Town of Orchard Park, NY Article VII Telecommunications [1]

[Added 11-7-2001]

[1] Editor's Note: Former Art. VII, Planned Unit Development, consisting of §§ 144-47 through 144-55, was repealed 2-16-2000.

§ 144-47 Legislative intent.

The Town of Orchard Park recognizes the increased demand for wireless communications transmitting facilities and the need for the services they provide. Often, these facilities require the construction of a communications tower and/or similar facilities. The intent of this article is to protect the Town's interest in properly siting towers and/or similar facilities in a manner consistent with sound land use planning by:

A. Minimizing adverse visual effects of towers and/or similar facilities through careful design, siting and vegetative screening;

B. Avoiding potential damage to adjacent properties from tower failure or falling debris through engineering and careful siting of tower structures;

C. Maximizing the use of any existing tower or existing buildings and/or structures to reduce the number of towers and/or similar facilities needed, while also allowing wireless service providers to meet their technological and service objectives.

§ 144-48 Definitions.

As used in this article, the following terms shall have the meanings indicated:

ACCESSORY STRUCTURE

An accessory facility or structure serving or being used in conjunction with a communications tower and/or similar facility and located on the same lot as the communications tower. Examples of such structures include utility or transmission equipment, storage sheds or cabinets.

ANTENNA

A system of electrical conductors that transmit or receive radio or similar communication frequency signals. Such signals shall include, but not be limited to, radio, television, cellular, paging, data transmission, personal communications services and microwave communications.

COLLOCATED ANTENNAS

Telecommunications facilities which utilize existing towers, buildings or other structures for placement of antenna(s) which are located not more than 20 feet above the highest point of such existing structure.

FALLDOWN AND/OR SAFETY ZONE

The radius around a tower within which all portions of the tower and antenna(s) would fall.

TELECOMMUNICATIONS FACILITIES

Towers and/or antennas and accessory structures which together are used in connection with the provision of cellular telephone services, data transmission services, personal communications services, paging services, radio and television broadcast services and similar broadcast services.

TOWER

A structure designed to support antennas. It includes, without limit, freestanding towers, guyed towers, monopoles and similar structures which do or do not employ camouflage technology.

TOWER PERMIT

A permit to facilitate the construction of a tower and/or telecommunications facilities pursuant to this article.

§ 144-49 Approvals required.

A. Collocated antennas. Telecommunication facilities comprised of collocated antennas (and accessory structures) are permitted as of right in any district upon the issuance of a building permit. Such facilities shall comply with all building permit and building code requirements set forth in the Town of Orchard Park Code ("Code requirements"), provided that any such collocated antennas which require the erection of additional tower sections shall require a site plan review and approval by the Town's Zoning Board of Appeals ("ZBA") and a tower permit as set forth in this article.

B. Municipal — or government-owned property. Telecommunications facilities requiring construction of a new tower and/or antenna on municipal- or government-owned property shall require a site plan review and approval by the ZBA. If the tower and/or antenna is less than or equal to 100 feet in height it may be constructed upon the issuance of a building permit, provided that a majority of the members of the ZBA recommends the issuance of such a building permit and the facility in question complies with all Code requirements. If the tower and/or antenna is over 100 feet in height, construction and operation will require the issuance of a tower permit. Additionally, facilities to be located on property owned by municipalities or other governmental entities other than the Town of Orchard Park shall, to the extent applicable, comply with any additional legal requirements imposed by such municipalities or other governmental entities.

C. Nonresidential districts. Telecommunications facilities requiring construction of a new tower on non-municipal or government-owned property in any nonresidential zoning district shall require a site plan review, proof that at least two unrelated cellular carriers will use the newly constructed tower, approval by the ZBA, and the issuance of a tower permit, as set forth in this article. Proof that two unrelated cellular carriers will use the newly constructed tower shall consist of valid and binding written leases, each being of at least 10 years in duration.

[Amended 10-7-2020 by L.L. No. 7-2020; 12-16-2020 by L.L. No. 9-2020]

D. Residential districts. Telecommunications facilities requiring construction of a new tower on non-municipal or government-owned property in any residential zoning district shall require a site plan review, proof that at least two unrelated cellular carriers will use the newly constructed tower, approval by the ZBA, and the issuance of a tower permit, as set forth in this article. Proof that two unrelated cellular carriers will use the newly constructed tower shall consist of valid and binding written leases, each being of at least 10 years in duration.

