[HISTORY: Adopted by the Town Board of the
Town of Clarence 6-14-2017 by L.L.
No. 4-2017.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 229.
[1]
Editor's Note: This local law supersedes former
Ch. 173, Satellite Antennas and Towers, adopted 2-27-1997 by L.L.
No. 1-1997.
The intent of this chapter is to promote and
protect the public health, safety and welfare of the citizens of the
Town of Clarence by regulating the installation of antennas, parabolic
dishes, wind energy conversion systems, personal communication services
towers, cellular telephone facilities and other wireless telecommunication
facilities.
This chapter shall hereafter be known as "Satellite
Antennas, Telecommunication Towers and Wind Energy Conversion Systems."
As used in this chapter, the following terms
shall have the meanings indicated:
An accessory facility or structure serving or being used
in conjunction with a communication tower, wind energy conversion
system and/or similar facility and located on the same lot as the
communication tower or wind energy conversion system. Examples of
such structures include but are not limited to utility or transmission
equipment storage sheds or cabinets.
In compliance with Agriculture and Markets Law (AML) § 305-a,
Subdivision 11, as well as eligible for an agricultural property tax
assessment or exemption.
The use of radio and television antennas/antenna systems
for home, recreational, hobby or noncommercial use by a person holding
a valid license issued by the Federal Communications Commission, where
applicable.
A parcel of land used or occupied or capable of being used or occupied by a building, structure or use and the accessory buildings, structures or uses customarily incidental to it, including such yards as are required by Chapter 229, Zoning.
A mechanism used to limit the speed of blade rotation to
below the design limits of the WECS. Also called a "limiter" or "governor."
Any commercial equipment used in connection with the provision
of wireless communication services, including but not limited to cellular
telephone services and personal communication services, which are
regulated by the Federal Communications Commission in accordance with
the Telecommunications Act of 1996, as it may hereinafter be amended.
A telecommunication facility shall include antenna(s), accessory telecommunications
structures and supporting masts, support towers or monopoles.
Includes any communications tower, pole or other structure,
whether attached to a building, guyed or freestanding, designed to
be used for the support of any device for the transmission and/or
reception of communications signals, including but not limited to
broadcast, shortwave, citizens band, AM FM, television, microwave,
cellular, digital, PCS.
A machine that converts the kinetic energy of the wind into
a usable form (commonly known as a "wind turbine" or "windmill").
The WECS includes all parts of the system, including the tower, blades
and rotor assemblies, gearbox, generator and the transmission equipment;
the turbine or windmill may be on a horizontal or vertical axis.
The provisions of this section shall apply to all structures in all zoning districts as established by Chapter 229, Zoning.
A.
Size of freestanding antenna dishes. No satellite
or parabolic dish-type antenna erected or maintained within the Town
of Clarence shall exceed 12 feet in any dimension.
B.
Size of roof-mounted or attached antenna dishes. No
satellite or parabolic dish-type roof-mounted or attached antenna
erected or maintained within the Town of Clarence shall exceed three
feet in any dimension.
C.
Height of telecommunication towers, noncommercial.
Amateur communication towers shall not exceed 60 feet in height as
measured from the average ground surface surrounding the site of the
tower. Measurements of height shall include any extensions above the
tower and supporting bases below the tower.
D.
Height of telecommunication towers, commercial. Commercial cellular, PCS and other communication towers shall not exceed 150 feet in height as measured from the average ground surface immediately surrounding the site of the tower in the Industrial and Research-Development Zoning Districts as defined in Chapter 229, Zoning, or on any municipal or government-owned property. Such towers shall not exceed 100 feet in height in all other (nonindustrial/non-research-development) zones as defined in Chapter 229, Zoning. Measurements of height shall include any extensions or other devices above the tower.
A.
Dish-type, parabolic, satellite antennas, amateur
communication antennas.
(1)
No more than one antenna shall be located on any dwelling
unit.
(2)
No freestanding antenna shall be constructed, erected
or maintained except as an accessory structure to an existing one-family
dwelling on the same lot.
(3)
When roof-mounted, a dish-type antenna shall be located
on that portion of the roof sloping away from the front of the lot.
(4)
All freestanding antennas shall be located in the
rear yard at least 10 feet from the side and rear lot line. When measuring
side and rear setbacks, all cables, guy wires or other supports shall
constitute a part of the antenna.
(5)
When not roof-mounted, a dish-type antenna shall be
screened from adjoining lots.
B.
Towers, noncommercial.
(1)
No more than one tower shall be located on any lot.
(2)
All towers shall be located in the rear yard at ground
level.
(3)
No tower shall be constructed, erected or maintained
except as an accessory structure to an existing one-family dwelling
on the same lot.
(4)
No tower shall be located on any lot unless so as
to have a rear and side lot setback equal to the height of the tower.
Measurements of side and rear lot line setback shall be taken at the
base of the tower structure at ground level.
(5)
Towers which will be used for energy conversion shall
be located on the lot so as to produce a level of noise at any lot
line no greater than the ambient nighttime level.
C.
Telecommunication towers, commercial.
(1)
The Town of Clarence recognizes the increased demand
for wireless communication transmitting facilities and the need for
the services they provide. Often these facilities require the construction
of a telecommunication tower and/or similar facilities. The intent
of this section of the Satellite Antenna and Tower Law is to regulate
telecommunication towers/antennas in accordance with the guidelines
of the Telecommunications Act of 1996 or as amended by:
(a)
Accommodating the need for telecommunication
towers/antennas while regulating their location and number in the
community.
