[Amended 7-14-2021 by L.L. No. 3-2021]
A special use permit shall conform to the following individual
standards and regulations, where applicable, in addition to all other
regulations for the zoning district in which the special use permit
use is located.
[Amended 7-14-2021 by L.L. No. 3-2021]
A special use permit may be granted, after public hearing by
the Town Board. These provisions shall apply to special permits for
the extraction and processing of natural resources, where permitted,
involving the regrading, removal or excavation of more than 1,000
tons or 750 yards of natural resources, whichever is less, within
12 successive calendar months, or a volume of more than 100 cubic
yards of natural resources from or adjacent to any body of water not
subject to the jurisdiction of Article 15 of the Environmental Conservation
Law.
A.
Scope of special use permit review. Any special use permit shall
be limited in scope to review of the following matters and potential
conditions related thereto:
(1)
Ingress and egress to public thoroughfares controlled by the
Town.
(2)
Routing of material transport vehicles on roads controlled by
the Town.
(3)
Incorporation and enforcement of the requirements and conditions
as specified by the New York State Department of Environmental Conservation
(NYSDEC) concerning setback from property boundaries and public thoroughfare
rights-of-way, natural or man-made barriers to restrict access, dust
control and hours of operation.
(4)
Incorporation and enforcement of reclamation requirements contained
in any permit issued by the NYSDEC.
B.
Application requirements. All special use permit applications must
be accompanied by the following:
(1)
A complete plan, prepared by a New York State licensed engineer, presented to the Planning Board which conforms with the requirements of § 150-95, Site Development Plan Approval of this Chapter and in addition includes the following information:
(a)
The location of the property, the zoning classification of the
property and all adjacent properties, all adjacent property owners,
all buildings on the site, and all buildings off the site and within
250 feet of the boundary line of the property.
(b)
Existing topography of the property at five-foot intervals.
(c)
Location of any streams, wetlands, floodplains, lakes, ponds,
rivers, watercourses or intermittent streams or watercourses within
or bounding the property.
(d)
Soil types, as defined by the Dutchess County Soil Survey, found
within the boundaries of the property.
(e)
Layout of equipment used and noise generation.
(f)
Details of erosion control on regarding or exposed soil surfaces.
(g)
Location and present status of any previous commercial operations
on the property.
(h)
Areas to be excavated, intended location of storage piles, the
estimated amounts and the type of earth to be excavated, in cubic
yards, existing and proposed slopes, details of existing and proposed
drainage, including the proposed level of any impounded water, plans
for erosion control and the location of all proposed structures and
proposed access drives to the excavation site.
(i)
Location of all structures used for a permitted or accessory use as defined in the Table of Use Regulations, § 150-48B.
(j)
A copy of all mined land use plan permit application documents
submitted to the New York State Department of Environmental Conservation.
(2)
An environmental assessment form, pursuant to the New York State
Environmental Quality Review Act, identifying the proposed project,
its impacts and all mitigation measures.
C.
Enforcement of special use permit conditions. If, at any time, the Town Zoning Administrator determines that the recipient of a special permit, as set forth herein, does not maintain the required improvements and/or does not comply with any and all conditions attached thereto, the Town Zoning Administrator shall order that the owner and/or the operator of all soil mining uses comply with all aspects of the special use permit. Failures to abide such direction shall constitute separate violations, subject to the enforcement remedies found within Article XIVA of this chapter.
[Amended 7-14-2021 by L.L. No. 3-2021]
A special use permit may be granted, after public hearing by
the Town Board, for a mobile home park in any residential district
where the general land use and development plan, prepared by a licensed
architect or professional engineer, for such mobile home park is found
to comply with the standards of the Mobile Home Park Ordinance (Ordinance
No. 3, adopted July 7, 1952, as amended)[1] and all applicable sections of this chapter. Furthermore, except as set forth in § 106-39 of the Town Code with respect to preexisting nonconforming parks, such mobile home park shall not exceed the density of single-family homes that would be permitted in the zoning district in which it is located.
[Amended 7-14-2021 by L.L. No. 3-2021]
A special use permit may be granted, after a public hearing
by the Planning Board, for a gasoline filling station, provided that:
A.
The proposed use shall be on a site of not less than 20,000 square
feet with no less than 150 feet of street frontage on any public road.
B.
No church, school, library, playground or similar place of public
assembly shall be within 500 feet of the site.
C.
All pumps, lubricating and other dispensing devices except air pumps
shall be located at least 20 feet from any adjoining lot line or highway
right-of-way.
D.
All motor vehicle fuel shall be stored at least 35 feet from any
street or lot line or highway right-of-way, in accordance with New
York State standards; storage tanks for the foregoing substances shall
be totally underground.
E.
Outdoor storage and display of accessories or portable signs may
be permitted in areas where they do not constitute a safety hazard
to pedestrians or vehicles entering or leaving the station. Premises
shall not be used for the display of automobiles, trailers, mobile
homes, boats or other vehicles unless specifically permitted by Planning
Board site plan approval.
F.
Required side and rear yards adjacent to residence districts shall
be used for parking only.
G.
Required side and rear yards adjacent to residence districts shall
be screened from the adjoining residential district with such screening
as shall be required by the Planning Board; provided, however, that
the Planning Board shall require only such screening of a size and
design necessary to preserve the residential character of the adjacent
residential district.
H.
Curbs shall be constructed in compliance with the County and State
Highway Department regulations, and the Planning Board shall evaluate
the overall site on the basis of traffic circulation within the site,
and traffic within the site in relation to the adjoining street system.
[Amended 7-14-2021 by L.L. No. 3-2021]
A special use permit may be granted, after a public hearing
by the Planning Board, for an animal hospital or kennel, provided
that:
A.
Minimum lot size. 10 acres or more in any district for an animal
hospital or kennel.
B.
Work spaces, runs, pens or other facilities shall be located within
a completely enclosed soundproof building, and such hospital or kennel
shall be operated in such a manner as to produce no objectionable
noise, odors or other nuisances beyond the boundaries of the site
on which it is located. Such a facility shall assure a zone of attenuation
sufficient to prevent any increase in the average preexisting ambient
noise levels on the site.
C.
No building in which animals are kept shall be located within 100
feet of any property in a residence district or within 150 feet of
any existing residence other than the residence of the owner, operator
or an employee thereof.
D.
Animals shall not be permitted beyond the boundaries of the special
use permit.
[Amended 7-14-2021 by L.L. No. 3-2021]
A special use permit may be granted, after a public hearing
by the Planning Board, for commercial riding establishments, provided
that:
A.
Minimum lot size. 25 acres or more within any residence district
for a commercial riding club, academy or stable, which may be used
for the Boarding and training of horses.
B.
The use of property for any of the above purposes shall be limited
to the keeping of one horse for each acre of lot area.
C.
No stable shall be erected within 100 feet of army property in a
residence district.
D.
The total area of all buildings used for such purposes shall not
exceed 4% of the minimum lot area.
E.
No horses shall be housed in any buildings used as a residence.
F.
The Planning Board shall require fencing or other suitable enclosures
and, in addition, may require buffer landscaping for screening purposes.
G.
Such uses shall comply in all respects with the requirements of the
County Department of Health and such further safeguards as the Planning
Board may deem appropriate.
[Amended 7-14-2021 by L.L. No. 3-2021]
A special use permit may be granted by the Planning Board within
any residence district for a dental clinic, provided that:
A.
The clinic is owned and operated by a sole practitioner.
B.
The clinic shall be conducted within an existing residence in accordance
with Item No. 12 of the Schedule of Regulations for Residential Districts[1] or in a new building. The requirements and standards of
an R-4A District, set forth in the Schedule of Regulations for Residential
Districts, shall apply to any such clinic not located on a state highway.
[1]
Editor's Note: The Schedule of Regulations for Residential Districts is included as an attachment to this chapter.
C.
All operations and activities in connection with such use shall be
conducted wholly within the building or accessory building, except
for off-street parking and loading areas.
D.
Off-street parking shall be provided in the amount set forth in Article XVII. Parking requirements may be increased, depending upon the needs of each particular proposed use as determined by the Planning Board. Such parking areas shall be permanently improved, shall be located only in the side or rear yards and shall be set back at least 50 feet from any boundary which abuts a residence district and at least 10 feet in all other cases.
E.
The entire site, except for areas covered by buildings, parking and
loading areas and walks, shall be suitably landscaped as approved
by the Planning Board. Suitable natural screening or buffer strips,
walls or fencing shall be provided along the boundaries of parking
and loading areas to protect adjacent properties from physical damage
or nuisances.
F.
Exterior lighting shall not be used to illuminate the structure.
Such lighting shall be used only along walk-ways and in the parking
area for safety purposes and shall be shielded from view of all surrounding
residence properties and from streets. All exterior lighting shall
be extinguished no later than 11:00 p.m.
G.
No more than one dwelling shall be permitted in the clinic. Such
dwelling shall have at least 700 square feet of gross floor area and
shall meet the off-street parking requirements of this chapter in
addition to parking required for the clinic.
H.
Access to dental clinics shall be permitted only from county or major
Town roads, as determined by the Planning Board, except that secondary
access, for safety purposes, may be permitted to other streets.
[Amended 7-14-2021 by L.L. No. 3-2021]
On a lot of one acre or more, a special use permit may be granted
by the Planning Board for a funeral home use within an existing residence
having an existing usable floor area of not less than 2,000 square
feet, provided that:
A.
All operations and activities in connection with such use shall be
conducted wholly within such building, except for off-street parking
and loading areas.
B.
Any existing main building shall be set back at least 50 feet from
the street or from site boundaries abutting a business- or industry-zoned
area, at least 100 feet from site boundaries abutting a residence-zoned
area and at least 150 feet from any existing building in residential
use. Existing accessory buildings shall be set back at least 50 feet
from the street and all other site boundaries.
C.
Off-street parking shall be provided in the amount set forth in Article XVII, except that the same may be increased, depending on the parking needs of each particular proposed use as determined by the Planning Board. Such parking area shall be permanently improved, shall be located only in the side or rear yards and shall be set back at least 50 feet from any boundary which abuts a residence-zoned area and at least 10 feet in all other cases.
D.
The entire site, except for areas covered by buildings, parking and
loading areas and walks, shall be suitably landscaped as approved
by the Planning Board. Suitable natural screening or buffer strips,
walls or fencing shall be provided along the boundaries of parking
and loading areas to protect adjacent properties from physical damage
or nuisances.
E.
Exterior lighting shall be shielded from view of all surrounding
residence properties and from streets. All exterior lighting, other
than lighting for security reasons, shall be extinguished not later
than 11:00 p.m.
F.
Any such use shall comply with all applicable rules and regulations
of any county or state agency having jurisdiction.
[Amended 7-14-2021 by L.L. No. 3-2021]
A special use permit may be granted by the Planning Board for
adult entertainment cabarets, subject to the conditions set forth
in this section.
A.
Purposes and considerations.
(1)
In the execution of this article, it is recognized that there
are some uses which, by their very nature, have serious objectionable
characteristics. The objectionable characteristics of these uses are
increased by their concentration in any one area, thereby having deleterious
effects on adjacent areas. Special regulation of these uses is necessary
to ensure that these adverse effects will not contribute to the blighting
or downgrading of the surrounding neighborhoods or land uses.
(2)
It is further declared that the location of these uses in regard
to areas where our youth may regularly assemble and the general atmosphere
encompassing their operation is of great concern to the Town of Fishkill.
(3)
These special regulations are itemized in this section to accomplish
the primary purposes of preventing a concentration of these uses in
any one area and restricting their accessibility to minors.
B.
The adult entertainment cabaret use is to be restricted as to its
location in the following manner, in addition to any other requirements
of this Code:
(1)
The above use shall not be located within a 500-foot radius
of any area zoned for residential use.
(2)
An adult entertainment cabaret shall not be located within a
one-half-mile radius of another such use.
(3)
An adult entertainment cabaret shall not be located within a
500-foot radius of any school, church or other place of religious
worship, park, playground, playing field or any place of business
which regularly has minors on the premises.
(4)
The adult entertainment cabaret use shall be subject to site
plan approval by the Planning Board.
C.
No more than one adult entertainment cabaret, as defined above, shall
be located on any lot or parcel.
[Amended 4-3-2019 by L.L.
No. 1-2019; 7-14-2021 by L.L. No. 3-2021; 12-15-2021 by L.L. No. 10-2021]
No telecommunications tower or other personal wireless service
facility shall be sited, constructed, reconstructed, installed, materially
changed or altered, expanded, or used unless in conformity with this
section.
The installation, construction, erection, relocation, substantial
expansion, or material alteration of any personal wireless service
facility (PWSF) within the Town shall require a special use permit
pursuant to the provisions of this section unless otherwise provided
hereinbelow.
The performance of maintenance, routine maintenance, in-kind
replacement of components, and/or repairs (as defined herein) to an
existing personal wireless service facility and/or existing personal
wireless service equipment shall not require a special use permit.
Each application for a special use permit under this chapter
and each individual personal wireless service facility for which an
application for a special use permit is submitted shall be considered
based upon the individual characteristics of each respective installation
at each proposed location as an individual case. In other words, each
installation, at each proposed location, shall be reviewed and considered
independently for its own characteristics and potential impacts, irrespective
of whether the proposed facility is designed and intended to operate
independently or whether the installation is designed and/or intended
to operate jointly as part of a distributed antenna system.
A.
Purpose and legislative intent.