[Amended 10-7-2020 by L.L. No. 7-2020; 12-16-2020 by L.L. No. 9-2020]

§ 144-50 Tower permit application materials.

A. All applicants for a tower permit shall make a written application to the Town's ZBA, which should initially be delivered to the Town Building Inspector (with a copy to the Town Clerk), which application shall include:

(1) Orchard Park tower permit application form.

(2) Orchard Park site plan review application form.

(3) Environmental assessment form.

(4) A site plan ("site plan") in form and content acceptable to the Town, prepared to scale and in sufficient detail and accuracy showing, at a minimum:

(a) The exact location of the proposed tower and/or antenna, together with the guy wires and guy anchors.

(b) The maximum height of the proposed tower and/or antenna.

(c) A detail of the tower type (monopole, guyed, freestanding or other).

(d) The color or colors of the tower.

(e) The location, type and intensity of any lighting on the tower and antenna.

(f) The property boundaries of the property on which the tower and/or antenna is proposed to be constructed ("the property").

(g) A copy of the property survey prepared by a licensed land surveyor.

(h) Proof of the landowner's consent, if the applicant will not own the property. (A copy of a lease agreement must also be provided if the applicant will not own the property.)

(i) Location of all structures on the property and all structures on any adjacent property within 50 feet of the property lines, together with the distance of these structures to the tower and the distance of the tower from all property lines and public roads or rights-of-way and all structures within the falldown zone.

(j) The names and mailing addresses of all adjacent landowners.

(k) The location, nature and extent of any proposed fencing and landscaping or screening to be constructed around or in conjunction with the tower and/or any telecommunications applicable to the tower.

(l) The location and nature of any utility easements and access roads proposed or existing in connection with the tower or applicable telecommunications facilities.

(m) Building elevations of accessory structures and/or immediately adjacent buildings to the proposed tower and related telecommunications facilities.

(n) Location and nature of any power generators existing or to be constructed in connection with a proposed tower and/or related telecommunications facilities.

(5) "Before" and "after" propagation studies prepared by a qualified radio frequency engineer demonstrating existing signal coverage, contrasted with proposed signal coverage resulting from the proposed telecommunications facility.

(6) A search ring prepared by a qualified radio frequency engineer and overlaid on an appropriate background map demonstrating the area within which the telecommunications facility needs to be located in order to provide proper signal strength and coverage to the target cell. The applicant must be prepared to explain to the ZBA why it selected the proposed site, discuss the availability (or lack of availability) of a suitable structure within the search ring which would have allowed for collocated antenna(s), and to what extent the applicant explored locating the proposed tower in a more intensive use district or other available sites which are more consistent with the type preferences set forth in § 144-51 below.

B. For purposes of this article, the term "property" refers to the parcel of land owned and/or leased by the applicant.

C. The ZBA, upon reviewing the application, may request reasonable additional information, including but not limited to any visual and aesthetic information it deems appropriate on a case-by-case basis. Such additional information may include, among other things, enhanced landscape plans, line-of-sight drawings, and/or visual simulations from the viewpoints selected by the ZBA or its designated agents (including the Town's Engineer) or representatives.

§ 144-51 Communications facility permit standards.

The following criteria will be considered by the ZBA prior to the approval/denial of a request for a tower permit and may be used as a basis to impose reasonable conditions on the applicant to the issuance of such a tower permit:

A. Siting preferences. The ZBA may express a preference that the proposed telecommunications facility be located in a higher-intensity-use district or on higher-intensity-use property, provided that there is a technologically feasible and available location. A guideline for the ZBA's preference, from the most favorable to the least favorable district/property, is as follows:

(1) Property with an existing structure suitable for collocation.

(2) Property located in the 1-1 Zoning District.

(3) Property located in the A Zoning District.

(4) Property located in a residential zoning district.

B. Aesthetics. Telecommunications facilities shall be located and buffered to the maximum extent which is practical and technologically feasible to help ensure compatibility with surrounding land uses. In order to minimize any adverse aesthetic effect on neighboring residences or properties to the extent possible, the ZBA may impose reasonable conditions on the applicant, including but not limited to the following:

(1) The ZBA may require a monopole or guyed tower (if sufficient land is available to the applicant) instead of a freestanding tower. Monopoles are a preferred design.

