[HISTORY: Adopted by the Town Board of the Town of Colonie 11-5-2009 by L.L. No.
12-2009. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Wireless
Telecommunications Facilities Siting Law."
The Telecommunications Act of 1996 affirmed the Town of Colonie's
authority to make reasonable, nondiscriminatory decisions concerning
the placement, construction and modification of wireless telecommunications
facilities. The Town of Colonie 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. It is
the purpose of this chapter to accommodate the communications needs
of residents and businesses consistent with the applicable federal
and state laws and regulations, while protecting the health, safety
and general welfare of the residents of the Town by facilitating the
provision of wireless telecommunications and other communication services
to the residents and businesses of the Town while simultaneously preserving
the character, appearance, aesthetic resources, environmental features
and property value of the Town by:
A.
Requiring a wireless telecommunications special use permit for any
new, co-location or modification of a wireless telecommunications
facility;
B.
Implementing a fair, consistent and efficient application process
for persons seeking a wireless telecommunications special use permit;
C.
Promoting and encouraging, wherever possible, the sharing and/or
co-location of wireless telecommunications facilities among service
providers;
D.
Promoting and encouraging, wherever possible, the placement, height
and visual quality of wireless telecommunications facilities in such
a manner as 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; and
E.
Assuring an integrated, comprehensive review of environmental impacts
of such facilities.
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 prescribed 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 wireless telecommunications 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 Board.
For purposes of this chapter, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meaning given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
An ancillary facility or ancillary 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.
A system of electrical conductors or apparatus that transmits
and/or receives electromagnetic waves or radio frequency or other
wireless signals.
Any wireless service provider submitting an application for
a wireless telecommunications special use permit for wireless telecommunications
facilities.
All necessary and appropriate documentation that an applicant
submits in order to receive a wireless telecommunications special
use permit for wireless telecommunications facilities.
The Zoning Board of Appeals of the Town of Colonie, New York.
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 the old tower is removed in a reasonably short time frame after
the new tower is constructed.
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 commercially impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
In reference to a tower or structure, the vertical 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
lightning protection device.
The addition, removal or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernable
components, vehicular access, parking and/or an upgrade or 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. A modification shall not
include the replacement of any components of a wireless facility where
the replacement is identical to the component being replaced or the
normal repair and maintenance of a wireless facility without adding,
removing or changing any visually discernable components or aspects
of a wireless facility.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest, or any other entity.
Has the same meaning as defined and used in the 1996 telecommunications
Act.
The State of New York.
Use of design, materials and placement of facilities 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.
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
See definition for "wireless telecommunications facilities."
Temporary in relation to all aspects and components of this
chapter, something intended not to, or that does not, exist for more
than 90 days.
Any structure designed primarily to support one or more antennas
or the functional equivalent of such for receiving and/or transmitting
a wireless signal.
A structure, facility or location designed, or intended to
be used as, or used to support antennas or other transmitting or receiving
devices for transmitting and/or receiving radio, television, cellular,
specialized mobile radio (SMR), paging, 911, personal communications
services (PCS), commercial satellite services, microwave services
and any commercial wireless telecommunication service not licensed
by the FCC. "Wireless telecommunications facilities" means and includes
a telecommunications site. Wireless telecommunications facilities
include, without limit, towers of all types and kinds and structures,
including, but not limited to, buildings, steeples, silos, water towers,
signs or other structures that can be used as a support structure
for antennas or the functional equivalent of such. Wireless telecommunications
facilities further include all related facilities and equipment such
as cabling, equipment shelters and other structures associated with
the site. The following are excluded from the meaning of wireless
telecommunications facilities:
Over-the-air reception devices including the reception antennas
for direct broadcast satellites (DBS), multichannel multipoint distribution
(wireless cable) providers (MMDS), television or radio broadcast stations
and other customer-end antennas that receive and transmit fixed wireless
signals that are primarily used for reception.
Facilities exclusively for private, noncommercial radio and
television reception and private citizen's bands, licensed amateur
radio and other similar noncommercial telecommunications.