(1)
The purpose of this section is to promote the health, safety,
and general welfare of the residents of the Town of Fishkill and to
preserve the scenic, historical, natural, and man-made character and
appearance of the Town while simultaneously providing standards for
the safe provision, monitoring, and removal of cell towers and other
personal wireless service facilities consistent with applicable federal,
state and local laws and regulations.
(2)
Consistent with the balancing of interests which the United States Congress intended to embed with the federal Telecommunications Act of 1996 (hereinafter "the TCA"), § 150-126 is intended to serve as a Smart Planning Provision, designed to achieve the four simultaneous objectives of: a) enabling personal wireless service providers to provide adequate personal wireless services throughout the Town so that Town residents can enjoy the benefits of same, from any FCC-licensed wireless carrier from which they choose to obtain such services, while b) minimizing the number of cell towers and/or other personal wireless service facilities needed to provide such coverage, c) preventing, to the greatest extent reasonably practical, any unnecessary adverse impacts upon the Town's communities, residential areas, and individual homes, and d) complying with all of the legal requirements which the TCA imposes upon the Town, when the Town receives, processes and determines applications seeking approvals for the siting, construction and operation of cell towers and/or other personal wireless service facilities.
(3)
The Town seeks to minimize, to the greatest extent possible,
any unnecessary adverse impacts caused by the siting, placement, physical
size, and/or unnecessary proliferation of, personal wireless service
facilities, including, but not limited to, adverse aesthetic impacts,
adverse impacts upon property values, adverse impacts upon the character
of any surrounding properties and communities, adverse impacts upon
historical and/or scenic properties and districts, and the exposure
of persons and property to potential dangers such as structural failures,
icefall, debris fall, and fire.
(4)
The Town also seeks to ensure that, in applying this section,
the Planning Board is vested with sufficient authority to require
applicants to provide sufficient, accurate, and truthful probative
evidence, to enable the Board to render factual determinations consistent
with both the provisions set forth hereinbelow and the requirements
of the TCA when rendering decisions upon such applications.
(5)
To achieve the objectives stated herein, the Town seeks to employ
the "general authority" preserved to it under 47 U.S.C. § 332(c)(7)(A)
of the TCA to the greatest extent which the United States Congress
intended to preserve those powers to the Town, while simultaneously
complying with each of the substantive and procedural requirements
set forth within the 47 U.S.C. § 332(c)(7)(B) of the TCA.
B.
ACCESSORY FACILITY or ACCESSORY STRUCTURE
ACHP
ADEQUATE COVERAGE
ANTENNA
APPLICANT
APPLICATION
BOARD
CELL TOWER
CEQ
CODE and/or THE CODE
CO-LOCATION and/or CO-LOCATE
COMPLETE APPLICATION, COMPLETED APPLICATION
COMPLEX
DEPLOYMENT
DISTRIBUTED ANTENNA SYSTEM, DAS
EFFECTIVE PROHIBITION
ELEVENTH-HOUR SUBMISSION
ENURE
EPA
FAA
FACILITY
FCC
GENERAL POPULATION/UNCONTROLLED EXPOSURE LIMITS
HEIGHT
HISTORIC STRUCTURE
ILLEGALLY EXCESSIVE RF RADIATION or ILLEGALLY EXCESSIVE RADIATION
IN-KIND REPLACEMENT
MACROCELL
MAINTENANCE or ROUTINE MAINTENANCE
NECESSARY or NECESSITY or NEED
NEPA
NHPA
NODE, DAS NODE
NOTICE ADDRESS
OCCUPATIONAL/CONTROLLED EXPOSURE LIMITS
PERSONAL WIRELESS SERVICE, PERSONAL WIRELESS SERVICES
PERSONAL WIRELESS SERVICE FACILITY, PERSONAL WIRELESS SERVICES
FACILITY or PWSF
PROBATIVE EVIDENCE
REPAIRS
RF
RF RADIATION
SECTION 106 REVIEW
SETBACK
SEQRA
SHOT CLOCK
SHPO
SITE DEVELOPER or SITE DEVELOPERS
SMALL CELL
SMALL WIRELESS FACILITY
(1)
(2)
(3)
(4)
(5)
SPECIAL USE PERMIT
STATE
STEALTH or STEALTH TECHNOLOGY
STRUCTURE
SUBSTANTIAL EVIDENCE
TCA
TOLLING or TOLLED
TOWER, TELECOMMUNICATIONS TOWER
TOWN
UNDERTAKING
WIRELESS CARRIERS or CARRIER
ZONING BOARD OF APPEALS
Definitions; word usage. For purposes of this section, 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. The definitions set forth herein shall supersede any definitions set forth within § 150-6, and the definitions set forth hereinbelow shall control and apply to § 150-126 and all subparagraphs herein.
A facility or structure serving or being used in conjunction
with a personal wireless services facility or complex and located
on the same property or lot as the personal wireless services facility
or complex, or an immediately adjacent lot including, but not limited
to, utility or transmission equipment storage sheds or cabinets.
The federal Advisory Council on Historic Preservation.
As determined by the Planning Board, "adequate coverage"
means that a specific wireless carrier's personal wireless service
coverage is such that the vast majority of its customers can successfully
use the carrier's personal wireless service the vast majority
of the time, in the vast majority of the geographic locations within
the Town, that the success rate of using their devices exceeds 97%,
and that any geographic gaps in a carrier's gaps in personal
wireless services are not significant gaps, based upon such factors
including, but not limited to, lack of significant physical size of
the gap, whether the gap is located upon a lightly traveled or lightly
occupied area, whether only a small number of customers are affected
by the gap, and/or whether or not the carrier's customers are
affected for only limited periods of time. A wireless carrier's
coverage shall not be deemed inadequate simply because the frequency
or frequencies at which its customers are using its services are not
the most preferred frequency of the wireless carrier.
An apparatus designed for the purpose of emitting radiofrequency
(RF) radiation, to be operated or operating from a fixed location,
for the provision of personal wireless service.
Any individual, corporation, limited-liability company, general
partnership, limited partnership, estate, trust, joint-stock company,
association of two or more persons having a joint common interest,
or any other entity submitting an application for a special use permit,
site plan approval, variance, building permit, and/or any other related
approval, for the installation, operation and/or maintaining of one
or more personal wireless service facilities.
Refers to all necessary and required documentation and evidence
that an applicant must submit to receive a special use permit, building
permit, or other approval for personal wireless service facilities
from the Town.
The Planning Board of the Town of Fishkill.
A freestanding, guy-wired, or otherwise supported pole, tower,
or other structure designed to support or employed to support, equipment
and/or antennas used to provide personal wireless services, including,
but not limited to, a pole, monopole, monopine, slim stick, lattice
tower or other types of standing structures.
The Council on Environmental Quality as established under
NEPA.
The Code of the Town of Fishkill.
To install, mount or add new or additional equipment to be
used for the provision of personal wireless services to a preexisting
structure, facility, or complex which is already built and is currently
being used to provide personal wireless services, by a different provider
of such services, wireless carrier or site developer.
An application that contains all the necessary and required
information, records, evidence, reports, and/or data necessary to
enable an informed decision to be made with respect to an application.
Where any information is provided pursuant to the terms of this section
and the Zoning Administrator or the Town's expert or consultant
or the Board determines, based upon information provided, that any
additional, further or clarifying information is needed as to one
or more aspects, then the application will be deemed incomplete until
that further or clarifying information is provided to the satisfaction
of the Zoning Administrator, Planning Board or the Town's expert
or consultant or the Board.
The entire site or facility, including all structures and
equipment, located at the site.
The placement, construction, or substantial modification
of a personal wireless service facility.
A network of spatially separated antenna nodes connected
to a common source via a transport medium that provides personal wireless
services within a geographic area.
A finding by the Planning Board that, based upon an applicant's
submission of sufficient probative, relevant, and sufficiently reliable
evidence, and the appropriate weight which the Board deems appropriate
to afford same, an applicant has established that an identified wireless
carrier does not have adequate coverage as defined hereinabove, but
suffers from a significant gap in its personal wireless services within
the Town and that a proposed installation by that applicant would
be the least intrusive means of remedying that gap, such that a denial
of the application to install such installation would effectively
prohibit the carrier from providing personal wireless services within
the Town. Any determination of whether an applicant has established,
or failed to establish, both the existence of a significant gap and
whether its proposed installation is the least intrusive means of
remedying such gap, shall be based upon substantial evidence, as is
hereinafter defined.
An applicant's submission of new and/or additional materials
in support of an application within 48 hours of the expiration of
an applicable shot clock, or at an otherwise unreasonably short period
of time before the expiration of the shot clock, making it impracticable
for the Planning Board to adequately review and consider such submissions
due to their complexity, volume, or other factors, before the expiration
of the shot clock.
To operate or take effect. To serve to the use, benefit,
or advantage of a person or party.
The United States Environmental Protection Agency.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
A set of wireless transmitting and/or receiving equipment,
including any associated electronics and electronics shelter or cabinet
and generator.
The Federal Communications Commission.
The applicable radiofrequency radiation exposure limits set
forth within 47 CFR 1.1310(e)(1), Table 1, Section (ii), made applicable
pursuant to 47 CFR 1.1310(e)(3).
When referring to a tower, personal wireless service facility,
or personal wireless service facility structure, the height shall
mean the distance measured from the preexisting grade level to the
highest point on the tower, facility, or structure, including, but
not limited to, any accessory, fitting, fitment, extension, addition,
add-on, antenna, whip antenna, lightning rod or other types of lightning-protection
devices attached to the top of the structure.
Any structure that would meet the definition of a "regulated
structure" as defined in this chapter.
RF radiation emissions at levels that exceed the legally
permissible limits set forth within 47 CFR 1.1310(e)(1), Table 1,
Sections (i) and (ii), as made applicable pursuant to 47 CFR 1.1310(e)(3).
The replacement of a malfunctioning component(s) with a properly
functioning component of substantially the same weight, dimensions,
and outward appearance.
A cellular base station that typically sends and receives
radio signals from large towers and antennas. These include traditionally
recognized cell towers, which typically range from 50 feet to 199
feet in height.
Plumbing, electrical or mechanical work that may require
a building permit but that does not constitute a modification to the
personal wireless service facility. It is work necessary to assure
that a wireless facility and/or telecommunications structure exists
and operates: reliably and in a safe manner, presents no threat to
persons or property, and remains compliant with the provisions of
this chapter and FCC requirements.
What is technologically required for the equipment to function
as designed by the manufacturer, and that anything less will result
in prohibiting the provision of service as intended and described
in the narrative of the application. "Necessary" or "need" does not
mean what may be desired, preferred, or the most cost-efficient approach
and is not related to an applicant's specific chosen design standards.
Any situation involving a choice between or among alternatives or
options is not a need or a necessity.
The National Environmental Policy Act, 42 U.S.C. § 4321
et seq.
The National Historic Preservation Act, 54 U.S.C. § 300101
et seq., and 36 CFR Part 800 et seq.
A fixed antenna and related equipment installation that operates
as part of a system of spatially separated antennas, all of which
are connected through a medium through which they work collectively
to provide personal wireless services, as opposed to other types of
personal wireless facilities, such as macrocells, which operate independently.
An address, which is required to be provided by an applicant
at the time it submits an application for a special permit, at which
the Town, Planning Board and/or Zoning Administrator can mail notice,
and the mailing of any notice to such address by first-class mail
shall constitute sufficient notice to any and all applicants, co-applicants,
and/or their attorneys, to satisfy any notice requirements under this
chapter, as well as any notice requirements of any other local, state
and/or federal law.
The applicable radiofrequency radiation exposure limits set
forth within 47 CFR 1.1310(e)(1), Table 1, Section (i), made applicable
pursuant to 47 CFR 1.1310(e)(2).
Commercial mobile services, unlicensed wireless services,
and common carrier wireless exchange access services, within the meaning
of 47 U.S.C. § 332(c)(7)(c)(i), and as defined therein.
A facility or facilities used for the provision of personal
wireless services, within the meaning of 47 U.S.C. § 332(c)(7)(c)(ii).
It means a specific location at which a structure that is designed
or intended to be used to house or accommodate antennas or other transmitting
or receiving equipment is located. This includes, without limitation,
towers of all types and all kinds of support structures, including
but not limited to buildings, church steeples, silos, water towers,
signs, utility poles, or any other structure that is used or is proposed
to be used as a telecommunications structure for the placement, installation
and/or attachment of antennas or the functional equivalent of such.
It expressly includes all related facilities and equipment such as
cabling, radios and other electronic equipment, equipment shelters
and enclosures, cabinets, and other structures enabling the complex
to provide personal wireless services.
Evidence which tends to prove facts, and the more a piece of evidence or testimony proves a fact, the greater its probative value, as shall be determined by the Planning Board, as the finder-of-fact in determining whether to grant or deny applications for special use permits under Article XII of the Town Code.
The replacement or repair of any components of a wireless
facility or complex where the replacement is substantially identical
to the component or components being replaced, or for any matters
that involve the normal repair and maintenance of a wireless facility
or complex without the addition, removal, or change of any of the
physical or visually discernible components or aspects of a wireless
facility or complex that will impose new visible intrusions of the
facility or complex as originally permitted.
Radiofrequency.
Radiofrequency radiation, that being electromagnetic radiation
which is a combination of electric and magnetic fields that move through
space as waves, and which can include both non-ionizing radiation
and ionizing radiation.
A review under Section 106 of the National Historic Preservation
Act.