(2) The ZBA may require reasonable landscaping consisting of trees or shrubs to screen the base of the tower and/or to screen the tower to the extent possible from adjacent property. Existing on-site trees and vegetation shall be preserved to the maximum extent possible. Additionally, landscaping may include two lines of spruce trees having a minimum height of six feet, each planted 10 feet apart. The first such line may be located 10 feet outside any required fence around a permitted tower and the second may be located 25 feet outside any required fence around a permitted tower.

(3) The ZBA may require the applicant to show that it has made good-faith efforts to collocate on existing towers or other available and appropriate collocated structures and/or to construct new towers near existing towers in an effort to consolidate visual disturbances. However, such request shall not unreasonably delay the application.

(4) Towers shall be designed and sited so as to avoid, whenever possible, application of Federal Aviation Administration (FAA) lighting and painting requirements. Towers shall not be artificially lighted except as provided herein or as required by the FAA. Towers shall be a galvanized finish or painted matte gray unless otherwise required by the FAA or the ZBA. Any lighting which may be required by the FAA shall not consist of strobe lights, unless specifically mandated by the FAA.

(5) No tower shall contain any signs or advertising devices except those required by law.

(6) The applicant must submit a copy of its policy regarding collocation on the proposed tower with other potential future applicants. Such policy shall not be changed without the written consent of the ZBA and be applicable to any assignee or transferee of the applicant and require applicant to allow collocation if the new antenna(s) and equipment do not exceed structural loading requirements, interfere with tower space used or to be used by the applicant, nor pose any technical or radio frequency interference with existing equipment. The party desiring to collocate shall pay the applicant an appropriate and reasonable sum to collocate and shall agree to any other reasonable terms and conditions to relocate.

(7) Towers are to be located in wooded areas of trees of at least 100 feet to 125 feet in height, and the towers themselves are to be disguised as trees. The applicant must enter into an agreement with the Town of Orchard Park to maintain the wooded area and the trees located therein for so long as the cell tower remains standing, which obligation is to be secured by a performance bond provided by the applicant to the Town of Orchard Park.

[Added 10-7-2020 by L.L. No. 8-2020; amended 12-16-2020 by L.L. No. 10-2020]

C. Radio-frequency effect. The ZBA may impose a condition on the applicant that any approved antennas be operated only at Federal Communications Commission (FCC) designated frequencies and power levels and/or Environmental Protection Agency technical exposure limits and that the applicant provide competent documentation to support that the maximum allowable frequencies, power levels and exposure limits for radiation will not be exceeded.

D. Traffic, access and safety.

(1) The site plan should indicate reasonable emergency or service access to all telecommunications facilities. Maximum use of existing roads, public or private, shall be made. The use of public roadways or road rights-of-way for the siting of a tower or antennas or accessory structures is prohibited. All such roads shall be maintained and kept free of snow to assure appropriate access at all times.

(2) All towers and accessory structures, including guy anchors, if applicable, shall be enclosed by a fence eight feet in height or otherwise sufficiently protecting such facilities from trespassing or vandalism. The height limitations and material limitations applicable to such fences contained elsewhere in this chapter are exempt as they affect this article.

(3) The applicant must comply with all applicable state and federal regulations, including but not limited to FAA and FCC regulations.

(4) The ZBA may require that the towers and antenna(s) be set back a sufficient distance from adjacent property lines and/or structures to safeguard the general public and/or adjacent property from damage in the event of a tower failure or falling debris such as ice, which distance shall take into account the falldown zone of any tower and/or antenna. In all instances towers and/or antennas shall be located no closer than 800 feet to any public road or right-of-way and 500 feet to any existing residences. The falldown zone should be equal to the height of the tower and any antenna annexed thereto from any adjacent property line. Notwithstanding the limitations contained herein, the ZBA can set a different falldown zone upon receipt of information from the applicant or adjoining property owners which demonstrates that the safety of the general public or adjacent property is protected.

(5) If the ZBA deems it appropriate, it may require that a reasonably acceptable security alarm or alarms be installed in connection with any tower or related telecommunications facilities as a condition to the issuance of a tower permit.

