[Added 11-7-2001]
The Town of Orchard Park recognizes the increased
demand for wireless communications transmitting facilities and the
need for the services they provide. Often, these facilities require
the construction of a communications tower and/or similar facilities.
The intent of this article is to protect the Town's interest in properly
siting towers and/or similar facilities in a manner consistent with
sound land use planning by:
A.
Minimizing adverse visual effects of towers and/or
similar facilities through careful design, siting and vegetative screening;
B.
Avoiding potential damage to adjacent properties from
tower failure or falling debris through engineering and careful siting
of tower structures;
C.
Maximizing the use of any existing tower or existing
buildings and/or structures to reduce the number of towers and/or
similar facilities needed, while also allowing wireless service providers
to meet their technological and service objectives.
As used in this article, the following terms
shall have the meanings indicated:
An accessory facility or structure serving or being used
in conjunction with a communications tower and/or similar facility
and located on the same lot as the communications tower. Examples
of such structures include utility or transmission equipment, storage
sheds or cabinets.
A system of electrical conductors that transmit or receive
radio or similar communication frequency signals. Such signals shall
include, but not be limited to, radio, television, cellular, paging,
data transmission, personal communications services and microwave
communications.
Telecommunications facilities which utilize existing towers,
buildings or other structures for placement of antenna(s) which are
located not more than 20 feet above the highest point of such existing
structure.
The radius around a tower within which all portions of the
tower and antenna(s) would fall.
Towers and/or antennas and accessory structures which together
are used in connection with the provision of cellular telephone services,
data transmission services, personal communications services, paging
services, radio and television broadcast services and similar broadcast
services.
A structure designed to support antennas. It includes, without
limit, freestanding towers, guyed towers, monopoles and similar structures
which do or do not employ camouflage technology.
A permit to facilitate the construction of a tower and/or
telecommunications facilities pursuant to this article.
A.
Collocated antennas. Telecommunication facilities
comprised of collocated antennas (and accessory structures) are permitted
as of right in any district upon the issuance of a building permit.
Such facilities shall comply with all building permit and building
code requirements set forth in the Town of Orchard Park Code ("Code
requirements"), provided that any such collocated antennas which require
the erection of additional tower sections shall require a site plan
review and approval by the Town's Zoning Board of Appeals ("ZBA")
and a tower permit as set forth in this article.
B.
Municipal — or government-owned property. Telecommunications
facilities requiring construction of a new tower and/or antenna on
municipal- or government-owned property shall require a site plan
review and approval by the ZBA. If the tower and/or antenna is less
than or equal to 100 feet in height it may be constructed upon the
issuance of a building permit, provided that a majority of the members
of the ZBA recommends the issuance of such a building permit and the
facility in question complies with all Code requirements. If the tower
and/or antenna is over 100 feet in height, construction and operation
will require the issuance of a tower permit. Additionally, facilities
to be located on property owned by municipalities or other governmental
entities other than the Town of Orchard Park shall, to the extent
applicable, comply with any additional legal requirements imposed
by such municipalities or other governmental entities.
C.
Nonresidential districts. Telecommunications facilities
requiring construction of a new tower on non-municipal or government-owned
property in any nonresidential zoning district shall require a site
plan review, proof that at least two unrelated cellular carriers will
use the newly constructed tower, approval by the ZBA, and the issuance
of a tower permit, as set forth in this article. Proof that two unrelated
cellular carriers will use the newly constructed tower shall consist
of valid and binding written leases, each being of at least 10 years
in duration.
[Amended 10-7-2020 by L.L. No. 7-2020; 12-16-2020 by L.L. No. 9-2020]
D.
Residential districts. Telecommunications facilities
requiring construction of a new tower on non-municipal or government-owned
property in any residential zoning district shall require a site plan
review, proof that at least two unrelated cellular carriers will use
the newly constructed tower, approval by the ZBA, and the issuance
of a tower permit, as set forth in this article. Proof that two unrelated
cellular carriers will use the newly constructed tower shall consist
of valid and binding written leases, each being of at least 10 years
in duration.
[Amended 10-7-2020 by L.L. No. 7-2020; 12-16-2020 by L.L. No. 9-2020]
A.
All applicants for a tower permit shall make a written
application to the Town's ZBA, which should initially be delivered
to the Town Building Inspector (with a copy to the Town Clerk), which
application shall include:
(1)
Orchard Park tower permit application form.