For purposes of special use permit applications, a setback
shall mean the distance between: a) any portion of a personal wireless
facility and/or complex, including but not limited to any and all
accessory facilities and/or structures; and b) the exterior line of
any parcel of real property or part thereof which is owned by, or
leased by, an applicant seeking a special use permit to construct
or install a personal wireless facility upon such real property or
portion thereof. In the event that an applicant leases only a portion
of real property owned by a landlord, the setback shall be measured
from the facility to the line of that portion of the real property
which is actually leased by the applicant, as opposed to the exterior
lot line of the nonleased portion of the property owned by the landlord.
The New York State Environmental Quality Review Act, 6 NYCRR
Part 617 et seq.
The applicable period which is presumed to be a reasonable
period within which the Town is generally required to issue a final
decision upon an application seeking special use permit approval for
the installation or substantial modification of a personal wireless
services facility or structure, to comply with 47 U.S.C. § 332(c)(7)(B)(ii)
of the TCA.
The New York State Historic Preservation Office.
Individuals and/or entities engaged in the business of constructing
wireless facilities and wireless facility infrastructure and leasing
space and/or capacity upon, or use of, their facilities and/or infrastructure
to wireless carriers. Unlike wireless carriers, site developers generally
do not provide personal wireless services to end-use consumers.
A fixed cellular base station that typically sends and receives
radio signals and which are mounted upon poles or support structures
at substantially lower elevations than macrocell facilities.
A personal wireless service facility that meets all of the
following criteria:
The facility does not extend the height of an existing structure
to a total cumulative height of more than 50 feet, from ground level
to the top of the structure and any equipment affixed thereto;
Each antenna associated with the deployment is no more than
three cubic feet in volume;
All wireless equipment associated with the facility, including
any preexisting equipment and any proposed new equipment, cumulatively
total no more than 28 cubic feet in volume;
The facility is not located on tribal land; and
The facility will not result in human exposure to radiofrequency
radiation in excess of the applicable FCC safety standards set forth
within Table 1 of 47 CFR 1.1310(e)(1).
The official document or permit granted by the Planning Board
pursuant to which an applicant is allowed to file for and obtain a
building permit to construct and use a personal wireless services
facility, personal wireless service equipment, and/or any associated
structures and/or equipment which are used to house, or be a part
of, any such facility or complex, or to be used to provide personal
wireless services.
The State of New York.
A design or treatment that minimizes adverse aesthetic and
visual impacts on the land, property, buildings, and other facilities
adjacent to, surrounding, and generally in the same area as the requested
location of such personal wireless service facilities. This shall
mean building the least visually and physically intrusive facility
and complex under the facts and circumstances.
A pole, tower, base station, or other building, physical
support of any form used for, or to be used for, the provision of
personal wireless service.
Such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. It means less than a preponderance
but more than a scintilla of evidence.
The Telecommunications Act of 1996, 47 U.S.C. § 332(c).
The pausing of the running of the time period permitted under
the applicable shot clock for the respective type of application for
a personal wireless services facility. Where a shot clock is tolled
because an application has been deemed incomplete and timely notice
of incompleteness was mailed to the applicant, the submission of additional
materials by the applicant to complete the application will end the
tolling, thus causing the shot clock period to resume running, as
opposed to causing the shot clock to begin running anew.
Any structure designed primarily to support one or more antennas
and/or equipment used or designed for receiving and/or transmitting
a wireless signal.
The Incorporated Town of Fishkill.
Any application for a special use permit seeking Board approval
for the installation of a personal wireless services facility licensed
under the authority of the FCC shall constitute an undertaking within
the meaning of NEPA, in accord with 42 CFR 137.289 and 36 CFR 800.16.
Companies that provide personal wireless services to end-use
consumers.
C.
Application types. There shall be four specific types of applications
for special use permits under this section, which shall include Type
I, Type II, Type III, and Type IV applications. It shall be the obligation
of any applicant to explicitly and correctly identify which type of
application they are filing.
(1)
Type I applications: co-locations of small wireless facilities.
(a)
Type I applications shall be limited to applications wherein
an applicant seeks to co-locate a new small wireless facility, as
defined in this section, by installing new personal wireless service
equipment upon an already existing small personal wireless services
facility structure.
(b)
If the completed facility would still meet the physical limits
and requirements to meet the definition of a small wireless facility
after the installation of the new equipment, then the application
to install such new equipment is a Type I application.
(c)
Type I applications for co-location of a small wireless facility
in Planned Industry (PI), General Business (GB), Planned Shopping
Center (PSC), Planned Business (PB), and Restricted Business (RB)
Districts shall be a permitted use with a building permit.
(d)
Type I applications for co-location of a small wireless facility
in any residentially zoned district shall require an applicant to
obtain a special use permit from the Planning Board.
(2)
Type II applications: co-locations which do not meet the definition
of a "small wireless facility."
(a)
Type II applications shall be limited to applications wherein
an applicant is seeking to co-locate new personal wireless service
equipment by installing such new wireless equipment upon an already
existing personal wireless services facility structure, tower, or
complex, which does not meet the definition of a "small wireless facility"
or which will not meet the definition of a "small wireless facility"
if and when the proposed new personal wireless service equipment is
installed upon the existing facility and/or structure. Type II applications
for co-location of personal wireless service facility equipment in
Planned Industry (PI), General Business (GB), Planned Shopping Center
(PSC), Planned Business (PB), and Restricted Business (RB) Districts
shall either be a permitted use with a building permit, or a special
use permit use, as set forth below.
(b)
The co-location of personal wireless service facility equipment
on an approved PWSF tower or PWSF structure on property within PI,
GB, PSC, PB, and RB Districts is a permitted use subject to the issuance
of a building permit, provided that the Zoning Administrator determines
that the proposed co-location will not:
[1]
Increase the approved height of the supporting structure by
more than 15%;
[2]
Cause the original approved number of antennas to be exceeded
by more than 50%;
[3]
Increase the original approved square footage of accessory buildings
by more than 200 square feet;
[4]
Add new or additional microwave antenna dishes;
[5]
Expand the footprint of said support structure; or
[6]
Cause adverse impacts on the existing support structure or the
surrounding area.
(c)
If the Zoning Administrator cannot make the findings above, special use permit and site plan approvals will be required in accord with Articles X and XI of this chapter, and the Building Inspector shall refer the application to the Planning Board, where it will be subject to the terms and conditions specified in the requirements and standards in this section as part of the special use permit and site plan review process.
(3)
Type III applications: new small wireless facilities.
(4)
Type IV applications: new towers and all other wireless facilities.
(a)
Type IV applications shall include applications for the installation
of a new Telecommunications tower, personal wireless service facility,
complex, structure, or equipment, which does not meet the criteria
for Type I, Type II, or Type III applications.
(b)
Type IV applications shall require applicants to obtain a special
use permit and site plan approvals from the Planning Board.
D.
Shot clock periods.
To comply with the requirements of Section 47 U.S.C. § 332(c)(7)(B)(ii)
of the TCA, the following shot clock periods set forth hereinbelow
shall be presumed to be reasonable periods within which the Planning
Board shall render determinations upon special use permit applications
for personal wireless service facilities.
The Planning Board shall render determinations upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period list below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Board and/or Town's controls, as addressed within § 150-126O, P, Q, and R hereinbelow.
(1)
Type I applications: co-locations of small wireless facilities;
60 days.
(a)
Unless extended by agreement, tolled, or subject to reasonable
delays, the Planning Board shall issue a written decision upon a Type
I application within 60 days from the date when the Town receives
a Type I application.
(b)
Upon receipt of a Type I application, the Zoning Administrator
shall review the application for completeness. If the Zoning Administrator
determines the application is: a) incomplete; b) missing required
application materials; c) is the wrong type of application; or d)
is otherwise defective, then, within 10 days of the Town's receipt
of the application, the Building Inspector, or his designee, shall
mail the applicant a notice of incompleteness by first class mail,
to the notice address provided by the applicant.
(c)
Within such notice of incompleteness, the Zoning Administrator
shall advise the applicant, with reasonable clarity, the defects within
its application, including a description of such matters as what items
are missing from the application and/or why the application is incomplete
and/or defective.
(d)
The mailing of a notice of incomplete application by the Zoning
Administrator shall toll the sixty-day shot clock, which shall not
thereafter resume running unless and until the applicant tenders an
additional submission to the Zoning Administrator to remedy the issues
the Zoning Administrator identified in the notice of incomplete application,
which he had mailed to the applicant. The submission of any responsive
materials by the applicant shall automatically cause the shot clock
period to resume running.
(e)
If upon receipt of any additional materials from the applicant,
the Zoning Administrator determines that the application is still
incomplete and/or defective, then the Zoning Administrator shall,
once again, mail a notice of incompleteness within 10 days of the
applicant having filed its supplemental or corrected materials to
the Town and the shot clock shall once again be tolled, and the same
procedure provided for hereinabove shall be repeated.
(2)
Type II applications: co-locations on existing towers, structures
or other facilities which do not meet the definition of a "small wireless
facility"; 90 days.
(a)
Unless extended by agreement, tolled, or subject to reasonable
delays, the Planning Board shall issue a written decision upon a Type
II application within 90 days from the date when the Town receives
a Type II application.
(b)
Upon receipt of a Type II application, the Zoning Administrator
shall review the application for completeness. If the Zoning Administrator
determines the application is: a) incomplete; b) missing required
application materials; c) is the wrong type of application; or d)
is otherwise defective, then, within 30 days of the Town's receipt
of the application, the Building Inspector, or his designee, shall
mail the applicant a notice of incompleteness by first class mail,
to the notice address provided by the applicant.
(c)
Within such notice of incompleteness, the Zoning Administrator
shall advise the applicant, with reasonable clarity of the defects
within its application, including a description of such matters as
what items are missing from the application and/or why the application
is incomplete and/or defective.
(d)
The mailing of a notice of incomplete application by the Zoning
Administrator shall toll the ninety-day shot clock, which shall not
thereafter resume running unless and until the applicant tenders an
additional submission to the Zoning Administrator to remedy the issues
the Zoning Administrator identified in the notice of incomplete application,
which he had mailed to the applicant.
(e)
The submission of any responsive materials by the applicant
shall automatically cause the shot clock period to resume running.
(f)
If upon receipt of any additional materials from the applicant,
the Zoning Administrator determines that the application is still
incomplete and/or defective, then the Zoning Administrator shall,
once again, mail a notice of incompleteness within 10 days of the
applicant having filed its supplemental or corrected materials to
the Town. The shot clock shall once again be tolled, and the same
procedure provided hereinabove shall be repeated.
(3)
Type III applications: new small wireless facilities; 60 days.
(a)
Unless extended by agreement, tolled, or subject to reasonable
delays, the Planning Board shall issue a written decision upon a Type
III application within 60 days from the date when the Town receives
a Type III application.
(b)
Upon receipt of a Type III application, the Zoning Administrator
shall review the application for completeness. If the Zoning Administrator
determines the application is: a) incomplete; b) missing required
application materials; c) is the wrong type of application; or d)
is otherwise defective, then, within 10 days of the Town's receipt
of the application, the Building Inspector, or his designee, shall
mail the applicant a notice of incompleteness by first class mail,
to the notice address which the applicant has provided.
(c)
Within such notice of incompleteness, the Zoning Administrator
shall advise the applicant, with reasonable clarity, the defects within
its application, including a description of such matters as what items
are missing from the application and/or why the application is incomplete
and/or defective.
(d)
The mailing of a notice of incomplete application by the Zoning
Administrator shall toll the sixty-day shot clock, which shall not
thereafter resume running unless and until the applicant tenders an
additional submission to the Zoning Administrator to remedy the issues
the Zoning Administrator identified in the notice of incomplete application,
which he had mailed to the applicant.
(e)
The submission of any responsive materials by the applicant
shall automatically cause the shot clock period to resume running.
(f)
If upon receipt of any additional materials from the applicant,
the Zoning Administrator determines that the application is still
incomplete and/or defective, then the Zoning Administrator shall,
once again, mail a notice of incompleteness within 10 days of the
applicant having filed its supplemental or corrected materials to
the Town and the shot clock shall once again be tolled, and the same
procedure provided for hereinabove shall be repeated.
(4)
Type IV applications: new towers and all other wireless facilities;
150 days.
(a)
Unless extended by agreement, tolled, or subject to reasonable
delays, the Planning Board shall issue a written decision upon a Type
IV application within 150 days from the date when the Town receives
a Type IV application.
(b)
Upon receipt of a Type IV application, the Zoning Administrator
shall review the application for completeness. If the Zoning Administrator
determines the application is: a) incomplete; b) missing required
application materials; c) is the wrong type of application; or d)
is otherwise defective, then, within 30 days of the Town's receipt
of the application, the Building Inspector, or his designee, shall
mail the applicant a notice of incompleteness by first class mail,
to the notice address provided by the applicant.
(c)
Within such notice of incompleteness, the Zoning Administrator
shall advise the applicant, with reasonable clarity, the defects within
its application, including a description of such matters as what items
are missing from the application and/or why the application is incomplete
and/or defective.
(d)
The mailing of a notice of incomplete application by the Zoning
Administrator shall toll the 150-day shot clock, which shall not thereafter
resume running unless and until the applicant tenders an additional
submission to the Zoning Administrator to remedy the issues the Zoning
Administrator identified in the notice of incomplete application,
which he had mailed to the applicant.
(e)
The submission of any responsive materials by the applicant
shall automatically cause the shot clock period to resume running.
(f)
If upon receipt of any additional materials from the applicant,
the Zoning Administrator determines that the application is still
incomplete and/or defective, then the Zoning Administrator shall,
once again, mail a notice of incompleteness within 10 days of the
applicant having filed its supplemental or corrected materials to
the Town and the shot clock shall once again be tolled, and the same
procedure provided for hereinabove shall be repeated.