(b)
Minimizing adverse visual impacts of these towers/antennas
through proper design, siting and screening.
(c)
Preserving and enhancing the positive aesthetic
qualities of the built and natural environment in the Town of Clarence.
(d)
Avoiding potential damage to adjacent properties
from tower failure, falling ice, etc., through engineering and proper
siting.
(e)
Requiring the joint use of towers when available
and encouraging the placement of antennas on existing structures to
reduce the number of such structures in the future.
(2)
Zoning/permitting requirements.
(a)
Colocated/existing structure antennas. An antenna
that is to be attached to an existing communication tower, smokestack,
water tower or other tall structure is permitted. The colocated antenna
is permitted as of right upon issuance of a building permit. The building
permit application will include a structural analysis/report verifying
the ability of the structure to handle the colocated antenna.
(b)
Non-colocated/new tower antennas. An antenna
that will not be mounted on an existing structure as defined above
and requires the construction of a tower is permitted as follows:
[1]
Municipal/government-owned property, research-development
and industrially zoned property: site plan review approval by the
Town Planning Board and permit approval by the Town Board per permit
process for permitted uses.
[2]
Commercial, major arterial, neighborhood business
and restricted business zoned property: site plan review approval
by the Town Planning Board and special exception use permit approval
by the Town Board per § 30-71 of Chapter 30 of the Code
of the Town of Clarence.[1]
[3]
Residential and agriculture zoned properties:
site plan review approval by the Town Planning Board and special exception
use permit approval by the Town Board per § 30-71 of Chapter
30 of the Code of the Town of Clarence.[2] Such applications shall be classified as a Type I action
under the State Environmental Quality Review Act (SEQRA).
(3)
All telecommunication towers in all zoning districts,
including towers on municipal/government-owned lands, must provide
and/or meet the following requirements:
(a)
Setbacks equal to the height of the tower to
all lot lines.
(b)
An agreement by the applicant, in writing, to
remove the telecommunication facility if such facility becomes technically
obsolete or ceases to be used for its originally intended purpose.
A demolition bond for the purposes of removing the telecommunication
facility shall remain in force for the life of the tower in an amount
approved by the Town Board but not less than $20,000.
(c)
Traffic, access and safety features:
[1]
A road turnaround and one parking space to assure
adequate emergency and service access. 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's accessory structures is
prohibited.
[2]
All towers and guy anchors, if applicable, shall
be enclosed by a fence not less than eight feet in height or otherwise
sufficiently protected from trespassing or vandalism.
(d)
Screening, as approved by the Town Landscape
Review Committee.
(e)
An inspection every two years by a licensed
professional engineer and a copy of the inspection report shall be
submitted to the Town Engineer. Any work or repair of the tower shall
comply with all applicable code requirements, and a permit shall be
obtained to conduct such work.
(f)
No lighting unless otherwise required by the
Federal Aviation Administration or federal, state or local authority.
(g)
No signs or advertising devices.
(h)
Free access shall be coordinated and provided
on the proposed tower for local school, government, emergency and
amateur communication antennas.
A.
All applicants for permits to construct and place
satellite or communication antennas, dishes and/or towers within the
Town of Clarence shall make written application therefor to the Town
on forms available in the Planning and Zoning Office of the Town.
B.
Applications for telecommunication towers shall contain
specific site data placed on a map, acceptable in form and content
to the Town, which shall be prepared to scale and sufficient detail
and accuracy so as to accurately depict the placement of all component
parts of the antenna or tower, including guy wires or enclosures,
in relation to:
(1)
The location of property lines and permanent easements.
(2)
The location of all structures on the site and all
structures on any adjacent property within 10 feet of the property
lines.
(3)
The location of all utility poles, above and below
ground utility lines, trees or other natural or artificial structures.
(4)
The location, nature and extent of any proposed fencing,
buffering, plantings or other screening measures, if any proposed.
(5)
The names of adjacent landowners.
(6)
All information prepared by the manufacturer of the
antenna or tower, including but not limited to the following:
A.
No special exception use permit or renewal thereof or modification of the provisions of this chapter relating to a cellular or PCS tower shall be authorized by the Town Board unless, in addition to the other requirements specified in this chapter and Chapter 229, Zoning, it finds that such cellular or PCS tower:
(1)
Is necessary to meet current or expected demands for
wireless communication service.
(2)
Conforms with all applicable regulations promulgated
by the Federal Communications Commission.
(3)
Is located so as to minimize its visibility from surrounding
public streets and adjacent properties.
(4)
Is designed and constructed in a manner which minimizes
its visual impact.
(5)
Is the most appropriate site within the immediate
area for the location of the cellular or PCS tower. The applicant
shall submit a study as part of the special exception use permit application
comparing all potential host sites within an approximate one-half-mile
radius of the subject site. This study should include a description
of the surrounding sites and a discussion of the ability or inability
to host a cellular or PCS tower facility. Reasons for excluding a
site from consideration may include but are not limited to:
(a)
Unwillingness of the owner to entertain a cellular
or PCS tower facility proposal.
(b)
Topographic limitations of the site.
(c)
Adjacent impediments that would obstruct adequate
cellular or PCS transmissions.