(2)
Orchard Park site plan review application form.
(3)
Environmental assessment form.
(4)
A site plan ("site plan") in form and content acceptable
to the Town, prepared to scale and in sufficient detail and accuracy
showing, at a minimum:
(a)
The exact location of the proposed tower and/or
antenna, together with the guy wires and guy anchors.
(b)
The maximum height of the proposed tower and/or
antenna.
(c)
A detail of the tower type (monopole, guyed,
freestanding or other).
(d)
The color or colors of the tower.
(e)
The location, type and intensity of any lighting
on the tower and antenna.
(f)
The property boundaries of the property on which
the tower and/or antenna is proposed to be constructed ("the property").
(g)
A copy of the property survey prepared by a
licensed land surveyor.
(h)
Proof of the landowner's consent, if the applicant
will not own the property. (A copy of a lease agreement must also
be provided if the applicant will not own the property.)
(i)
Location of all structures on the property and
all structures on any adjacent property within 50 feet of the property
lines, together with the distance of these structures to the tower
and the distance of the tower from all property lines and public roads
or rights-of-way and all structures within the falldown zone.
(j)
The names and mailing addresses of all adjacent
landowners.
(k)
The location, nature and extent of any proposed
fencing and landscaping or screening to be constructed around or in
conjunction with the tower and/or any telecommunications applicable
to the tower.
(l)
The location and nature of any utility easements
and access roads proposed or existing in connection with the tower
or applicable telecommunications facilities.
(m)
Building elevations of accessory structures
and/or immediately adjacent buildings to the proposed tower and related
telecommunications facilities.
(n)
Location and nature of any power generators
existing or to be constructed in connection with a proposed tower
and/or related telecommunications facilities.
(5)
"Before" and "after" propagation studies prepared
by a qualified radio frequency engineer demonstrating existing signal
coverage, contrasted with proposed signal coverage resulting from
the proposed telecommunications facility.
(6)
A search ring prepared by a qualified radio frequency engineer and overlaid on an appropriate background map demonstrating the area within which the telecommunications facility needs to be located in order to provide proper signal strength and coverage to the target cell. The applicant must be prepared to explain to the ZBA why it selected the proposed site, discuss the availability (or lack of availability) of a suitable structure within the search ring which would have allowed for collocated antenna(s), and to what extent the applicant explored locating the proposed tower in a more intensive use district or other available sites which are more consistent with the type preferences set forth in § 144-51 below.
B.
For purposes of this article, the term "property"
refers to the parcel of land owned and/or leased by the applicant.
C.
The ZBA, upon reviewing the application, may request
reasonable additional information, including but not limited to any
visual and aesthetic information it deems appropriate on a case-by-case
basis. Such additional information may include, among other things,
enhanced landscape plans, line-of-sight drawings, and/or visual simulations
from the viewpoints selected by the ZBA or its designated agents (including
the Town's Engineer) or representatives.
The following criteria will be considered by
the ZBA prior to the approval/denial of a request for a tower permit
and may be used as a basis to impose reasonable conditions on the
applicant to the issuance of such a tower permit:
A.
Siting preferences. The ZBA may express a preference
that the proposed telecommunications facility be located in a higher-intensity-use
district or on higher-intensity-use property, provided that there
is a technologically feasible and available location. A guideline
for the ZBA's preference, from the most favorable to the least favorable
district/property, is as follows:
B.
Aesthetics. Telecommunications facilities shall be
located and buffered to the maximum extent which is practical and
technologically feasible to help ensure compatibility with surrounding
land uses. In order to minimize any adverse aesthetic effect on neighboring
residences or properties to the extent possible, the ZBA may impose
reasonable conditions on the applicant, including but not limited
to the following:
(1)
The ZBA may require a monopole or guyed tower (if
sufficient land is available to the applicant) instead of a freestanding
tower. Monopoles are a preferred design.
(2)
The ZBA may require reasonable landscaping consisting
of trees or shrubs to screen the base of the tower and/or to screen
the tower to the extent possible from adjacent property. Existing
on-site trees and vegetation shall be preserved to the maximum extent
possible. Additionally, landscaping may include two lines of spruce
trees having a minimum height of six feet, each planted 10 feet apart.
The first such line may be located 10 feet outside any required fence
around a permitted tower and the second may be located 25 feet outside
any required fence around a permitted tower.