E. Removal of a tower. The applicant shall agree to remove the tower, antenna and/or telecommunications facility if said tower, antenna and/or telecommunications facility becomes obsolete or ceases to be used for its intended purpose for 12 consecutive months. The ZBA shall require the applicant to provide a demolition bond reasonably acceptable to the ZBA (the "bond") to assure appropriate removal of a telecommunications facility, antenna and/or tower in case the applicant fails to do so as required in the amount and for the term deemed appropriate by the ZBA. If requested in writing by the ZBA, the amount of said bond will be adjusted, no more frequently than once every five years, to reflect the current removal cost. Notwithstanding any other provision of this § 144-51F to the contrary, the ZBA may waive the requirement for a demolition bond in those instances where a particular tower and/or antenna is collocated on an existing tower and/or antenna, the removal of which is assured by an acceptable existing demolition bond.

F. Structural safety. Upon written request from the ZBA or Town, either during the application process and/or after construction of the tower and/or antenna, the applicant shall provide a certificate from a qualified licensed engineer certifying that the tower and/or antenna meets with applicable structural safety standards. Such requests from the ZBA or Town shall not occur more than once every five years unless the Town has reasonable grounds to believe the tower and/or antenna is in an unsafe condition, in which event such a request may be made on a more frequent basis. In any such an event, the certificate described herein shall be delivered to the Town and/or ZBA within 30 days of such a request, and any repairs recommended in such a certificate shall be commenced, and if possible completed, within 30 days of the date of such a certificate.

G. Maintaining the telecommunications facility. Notwithstanding any other provision contained herein, all telecommunications facilities shall be maintained in good order and repair as required by the Code requirements and all applicable state and local statutes and regulations. Failure to make such repairs within 10 days of receipt of a written request to do so from the Town or to maintain an acceptable demolition bond as described in § 144-51F shall constitute a violation of this article and subject the applicant and/or any owner, lessee or operator of such facility or facilities to a fine of up to $500 per day, with each day thereafter on which such a violation continues to exist constituting a separate violation of this article.

H. Required landscaping around towers or telecommunications facilities shall be maintained at all times. Dead trees shall be replaced within 150 days with similar-sized trees, regardless of height, if possible. Property shall be mowed regularly to a height if six inches or less twice a month during the growing season.

I. Notice of operation. At all times during which a tower and/or antenna regulated by this article is located or operated within the Town, the owner, lessee and/or operator shall provide to the Town Clerk that information which is required by federal law in case emergency maintenance or safety precautions are required.

§ 144-52 Exemptions.

The following are exempt from the requirements of this article:

A. Existing towers and antenna(s) may be repaired and maintained without restriction.

B. An antenna used solely for residential household television and radio reception which, together with any tower or other structure to which it is attached, does not exceed 45 feet in height, provided that the antenna or any tower to which it is attached is at least the same distance from any adjoining property line.

C. Satellite antennas measuring two meters or less in diameter and located in agricultural, business or industrial zoning districts and satellite antennas one meter or less in diameter, regardless of location.

§ 144-53 Waiver of requirements; required approval.

A. The ZBA may waive any requirements in this article for good cause shown.

B. This article is meant to control and regulate the construction and use of towers, antennas, related telecommunications facilities and similar facilities in the Town. The approval of the Zoning Board of Appeals shall be the only approval required for tower antennas, related telecommunications facilities and similar facilities in the Town.

§ 144-54 Permit and related fees.

A. Permit fees pertaining to tower permits or building permits issued pursuant to § 144-49A through D of this article are as follows and may be changed from time to time by resolution adopted by the Town Board: $100.

B. As a condition to the issuance of any related building or tower permit to facilitate the construction of a tower, an antenna or telecommunications facilities pursuant to this article, the ZBA may require the applicant to pay the fees of an independent engineer retained by the Town to assist in the evaluation of the permit application.

§ 144-55 Solar energy.

[Added 10-23-2017 by L.L. No. 16-2017]

A. Authority. This section is adopted pursuant to §§ 261 through 263 of the Town Law of the State of New York, which authorize the Town of Orchard Park to adopt zoning provisions that advance and protect the health, safety, and welfare of the community, and "to make provision for, so far as conditions may permit, the accommodation of solar energy systems and equipment and access to sunlight necessary therefor."