(d)
Physical site constraints that would preclude
the construction of a cellular or PCS facility.
(e)
Technical limitations of the cellular or PCS
systems.
B.
All special exception use permits and renewals shall
include "before" and "after" propagation studies prepared by a qualified
radio frequency engineer demonstrating existing signal coverage contrasted
with the proposed signal coverage resulting from the proposed telecommunication
facility.
C.
All special exception use permits and renewals shall
include a search ring prepared by a qualified radio frequency engineer
and overlaid on an appropriate background map demonstrating the area
within which the telecommunication 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 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 colocated antenna(s) and to what extent the applicant explored
locating the proposed tower in a more intensive use district. Correspondence
with other telecommunication companies concerning colocation is required.
D.
The shared use of existing towers and antenna facilities
shall be preferred to the construction of new such facilities. Any
application for a special exception use permit or renewal thereof
or modification of the provisions of this chapter shall include proof
that reasonable efforts have been made to colocate with an existing
cellular or PCS facility, including an adequate inventory report specifying
existing towers and antenna sites within a reasonable distance from
the proposed site and outlining opportunities for shared use as an
alternative to the proposed use. The applicant must demonstrate to
the reasonable satisfaction of the Town Board that the proposed tower
or antenna cannot be accommodated on an existing approved tower or
facility due to one or more of the following reasons:
(1)
Unwillingness of the owner to entertain a cellular
or PCS facility proposal.
(2)
The planned equipment would exceed the structural
capacity of existing and approved towers and facilities.
(3)
The planned equipment would cause radio frequency
interference with other existing or planned equipment which cannot
be reasonably prevented.
(4)
Existing or approved towers or facilities do not have
space on which proposed equipment can be placed so it can function
effectively and reasonably.
(5)
Other reasons make it impracticable to place the equipment
proposed by the applicant on existing and approved towers or facilities.
(6)
The proposed colocation of an existing tower or antenna
site would be, by virtue of the requirements in this section, considered
a prohibited use.
A.
Two types
of WECS are addressed herein:
(1)
Type
1: A commercial unit designed for the generation of power supplied
to the local grid.
(2)
Type
2: A unit designed to supply power primarily to a single residence
or property owner and can supply power to the grid on a limited basis.
WECS associated with agricultural or farm operations and supplying
a portion of a farm's electrical needs (not exceeding 110% of the
farm's anticipated demand) shall be considered a Type 2 WECS.
B.
Zoning
district requirements.
(1)
A Type
1 WECS shall not be permitted.
(2)
A Type
2 WECS shall be permitted by the following standards:
(a)
Residential Single-Family Zone and Traditional Neighborhood District
under five acres shall have a maximum allowable tower height of 60
feet.
(b)
Residential Single-Family Zone and Traditional Neighborhood District
over five acres shall have a maximum allowable tower height of 80
feet.
(c)
Agricultural Rural Residential and Agricultural Flood Zone Zones
under five acres shall have a maximum allowable tower height of 100
feet.
(d)
Agricultural Rural Residential and Agricultural Flood Zone Zones
between five to 10 acres shall have a maximum allowable tower height
of 120 feet.
(e)
Agricultural Rural Residential and Agricultural Flood Zone Zones
over 10 acres shall have a maximum allowable tower height of 140 feet.
(f)
Industrial Zone shall have a maximum allowable tower height of 140
feet.
(g)
Agricultural operations within an agricultural district and agricultural
zone shall have a maximum allowable tower height of 140 feet.
(h)
Commercial/Restricted Business and Community Facility Zones shall
have a maximum allowable tower height of 60 feet.
(i)
Municipal/government-owned property shall have a maximum allowable
tower height of 140 feet.
(k)
Tower height shall be measured from the average grade immediately
surrounding the tower site.
(l)
Overall height shall be defined as the blade length plus the tower
height.
C.
General
provisions. Approval of all site plans or special use permits for
the installation of a WECS shall comply with the following requirements:
(1)
No
more than a single WECS shall be permitted on a parcel.
(2)
Except
for agricultural or farm operations, the WECS must be within the parcel
on which the power is to be utilized.
(3)
Rotor
safety. Each WECS shall be equipped with both manual and automatic
controls to limit the rotational speed of the blade below the design
limits of the rotor. The application must include a statement by a
qualified New York State licensed professional engineer(s) certifying
that the rotor and overspeed controls have been designed and fabricated
for the proposed use in accordance with good engineering practices.
The engineer(s) should also certify the structural compatibility of
towers with available rotors. This certification would normally be
supplied by the manufacturer and include the distance and trajectory
of the thrown blade from an exploding turbine or propeller according
to the Loss of Blade Theory.
(4)
Guy
wires. Anchor points for guy wires for the WECS tower shall be located
within property lines and not on or across any aboveground electrical
transmission or distribution line. Guy wires are strongly discouraged;
however, if necessary, the point of ground attachment for the guy
wires shall be enclosed by a fence eight feet high.
(6)
Noise.
The noise of the WECS shall not exceed a maximum of 50 dB(A), as measured
at the boundaries of all the closest parcels that are owned by on-site
owners and abut the site parcels.
(7)
Electromagnetic
interference. The WECS shall be operated such that no disruptive electromagnetic
interference is caused. If it has been demonstrated to the Town Code
Enforcement Officer that a wind energy conversion system is causing
harmful interference, the operator shall promptly mitigate the harmful
interference.