E.
Shot clock tolls, extensions and reasonable delay periods.
Consistent with the letter and intent of 47 U.S.C. § 332(c)(7)(B)(ii) of the TCA, each of the shot clock periods set forth within § 150-126D hereinabove shall generally be presumed to be sufficient periods within which the Planning Board shall render decisions upon special use permit applications.
Notwithstanding same, the applicable shot clock periods may
be tolled, extended by mutual agreement between any applicant and/or
its representative and the Planning Board, and the Planning Board
shall not be required to render its determination within the shot
clock period presumed to be reasonable for each type of application,
where the processing of such application is reasonably delayed, as
described hereinbelow.
(1)
Tolling of the applicable shot clock due to incompleteness and/or
applicant error.
(a)
As provided for within § 150-126D hereinabove, in the event that the Zoning Administrator deems an application incomplete, the Zoning Administrator shall send a notice of incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application.
(b)
If the Zoning Administrator mails a notice of incompleteness
as described hereinabove, the applicable shot clock shall automatically
be tolled, meaning that the applicable shot clock period within which
the Planning Board is required to render a final decision upon the
application shall immediately cease running, and shall not resume
running, unless and until the Town receives a responsive submission
from the applicant.
(c)
If and when the applicant thereafter submits additional information
in an effort to complete its application, or cure any identified defect(s),
then the shot clock shall automatically resume running, but shall
not be deemed to start running anew.
(d)
The applicable shot clock period shall, once again, be tolled
if the Zoning Administrator thereafter provides a second notice that
the application is still incomplete or defective, despite any additional
submissions which have been received by the Town, from the applicant,
up to that point.
(2)
Shot clock extension by mutual agreement.
(a)
The Planning Board, in its sole discretion, shall be free to
extend any applicable shot clock period by mutual agreement with any
respective applicant. This discretion on the part of the Board shall
include the Board's authority to request, at any time, and for
any period of time the Planning Board may deem reasonable or appropriate
under the circumstances, consent from a respective applicant, to extend
the applicable shot clock period, to enable the Board, the applicant,
or any relevant third party, to complete any type of undertaking or
task related to the review, analysis, processing, and determination
of the particular application, which is then pending before the Board,
to the extent that any such undertaking, task, or review is consistent
with, or reasonably related to, compliance with any federal, state,
or local law, and/or the requirements of any provision of the Town
Code, including but not limited to this section.
(b)
In response to any request by the Board, the applicant, by its
principal, agent, attorney, site acquisition agent, or other authorized
representative can consent to any extension of any applicable shot
clock, by affirmatively indicating its consent either in writing or
by affirmatively indicating its consent on the record at any public
hearing or public meeting. The Planning Board shall be permitted to
reasonably rely upon a representative of the applicant indicating
that they are authorized to grant such consent on behalf of the respective
applicant, on whose behalf they have been addressing the Board within
the hearing process.
(3)
Reasonable delay extensions of shot clock periods.
(a)
The Town recognizes that there may be situations wherein, due to circumstances beyond the control of the Town and/or the Planning Board, the review and issuance of a final decision upon a special use permit application for a personal wireless facility cannot reasonably be completed within the application shot clock periods delineated within § 150-126D hereinabove.
(b)
If, despite the exercise of due diligence by the Town and the
Planning Board, the determination regarding a specific application
cannot reasonably be completed within the applicable shot clock period,
the Board shall be permitted to continue and complete its review,
and issue its determination at a date beyond the expiration of the
applicable period, if the delay of such final decision is due to circumstances
including, but not limited to, those enumerated hereinbelow, each
of which shall serve as a reasonable basis for a reasonable delay
of the applicable shot clock period.
F.
Application requirements.
Applications for special use permits under this section shall be made to the Zoning Administrator, in accordance with Article XI of this chapter who shall initially determine whether or not the application is complete and/or free of defects upon receipt of the same.
If the Zoning Administrator determines that the application is defective or incomplete, they shall promptly mail a notice of incompleteness to the applicant, in accord with § 150-126D to toll the applicable shot clock, to ensure that the Town and the Planning Board are afforded sufficient time to review and determine each respective application.
Each application shall include the following materials, the
absence of any one of which listed hereinbelow, shall render the respective
application incomplete:
(1)
Special use permit and site development plan applications. Completed
applications for a special use permit and site development plan that
shall identify all applicants, co-applicants, site developer(s), and
wireless carrier(s) on whose behalf the application is being submitted,
as well as the property owner of the proposed site.
(2)
Filing fees. The appropriate filing fees then being charged
by the Town for applications for special use permit applications and
other related applications.
(3)
A "notice address." A "notice address," that being a specific
address to which the Town, Planning Board, and/or Zoning Administrator
may mail any type of notice, and that the mailing of same to such
address shall constitute sufficient notice to any applicant, co-applicant,
and/or their attorney, to comply with any requirement under this section
as well as any local, state and/or federal law.
(4)
Proof of authorization for site occupancy.
(a)
Where an applicant is not the owner of the real property upon
which it seeks to install its equipment or facility, they shall submit
proof of authorization to occupy the site at issue. If the applicant
is leasing all or a portion of real property upon which it intends
to install its new facility or equipment, then the applicant shall
provide a written copy of its lease with the owner of such property.
The applicant may redact any financial terms contained within the
lease, but it shall not redact any portion of the lease which details
the amount of area leased nor the specific portion of the real property
to which the applicant has obtained the right to occupy, access, or
preclude others from entering.
(b)
Where an applicant is seeking to co-locate new equipment into
an existing facility, it shall provide a copy of its written co-location
agreement with the owner of such preexisting facility, from which
it may redact any financial terms.
(5)
A drawn-to-scale depiction.
(a)
The applicant shall submit drawn-to-scale depictions of its
proposed wireless support structure and all associated equipment to
be mounted thereon, or to be installed as part of such facility, which
shall clearly and concisely depict all equipment and the measurements
of same, to enable the Zoning Administrator to ascertain whether the
proposed facility would qualify as a small wireless facility as defined
under this section.
(b)
If the applicant claims that its proposed installation qualifies
as a small wireless facility within this section, the drawn-to-scale
depiction shall include complete calculations for all of the antennas
and equipment of which the facility will be comprised, depicting that,
when completed, the installation and equipment will meet the physical
size limitations which enable the facility to qualify as a small wireless
facility.
(6)
Site development plan. The applicant shall submit a site development plan in accordance with Article X of this chapter. The site development plan shall also show all existing and proposed structures and improvements, including antennas, roads, buildings, guy wires and anchors, parking, and landscaping, and shall include grading plans for new facilities and roads. Any methods used to conceal the modification of the existing facility shall be indicated on the site plan.
(7)
Engineer's report. To the extent that an application proposes
the co-location of new equipment onto an existing tower or facility,
the applicant shall provide an engineer's report certifying that
the proposed shared use will not diminish the structural integrity
and safety of the existing structure and explaining what modifications,
if any, will be required in order to certify to the above.
(8)
Environmental assessment form. A completed environmental assessment
form (EAF) and a completed visual EAF addendum.
(9)
Visual impact analysis. A completed visual impact analysis,
which, at a minimum, shall include the following:
(a)
Small wireless facilities. For applications seeking approval
for the installation of a small wireless facility, the applicant shall
provide a visual impact analysis which shall include photographic
images taken from the perspectives of the properties situated in closest
proximity to the location being proposed for the siting of the facility,
as well as those properties which would reasonably be expected to
sustain the most significant adverse aesthetic impacts due to such
factors as their close proximity to the site, their elevation relative
to the site, the existence or absence of a "clear line of sight" between
the tower location and their location.
(b)
Telecommunications towers and personal wireless service facilities
which do not meet the definition of a "small wireless facility."
[1]
For applications seeking approval for the installation of a
Telecommunications tower or a personal wireless service facility that
does not meet the definition of a "small wireless facility," the applicant
shall provide:
[a]
A "Zone of Visibility Map" to determine locations
from where the new facility will be seen.
[b]
A visual impact analysis which shall include photographic
images taken from the perspectives of the properties situated in closest
proximity to the location being proposed for the siting of the facility,
as well as those properties which would reasonably be expected to
sustain the most significant adverse aesthetic impacts due to such
factors as their close proximity to the site, their elevation relative
to the site, the existence or absence of a "clear line of sight" between
the tower location and their location.
[i]
The photographic images shall depict the height
at which the proposed facility shall stand when completed, including
all portions and proposed attachments to the facility, including,
but not limited to, the main support structure, all antennas, transmitters,
whip antennas, lightning rods, t-bars, crossbars, and cantilever attachments
which shall, in whole or in part, be affixed to it, any and all surrounding
equipment compound(s), fencing, cellular equipment cabinets, transformers,
transformer vaults and/or cabinets, sector distribution boxes, ice
bridges, backup generators, including but not limited to equipment
boxes, switch boxes, backup generators, ice bridges, etc., to the
extent that any of such compound and/or equipment will be visible
from properties other than the property upon which the proposed tower
and compound are to be installed.
[2]
The visual impact analysis shall include an assessment of alternative
designs and color schemes, as well as an assessment of the visual
impact of the proposed facility, taking into consideration any supporting
structure which is to be constructed, as well as its base, guy wires,
accessory structures, buildings, and overhead utility lines from abutting
properties and streets.
(10)
Alternative site analysis.
(a)
A completed alternative site analysis of all potential less
intrusive alternative sites which the applicant has considered, setting
forth their respective locations, elevations, and suitability or unsuitability
for remedying whatever specific wireless coverage needs the respective
applicant or a specific wireless carrier is seeking to remedy by the
installation of the new facility which is the subject of the respective
application for a special use permit.
(b)
If, and to the extent that an applicant claims that a particular
alternative site is unavailable, in that the owner of an alternative
site is unwilling or unable to accommodate a wireless facility upon
such potential alternative site, the applicant shall provide probative
evidence of such unavailability, whether in the form of communications
or such other form of evidence that reasonably establishes same.
(c)
The alternative site analysis shall contain:
[1]
An inventory of all existing tall structures and
existing or approved communications towers within a two-mile radius
of the proposed site.
[2]
A map showing the exact location of each site inventoried,
including latitude and longitude (degrees, minutes, seconds), ground
elevation above sea level, the height of the structure and/or tower,
and accessory buildings on the site of the inventoried location.
[3]
An outline of opportunities for shared use of an
existing wireless facility as opposed to the installation of an entirely
new facility.
[4]
A demonstration of good-faith efforts to secure
shared use from the owner of each potential existing tall structure
and existing or approved communications tower, as well as documentation
of the physical, technical, and/or financial reasons why shared usage
is not practical in each case.
(11)
FCC compliance report.
(a)
An FCC compliance report, prepared by a licensed engineer, and
certified under penalties of perjury, that the content thereof is
true and accurate, wherein the licensed engineer shall certify that
the proposed facility will be FCC compliant as of the time of its
installation, meaning that the facility will not expose members of
the general public to radiation levels that exceed the permissible
radiation limits which the FCC has set.
(b)
If it is anticipated that more than one carrier and/or user
is to install transmitters into the facility that the FCC compliance
report shall take into account anticipated exposure from all users
on the facility and shall indicate whether or not the combined exposure
levels will, or will not exceed the permissible general population
exposure limits, or alternatively, the occupational exposure limits,
where applicable. Such FCC compliance report shall provide the calculation
or calculations with which the engineer determined the levels of RF
radiation and/or emissions to which the facility will expose members
of the general public.
(c)
On the cover page of the report, the report shall explicitly
specify: a) whether the applicant and their engineer are claiming
that the applicable FCC limits based upon which they are claiming
FCC compliance are the general population exposure limits or the occupational
exposure limits. If the applicant and/or their engineer are asserting
that the occupational exposure limits apply to the proposed installation,
they shall detail a factual basis as to why they claim that the higher
set of limits is applicable; b) the exact minimum distance factor,
measured in feet, which the applicant's engineer used to calculate
the level of radiation emissions to which the proposed facility will
expose members of the general public. The minimum distance factor
is the closest distance (i.e., the minimum distance) to which a member
of the general public shall be able to gain access to the transmitting
antennas mounted upon, or which shall be a part of, the proposed facility.
(12)
FCC license. A copy of any applicable Federal Communications
Commission license possessed by any carrier named as an applicant,
co-applicant, or whose equipment is proposed for installation as of
the time the application is being filed with the Town.
(13)
Effective prohibition claims.
(a)
The Town is aware that applicants seeking approvals for the
installation of new wireless facilities often assert that federal
law, and more specifically the TCA, prohibits the local government
from denying their respective applications.
(b)
In doing so, they assert that their desired facility is "necessary"
to remedy one or more significant gaps in a carrier's personal
wireless service, and they proffer computer-generated propagation
maps to establish the existence of such purported gaps.
(c)
The Town is additionally aware that, in August 2020, driven
by a concern that propagation maps created and submitted to the FCC
by wireless carriers were inaccurate, the FCC caused its staff to
perform actual drive tests, wherein the FCC staff performed 24,649
tests, driving nearly 10,000 miles through nine states, with an additional
5,916 stationary tests conducted at 42 locations situated in nine
states.
(d)
At the conclusion of such testing, the FCC staff determined
that the accuracy of the propagation maps submitted to the FCC by
the wireless carriers had ranged from as little as 16.2% accuracy
to a maximum of 64.3% accuracy.