The initial written authorization, or renewal thereof, issued
by the Board in accordance with the provisions of this chapter, for
the right and authority to install, construct, maintain, operate or
modify a wireless telecommunications facility, and/or to file for
a building permit if required therefor.
A.
Except as otherwise provided by this chapter, 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 wireless telecommunications special use permit.
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.
Applicants for a wireless telecommunications special use permit for
a new tower must also obtain site plan approval pursuant to Article
XI of the Colonie Land Use Law.[1] All applications for such site plan approval shall be considered major site plan review applications, and the site plan requirements for such applications shall be as described in § 189-7C of this chapter. Once a wireless telecommunications special use permit for a new tower has been granted hereunder and a site plan approval has been issued pursuant to Article XI of the Colonie Land Use Law, the applicant may apply for any necessary building permits, and subsequent certificates of compliance.
D.
Once a wireless telecommunications special use permit for other than
a new tower 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 wireless telecommunications facilities covered by
the wireless telecommunications special use permit, except for any
necessary building permits, and subsequent certificates of compliance.
The following shall be exempt from this chapter:
A.
Wireless communications facilities owned or leased by the federal
government, state, Town, or a special district within the Town, except
for any part or component of the wireless communications facilities,
including but not limited to an antennae or an accessory structure,
which is not owned or operated by the federal government, state, Town,
or a special district within the Town.
B.
Any repair and maintenance of a wireless telecommunications facility
consisting of the replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or involving the normal repair and maintenance of a wireless facility
without the addition, removal or change of any of the physical or
visually discernable components or aspects of a wireless facility
that will add to the visible appearance of the facility as originally
permitted.
C.
Any facilities expressly exempt from the Town's siting, building
and permitting authority.
D.
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.
Procedure.
(1)
An application for zoning verification must be made to the Building
Department as provided in Article III of the Colonie Land Use Law.[1] No application for a wireless telecommunications special use permit shall be accepted by the Building Department unless an approved zoning verification is issued by the Building Department. At the time of such application, the applicant shall deposit funds with the Town to be placed in escrow pursuant to § 189-15 of this chapter.
(2)
All applicants for a wireless telecommunications special use permit
for wireless telecommunications facilities or any modification of
such facility shall comply with the requirements set forth in this
chapter.
(3)
The Board is the officially designated agency or body of the Town
that is authorized to review, analyze, evaluate and make decisions
with respect to granting or not granting or revoking wireless telecommunications
special use permits for wireless telecommunications facilities. The
Board may at its discretion delegate or designate other consultants,
official agencies or officials of the Board to accept, review, analyze,
evaluate and make recommendations to the Board with respect to granting
or not granting or revoking wireless telecommunications special use
permits for wireless telecommunications facilities.
(4)
An applicant shall submit to the Town the number of completed applications
that the Town of Colonie Building Department determines are needed
for review by the Board and Town. Applications shall be submitted
to the Town of Colonie Building Department.
(5)
The Town may reject applications not meeting the requirements stated
herein or which are otherwise incomplete.
(6)
Written notification of the application shall be provided to the
legislative body or other appropriate board of all adjacent municipalities
as applicable and/or requested.
(7)
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 may consist of a
conference call, in-person meeting and/or a site visit. Costs of the
Town's consultants to prepare for and attend the preapplication
meeting will be borne by the applicant.
(8)
In the case of a new telecommunications tower, in order to better
inform the public, the applicant shall, prior to the public hearing
on the application, hold a "balloon test." The applicant shall arrange
to fly, or raise upon a temporary mast, a minimum of a three-foot
in diameter brightly colored balloon at the maximum height of the
proposed new tower. The dates (including a second date, in case of
poor visibility on the initial date), times and location of this balloon
test shall be advertised by the applicant seven and 14 days in advance
of the first test date in a newspaper with a general circulation in
the Town. The applicant shall inform the Town, in writing, of the
dates and times of the test, at least 14 days in advance. The balloon
shall be flown for at least four consecutive hours 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.
(9)
The Board shall conduct an environmental review of the proposed project
pursuant to SEQRA in combination with its review of the application.