(8)
Signs.
Signs shall be posted at the base of the tower warning of electrical
shock or high voltage. Signs shall be visible from all quadrants.
(9)
Setbacks.
WECS shall be set back from any structure or aboveground utility line
a distance of 1.5 times its overall height or a minimum of 90 feet,
whichever is greater. WECS shall be set back from any property line
or right-of-way a distance of two times or greater its overall height.
The WECS shall also not be placed in the front yard of any existing
structure.
(10)
Abatement.
If a WECS poses a potential safety hazard, the owner or operator shall
take immediate action to remedy the situation. The Town of Clarence
shall have the authority to cause the abatement of any hazardous situation.
If the Town of Clarence determines that the WECS poses a safety hazard,
a notice of violation shall be issued and the WECS shall be made nonoperational
until such hazard has been remedied to the satisfaction of the Town
of Clarence. If the WECS has been nonoperational or abandoned for
a period of one year, the system shall be removed within 45 days of
written notice to the owner or operator of the system.
(11)
Maintenance
and repair records. Records of inspections, reports and maintenance
activities shall be submitted to the Town of Clarence Building and
Engineering Department within 10 days of receipt by owner and/or lessee.
(12)
Lighting
of tower. Lighting of the tower for aircraft and helicopters will
conform to FAA standards for wattage and color, when required. Additional
lighting may also be required at the request of the Town Board.
(13)
Decommissioning
and restoration. The applicant shall include the following information
regarding decommissioning of the project and restoring the site:
(a)
The anticipated life of the project;
(b)
The estimated decommissioning costs in current dollars;
(c)
The method and schedule for updating the costs of decommissioning
and restoration;
(d)
A method of ensuring that funds will be available for decommissioning
and restoration;
(e)
The anticipated manner in which the project will be decommissioned
and the site restored; and
(f)
Such other and reasonable requirements as the Town of Clarence shall
require.
(14)
Accessory
structure cabling. All interconnecting cables between the WECS and
accessory or servicing structures shall be underground.
(15)
Compliance
with Building Code.
(a)
Building permit applications shall be accompanied by standard drawings
of structural components of the WECS, including support structures,
tower, base and footings. Drawings and any necessary calculations
shall be certified, in writing, by a New York State registered professional
engineer that the system complies with the current building code.
This certification would normally be supplied by the manufacturer.
(b)
Where the structural components or installation vary from the standard
design or specification, the proposed modifications shall be certified
by a New York State registered professional engineer for compliance
with the seismic and structural design provisions of the building
code.
(16)
Compliance
with Electrical Code.
(a)
Building permit applications shall be accompanied by a line drawing
identifying the electrical components of the WECS to be installed
in sufficient detail to allow for a determination that the manner
of installation conforms to the Electrical Code. The application shall
include a statement from a New York State registered professional
engineer indicating that the electrical system conforms to good engineering
practices and complies with the Electrical Code. This certification
would normally be supplied by the manufacturer. All equipment and
materials shall be used or installed in accordance with such drawings
and diagrams.
(b)
Where the electrical components of an installation vary from the
standard design or specifications, the proposed modifications shall
be reviewed and certified by a New York State registered professional
engineer for compliance with the requirements of the Electrical Code
and good engineering practices.
(c)
Application requirements. All site plan applications for a WECS shall
be submitted to the Office of Planning and Zoning, to include the
following, to include three copies:
[1]
Stamped engineered drawings for tower and foundation.
[2]
Site plan, elevations and property survey.
[3]
Stamped engineered drawings for tower and foundation.
[4]
Height of the tower conforms to § 173-8(B)(2).
[5]
Setbacks are shown to conform to § 173-8(C)(9).
[6]
Aerial site plan showing relevant utility poles and lines, trees
and structures, names of all adjacent property owners.
[7]
Manufacturer information provided for tower and turbine with visuals,
including noise decibels.
[8]
A maintenance and removal plan made in writing to the Town of Clarence
to include an agreement by the applicant and/or owner, in writing,
to remove the all components of the WECS, including tower, if such
facility becomes nonfunctional or ceases to be used for its originally
intended purpose, as determined by the Town of Clarence. The maintenance
and removal plan shall remain in force for the life of the WECS. An
acceptable bond and/or surety for the purposes of removing the WECS
shall be purchased and remain in force for the life of the WECS.
A fee as established by the Town Board shall
be paid with the application for every proposed use under this chapter.
The Town of Clarence Zoning Board of Appeals
may, in appropriate cases and after public notice and hearing and
subject to the appropriate safeguards, vary or modify the application
of this chapter in harmony with its general purpose and intent.
Failure to obtain a permit for construction
of a satellite antenna or tower and to comply with any of the provisions
of this chapter shall be deemed a violation and the violator shall
be liable to a fine of not more than $250 nor less than $100 or imprisonment
for not more than 15 days, or both such fine and imprisonment. Each
day such violation continues shall constitute a separate violation.
[Added 4-11-2018 by L.L.
No. 3-2018]
A.
