may, at its sole discretion, order the violation remedied
within 24 hours.
B.
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this article, or of the tower special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Town Board may revoke such tower special use permit for the wireless telecommunications facilities, and shall notify the holder of the tower special use permit in writing within 48 hours of such action, and the reasons for such action. The holder of the tower special use permit shall not thereafter use or operate the wireless telecommunications facilities until such time as the tower special use permit has been restored.
A.
Under the following circumstances, the Town Board 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 90 consecutive days or a total of 180 days in any three-hundred-sixty-five-day
period, except for periods caused by a superior or irresistible force
or acts of God, in which case, repair or removal shall commence within
90 days after notification from the Town;
(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 placed, located,
constructed or modified without the prior granting of the required
tower special use permit, or any other necessary authorization.
B.
If the Town Board makes such a determination as noted in Subsection A of this section, then the Town Board shall notify the holder of the tower special use permit for the wireless telecommunications facilities in writing within 48 hours that said wireless telecommunications facilities are to be removed at the cost and expense of the holder of said permit. The Town Board may approve an interim temporary tower special use permit, so as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the tower special use permit, at its cost and expense,
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 Board. 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 Board.
D.
If the 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 such
notice, then the Town Board may order officials or representatives
of the Town to remove the wireless telecommunications facilities at
the sole cost and expense of the owner or permit holder.
E.
If the Town removes, or cause to be removed, wireless telecommunications
facilities, and the owner of the wireless telecommunications facilities
does not claim and remove them from the site to a lawful location
within 10 days following receipt of written notice from the Town Board,
then the Town may take steps to declare the wireless telecommunications
facilities abandoned, and cause them to be removed at the expense
of the owner or special permit holder, and sell them and their components.
F.
Notwithstanding anything in § 600-80 to the contrary, the Town Board may approve a temporary special use permit 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 permit, subject to the approval of the Town Board, and an agreement to comply with such plan shall be executed by the holder of the 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 Subsection E hereof.
Any applicant desiring relief or exemption from any aspect or
requirement of this article may request such from the Town Board at
a preapplication meeting, provided that the relief or exemption is
contained in the original application for either a tower special use
permit, or in the case of an existing or previously granted tower
special use permit, a request for modification of its tower and/or
facilities. Such relief may be temporary or permanent, partial or
complete, at the sole discretion of the Town Board. However, the burden
of proving the need for the requested relief or exemption, is solely
on the applicant to prove to the satisfaction of the Town Board. The
applicant shall bear all costs of the Town Board or the Town in considering
the request and the relief shall not be transferable to a new or different
holder of the permit or owner of the tower or facilities without the
express prior written permission of the Town Board, and such permission
shall not be unreasonably withheld or delayed. No such relief or exemption
shall be approved unless the applicant demonstrates by clear and convincing
evidence that, if granted, the relief or exemption will have no significant
adverse effect on the health, safety and welfare of the Town, its
residents and other service providers.
A.
The Town Board may at any time conduct a review and examination of
this entire article.
B.
If after such a periodic review and examination of this article,
the Town Board determines that one or more provisions of this article
should be amended, repealed, revised, clarified or deleted, then the
Town Board may take whatever measures are necessary in accordance
with applicable law in order to accomplish the same. It is noted that
where warranted, and in the best interests of the Town, the Town Board
may, consistent with applicable provisions of law, amend, revise,
clarify or delete any part of this article or repeal the entire article.
A.
To the extent that the holder of a tower 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 tower 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 tower special use permit for wireless telecommunications
facilities, then the holder of such a tower special use permit shall
conform the permitted wireless telecommunications facilities to the
applicable changed and/or modified rule, regulation, standard or provision
within a maximum of 24 months of the effective date of the applicable
changed and/or modified rule, regulation, standard or provision, or
sooner as may be required by the issuing entity.
Where this article differs or conflicts with other statutes,
local laws, ordinances, codes, rules or regulations, unless the right
to do so is preempted or prohibited by the county, state or federal
government, the more restrictive or protective of the Town and the
public shall apply.