(10)
Prior to the approval of any application for a wireless telecommunications
special use permit for wireless telecommunications facilities, a public
hearing shall be held by the Board, notice of which shall be published
in accordance with New York State law.
[Amended 4-11-2013 by L.L. No.
8-2013]
(a)
The applicant shall provide written notice of the public hearing
to all owners whose properties are located partially or wholly within
a one-thousand-foot distance from the perimeter of the subject parcel(s)
on which the new wireless telecommunications facilities are proposed
to be located.
(b)
The notice of public hearing shall contain, at a minimum, the
name of the applicant, the subject parcel address, a brief description
of the proposed installation, construction or modification, and the
date, time and place of the hearing. Notices must also contain the
following statement: "Landlords are strongly encouraged to notify
tenants of the contents of this notice."
(c)
The notice of public hearing must be mailed at least 10 days
or personally delivered at least five days before the scheduled date
of the public hearing. Notices may be personally delivered or sent
by regular mail. If a notice is undeliverable by the United States
Postal Service or delivery is refused by the addressee, no further
notification efforts for such addressee are required by the applicant.
(d)
The applicant must also place placards provided by the Town
on the subject parcel(s).
(e)
The applicant shall submit the following proof of notification
to the Building Department at least two business days prior to the
scheduled date of the public hearing:
[1]
A copy of a portion of the Tax Map depicting the subject parcel(s)
and all lands which are located partially or wholly within a one-thousand-foot
distance from the perimeter thereof.
[2]
A schedule of the names and addresses of the property owners
whose parcels are located partially or wholly within a one-thousand-foot
distance from the perimeter of the subject parcel(s).
[3]
A sworn affidavit of delivery and posting of notices demonstrating
that written notice of the public hearing was provided to all owners
whose parcels are located partially or wholly within a one-thousand-foot
distance from the perimeter of the subject parcel(s). This affidavit
shall list the addresses of owners to whom notice was mailed or personally
delivered, and attach copies of all written notices and a map showing
where placards were posted.
(11)
The Town shall schedule the public hearing referred to in § 189-7A(10) of this chapter once it finds the application is complete. The Town, at any stage prior to issuing a wireless telecommunications special use permit, may require such additional information as it deems necessary for a complete application pursuant to this chapter.
(12)
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.
(13)
The Town may refer any application or part thereof to any consultant,
committee or other person or entity for a nonbinding recommendation.
(14)
After the public hearing and after formally considering the
application, the Board may approve, approve with conditions, or deny
a wireless telecommunications special use permit. The Board's
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.
(15)
If the Town approves the wireless telecommunications 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 wireless telecommunications special
use permit shall be issued within 30 days after such approval.
(16)
If the Town denies the wireless telecommunications 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.
B.
General requirements.
(1)
A holder of a wireless telecommunications 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.
(2)
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 federal
government, including but not limited to the most recent editions
of the 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.
(3)
All utilities at a wireless telecommunications facilities site shall
be installed underground whenever possible and in compliance with
applicable laws, rules and regulations, including specifically, but
not limited to, the National Electrical Safety Code and the National
Electrical Code.
(4)
At any wireless telecommunications facility 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.
(5)
The holder of a wireless telecommunications special use permit shall
notify the Town of any intended modification of a wireless telecommunications
facility and shall apply to the Town to modify, relocate or rebuild
a wireless telecommunications facility.
(6)
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 provisions of future shared usage of the tower
are not technologically feasible, are commercially impracticable or
create 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.
(7)
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.
(d)
Failure to abide by the conditions outlined above may be grounds
for revocation of the wireless telecommunications special use permit.
(8)
Where a certification is called for in this chapter, such certification
shall bear the signature and seal of a registered professional licensed
in the state.
(9)
An application for a wireless telecommunications 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.
C.