ANTENNA
APPLICABLE CODES
APPLICANT
APPLICATION
APPROVAL AUTHORITY
CO-LOCATE
CONCEALED INSTALLATION ON BUILDING
CPCN
NPUC
OTARD
RF
RIGHT-OF-WAY or ROW
SMALL WIRELESS FACILITY (also known as "micro wireless facility")
SPECIAL EXCEPTION USE PERMIT
SUPPORT STRUCTURE
TOWN-OWNED POLE
(1)
(2)
UTILITY POLE
WIRELESS INFRASTRUCTURE PROVIDER
WIRELESS PROVIDER
WIRELESS SERVICES
WIRELESS SERVICES PROVIDER
Definitions. As used in this section, the following terms shall have
the meanings indicated:
Communications equipment that transmits or receives electromagnetic
radio frequency signals used in the provision of wireless services.
Uniform building, fire, electrical, plumbing, or mechanical
codes adopted by a recognized national code organization or local
amendments to those codes enacted solely to address imminent threats
of destruction of property or injury to persons to the extent consistent
with the terms of this section.
Any person who submits an application.
A request submitted by an applicant: i) for a permit to co-locate
(see definition) small wireless facilities; or ii) to approve the
installation or modification of a utility pole or wireless support
structure.
Any Town entity having approval authority, as identified.
To install, mount, maintain, modify, operate, or replace
small wireless facilities on or adjacent to a wireless support structure
or utility pole.
Building-mounted small wireless facilities that completely
screen all associated equipment and facilities from public view by
approved methods that are in keeping with the character of the building,
surrounding area and any applicable design guidelines or standards
as determined by the Town.
A "certificate of public convenience and necessity" granted
by the NPUC or its duly appointed successor agency pursuant to New
York Codes, Rules and Regulations Title 16 et seq., as may be amended.
A New York Public Service Commission, or its duly appointed
successor agency.
Any over-the-air reception device subject to 47 CFR 1.4000
et seq., as may be amended, and which includes satellite television
dishes not greater than one meter in diameter.
Radio frequency.
The area on, below, or above a public roadway, highway, street,
sidewalk, alley, utility easement, or similar property, but not including
a federal interstate highway, in the Town.
A wireless facility that meets both of the following qualifications:
i) each antenna is located inside an enclosure measuring no more than
six cubic feet in volume or, in the case of an antenna that has exposed
elements, the antenna and all of its exposed elements could fit within
an imaginary enclosure of no more than six cubic feet; and ii) all
other wireless equipment associated with the facility measuring no
more than 28 cubic feet in volume. The following types of associated
ancillary equipment are not included in the calculation of equipment
volume: electric meter, concealment elements, telecommunications demarcation
box, ground-based enclosures, grounding equipment, power transfer
switch, cut-off switch, and vertical cable runs for the connection
of power and other services.
An authorization of a particular land use that is permitted
in a specific area subject to the requirements imposed by this section
to assure that the proposed use is in harmony with this section and
will not adversely affect a neighborhood if such requirements are
met.
A freestanding structure such as a utility pole, monopole,
or other existing or proposed structure designed to support or be
capable of supporting wireless facilities.
A utility pole maintained, owned or operated by the Town in
the right-of-way (ROW), including a utility pole that provides lighting
or traffic control functions, including light poles, traffic signals,
and structures for signage; and
A pole or similar structure owned or operated by the Town in
the ROW that supports only wireless facilities.
A pole or similar structure that is used in whole or in part
for the purpose of carrying electric distribution lines or cables
or wires for telecommunications; cable or electric service; or for
lighting, traffic control, signage, or a similar function regardless
of ownership, including Town-owned poles. Such term shall not include
structures supporting only small wireless facilities.
Any entity, including a person authorized to provide telecommunications
service in the state, who builds or installs wireless communication
transmission equipment, wireless facilities or wireless support structures,
but who is not a wireless services provider.
A wireless infrastructure provider or a wireless services
provider.
Any services provided using and/or utilizing small wireless
facilities, whether at a fixed location or mobile.
An entity who provides wireless services.
B.
Legislative intent.
(1)
The Town of Clarence intends for this section to establish reasonable
and uniform standards and procedures for small wireless facility deployment,
construction, installation, co-location, modification, operation relocation
and removal within the Town's territorial boundaries. The standards
and procedures contained within this section are intended to, and
should be applied to, protect and promote public health, safety and
welfare, as well as maintain the aesthetic character of the Town,
its neighborhoods and community and also balance the benefits that
flow from robust, advanced wireless services within the Town.
(2)
This Chapter is not intended to, nor shall it be interpreted or applied
to:
(a)
Prohibit or effectively prohibit any personal wireless service
provider's ability to provide personal wireless servicess;
(b)
Prohibit or effectively prohibit any entity's ability to
provide any interstate or intrastate communications service, subject
to any competitively neutral and nondiscriminatory rules or regulation
for right-of-way management;
(c)
Unreasonably discriminate among providers of functionally equivalent
services;
(d)
Deny any request for authorization to place, construct or modify
small wireless facilities on the basis of environmental effects of
radio frequency emissions to the extent that such facilities comply
with the Federal Communication Commission's regulations concerning
such emissions;
(e)
Prohibit a co-location or modification that the Town may not
deny under federal or New York State law; or
(f)
Otherwise authorize the Town to preempt any applicable federal
or New York State law.
C.
Applicability.
(1)
This Chapter applies to all existing small wireless facilities within
the Town and all applications and requests for approval to construct,
install, modify, co-locate, relocate or otherwise deploy small wireless
facilities in the Town, whether located or proposed to be located
in the ROW or on private property.