(3)
The ZBA may require the applicant to show that it
has made good-faith efforts to collocate on existing towers or other
available and appropriate collocated structures and/or to construct
new towers near existing towers in an effort to consolidate visual
disturbances. However, such request shall not unreasonably delay the
application.
(4)
Towers shall be designed and sited so as to avoid,
whenever possible, application of Federal Aviation Administration
(FAA) lighting and painting requirements. Towers shall not be artificially
lighted except as provided herein or as required by the FAA. Towers
shall be a galvanized finish or painted matte gray unless otherwise
required by the FAA or the ZBA. Any lighting which may be required
by the FAA shall not consist of strobe lights, unless specifically
mandated by the FAA.
(5)
No tower shall contain any signs or advertising devices
except those required by law.
(6)
The applicant must submit a copy of its policy regarding
collocation on the proposed tower with other potential future applicants.
Such policy shall not be changed without the written consent of the
ZBA and be applicable to any assignee or transferee of the applicant
and require applicant to allow collocation if the new antenna(s) and
equipment do not exceed structural loading requirements, interfere
with tower space used or to be used by the applicant, nor pose any
technical or radio frequency interference with existing equipment.
The party desiring to collocate shall pay the applicant an appropriate
and reasonable sum to collocate and shall agree to any other reasonable
terms and conditions to relocate.
(7)
Towers
are to be located in wooded areas of trees of at least 100 feet to
125 feet in height, and the towers themselves are to be disguised
as trees. The applicant must enter into an agreement with the Town
of Orchard Park to maintain the wooded area and the trees located
therein for so long as the cell tower remains standing, which obligation
is to be secured by a performance bond provided by the applicant to
the Town of Orchard Park.
[Added 10-7-2020 by L.L. No. 8-2020; amended 12-16-2020 by L.L. No.
10-2020]
C.
Radio-frequency effect. The ZBA may impose a condition
on the applicant that any approved antennas be operated only at Federal
Communications Commission (FCC) designated frequencies and power levels
and/or Environmental Protection Agency technical exposure limits and
that the applicant provide competent documentation to support that
the maximum allowable frequencies, power levels and exposure limits
for radiation will not be exceeded.
D.
Traffic, access and safety.
(1)
The site plan should indicate reasonable emergency
or service access to all telecommunications facilities. Maximum use
of existing roads, public or private, shall be made. The use of public
roadways or road rights-of-way for the siting of a tower or antennas
or accessory structures is prohibited. All such roads shall be maintained
and kept free of snow to assure appropriate access at all times.
(2)
All towers and accessory structures, including guy
anchors, if applicable, shall be enclosed by a fence eight feet in
height or otherwise sufficiently protecting such facilities from trespassing
or vandalism. The height limitations and material limitations applicable
to such fences contained elsewhere in this chapter are exempt as they
affect this article.
(3)
The applicant must comply with all applicable state
and federal regulations, including but not limited to FAA and FCC
regulations.
(4)
The ZBA may require that the towers and antenna(s)
be set back a sufficient distance from adjacent property lines and/or
structures to safeguard the general public and/or adjacent property
from damage in the event of a tower failure or falling debris such
as ice, which distance shall take into account the falldown zone of
any tower and/or antenna. In all instances towers and/or antennas
shall be located no closer than 800 feet to any public road or right-of-way
and 500 feet to any existing residences. The falldown zone should
be equal to the height of the tower and any antenna annexed thereto
from any adjacent property line. Notwithstanding the limitations contained
herein, the ZBA can set a different falldown zone upon receipt of
information from the applicant or adjoining property owners which
demonstrates that the safety of the general public or adjacent property
is protected.
(5)
If the ZBA deems it appropriate, it may require that
a reasonably acceptable security alarm or alarms be installed in connection
with any tower or related telecommunications facilities as a condition
to the issuance of a tower permit.
E.
Removal of a tower. The applicant shall agree to remove the tower, antenna and/or telecommunications facility if said tower, antenna and/or telecommunications facility becomes obsolete or ceases to be used for its intended purpose for 12 consecutive months. The ZBA shall require the applicant to provide a demolition bond reasonably acceptable to the ZBA (the "bond") to assure appropriate removal of a telecommunications facility, antenna and/or tower in case the applicant fails to do so as required in the amount and for the term deemed appropriate by the ZBA. If requested in writing by the ZBA, the amount of said bond will be adjusted, no more frequently than once every five years, to reflect the current removal cost. Notwithstanding any other provision of this § 144-51F to the contrary, the ZBA may waive the requirement for a demolition bond in those instances where a particular tower and/or antenna is collocated on an existing tower and/or antenna, the removal of which is assured by an acceptable existing demolition bond.