Submission requirements. In addition to all other application requirements
as stated in this chapter, all applications for the construction or
installation of new wireless telecommunications facilities or modification
of an existing wireless telecommunications facility shall contain
the following:
(1)
Names, addresses, phone and fax numbers of the following involved
parties, as appropriate:
(a)
The person(s) preparing the application;
(b)
The landowner of the project site to be purchased, leased or
otherwise acquired;
(c)
The owner of a tower, building or structure on which co-location
is proposed, if the owner is not the applicant;
(d)
The applicant, including the applicant's legal name;
(e)
Engineering consultant(s);
(f)
Legal representative(s); and
(g)
Other authorized service providers proposing to co-locate on
the wireless telecommunications facility.
(2)
The postal address and tax map parcel number of the property.
(3)
Documentation to verify it has the right to proceed as proposed on
the site. This requires 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.
(4)
The zoning district or designation in which the property is situated.
(5)
A statement in writing:
(a)
That the applicant's proposed wireless telecommunications
facilities shall be maintained in a safe manner, and in compliance
with all conditions of the wireless telecommunications special use
permit, without exception, unless specifically granted relief by the
Town in writing, as well as all applicable and permissible local codes,
ordinances, and regulations, including any and all applicable Town,
state and federal laws, rules, and regulations;
(b)
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.
(6)
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.
(7)
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, include an analysis of current and projected usage.
(8)
For all applications, a certified site plan, accurately drawn to
scale, containing the following information:
(a)
Title block including name of project, name of applicant, name
of map preparer, and address of the property.
(b)
Small-scale location and zoning map at a scale of one inch equals
2,000 feet; location map shall be oriented the same as the site plan.
(c)
North arrow.
(d)
Existing zoning district, with district boundaries within 300
feet of the site.
(e)
Existing vegetation, watercourses and other natural features.
(f)
Names of all adjoining property owners.
(g)
Existing use of all adjoining properties.
(h)
Location and names of existing adjacent streets.
(i)
Boundary line of property, including any interior lot lines.
(j)
Size of the property in square feet.
(k)
Location, size and height of all existing structures on the
property.
(l)
Existing structures, utilities and site improvements on and
within 100 feet of the site.
(m)
The location of nearest residential structure.
(n)
Existing parking, circulation, storage, service and display
areas, with number of parking spaces.
(o)
Type, locations and dimensions of all existing landscaping and
fencing.
(p)
Location of any proposed tower and antenna(s) and all related
fixtures, structures, appurtenances and apparatus, including height
above preexisting grade, materials, color and lighting.
(q)
Azimuth, size and center-line height location of all proposed
and existing antennas on the supporting structure.
(9)
For all applications for a new tower, the following additional site
plan information:
(a)
Proposed buildings and other improvements (with building and
setback dimensions).
(b)
Existing and proposed utilities, including lateral locations,
sizes and connection points.
(c)
The location, size and height of all proposed structures on
the property.
(d)
The type, locations and dimensions of all proposed landscaping,
vegetation and fencing.
(e)
Proposed clearing and grading limits.
(f)
Proposed parking, circulation, storage, service and display
areas, with number of parking spaces.
(g)
Existing/proposed easements.
(h)
Existing and proposed site coverage statistics (building area,
paved area, and green area in square feet and as a percentage of the
total site area).
(i)
The following standard notes:
[1]
The applicant shall comply with all applicable federal, state
and local laws, rules and regulations, including but not limited to
the State Environmental Quality Review Act (SEQR), freshwater wetlands
permit regulations, the Town's grading, floodplain management,
and protected watercourse area management regulations.
[2]
The applicant shall bear the sole responsibility for ensuring
that all improvements are completed and maintained in accordance with
approved plans, specifications and standards.
[3]
No certificate of compliance shall be issued until all required
improvements are satisfactorily completed, and the Planning and Economic
Development Department has issued written authorization to the Building
Department.
[4]
The applicant shall be responsible for keeping existing public
highways and adjacent lands free of debris, soil and other matter
which may accumulate due to construction related to the site.
[5]
All plant materials installed pursuant to this site development
plan shall conform to the American Standard Nursery Stock (ANSI Z60.1-1986)
of the American Association of Nurserymen or equivalent recognized
standard and shall be installed and maintained in accordance with
accepted industry practice.