(2)
Exempt small wireless facilities. The provisions in this section
will not be applicable to:
(a)
Small wireless facilities installed on Town property, not including
Town-owned ROW;
(b)
Amateur radio facilities;
(c)
OTARD antennas;
(d)
A small wireless facility installed completely indoors and intended
to extend signals for wireless services in a personal residence or
a business;
(e)
Wireless facility or equipment owned and operated by NPUC-regulated
electric companies for use in connection with electrical power generation,
transmission and distribution facilities.
D.
Applications and fees.
(1)
Permit. No person or entity shall install a small wireless facility
without first filing a small wireless facility application and obtaining
the permit from the Town, except as otherwise provided in this section.
(2)
Maintenance. Subject to the requirements for the initial application,
an application shall not be required for routine maintenance, unless
otherwise specified within this section.
(3)
Application requirements. The small wireless facility permit application
shall be made by the wireless provider or its duly authorized representative
and shall contain the following, to include nine hard copies and one
digital copy:
(a)
Master application and applicable fee(s). The application must
provide the applicable Town-supplied master application form with
the applicable application fee(s), including:
(b)
Owner's authorization and deed evidence. For facilities
proposed on private property, the applicant must provide a deed evidencing
the ownership in order for the Town to verify the property owner's
identity. No deed evidencing ownership is required for facilities
proposed in the ROW. If the applicant does not own the subject support
structure in the ROW that will be utilized for the installation of
the small wireless facility, the applicant must include a written
authorization signed by the owner that empowers the applicant to file
the application and perform all small wireless facility construction,
installation perpetration and maintenance to the extent described
in the application.
(c)
Regulatory authorizations. To the extent that the application
claims any regulatory authorization or other right to use the ROW,
such as a CPCN, the applicant must provide a true and correct copy
of the certificate, license, notice to proceed or other regulatory
authorization that supports the applicant's claim.
(d)
Project plans. The applicant must provide a fully dimensioned
site plan and elevation drawings prepared and sealed by a New York
licensed engineer showing any existing wireless facilities with all
existing transmission equipment and other improvements, the proposed
small wireless facility with all proposed transmission equipment and
other improvements and the legal boundaries of the leased or owned
area surrounding the proposed small wireless facility and any associated
access or utility easements.
(e)
Site photos and photo simulations. The applicant must provide
photographs and photo simulations that show the proposed wireless
facility in context of the site from reasonable line-of-site locations
from public streets or other adjacent viewpoints, together with a
map that shows the photo location of each view angle.
(f)
RF compliance demonstration. The applicant must provide an RF
exposure compliance report prepared and certified by a New York licensed
engineer acceptable to the Town that certifies that the proposed small
wireless facility, as well as any co-located small wireless facilities,
will comply with applicable federal RF exposure standards and exposure
limits. The RF report must include the actual frequency and power
levels [(in watts effective radiated power (ERPP)] for all existing
and proposed antennas at the site and exhibits that show the location
and orientation of all transmitting antennas and the boundaries of
areas with RF exposures in excess of the uncontrolled/general population
limit (as that term is defined by the FCC) and also the boundaries
of the areas with RF exposures in excess of the controlled/occupations
limit (as that term is defined by the FCC). Each such boundary shall
be clearly marked and identified for every transmitting antenna at
the project site in accordance with FCC requirements, if applicable.
(g)
Acoustic analysis. The applicant must provide a written report
that analyzes acoustic levels for the proposed wireless facility and
all associated equipment including without limitation all environmental
control units, sump pumps, temporary backup power generators, and
permanent backup generators. The acoustic analysis must be prepared
and certified by an engineer and include an analysis of the manufacturer's
specifications for all noise-emitting equipment and a depiction of
the proposed equipment relative to all adjacent property lines.
(h)
Project purpose statement. The applicant must provide a written
statement that includes:
[1]
A description of the technical objectives to be achieved;
[2]
An annotated topographical map that identifies the targeted
service area to be benefited;
[3]
The estimated number of potentially affected users in the targeted
service area; and
[4]
Full-color signal propagation maps with objective units of signal
strength measurements that show the applicant's current service
coverage levels from all adjacent sites without the proposed site,
predicted service coverage levels from all adjacent sites with the
proposed site, and predicted service coverage levels from the proposed
site without all adjacent sites.
(i)
Alternatives analysis. The applicant must list all existing
structures considered as alternatives to the proposed location, together
with a general description of the site design considered at each location.
The applicant must also provide a written explanation for why the
alternatives considered were unacceptable or infeasible, unavailable
or not as consistent with the design standards in this section as
the proposed location and design. This explanation must include a
comparative analysis and such technical information and other factual
justification as are necessary to document the reasons why each alternative
is unacceptable, infeasible, unavailable or not as consistent with
the design standards in this section as the proposed location.
(j)
The applicant shall provide manufacturer's information
for the small wireless facility and support structure, if applicable.
(k)
The applicant shall provide technical specifications of the
small wireless facility and support structure, if applicable.
(l)
The applicant shall provide a written maintenance and removal
plan, made to and acceptable by the Town of Clarence, to include an
agreement by the applicant and/or owner to remove all the components
of the small wireless facility in the event the facility becomes nonfunctional,
ceases to be used for its originally intended purposes or is otherwise
abandoned, as determined by the Town. The maintenance and removal
plan shall remain in full force for the life of the small wireless
facility. An acceptable bond and/or surety, for the purposes of removing
the small wireless facility, submitted to the Town for review, shall
be purchased and remain in force for the life of the small wireless
facility.