(e)
As a result, the FCC staff recommended that the FCC no longer
accept propagation maps from wireless carriers without supporting
drive test data to establish their accuracy. A copy of the FCC Staff's
sixty-six-page report is made a part of this chapter as Appendix 1.[1] The Town considers it of critical import that applicants
provide truthful, accurate, complete, and sufficiently reliable data
to enable the Planning Board to render determinations upon applications
for new wireless facilities consistent with both the requirements
of this section and the statutory requirements of the TCA.
[1]
Editor's Note: Said report is on file in the Town offices.
(f)
Consistent with same, if, at the time of filing an application
under this section, an applicant intends to assert before the Planning
Board or the Town that: a) an identified wireless carrier suffers
from a significant gap in its personal wireless services within the
Town; b) that the applicant's proposed installation is the least
intrusive means of remedying such gap in services; and/or c) that
under the circumstances pertaining to the application, a denial of
the application by the Planning Board would constitute an "effective
prohibition" under Section 47 U.S.C. § 332 the TCA, then,
at the time of filing such application, the applicant shall be required
to file a written statement which shall be entitled: "Notice of Effective
Prohibition Conditions."
(g)
If an applicant files a notice of effective prohibition conditions,
then the applicant shall be required to submit probative evidence
to enable the Planning Board to reasonably determine: a) whether or
not the conditions alleged by the respective applicant exist; b) whether
there exists a significant gap or gaps in an identified wireless carrier's
personal wireless services within the Town; c) the geographic locations
of any such gaps; and d) the geographic boundaries of such gaps, to
enable the Planning Board to determine whether granting the respective
application would be consistent with the requirements of this section
and the legislative intent behind same, and whether or not federal
law would require the Planning Board to grant the respective application,
even if it would otherwise violate the Town's Zoning Code, including,
but not limited to, this section.
(h)
The additional materials which the applicant shall then be required
to provide shall include the following:
[1]
Drive test data and maps.
[a]
If, and to the extent that an applicant claims
that a specific wireless carrier suffers from a significant gap in
its personal wireless services within the Town, the applicant shall
conduct or cause to be conducted a drive test within the specific
geographic areas within which the applicant is claiming such gap or
gaps exist, for each frequency at which the carrier provides personal
wireless services. The applicant shall provide the Town and the Planning
Board with the actual drive test data recorded during such drive test,
in a simple format which shall include, in table format:
[b]
Such data is to be provided in a separate table
for each frequency at which the respective carrier provides personal
wireless services to any of its end-use customers.
[i]
The applicant shall also submit drive test maps,
depicting the actual signal strengths recorded during the actual drive
test, for each frequency at which the carrier provides personal wireless
services to its end-use customers.
[ii]
If an applicant claims that it needs a "minimum"
signal strength (measured in DBM) to remedy its gap or gaps in service,
then for each frequency, the applicant shall provide three signal
strength coverage maps reflecting actual signal strengths in three
DBM bins, the first being at the alleged minimum signal strength,
and two additional three DBM bin maps depicting signal strengths immediately
below the alleged minimum signal strength claimed to be required.
[iii]
By way of example, if the applicant claims that
it needs a minimum signal strength of-95 DBM to remedy its alleged
gap in service, then the applicant shall provide maps depicting the
geographic area where the gap is alleged to exist, showing the carrier's
coverage at -95 to -98 DBM, -99 to -101 DBM and -102 to -104 DBM,
for each frequency at which the carrier provides personal wireless
services to its end-use customers.
[2]
Denial of service and/or dropped call records.
If and to the extent that an applicant claims that a specific wireless
carrier suffers from a capacity deficiency, or a gap in service that
renders the carrier incapable of providing adequate coverage of its
personal wireless services within the Town, then the applicant shall
provide dropped call records and denial of service records evidencing
the number and percentage of calls within which the carrier's
customers were unable to initiate, maintain and conclude the use of
the carrier's personal wireless services without actual loss
of service, or interruption of service.
(14)
Estimate for cost of removal of facility. A written estimate
for the cost of the decommissioning, removal of the facility, including
all equipment that comprises any portion or part of the facility,
compound, and/or complex, as well as any accessory facility or structure,
including the cost of the full restoration and reclamation of the
site, to the extent practicable, to its condition before development
in accord with the decommissioning and reclamation plan required herein.
(15)
Property owner consent and liability acknowledgement. A signed written consent from each owner of the subject real property upon which the respective applicant is seeking installation of its proposed personal wireless service facility, wherein the owner or owners, both authorize the applicant to file and pursue its special use permit application and acknowledge the potential landowner's responsibility, under section § 150-126K for engineering, legal and other consulting fees incurred by the Town.
G.
Design standards. The following design standards shall apply to all
applications for the siting, construction, maintenance, use, erection,
movement, reconstruction, expansion, material change, or structural
alteration of a personal wireless service facility.
(1)
Small wireless facilities.
(a)
Small wireless facilities (SWF) shall be sited to inflict the
minimum adverse impacts upon individual residential properties, and
specifically, to minimize, to the greatest extent reasonably feasible,
adverse aesthetic impacts upon residential homes or reductions in
the property values of same.
(b)
SWFs attached to preexisting wooden and non-wooden poles shall
conform to the following criteria:
[1]
Proposed antenna and related equipment shall meet:
[a]
Design standards which the Town may maintain and
update as needed, provided that the Town makes its designed standards
publicly available for review by any potential application seeking
approval for the installation of an SWF within the Town; and
[b]
National Electric Safety Code (NESC) standards;
and
[c]
National Electrical Code (NEC) standards.
[2]
Antennas and antenna equipment, including but not limited to
radios, cables, associated shrouding, disconnect boxes, meters, microwaves,
and conduit, which are mounted on poles, shall be mounted as close
to the pole as technically feasible. They shall not be illuminated
except as required by municipal, federal, or state authority, provided
this shall not preclude deployment on a new or replacement streetlight.
[3]
Antennas and associated equipment enclosures must be camouflaged
to appear as an integral part of the pole or be mounted as close to
the pole as feasible. Conduits and cabinets shall cover all cables
and wiring to the extent that it is technically feasible if allowed
by the pole owner. The number of conduits shall be minimized to the
extent technically feasible. To the extent technically feasible, antennas,
equipment enclosures, and all ancillary equipment, boxes, and conduits
shall match the approximate material and design of the surface of
the pole or existing equipment on which they are attached.
(c)
SWFs attached to replacement poles and new poles shall conform
to the criteria set forth hereinabove for SWFs attached to preexisting
wooden and non-wooden poles, but shall additionally conform to the
following criteria:
[1]
The Town prefers that wireless providers and site developers
install SWFs on existing or replacement poles instead of installing
new poles, and accordingly, to obtain approval for the installation
of a new pole, the provider shall be required to document that installation
on an existing or replacement pole is not technically feasible.
[2]
To the extent technically feasible, all replacement poles and
new poles and pole-mounted antennas and equipment shall substantially
conform to the material and design of the pole being replaced, or
in the case of a new pole, it shall conform to the nearest adjacent
pole or poles.
[3]
The height of replacement poles and new poles shall conform
with the height limitations applicable to the district within which
the applicant seeks to install their proposed SWF unless the applicant
obtains a variance to obtain relief from any such limitation(s).
(2)
Telecommunications towers and personal wireless service facilities
which do not meet the definition of a "small wireless facility." The
design of a proposed new telecommunications tower or personal wireless
service facility shall comply with the following:
(a)
The choice of design for installing a new personal wireless
service facility or the substantial modification of an existing personal
wireless service facility shall be chosen to minimize the potential
adverse impacts that the new or expanded facility may, or is likely
to, inflict upon nearby properties.
(b)
Any new telecommunications tower shall be designed to accommodate
future shared use by other communications providers.
(c)
Unless specifically required by other regulations, a telecommunications
tower shall have a finish (either painted or unpainted) that minimizes
its degree of visual impact.
(d)
Notwithstanding the height restrictions listed elsewhere in
this chapter, the maximum height of any new telecommunications tower
shall not exceed that which shall permit operation without artificial
lighting of any kind or nature, in accordance with municipal, state,
and/or federal law and/or regulation.
(e)
Accessory structures.
[1]
Accessory structures shall maximize the use of building materials,
colors, and textures designed to blend with the natural surroundings.
The use of camouflage communications towers may be required by the
Planning Board to blend the communications tower and/or its accessory
structures further into the natural surroundings. "Camouflage" is
defined as the use of materials incorporated into the communications
tower design that give communications towers the appearance of tree
branches and bark coatings, church steeples and crosses, sign structures,
lighting structures, or other similar structures.
[2]
Accessory structures shall be designed to be architecturally
similar and compatible with each other and shall be no more than 12
feet high. The buildings shall be used only for housing equipment
related to the particular site. Whenever possible, the buildings shall
be joined or clustered so as to appear as one building.
[3]
No portion of any telecommunications tower or accessory structure
shall be used for a sign or other advertising purpose, including but
not limited to the company name, phone numbers, banners, and streamers,
except the following. A sign of no greater than two square feet indicating
the name of the facility owner(s) and a twenty-four-hour emergency
telephone shall be posted adjacent to any entry gate. In addition,
"no trespassing" or other warning signs may be posted on the fence.
All signs shall conform to the sign requirements of the Town.
(f)
Towers must be placed to minimize visual impacts. Applicants
shall place towers on the side slope of the terrain so that, as much
as possible, the top of the tower does not protrude over the ridgeline,
as seen from public ways.
(g)
Existing vegetation. Existing on-site vegetation shall be preserved
to the maximum extent possible. No cutting of trees shall take place
on a site connected with an application made under this section prior
to the approval of the special use permit use.
(h)
Screening.
[1]
Deciduous or evergreen tree plantings may be required to screen
portions of the telecommunications tower and accessory structures
from nearby residential property as well as from public sites known
to include important views or vistas.
[2]
Where a site adjoins a residential property or public property,
including streets, screening suitable in type, size and quantity shall
be required by the Planning Board.
[3]
The applicant shall demonstrate to the approving board that
adequate measures have been taken to screen and abate site noises
such as heating and ventilating units, air conditioners, and emergency
power generators. Telecommunications towers shall comply with all
applicable sections of this chapter as it pertains to noise control
and abatement.
(i)
Lighting. Telecommunications towers shall not be lighted except
where FAA/FCC required lighting of the telecommunications towers is
necessary. No exterior lighting shall spill from the site in an unnecessary
manner.
(j)
Access.
[1]
Adequate emergency and service access shall be provided and
maintained. Maximum use of existing roads, public or private, shall
be made. Road construction shall, at all times, minimize ground disturbance
and vegetation cutting to the top of fill, the top of cuts, or no
more than 10 feet beyond the edge of any pavement. Road grades shall
closely follow natural contours to assure minimal visual disturbance
and reduce soil erosion potential.
[2]
To the extent feasible, all network interconnections to and
from the telecommunications site and all power to the site shall be
installed underground. At the initial construction of the access road
to the site, sufficient conduit shall be laid to accommodate the maximum
possible number of telecommunications providers that might use the
facility.
(k)
Parking. Parking shall be provided to assure adequate emergency
and service access. The Planning Board shall determine the number
of required spaces, but in no case shall the number of parking spaces
be less than two spaces.
(l)
Fencing. The telecommunications tower and any accessory structures
shall be adequately enclosed by a fence, the design of which shall
be approved by the Planning Board. The Planning Board may waive this
requirement if the applicant demonstrates that such measures are unnecessary
to ensure the security of the facility.
H.
Planning Board initial review.
(1)
Initial review.
(a)
Upon their acceptance of an application that appears to be complete,
the Building Inspector shall transmit the application to the Planning
Board for initial review.
(b)
The Planning Board shall then conduct an initial review to consider
whether or not to establish itself as lead agency pursuant to SEQRA
and/or NEPA and whether or not a use or area variance is required
for the proposed application such that a referral for an application
to the ZBA will be required to be made after the Planning Board has
declared itself to serve as lead agency and during the process of
the Planning Board considering a SEQRA determination of environmental
significance. That consideration of granting any required variances
by the ZBA is done concurrently with the Planning Board's review
and consideration of special use permit and site plan approval.
(2)
Intermunicipal notification for new towers. To keep neighboring
municipalities informed, and to facilitate consideration of an existing
tall structure or existing telecommunications towers in a neighboring
municipality for shared use, and to assist in the continued development
of the county's emergency service communications system, the
Planning Board shall require that an applicant who proposes a new
telecommunications tower shall notify, in writing, the legislative
body of each municipality that borders the Town of Fishkill and the
Director of the Office of Emergency Management of Dutchess County.
Notification shall include the exact location of the proposed tower
and a general description of the project, including but not limited
to the height of the tower and capacity for future use.
I.
Hearings and public notice.
(1)
Public hearings. The Planning Board shall conduct a public hearing upon each special use permit application, consistent with the procedures in Code Chapter 114, except the Planning Board shall have authority to schedule such additional or more frequent public hearings as may be necessary to comply with the applicable shot clocks imposed upon the Town and the Planning Board under the requirements of the TCA.
(2)
Required public notices.
(a)
The Planning Board shall ensure that both the public and property
owners whose properties might be adversely impacted by the installation
of a wireless facility receive notice of any public hearing pertaining
to same and shall ensure that they are afforded an opportunity to
be heard concerning same.
(b)
Before the date scheduled for the public hearing, the Planning Board shall cause to be published in the official newspaper, a notice of public hearing for new wireless facility, at least once per week, for at least two successive weeks, a reasonable description of the application, and the date, time and place for the public hearing, in accordance with Code Chapter 114.