[6]
No portion of this site shall be used for storage or display
of any product or material, or for parking of any vehicles, or for
the conduct of any other business operations, unless specifically
designated for such use on this site development plan.
[7]
All required erosion control measures shall be installed in
accordance with the New York State Standards and Specifications for
Erosion and Sediment Control.
(j)
A three-inch-by-three-inch block for site plan approval stamp
(at lower right side of plan).
(10)
The number, type and model of the antenna(s) proposed with a
copy of the specification sheet.
(11)
The make, model, type and manufacturer of the tower and design
plan stating the tower's capacity to accommodate multiple users.
(12)
Construction plans showing the elevation of the proposed wireless
telecommunications facility, tower, antennae, and/or accessory facilities
or structures. Show all foundations, piers, structural supports, cross
arms, guy wires and anchors, antenna-mounting mechanisms, lighting
and signage. Label the size, material and color sample of wireless
telecommunications facilities, towers, antennas, and accessory facilities
or structures, including but not limited to equipment cabinets, fencing
and storage.
(13)
The frequency, modulation and class of service of radio or other
transmitting equipment.
(14)
The actual intended transmission power stated as the maximum
effective radiated power (ERP) in watts.
(15)
Signed documentation such as the FCC's "Optional Checklist
for Local Government 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 regulations (NIER). If not categorically
excluded, a complete RF emissions study is required to verify compliance
with FCC emissions regulations.
(16)
A copy of the FCC license applicable for the intended use of
the wireless telecommunications facilities.
(17)
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.
(18)
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. If lighting is required by law or regulation, 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.
(19)
Certification with documentation (structural analysis) including
calculations that the wireless 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. To protect municipal services, any tower located on Town
property must be designed to withstand one-hundred-mile-per-hour winds
and one inch of radial ice.
(20)
Documentation demonstrating that the facility will be sited
so as to minimize visual intrusion as much as possible, given the
facts and circumstances involved and will thereby have the least adverse
visual effect practicable on the environment and its character and
on the residences in the area of the wireless telecommunications facility.
(21)
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:
(a)
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 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.
(b)
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.
(c)
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.
(d)
The applicant shall demonstrate and provide in writting 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.
(22)
In the case of an application for a new tower, 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.
(23)
In the case of an application for a co-location or modification
of 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.
A.
Applicants for wireless telecommunications facilities shall locate,
site and erect said wireless telecommunications facilities in accordance
with the following priorities, one being the highest priority and
nine 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 Town-owned properties.
(4)
A new tower on properties in the Industrial District.
(5)
A new tower on properties in the Airport Business Area District.
(6)
A new tower on properties in the Commercial Office District.
(7)
A new tower on properties in the Highway Commercial Office Residential
District, the Commercial Office Residential District, or Neighborhood
Commercial Office Residential District.
(8)
A new tower on properties in the Office Residential District.
(9)
A new tower on properties in the Multifamily Residential District.
(10)
A new tower on properties in the Single-Family Residential District.
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 or site;
(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 shall prefer locating on existing towers or other structures
without increasing the height, as opposed to the construction of a
new tower. 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.
Any tower, including any attachments to such tower, constructed after
the effective date of this chapter, shall be designed and sited so
as not to exceed the height at which artificial lighting is required
by federal, state or Town law, code, rule or regulation.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by federal or state law, rule
or regulation.
B.
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.
C.
Towers shall be galvanized and/or painted with a rust-preventive
paint of an appropriate color to harmonize with the surroundings,
unless other standards are required by the FAA, and shall be maintained
in accordance with the requirements of this chapter.
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. An additional
sign no larger than four square feet 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 located 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. If no equipment shelter or cabinet is present at the wireless
telecommunications facility, or no such sign placed on such equipment
shelter or cabinet would be visible from the access point, the sign
may be placed on a fence or may be freestanding. On tower sites, an
FCC registration sign 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 zoning district in 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 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 be 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.
The extent and parameters of a wireless telecommunications special
use permit for wireless telecommunications facilities shall be as
follows:
A.