B. Statement of purpose. This zoning for solar energy section is adopted to advance and protect the public health, safety, and welfare of the Town of Orchard Park, including:

(1) Taking advantage of a safe, abundant, renewable, and nonpolluting energy resource;

(2) Decreasing the cost of energy to the owners of commercial and residential properties, including single-family houses; and

(3) Increasing employment and business development in the region by furthering the installation of solar energy systems.

C. Definitions. As used in this section, the following terms shall have the meanings indicated:

BUILDING-INTEGRATED PHOTOVOLTAIC SYSTEM

A combination of photovoltaic building components integrated into any building envelope system such as vertical facades including glass and other facade material, semitransparent skylight systems, roofing materials, and shading over windows.

GROUND-MOUNTED SOLAR ENERGY SYSTEM

A solar energy system that is anchored to the ground and attached to a pole or other mounting system, detached from any other structure for the primary purpose of producing electricity for on-site consumption.

LARGE-SCALE SOLAR ENERGY SYSTEM

A solar energy system that is ground mounted and produces energy primarily for the purpose of off-site sale or consumption.

ROOF-MOUNTED SOLAR ENERGY SYSTEM

A solar panel system located on the roof of any legally permitted building or structure for the purpose of producing electricity for on-site or off-site consumption.

SOLAR ENERGY EQUIPMENT

Electrical energy storage devices, material, hardware, inverters, or other electrical equipment and conduit of photovoltaic devices associated with the production of electrical energy.

SOLAR ENERGY SYSTEM

An electrical generating system composed of a combination of both solar panels and solar energy equipment.

SOLAR PANEL

A photovoltaic device capable of collecting and converting solar energy into electrical energy.

D. Applicability. The requirements of this section shall apply to all solar energy systems installed or modified after its effective date, excluding general maintenance and repair and building-integrated photovoltaic systems.

E. Solar as an accessary use or structure.

(1) Roof-mounted solar energy systems.

(a) Roof-mounted solar energy systems that use the electricity onsite or offsite are permitted as an accessory use in all zoning districts when attached to any lawfully permitted building or structure.

(b) Height. Solar energy systems shall not exceed the maximum height restrictions of the zoning district within which they are located and are provided the same height exemptions granted to building-mounted mechanical devices or equipment.

(c) Aesthetics. Roof-mounted solar energy system installations shall incorporate, when feasible, the following design requirements:

[1] Panels facing the front yard must be mounted at the same angle as the roof's surface with a maximum distance of 18 inches between the roof and highest edge of the system. The Zoning Board of Appeals is granted authority to permit variances to this requirement with the advice and consent of the Building Inspector.

(d) Roof-mounted solar energy systems that use the energy onsite or offsite shall be exempt from the site plan review under the local zoning code or other land use regulations.

(e) Permit. A building permit for solar panels is required from the Building Department with a fee to be established from time to time by resolution of the Town Board.

(2) Ground-mounted solar systems.

(a) Ground-mounted solar energy systems that use the electricity primarily on site are permitted as accessory structures in all zones.

(b) Height and setback. Ground-mounted solar energy systems shall adhere to the height and setback requirements of the underlying zoning district.

(c) Lot coverage. Systems are limited to the current overall coverage pursuant to the existing zone. The surface covered by ground-mounted solar panels shall be included in total lot coverage.

(d) All such systems in residential districts shall be installed in rear yards.

(e) Ground-mounted solar energy systems that use the electricity primarily on site shall be exempt from site plan review under the local zoning code or other land use regulations.

F. Large-scale solar energy systems. Large-scale energy systems are specifically prohibited.

G. Abandonment and decommissioning. Solar energy systems are considered abandoned after one year without electrical energy generation and must be removed from the property. Applications for extensions are reviewed by the Town Board of Orchard Park for a period of one year.

H. Enforcement. Any violation of this solar energy section shall be subject to the same civil and criminal penalties provided for in the zoning regulations of the Town of Orchard Park .

I. Severability. The invalidity or unenforceability of any section, subsection, paragraph, sentence, clause, provision or phrase of the aforementioned sections as declared by the valid judgment of any court of competent jurisdiction to be unconstitutional shall not affect the validity or enforceability of any other section, subsection, paragraph, sentence, clause, provision or phrase, which shall remain in full force and effect.