(c)
The reasonable cost of publishing such notice shall be incorporated
into the application fee for a special use permit under this section
and collected by the Town at the time an application for a special
use permit is filed. If, for whatever reason, the notice does not
get published and the Town does not ultimately incur the expense of
same, that portion of the application fee shall be refunded to the
applicant upon the applicant's request for same.
(d)
In accordance with Code Chapter 114, the Planning Board shall mail a written notice of public hearing to property owners, which shall provide the applicant's name, a brief description of the personal wireless facility for which the applicant seeks a special use permit, and the date, time, and location of the hearing.
(e)
The face of each envelope containing the notices of the public
hearing shall state, in all bold typeface, in all capital letters,
in a font size no smaller than 12 point, the words: "NOTICE
OF PUBLIC HEARING FOR NEW WIRELESS FACILITY."
(f)
An affidavit shall be prepared by an employee or officer of the Town, in accordance with Code Chapter 114, which shall include an actual copy of the notice which was mailed.
(g)
For Type I and Type III applications, notices of public hearing
shall be mailed to all property owners whose real properties are situated
within 300 feet of any property line of the real property upon which
the applicant seeks to install its new wireless facility. If the site
for the proposed facility is situated on, or adjacent to, a residential
street containing 12 houses or less, the Planning Board shall additionally
mail a copy of such notices to all homeowners on that street, even
if their home is situated more than 300 feet from any property line
of the property upon which the applicant proposes to install its facility.
(h)
For Type II and Type IV applications, the applicant shall mail
such notices of public hearing to all property owners whose real properties
are situated within 1,500 feet of any property line of the real property
upon which the applicant seeks to install its new wireless facility.
J.
Factual determinations to be rendered by the Planning Board.
(1)
Evidentiary standards.
(a)
In determining special use permit applications for personal
wireless service facilities, the Planning Board shall have sole discretion
to determine what probative evidence it shall require each applicant
to produce in support of its application to enable the Board to make
each of the factual determinations enumerated below.
(b)
By way of common examples of the types of evidence which the
Board may require an applicant to produce, are the following:
[1]
Where an applicant is not the owner of the real property upon
which it proposes to install a new wireless facility, the Board can
require the applicant to provide a copy of the applicant's lease
with the property owner (including any schedules, property descriptions,
appendices or other attachments), from which the applicant may censor
or delete any financial terms which would be irrelevant to the factual
issues which the Board is required to determine;
[2]
Where the Board deems it appropriate, the Board can require
the applicant to perform what is commonly known as a "balloon test"
and to require the applicant to publish reasonably sufficient advance
public notice of same, to enable the Board, property owners, and the
community, an opportunity to assess the actual adverse aesthetic impact
which the proposed facility is likely to inflict upon the nearby properties
and surrounding community;
[3]
Where the applicant asserts a claim that a proposed facility
is necessary to remedy one or more existing significant gaps in an
identified wireless carrier's personal wireless services, the
Board may require the applicant to provide drive-test generated coverage
maps, as opposed to computer-generated coverage maps, for each frequency
at which the carrier provides personal wireless services, to show
signal strengths in bins of three DBM each, to enable the Board to
assess the existence of such significant gaps accurately, and/or whether
the carrier possesses adequate coverage within the geographic area
which is the subject of the respective application.
[4]
Where the applicant asserts that a potential less intrusive
alternative location for a proposed facility is unavailable because
the owner of the potential alternative site is incapable or unwilling
to lease space upon such site to the applicant, the Board may require
the applicant to provide proof of such unwillingness in the form of
communications to and from such property owner, and/or a sworn affidavit
wherein a representative of the applicant affirms, under penalty of
perjury, that they attempted to negotiate a lease with the property
owner, what the material terms of any such offer to the property owner
were, when the offer was tendered, and how, if at all, the property
owner responded to such offer.
(c)
The Board shall have sole discretion to determine, among other
things, the relevance of any evidence presented, the probative value
of any evidence presented, the credibility of any testimony provided,
whether expert or otherwise, and the adequacy of any evidence presented.
(d)
The Board shall not be required to accept, at face value, any
unsupported factual claims asserted by an applicant but may require
the production of evidence reasonably necessary to enable the Board
to determine the accuracy of any factual allegations asserted by each
respective applicant.
(e)
Conclusory factual assertions by an applicant shall not be accepted
as evidence by the Board.
(2)
Factual determinations.
(a)
To decide applications for special use permits under this section,
the Planning Board shall render factual determinations, which shall
include two specific types of factual determinations, as applicable.
(b)
First, the Board shall render local zoning determinations according to Subsection J(2)(i) hereinbelow.
(c)
Then, if, and only if, an applicant asserts claims that: a) its proposed wireless facility or installation is necessary to remedy a significant gap in personal wireless services for an explicitly identified wireless carrier; and b) that its proposed installation is the least intrusive means of remedying a specifically identified significant gap or gaps, the Board shall additionally render TCA determinations, in accord with Subsection J(2)(k) hereinbelow.
(d)
The Board shall separately record each factual determination
it makes in a written decision and shall reference, or make note of,
the evidence based upon which it rendered each of its factual determinations.
(e)
Each factual determination made by the Board shall be based
upon substantial evidence. For purposes of this provision, "substantial
evidence" shall mean such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It means less than a preponderance
but more than a scintilla of evidence.
(f)
Evidence which the Board may consider shall include any evidence
submitted in support of an application, and any evidence submitted
by anyone opposing a respective application, whether such evidence
is in written or photographic form, or whether it is in the form of
testimony by any expert, or any person who has personal knowledge
of the subject of their testimony. The Board may, of course, additionally
consider as evidence any information or knowledge which they, themselves,
personally possess, and any documents, records or other evidence which
is a matter of public record, irrespective of whether such public
record is a record of the Town, or is a record of or is maintained
by, another federal, state and/or other governmental entity and/or
agency which maintains records which are available for, or subject
to, public review.
(g)
The requirements for specific factual determinations set forth
below are intended to enure to the benefit of the Town, its residents,
and property owners, and not applicants.
(h)
If, and to the extent that the Planning Board fails to render
one or more of such determinations, that omission shall not constitute
grounds upon which the respective applicant can seek to annul, reverse
or modify any decision of the Planning Board.
(i)
Local zoning determinations. The Board shall make the following
factual determinations as to whether the application meets the requirements
for granting a special use permit under this section.
[2]
Potential adverse aesthetic impacts: whether the proposed installation
will inflict a significant adverse aesthetic impact upon properties
that are located adjacent to, or in close proximity to, the proposed
site, or any other properties situated in a manner that would sustain
significant adverse aesthetic impacts by the installation of the proposed
facility.
[3]
Potential adverse impacts upon real estate values: whether the
proposed installation will inflict a significant adverse impact upon
the property values of properties that are located adjacent to, or
in close proximity to, the proposed site, or properties that are otherwise
situated in a manner that would cause the proposed installation to
inflict a significant adverse impact upon their value.
[4]
Potential adverse impact upon the character of the surrounding
community: whether the proposed installation will be incompatible
with the use and/or character of properties located adjacent to or
in close proximity to the proposed site or other properties situated
in a manner that would cause the proposed installation to be incompatible
with their respective use.
[5]
Potential adverse impacts upon historic properties or historic
districts: whether the proposed installation will be incompatible
with and/or would have an adverse impact upon, or detract from the
use and enjoyment of, and/or character of a historic property, historic
site, and/or historic district, including but not limited to historic
structures, properties and/or districts which are listed on, or are
eligible for listing on, the National Register of Historic Places.
[6]
Potential adverse impacts upon ridgelines or other aesthetic
resources of the Town: whether the proposed installation will be incompatible
with and/or would have an adverse aesthetic impact upon or detract
from the use and enjoyment of, and/or character of, recognized aesthetic
assets of the Town including, but not limited to, scenic areas and/or
scenic ridgelines, scenic areas, public parks, and/or any other traditionally
or historically recognized valuable scenic assets of the Town.
[7]
Sufficient fall zones: whether the proposed installation shall
have a sufficient fall zone and/or safe zone around the facility to
afford the general public safety against the potential dangers of
structural failure, icefall, debris fall, and fire.
[8]
Mitigation: whether the applicant has mitigated the potential
adverse impacts of the proposed facility to the greatest extent reasonably
feasible. To determine mitigation efforts on the part of the applicant,
the mere fact that a less intrusive site, location, or design would
cause an applicant to incur additional expense is not a reasonable
justification for an application to have failed to propose reasonable
mitigation measures.
(j)
If when applying the evidentiary standards set forth in Subsection J(2)(i) hereinabove, the Planning Board determines that the proposed facility shall inflict one or more of the adverse impacts described hereinabove to such a substantial extent that granting the respective application would inflict upon the Town and/or its citizens and/or property owners the types of adverse impacts which this provision was enacted to prevent, the Planning Board shall deny the respective application for a special use permit unless the Board additionally finds that a denial of the application would constitute an effective prohibition, as provided for in Subsection J(2)(k) and (l) immediately hereinbelow.
(k)
TCA determinations. In cases within which an applicant has filed
a "notice of effective prohibition conditions," the Planning Board
shall make three additional factual determinations, as listed hereinbelow:
[1]
Adequate personal wireless services coverage: whether the specific
wireless carrier has adequate personal wireless services coverage
within the geographic areas for which the applicant claims a significant
gap exists in such coverage.
[2]
Significant gap in personal wireless services of an identified
carrier: whether the applicant has established, based upon probative
evidence provided by the applicant and/or its representative, that
a specific wireless carrier suffers from a significant gap in its
personal wireless services within the Town.
[a]
In rendering such determination, the Board shall
consider factors including, but not necessarily limited to: a) whether
the identified wireless carrier which is alleged to suffer from any
significant gap in their personal wireless services has adequate service
in its personal wireless services at any frequency being used by the
carrier to provide personal wireless services to its end-use customers;
b) whether any such alleged gap is relatively large or small in geographic
size; c) whether the number of the carrier's customers affected
by the gap is relatively small or large; d) whether or not the location
of the gap is situated on a lightly traveled road, or sparsely or
densely occupied area; and/or e) overall, whether the gap is relatively
insignificant or otherwise relatively de minimis.
[b]
A significant gap cannot be established simply
because the carrier's customers are currently using the carrier's
personal wireless services, but the frequency at which the customers
are using such services is not the frequency most desired by the carrier.
[3]
Least intrusive means of remedying gap(s) in service: whether
the applicant has established based upon probative evidence provided
by the applicant and/or its representative, that the installation
of the proposed facility, at the specific site proposed by the applicant,
and the specific portion of the site proposed by the applicant, and
at the specific height proposed by the applicant is the least intrusive
means of remedying whatever significant gap or gaps which the applicant
has contemporaneously proved to exist as determined by the Planning
Board based upon any evidence in support of, and/or in opposition
to, the subject application.
[a]
In rendering such determination, the Board shall
consider factors including, but not necessarily limited to: a) whether
the proposed site is the least intrusive location at which a facility
to remedy an identified significant gap may be located, and the applicant
has reasonably established a lack of potential alternative less intrusive
sites and lack of sites available for co-location; b) whether the
specific location on the proposed portion of the selected site is
the least intrusive portion of the site for the proposed installation;
c) whether the height proposed for the facility is the minimum height
actually necessary to remedy an established significant gap in service;
d) whether or not a preexisting structure can be used to camouflage
the facility and/or its antennas; e) whether or not, as proposed,
the installation mitigates adverse impacts to the greatest extent
reasonably feasible, through the employ of stealth design, screening,
use of color, noise mitigation measures, etc.; and/or f) overall whether
or not there is a feasible alternative to remedy the gap through alternative,
less intrusive substitute installations, such as the installation
of multiple shorter installations, instead of a single microcell facility.
(l)
Finding of effective prohibition or lack of effective prohibition.
[1]
If when applying the evidentiary standards set forth in Subsection J(2)(i) hereinabove, the Planning Board affirmatively determines that the applicant has failed to establish either: i) that an identified wireless carrier suffers from a significant gap(s) in its personal wireless services within the Town; and/or ii) that the applicant has failed to establish that the proposed installation is the least intrusive means of remedying any such gap or gaps, then the Planning Board may deny the application pursuant to Subsection J(2)(k) hereinabove, and such denial shall not constitute an "effective prohibition."
[2]
If when applying the evidentiary standards set forth in Subsection J(2)(i) hereinabove, the Planning Board affirmatively determines that the applicant has established both: i) that an identified wireless carrier suffers from a significant gap in personal wireless services within the Town; and ii) that the proposed installation is the least intrusive means of remedying such significant gap or gaps, then the Planning Board shall grant the application, irrespective of any determinations the Board may make pursuant to Subsection J(2)(k) hereinabove, because any such denial would constitute an "effective prohibition."
K.
Retention of consultants.
(1)
Use of consultants. Where deemed reasonably necessary by the
Planning Board and/or the Town, the Planning Board and/or the Town
may retain the services of professional consultants to assist the
Planning Board in carrying out its duties in deciding special use
permit applications for personal wireless service facilities. Where
the Planning Board uses the services of private engineers, attorneys,
or other consultants for purposes of engineering, scientific, land
use planning, environmental, legal, or similar professional reviews
of the adequacy or substantive aspects of applications, or of issues
raised during the course of review of applications for special use
permit approvals of personal wireless service facilities, the applicant
and landowner, if different, shall be jointly and severally responsible
for payment of all the reasonable and necessary costs incurred by
the Town for such services. In no event shall that responsibility
be greater than the actual cost to the Town of such engineering, legal,
or other consulting services.