Such wireless telecommunications special use permit shall not be
assigned, transferred or conveyed without the express prior written
notification to the Town.
B.
Such wireless telecommunications 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 wireless telecommunications special use permit, or for a material
violation of this chapter after prior written notice to the holder
of the wireless telecommunications special use permit.
At the time that a person submits an application for a wireless
telecommunications special use permit, such person shall pay a nonrefundable
application fee. Application fees shall be established by the Town
Board by resolution from time to time. A fee schedule shall be made
available upon request. No required fee shall be substituted for any
other fee.
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 wireless telecommunications
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 wireless telecommunications 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 wireless telecommunications special use permit.
In order to verify that the holder of a wireless telecommunications
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, ordinances 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 wireless telecommunications 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 wireless telecommunications special use permit in amounts as
set forth below.
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 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 wireless telecommunications special use permit, the holder
of the wireless telecommunications 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 telecommunication facilities that is
proposed for Town property, pursuant to this chapter, shall contain
a provision with respect to indemnification. Such provision shall
require the applicant, to the extent permitted by the law, to at all
times defend, indemnify, protect, save, hold harmless, and exempt
the Town, and its officers, 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.
A.
In the event of a conviction for a violation of this chapter or any
wireless telecommunications special use permit issued pursuant to
this chapter, the Town may impose and collect, and the holder of the
wireless telecommunications special use permit for wireless telecommunications
facilities shall pay to the Town, fines or penalties as set forth
below.
B.
The failure of a holder of a wireless telecommunications special use permit 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 § 190-129 of the Code of the Town of Colonie Code entitled "Enforcement and penalties for offenses."
C.
Notwithstanding anything in this chapter, the holder of the wireless
telecommunications 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 wireless telecommunications special use permit to termination
and revocation of the wireless telecommunications 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 wireless telecommunications special use permit, then the Town shall notify the holder of the wireless telecommunications special use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in § 189-22, and if a violation is not corrected to the satisfaction of the Town in a reasonable period of time, the wireless telecommunications 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 90 consecutive days or a total of 180 days in any three-hundred-sixty-five-day
period, except for periods caused by force majeure or acts of God,
in which case repair or removal shall commence within 90 days;
(2)
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 wireless telecommunications special use permit, or
any other necessary authorization and the use 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 wireless telecommunications 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 wireless telecommunications 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 order officials or representatives of the Town to
remove the wireless telecommunications facilities at the sole expense
of the owner or wireless telecommunications 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 than 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 wireless telecommunications special use permit, subject to the
approval of the Town, and an agreement to such plan shall be executed
by the holder of the wireless telecommunications 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, provided that
an explanation of the requested relief or exemption is contained in
the submitted application for either a wireless telecommunications
special use permit, or, in the case of an existing or previously granted
wireless telecommunications 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.
The Town may at any time conduct a review and examination of this
entire chapter.
B.
If after such a periodic review and examination of this chapter,
the Town determines that one or more provisions of this chapter should
be amended, repealed, revised, clarified, or deleted, then the Town
may take whatever measures are necessary in accordance with applicable
law in order to accomplish the same. It is noted that where warranted,
and in the best interests of the Town, the Town may repeal this entire
chapter at any time.
A.
To the extent that the holder of a wireless telecommunications special
use permit for wireless telecommunications facilities has not received
relief, or is not otherwise exempt, from appropriate state and/or
federal agency rules or regulations, then the holder of such a wireless
telecommunications 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 wireless telecommunications special use permit
for wireless telecommunications facilities, then the holder of such
a wireless telecommunications special use permit shall conform the
permitted wireless telecommunications facilities to the applicable
changed and/or modified rule, regulation, standard, or provision within
a maximum of 24 months of the effective date of the applicable changed
and/or modified rule, regulation, standard, or provision, or sooner
as may be required by the issuing entity.
Where this chapter differs or conflicts with other laws, rules
and regulations, unless the right to do so is preempted or prohibited
by the Town, state or federal government, this chapter shall apply.