(m)
The applicant shall provide any other items that the Office
of Planning and Zoning shall deem necessary for a thorough and complete
review of the proposal.
(4)
Application fees. Unless otherwise provided by law, all applications
for permits pursuant to this section shall be accompanied by a fee
for actual, direct, and reasonable costs incurred by the Town related
to processing the application, but shall not exceed the fee as determined
within the Town's fee schedule.
(5)
Third-party professional consultants. The Town, in its sole discretion,
may retain third-party consultant(s) to assist in the review of a
proposed small wireless facility. The cost of such third-party consulting
services shall be reimbursed by the applicant to the Town of Clarence
within 30 days of the Town receiving an invoice for third-party consulting
services.
E.
Site location guidelines.
(1)
Preferred locations. All application must, to the extent feasible,
propose a new small wireless facility in locations according to the
following preferences, ordered from the most preferred to the least
preferred.
(a)
Town-owned property, not including ROW in all zoning districts;
approval authority by Town Attorney and Town Board.
(b)
Concealed installation on a building located on private property
within the following zoning districts, listed from most preferred
to least preferred; approval authority by Office of Planning and Zoning:
(c)
Existing support structure in the ROW exclusively adjacent to
the following zoning districts, listed from most preferred to least
preferred; approval authority by Office of Planning and Zoning:
(d)
New support structures in the ROW exclusively adjacent to the
following zoning districts, listed from most preferred to least preferred;
approval authority by Planning Board:
(2)
Discouraged locations. The Town discourages new wireless facilities
in the following locations, ordered from most discouraged to least
discouraged, and the Town will take into account whether any less
discouraged (or more preferred) locations are technically feasible
and potentially available.
(a)
New support structure in the Town ROW adjacent to the following
zoning classification(s), listed from most discouraged to least discouraged;
approval authority by Town Board through special exception use permit:
(e)
Existing support structure in the state or county ROW adjacent
to the following zoning classification(s), listed from most discouraged
to least discouraged; approval authority by Office of Planning and
Zoning:
F.
Design standards.
(1)
Construction categories. Each small wireless facility shall comply
with the standards set forth for each location type.
(a)
Existing support structure.
[1]
Equipment. All equipment must be installed as close to the support
structure as technically feasible to minimize its visibility from
public view to the greatest extent feasible. All conduits, conduit
attachments, cables, wires and other connectors shall be concealed
from the public view to the greatest extent feasible.
[2]
Maximum height. No part of the small wireless facility shall
exceed 10 feet above the existing support structure.
(b)
New support structure.
[1]
Support structure requirements. All applicants shall propose
new support structures that complement the community character of
the area, and any applicable design guidelines that may exist for
the area. When existing utility poles exist, new support structures
may feature a similar design and aesthetic. Where no existing utility
poles exist, architecturally significant support structures shall
be proposed, including, but not limited to, flag poles and decorative
light standards.
[2]
Equipment. All equipment must be installed as close to the support
structure as technically feasible to minimize its visibility from
public view. All conduits, conduit attachments, cables, wires and
other connectors shall be concealed from the public view to the greatest
extent feasible.
[3]
Maximum height. No part of the small wireless facility shall
exceed 40 feet above ground level, or 10 feet above the average height
of all utility poles within a five-hundred-foot radius, whichever
is less.
(c)
Concealed installation on building.
[1]
Required concealment techniques. All applicants shall propose
small wireless facilities that are completely concealed and architecturally
integrated into the existing facade or rooftop features with no visible
impacts from any publicly accessible areas at ground level. When integration
with existing building features is not possible, the applicant shall
propose completely concealed new structures or apparatuses designed
to mimic the original architectural style of the building and community
character of the area (cupolas, steeples, chimneys, etc).
[2]
Maximum height. No part of the small wireless facility or concealment
techniques shall exceed the overall allowable height of the underlying
zoning district.
G.
Standard conditions of approval. In addition to all other conditions
adopted by the approval authority, permits for the installation of
small wireless facilities, whether approved by the approval authority
or deemed approved by the operation of law, shall be automatically
subject to the conditions set forth herein. The approval authority
shall have discretion to modify or amend these conditions on a case-by-case
basis as may be necessary or appropriate under the circumstances to
allow for the proper operation of the approved facility consistent
with the goals of this section.
(1)
Approved plans. Before the permittee submits any applications to
the Building Department, the permittee must incorporate this permit,
all conditions associated with this permit and the approved photo
simulations into the project plans. The permittee must construct,
install and operate the wireless facility in strict compliance with
the approved plans. Any alterations, modifications or other changes
to the approved plans, whether requested by the permittee or required
by other departments or public agencies with jurisdiction over the
wireless facility, must be submitted in a written request subject
to the Office of Planning and Zoning prior to review and approval,
who may refer the request to the original approval authority if it
is found that the requested alteration, modification or other change
implicates a significant or substantial land use concern.