(2)
Advance deposits for consultant costs. The Town and/or Planning
Board may require advance periodic monetary deposits held by the Town
on account of the applicant or landowner to secure the reimbursement
of the Town's consultant expenses. The Town Board shall establish
policies and procedures for the fixing of escrow deposits and the
management of payment from them. After audit and approval of itemized
vouchers by the Town Comptroller as to reasonableness and necessity
of the consultant charges, the Town may make payments from the deposited
funds for engineering, legal or consultant services. Upon receiving
a request by the applicant or landowner, the Town shall supply copies
of such vouchers to the applicant and/or landowner reasonably in advance
of audit and approval, appropriately redacted where necessary to shield
legally privileged communications between Town officers or employees
and the Town's consultant. When it appears that there may be
insufficient funds in the account established for the applicant or
landowner by the Town to pay current or anticipated vouchers, the
Town shall cause the applicant or landowner to deposit additional
sums to meet such expenses or anticipated expenses in accordance with
policies and procedures established by the Town Board. Consultants
shall undertake no review on any matter scheduled before the Planning
Board until the initial escrow deposit has been made or requested
replenishment of the escrow deposit has been made. No reviewing agency
shall be obligated to proceed unless the applicant complies with escrow
deposit requirements.
(3)
Reasonable limit upon consultant expenses.
(a)
A consultant expense or part thereof is reasonable in amount
if it bears a reasonable relationship to the customary fee charged
by engineers, attorneys, or planners within the region for services
performed on behalf of applicants or reviewing boards in connection
with comparable applications for land use or development.
(b)
The Town may also take into account any special conditions for
considerations as it may deem relevant, including but not limited
to the quality and timeliness of submissions on behalf of the applicant
and the cooperation of the applicant and agents during the review
process.
(c)
A consultant expense or part thereof is necessarily incurred
if it was charged by the engineer, attorney or planner, or other consultants,
for a service which was rendered to assist the Planning Board in:
a) making factual determinations consistent with the goals of protecting
or promoting of the health, safety or welfare of the Town or its residents;
b) assessing potential adverse environmental impacts such as those
identified within a SEQRA process; c) accessing potential adverse
impacts to historic properties, structures and/or districts; and/or
d) assessing and determining factual issues relevant to effective
prohibition claims, as addressed herein, to enable the Board to best
comply with the letter and intent of the provision of the TCA which
is relevant thereto.
(4)
Audits upon the request of an applicant. Upon request of the
applicant or landowner, the Town Board shall review and audit all
vouchers and determine whether such engineering, legal and consulting
expenses are reasonable in amount and necessarily incurred by the
Town in connection with the review and consideration of a special
use permit application for personal wireless service facility. In
the event of such a request, the applicant or landowner shall be entitled
to be heard by the Town Board on reasonable advance notice.
(5)
Liability for consultant expenses. For a land use application
to be complete, the applicant shall provide the written consent of
all owners of the subject real property, both authorizing the applicant
to file and pursue land development proposals and acknowledging potential
landowner responsibility, under this section, for engineering, legal,
and other consulting fees incurred by the Town. If different from
the applicant, the owner(s) of the subject real property shall be
jointly and severally responsible for reimbursing the Town for funds
expended to compensate services rendered to the Town under this section
by private engineers, attorneys, or other consultants. The applicant
and the owner shall remain responsible for reimbursing the Town for
its consulting expenses, notwithstanding that the escrow account may
be insufficient to cover such expenses. No building permit or other
permit shall be issued until reimbursement of costs and expenses determined
by the Town to be due. In the event of failure to reimburse the Town
for such fees, the following shall apply:
(a)
The Town may seek recovery of unreimbursed engineering, legal,
and consulting fees by court action in an appropriate jurisdiction,
and the defendant(s) shall be responsible for the reasonable and necessary
attorney's fees expended by the Town in prosecuting such action.
(b)
Alternatively, and at the sole discretion of the Town, a default
in reimbursement of such engineering, legal and consulting fees expended
by the Town shall be remedied by charging such sums against the real
property that is the subject of the special use permit application,
by adding that charge to and making it a part of the next annual real
property tax assessment roll of the Town. Such charges shall be levied
and collected simultaneously and in the same manner as Town-assessed
taxes and applied in reimbursing the fund from which the costs were
defrayed for the engineering, legal and consulting fees. Prior to
charging such assessments, the owners of the real property shall be
provided written notice to their last known address of record, by
certified mail, return receipt requested, of an opportunity to be
heard and object before the Town Board to the proposed real property
assessment, at a date to be designated in the notice, which shall
be no less than 30 days after its mailing.
L.
Setback requirements.
(1)
Small wireless facilities.
(a)
Within Industrial, General Business, Planned Shopping, Planned
Business, and Restricted Business Zoning Districts, the minimum setback
shall be 50 feet, unless the facility is being installed upon a preexisting
utility pole or other utility structure.
(b)
Within all residentially zoned districts, all small wireless
facilities shall be set back a minimum of 300 feet from any residential
dwelling or structure, unless the facility is being installed upon
a preexisting utility pole or is being co-located upon a preexisting
personal wireless service facility.
(2)
Cell towers and all personal wireless service facilities that
do not meet the definition of a "small wireless facility."
(a)
Each proposed wireless personal service facility and personal
wireless service facility structure, compound, and complex shall be
located on a single lot and comply with applicable setback requirements.
Adequate measures shall be taken to contain on site all icefall or
debris from tower failure and preserve the privacy of any adjoining
residential properties.
(b)
Each lot containing a wireless personal service facility and
personal wireless service facility structure, compound, and complex
shall have the minimum area, shape, and frontage requirements generally
prevailing for the zoning district where located, in the Schedules
of Regulations for Nonresidential and Residential Districts[2] of this chapter, and such additional land if necessary
to meet the setback requirements of this section.
[2]
Editor's Note: Said schedules are included as attachments to this chapter.
(c)
Telecommunications towers shall comply with the following special
minimum setback requirements within Industrial, General Business,
Planned Shopping, Planned Business, and Restricted Business Zoning
Districts:
[1]
Street line: height of the tallest tower or self-standing or
guy-wired wireless support structure plus 50 feet.
[2]
Side and rear lines: half the height of the tallest tower or
self-standing or guy-wired wireless support structure.
[3]
Setback from adjoining residential zoning district: height of
the tallest tower or self-standing or guy-wired wireless support structure
plus 50 feet.
[4]
The setback requirements for telecommunications towers located
within R-4A, R-2A, R-MF-3, and R-MF-5 Zoning Districts shall be:
M.
Height restrictions.
(1)
Small wireless facilities. Personal wireless service facilities
which meet the definition of a "small wireless facility" shall not
exceed a maximum height of 60 feet above ground elevation in Industrial,
General Business, Planned Shopping, Planned Business, and Restricted
Business Zoning Districts, and shall not exceed a maximum height of
45 feet within R-4A, R-2A, R-MF-3, R-MF-5 Zoning Districts.
(2)
Non-small wireless facilities. Personal wireless service facilities
which do not meet the definition of a "small wireless facility" shall
not exceed a maximum height of 185 feet above ground elevation in
Industrial, General Business, Planned Shopping, Planned Business,
and Restricted Business Zoning Districts, and shall not exceed a maximum
height of 110 feet within R-4A, R-2A, R-MF-3, R-MF-5 Zoning Districts.
N.
Use restrictions and variances.
(1)
Use restrictions by application type and zoning district.
(a)
Type I applications: no use variance required.
[1]
Type I applications for co-location of a small wireless facility
in Planned Industry (PI), General Business (GB), Planned Shopping
Center (PSC), Planned Business (PB), and Restricted Business (RB)
Districts shall be a permitted use with a building permit.
[2]
Type I applications for co-location of a small wireless facility
in any residentially zoned district shall be a special use permit
use, requiring an applicant to obtain a special use permit from the
Planning Board.
(b)
Type II applications: no use variance required unless determined
otherwise.
[1]
Applications for co-locations of a wireless personal services facility, which do not meet the definition of a "small wireless facility," shall be considered a special use permit in all districts and shall require a special use permit and a building permit, but shall not require a use variance, unless the Planning Board, in its sole discretion, determines that the proposed co-location will increase the overall intrusiveness of the site to a sufficient extent that its presence would no longer be compatible with the surrounding properties and/or surrounding community, in which case the Planning Board shall issue a decision determining that the applicant shall be required to obtain a variance from the Zoning Board of Appeals in accord with Article XX of the Zoning Code.
[2]
In rendering a determination of whether or not a variance shall
be required, the Planning Board shall consider, among other things:
a) the physical size, number, and potential intrusiveness of each
new item of equipment to be installed as part of the proposed co-location;
b) the extent to which the installation of such equipment is to require
or effectuate a significant physical expansion of the size or area
of the facility or complex; c) the extent to which the addition of
such additional equipment will likely increase the adverse aesthetic
impact of the facility, and/or any other potentially significant adverse
impacts which are likely to cause a significant increase in the overall
intrusiveness of the wireless facility, and/or its compound or complex,
such that it will no longer be reasonably compatible with the use
of nearby or surrounding properties and/or that its presence would
be incompatible with the character and use of the nearby properties
and/or surrounding community.
[3]
If the Planning Board determines that a variance is required
for a specific proposed facility, then the applicant shall be required
to file an application for a variance to the Zoning Board of Appeals.
The ZBA shall thereafter have the authority to: a) determine that
no variance is necessary; b) grant the application for a variance;
or c) deny the application for a variance.
(c)
Type III applications: no use variance required. Applications
for installing new small wireless facilities that meet the criteria
for Type III applications shall be considered a special use permit
use in all districts. They shall require a special use permit and
building permit but shall not require a variance.
(d)
Type IV applications; variance requirements. The installation
of a new cell tower and/or all other wireless facilities that are
not a small wireless facility shall be a prohibited use in all residentially
zoned districts and shall require a use variance, special use permit,
site plan approval, and building permit.
O.
Environmental impacts.
(1)
If, and to the extent that, the Planning Board determines a
proposed installation bears the potential for a significant adverse
impact upon the environment within the meaning of SEQRA and/or the
NEPA, then the Board shall be expected to comply with the requirements
of SEQRA in determining both: a) the extent of adverse impacts upon
the environment and/or historic properties; and b) what mitigation
measures the applicant should be required to undertake to minimize
the adverse environmental impacts and/or adverse impacts upon historic
sites, structures and/or districts.
(2)
If a respective applicant fails to obtain a review from the
NYSDEC and/or NEPA and opinion letters from the NYSDEC and the FCC
pertaining to its proposed installation prior to a first public hearing
before the Planning Board for the respective application, then the
Planning Board may make direct requests to the NYSDEC and the FCC
for their review of the application. The Planning Board may request
SHPO and the FCC's review and input in completing the statutorily
required environmental impact analysis pursuant to SEQRA and NEPA.
(3)
In addition, the Planning Board shall comply with the statutory
requirements of SEQRA to complete a SEQRA review, make determinations
of significance, and where appropriate, require the applicant to complete
a draft environmental impact statement, and if additionally appropriate,
to thereafter complete a final environmental impact statement and
analysis.
(4)
So long as the Planning Board acts with reasonable diligence
in completing its SEQRA and NEPA review, if compliance with the statutory
requirements for environmental review requires a period of effort
that extends beyond the expiration of the applicable shot clock period,
the delays beyond such period shall be deemed reasonable.
P.
Historic site impacts.
(1)
The Planning Board shall consider the potential adverse impacts
of any proposed facility upon any historic site, district, or structure
consistent with the requirements of the Town's historic preservation
law and comprehensive plan and SEQRA.
(2)
If, and to the extent that, the Planning Board determines that
a proposed installation bears the potential for a significant adverse
impact upon a historic site or a historic district within the meaning
of SEQRA and/or the NHPA (especially if the historic site at issue
is listed upon the national register of historic places), then the
Board shall comply with the requirements of both SEQRA and Town law
in determining both: a) the extent of adverse impacts upon the historic
properties; and b) what mitigation measure might the applicant be
required to undertake to minimize the adverse environmental impacts
and/or adverse impacts upon historic sites, structures and/or district.
(3)
Should a respective applicant fail to obtain a SHPO and/or a
Section 106 review under NHPA, and opinion letters from SHPO and the
FCC pertaining to its proposed installation prior to a first public
hearing before the Planning Board for the respective application,
then the Planning Board shall make direct requests to SHPO and the
FCC for their review of the application. They shall request SHPO and
the FCC's review and input in completing the statutorily required
environmental/historic impact analysis pursuant to SEQRA and NHPA.
(4)
This request shall include, but not be limited to, a request
to the FCC for a Section 106 review, as defined in this section, as
the Town recognizes each application for a special use permit for
the installation of a personal wireless services facility shall constitute
an undertaking for purposes of compliance with the National Historic
Preservation Act.
(5)
In addition, the Planning Board shall comply with the statutory
requirements of SEQRA to complete a SEQRA review, make determinations
of significance, and where appropriate, require the applicant to complete
a draft environmental impact statement, and if additionally appropriate,
to thereafter complete a final environmental impact statement and
analysis.
(6)
So long as the Planning Board acts with reasonable diligence
in completing its SEQRA and NHPA review, if compliance with the statutory
requirements for historic preservation review requires a period of
effort that extends beyond the expiration of the applicable shot clock
period, the delays beyond such period shall be deemed reasonable.
Q.
Force majeure. In the event that the rendering of a final decision
upon a special use permit application under this section is delayed
due to natural and/or unnatural events and/or forces which are not
within the control of the Town or the Planning Board, such as the
unavoidable delays experienced in government processes due to the
COVID 19 pandemic, and/or mandatory compliance with any related federal
or state government orders issued in relation thereto, such delays
shall constitute reasonable delays which shall be recognized as acceptable
grounds for extending the period for review and the rendering of final
determinations beyond the period allotted under the applicable shot
clock.
R.
Eleventh-hour submissions.
(1)
In the event that an applicant tenders eleventh-hour submissions
to the Town and/or the Planning Board in the form of: a) expert reports;
b) expert materials; and/or c) materials which require a significant
period for review due either to their complexity or the sheer volume
of materials which an applicant has chosen to provide to the Board
at such late point in the proceedings, the Planning Board shall be
afforded a reasonable time to review such late-submitted materials.
(2)
If reasonably necessary, the Planning Board shall be permitted
to retain the services of an expert consultant to review any late-submitted
expert reports which were provided to the Board, even if such review
or services extend beyond the applicable shot clock period, so long
as the Board completes such review and retains and secures such expert
services within a reasonable period of time thereafter, and otherwise
acts with reasonable diligence in completing its review and rendering
its final decision.
S.
Prohibition against illegally excessive emissions and RF radiation
testing.
(1)
As disclosed upon the FCC's public internet website, personal
wireless services facilities erected at any height under 200 feet
are not required to be registered with the FCC.
(2)
Of even greater potential concern to the Town is the fact that
the FCC does not enforce the RF radiation limits codified within the
CFR by either: a) testing the actual radiation emissions of wireless
facilities either at the time of their installation or at any time
thereafter; or b) requiring their owners to test them. See relevant
excerpts from the FCC's public internet website annexed as Appendix
2.[3]
[3]
Editor's Note: Said appendix is on file in the Town offices.
(3)
This means that when wireless facilities are constructed and
operated within the Town, the FCC will have no idea where they are
located and no means of determining, much less ensuring, that they
are not exposing residents within the Town and/or the general public
to illegally excessive levels of RF radiation.
(4)
The Town deems it to be of critical importance to the health,
safety, and welfare of the Town, its residents, and the public at
large that personal wireless service facilities do not expose members
of the general public to levels of RF radiation that exceed the limits
which have been deemed safe by the FCC, and/or are imposed under CFR.
(5)
In accord with the same, the Town enacts the following RF radiation
testing requirements and provisions set forth hereinbelow.
(6)
No wireless Telecommunications facility or combination of facilities shall at any time be permitted to emit illegally excessive RF radiation as defined in § 150-126B, or to produce power densities that exceed the legally permissible limits for electric and magnetic field strength and power density for transmitters, as codified within 47 CFR 1.1310(e)(1), Table 1, Sections (i) and (ii), as made applicable pursuant to 47 CFR 1.1310(e)(3).
(7)
To ensure continuing compliance with such limits by all owners
and/or operators of personal wireless services facilities within the
Town, all owners and operators of personal wireless service facilities
shall submit reports as required by this section.
(8)
As set forth hereinbelow, the Town may additionally require,
at the owner and/or operator's expense, independent verification
of the results of any analysis set forth within any reports submitted
to the Town by an owner and/or operator.
(9)
If an operator of a personal wireless service facility fails
to supply the required reports or fails to correct a violation of
the legally permissible limits described hereinabove, following notification
that their respective facility is believed to be exceeding such limits,
any special use permit or other zoning approval granted by the Planning
Board or any other Board or representative of the Town is subject
to modification or revocation by the Planning Board following a public
hearing.
(10)
Initial certification of compliance with applicable RF radiation
limits.
(a)
Within 45 days of initial operation or a substantial modification
of a personal wireless service facility, the owner and/or operator
of each telecommunications antenna shall submit to the Zoning Administrator
a written certification by a licensed professional engineer, sworn
to under penalties of perjury, that the facility's radio frequency
emissions comply with the limits codified within 47 CFR 1.1310(e)(1),
Table 1, Sections (i) and (ii), as made applicable pursuant to 47
CFR 1.1310(e)(3).
(b)
The engineer shall measure the emissions of the approved facility,
including the cumulative impact from other nearby facilities, and
determine if such emissions are within the limits described hereinabove.
(c)
A report of these measurements and the engineer's findings
with respect to compliance with the FCC's maximum permissible
exposure (MPE) limits shall be submitted to the Zoning Administrator.
(d)
If the report shows that the facility does not comply with applicable
limits, then the owner and/or operator shall cease operation of the
facility until the facility is brought into compliance with such limits.
Proof of compliance shall be a certification provided by the engineer
who prepared the original report. The Town may require, at the applicant's
expense, independent verification of the results of the analysis.
(11)
Random RF radiofrequency testing.
(a)
At the operator's expense, the Town may retain an engineer
to conduct random unannounced RF radiation testing of such facilities
to ensure the facility's compliance with the limits codified
within 47 CFR 1.1310(e)(1) et seq.
(b)
The Town may cause such random testing to be conducted as often
as the Town may deem appropriate. However, the Town may not require
the owner and/or operator to pay for more than one test per facility
per calendar year unless such testing reveals that one or more of
the owner and/or operator's facilities are exceeding the limits
codified within 47 CFR 1.1310(e)(1) et seq., in which case the Town
shall be permitted to demand that the facility be brought into compliance
with such limits, and to conduct additional tests to determine if,
and when, the owner and/or operator thereafter brings the respective
facility and/or facilities into compliance.
(c)
If the Town at any time finds that there is good cause to believe
that a personal wireless service facility and/or one or more of its
antennas are emitting RF radiation at levels in excess of the legal
limits permitted under 47 CFR 1.1310(e)(1) et seq., then a hearing
shall be scheduled before the Planning Board at which the owner and/or
operator of such facility shall be required to show cause why any
and all permits and/or approvals issued by the Town for such facility
and/or facilities should not be revoked, and a fine should not be
assessed against such owner and/or operator.
(d)
Such hearing shall be duly noticed to both the public and the
owner and/or operator of the respective facility or facilities at
issue. The owner and/or operator shall be afforded not less than two
weeks' written notice by first-class mail to its notice address.
(e)
At such hearing, the burden shall be on the Town to show that,
by a preponderance of the evidence, the facilities emissions exceeded
the permissible limits under 47 CFR 1.1310(e)(1) et seq.
(f)
In the event that the Town establishes same, the owner and/or
operator shall then be required to establish, by clear and convincing
evidence, that a malfunction of equipment caused their failure to
comply with the applicable limits through no fault on the part of
the owner/operator.
(g)
If the owner and/or operator fails to establish same, the Planning
Board shall have the power to, and shall revoke any special use permit,
variance, building permit, and/or any other form of zoning-related
approval(s) which the Planning Board, Zoning Board of Appeals, Zoning
Administrator and/or any other representative of the Town may have
then issued to the owner and/or operator, for the respective facility.
(h)
In addition, the Planning Board shall impose a fine of not less than $1,000, nor more than $5,000 for such violation of Subsection S(10) hereinabove, or, in the case of a second offense within less than five years, a minimum fine of $5,000, nor more than $25,000.
(i)
In the event that an owner or operator of one or more personal wireless facilities is found to violate Subsection S(10), hereinabove, three or more times within any five-year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codified in 47 CFR 1.1310(e)(1) et seq., the Planning Board shall render a determination within which it shall deem the owner/operator prohibited from filing any applications for any new wireless personal services facilities within the Town for a period of five years.
T.
Bond requirements, removal of abandoned facilities and reclamation.
(1)
Bond requirement.
(a)
At, or prior to the filing of an application for a special use
permit for the installation of a new personal wireless service facility,
each respective applicant shall provide a written estimate for the
cost of the decommissioning and removal of the facility, including
all equipment that comprises any portion or part of the facility,
compound and/or complex, as well as any accessory facility or structure,
including the cost of the full restoration and reclamation of the
site, to the extent practicable, to its condition before development
in accord with the decommissioning and reclamation plan required herein.
The Planning Board's engineer shall review this estimate.
(b)
Upon receiving a special use permit approval from the Planning
Board, and a building permit, prior to the commencement of installation
and/or construction of such facility or any part thereof, the applicant
shall file with the Town a bond for a length of no less than three
years in an amount equal to or exceeding the estimate of the cost
of removal of the facility and all associated structures, fencing,
power supply, and other appurtenances connected with the facility.
The bond must be provided within 30 days of the approval date and
before any installation or construction begins.
(c)
Replacement bonds must be provided 90 days' prior to the
expiration of any previous bond.
(d)
At any time the Town has good cause to question the sufficiency
of the bond at the end of any three-year period, the owner and/or
operator of the facility, upon request by the Town, shall provide
an updated estimate and bond in the appropriate amount.
(e)
Failure to keep the bonds in effect is cause for removal of
the facility at the owner's expense. A separate bond will be
required for each facility, regardless of the number of owners or
the location.
(2)
Removal of abandoned facilities.
(a)
Any personal wireless service facility that is not operated
or used for a continuous period of 12 consecutive months shall be
considered abandoned. At the owner's expense, the owner of said
facility shall be required to remove the facility and all associated
equipment buildings, power supply, fence, and other items associated
with such facility, compound and/or complex, and permitted with, the
facility.
(b)
If the facility is not removed within 90 days, the bond secured
by the tower owner shall be used to remove the facility and any accessory
equipment and structures.
U.
ADA accommodations. (Reserved)
V.
General provisions.
(1)
Balancing of interests.
(a)
The Town formally recognizes that, as has been interpreted by federal courts within the Second Circuit, when it enacted the TCA, Congress chose to preserve local zoning authority over decisions regarding the placement, construction, and modification of personal wireless facilities [47 U.S.C. § 332(c)(7)(A)] subject only to the limitations set forth in § 332(c)(7)(b), consistent with the holding of the United States Court of Appeals in Sprint Spectrum L.P.v. Willoth, 176 F3d 630 (2nd Cir.1999) and its progeny, and the Town has relied upon such federal courts' interpretations of the TCA in enacting § 150-126 et seq.
(b)
The Town similarly embraces the federal courts' determinations
that the TCA was created to effectuate a balancing between the interests
of facilitating the growth of wireless telephone service nationally
and maintaining local control over the siting of wireless personal
services facilities, as the Court additionally articulated in Omnipoint
Communications Inc. v. The City of White Plains, 430 F3d. 529 (2nd
Cir. 2005). This includes preserving to local governments, including
the Town of Fishkill, the power to deny applications for the installation
of wireless personal services facilities, based upon traditional grounds
of zoning denials, including, but not limited to, the potential adverse
aesthetic impacts or a reduction in property values which the construction
of any proposed structure may inflict upon nearby properties or the
surrounding community.
(c)
This additionally includes the recognition that, under this
balancing of interest test, "once an area is sufficiently serviced
by a wireless service provider, the right to deny applications (for
new wireless facilities) becomes broader" Crown Castle NG East LLC
v. The Town of Hempstead, 2018 WL 6605857.
(d)
It is the intent of the Town that Article XII of the Town's Zoning Code be applied in a manner consistent with the balancing of interests codified within the TCA.
(e)
Consistent with same, the Town rejects and shall reject any
current and/or future FCC interpretations of any provision of the
TCA which are clearly inconsistent with, and/or are clearly contrary
to, both the language of the TCA and binding decisions of the United
States Court of Appeals for the Second Circuit and United States District
Courts within the Second Circuit.
(f)
This includes a rejection of any FCC interpretations inconsistent
with Willoth and any claims that the FCA legally prohibits the Planning
Board from denying a special use permit application, based solely
upon a claim that an applicant desires the installation of its new
facility for "densification" of its existing personal wireless services,
or to offer a new service, irrespective of whether or not the carrier
already possesses adequate coverage within the Town, and irrespective
of the potential adverse impact which the installation of such new
facility or facilities would inflict upon the Town, its property owners,
citizens and/or communities.
(2)
Conflict with federal or state laws. To the extent that any
provision of this section is found to conflict with any applicable
federal or state law, it is the intent of the Town that the remaining
portion of this section which has not been found to conflict with
such law be deemed to remain valid and in full force and effect.
A.
Congregate care facilities. The establishment of a congregate care facility in an R-MF-5 and RB District shall be subject to the bulk requirements of those districts and shall be subject to site plan approval in accordance with §§ 150-95 through 150-98 and § 150-110 of this chapter and the following additional requirements:
(1)
The development site shall be a minimum of 10 contiguous acres
within the RMF-5 zoning district and five contiguous acres in the
RB zoning district, with not more than 25% of the required minimum
acreage designated as wetlands, under water or subject to periodic
flooding.
(2)
The development site shall be provided with adequate central
water supply and common sewage disposal facilities in accordance with
the requirements of the Town of Fishkill, the Dutchess County Department
of Health and the New York State Department of Environmental Conservation.
(3)
The maximum density shall not exceed 20 bedrooms per gross acre
of the project site.
(4)
On-site core services and facilities, in connection with congregate
care facilities, may include, but are neither required to include
nor limited to, the following:
(5)
The facility shall be in full compliance with the New York State
Uniform Fire Prevention and Building Code, the Americans with Disabilities
Act and other pertinent codes, rules and regulations that may be imposed
by applicable local, county and state regulatory or permitting agencies.
(6)
The development shall be effectively screened and buffered from
adjoining residential use through use of natural or new vegetation
building scale and design and building location subject to approval
of the new planning board. Effective screening or buffering shall
mean that the new development shall appear to be at a scale similar
to adjoining residential uses and shall consist of a minimum of 25
to 30 feet of a mix of coniferous and deciduous trees.