(2)
Build-out period. This permit will automatically expire one year
from the issuance date unless the permittee obtains all other permits
and approvals required to install, construct and/or operate the approved
wireless facility and commences the installation and construction,
which includes without limitation any permits or approvals required
by any federal, state or local public agencies with jurisdiction over
the subject property, the wireless facility or its use. The Office
of Planning and Zoning may grant one written extension to a date certain
when the permittee shows good cause to extend the limitations period
in a written request for an extension submitted at least 30 days prior
to the automatic expiration date in this condition.
(3)
Maintenance obligations; vandalism. The permittee shall keep the
site, which includes without limitation any and all improvements,
equipment, structures and access routes, in a neat, clean and safe
condition in accordance with the approved plans and all conditions
in this permit. The permittee shall keep the site area free from all
litter and debris at all times. The permittee, at no cost to the Town,
shall remove and remediate any graffiti or other vandalism at the
site within 48 hours after the permittee received notice or otherwise
becomes aware that such graffiti or other vandalism occurred.
(4)
Compliance with laws. The permittee shall maintain compliance at
all times with all federal, state and local statutes, regulations,
orders or other rules that carry the force of law ("laws") applicable
to the permittee, the subject property, the wireless facility or any
use or activities in connection with the use authorized in this permit.
The permittee expressly acknowledges and agrees that this obligation
is intended to be broadly construed and that no other specific requirements
in these conditions are intended to reduce, relieve or otherwise lessen
the permittee's obligations to maintain compliance with all applicable
laws.
(5)
Inspections; emergencies. The permittee expressly acknowledges and
agrees that the Town or its designee may enter onto the site and inspect
the improvements and equipment upon reasonable prior notice to the
permittee; provided, however, that the Town may, but will not be obligated
to, enter onto the site area without prior notice to support, repair,
disable or remove any improvements or equipment in emergencies or
when such improvements or equipment threatens actual, imminent harm
to property or persons. The permittee will be permitted to supervise
the Town or its designee while such inspection or emergency access
occurs.
(6)
Contact information. The permittee shall furnish the Building Department
with accurate and up-to-date contact information for a person responsible
for the wireless facility, which includes without limitation such
person's full name, title, direct telephone number, facsimile
number, mailing address and email address. The permittee shall keep
such contact information up to date at all times.
(7)
Indemnification. The permittee and, if applicable, the property owner
upon which the wireless facility is installed, shall defend, indemnify
and hold harmless the Town, its agents, officers, officials, employees
and volunteers from any and all: 1) damages, liabilities, injuries,
losses, costs and expenses and from any and all claims, demands, lawsuits,
writs and other actions or proceedings ("claims") brought against
the Town or its agents, officers, officials, employees or volunteers
to challenge, attach, seek to modify, set aside, void or annul the
Town's approval of this permit; and 2) other claims of any kind
or form, whether for personal injury, death or property damage, that
arise from or in connection with the permittee's or its agents',
directors', officers', employees', contractors',
subcontractors', licensees', or customers' acts or
omissions in connection with this permit or the wireless facility.
In the event the Town becomes aware of any claims, the Town will use
best efforts to promptly notify the permittee and the private property
owner and shall reasonably cooperate in the defense. The permittee
expressly acknowledges and agrees that the Town shall have the right
to approve, which approval shall not be unreasonably withheld, the
legal counsel providing the Town's defense, and the property
owner and/or permittee incurred by the Town in the course of the defense.
The permittee expressly acknowledges and agrees that the permittee's
indemnification obligations under this condition are a material consideration
that motivates the Town to approve this permit, and that such indemnification
obligations will survive the expiration or revocation of this permit.
(8)
Performance bond. Before the Building Official issues any construction
permit in connection with the wireless facility, the permittee shall
post a performance bond from a surety and in a form acceptable to
the Town Attorney in an amount equal to or greater than a written
estimate from a New York licensed engineer with experience in wireless
facilities removal. The written estimate must include the cost to
remove all equipment and other improvements, which includes without
imitation all antennas, radios, batteries, generators, utilities,
cabinets, mounts, brackets, hardware, cables, wires, conduits, structures,
shelters, towers, poles, footings and foundations, whether aboveground
or below-ground, constructed or installed in connection with the wireless
facility. In establishing or adjusting the bond amount required under
this condition, and in accordance with New York Code, the Town Supervisor
shall take into consideration information provided by the permittee
regarding the cost to remove the wireless facility.
(9)
Recall to the approval authority. The original approval authority
may recall this permit for review at any time due to complaints about
noncompliance with the Town Code or any approval conditions. At a
duly noticed public hearing and in accordance with all applicable
laws, the approval authority may revoke this permit or amend these
conditions as the approval authority deems necessary or appropriate
to correct any such noncompliance.
(10)
Record retention. The permittee shall retain full and complete
copies of all permits and other regulatory approvals issued in connection
with the wireless facility, which includes without limitation all
conditions of approval, approved plans, resolutions and other documentation
associated with the permit or regulatory approval.
H.
Rates and fees.
(1)
Permit fee. The applicant shall pay the Town applicable application
fee(s), as determined by the Town's fee schedule, at the time
of initial submittal.
(2)
Certificate of compliance fee. A wireless provider authorized to
place small wireless facilities in the ROW shall pay the Town an authorization
fee, as determined by the Town's fee schedule.
(3)
Annual rate. A wireless provider authorized to place small wireless
facilities in the ROW shall pay to the Town compensation for use of
the Town ROW in the amount, as determined by the Town's fee schedule,
per small wireless facility.