F.
Structural safety. Upon written request from the ZBA
or Town, either during the application process and/or after construction
of the tower and/or antenna, the applicant shall provide a certificate
from a qualified licensed engineer certifying that the tower and/or
antenna meets with applicable structural safety standards. Such requests
from the ZBA or Town shall not occur more than once every five years
unless the Town has reasonable grounds to believe the tower and/or
antenna is in an unsafe condition, in which event such a request may
be made on a more frequent basis. In any such an event, the certificate
described herein shall be delivered to the Town and/or ZBA within
30 days of such a request, and any repairs recommended in such a certificate
shall be commenced, and if possible completed, within 30 days of the
date of such a certificate.
G.
Maintaining the telecommunications facility. Notwithstanding any other provision contained herein, all telecommunications facilities shall be maintained in good order and repair as required by the Code requirements and all applicable state and local statutes and regulations. Failure to make such repairs within 10 days of receipt of a written request to do so from the Town or to maintain an acceptable demolition bond as described in § 144-51F shall constitute a violation of this article and subject the applicant and/or any owner, lessee or operator of such facility or facilities to a fine of up to $500 per day, with each day thereafter on which such a violation continues to exist constituting a separate violation of this article.
H.
Required landscaping around towers or telecommunications
facilities shall be maintained at all times. Dead trees shall be replaced
within 150 days with similar-sized trees, regardless of height, if
possible. Property shall be mowed regularly to a height if six inches
or less twice a month during the growing season.
I.
Notice of operation. At all times during which a tower
and/or antenna regulated by this article is located or operated within
the Town, the owner, lessee and/or operator shall provide to the Town
Clerk that information which is required by federal law in case emergency
maintenance or safety precautions are required.
The following are exempt from the requirements
of this article:
A.
Existing towers and antenna(s) may be repaired and
maintained without restriction.
B.
An antenna used solely for residential household television
and radio reception which, together with any tower or other structure
to which it is attached, does not exceed 45 feet in height, provided
that the antenna or any tower to which it is attached is at least
the same distance from any adjoining property line.
C.
Satellite antennas measuring two meters or less in
diameter and located in agricultural, business or industrial zoning
districts and satellite antennas one meter or less in diameter, regardless
of location.
A.
The ZBA may waive any requirements in this article
for good cause shown.
B.
This article is meant to control and regulate the
construction and use of towers, antennas, related telecommunications
facilities and similar facilities in the Town. The approval of the
Zoning Board of Appeals shall be the only approval required for tower
antennas, related telecommunications facilities and similar facilities
in the Town.
B.
As a condition to the issuance of any related building
or tower permit to facilitate the construction of a tower, an antenna
or telecommunications facilities pursuant to this article, the ZBA
may require the applicant to pay the fees of an independent engineer
retained by the Town to assist in the evaluation of the permit application.
[Added 10-23-2017 by L.L.
No. 16-2017]
A.
Authority. This section is adopted pursuant to §§ 261
through 263 of the Town Law of the State of New York, which authorize
the Town of Orchard Park to adopt zoning provisions that advance and
protect the health, safety, and welfare of the community, and "to
make provision for, so far as conditions may permit, the accommodation
of solar energy systems and equipment and access to sunlight necessary
therefor."
B.
Statement of purpose. This zoning for solar energy section is adopted
to advance and protect the public health, safety, and welfare of the
Town of Orchard Park, including:
(1)
Taking advantage of a safe, abundant, renewable, and nonpolluting
energy resource;
(2)
Decreasing the cost of energy to the owners of commercial and residential
properties, including single-family houses; and
(3)
Increasing employment and business development in the region by furthering
the installation of solar energy systems.
C.
BUILDING-INTEGRATED PHOTOVOLTAIC SYSTEM
GROUND-MOUNTED SOLAR ENERGY SYSTEM
LARGE-SCALE SOLAR ENERGY SYSTEM
ROOF-MOUNTED SOLAR ENERGY SYSTEM
SOLAR ENERGY EQUIPMENT
SOLAR ENERGY SYSTEM
SOLAR PANEL
Definitions. As used in this section, the following terms shall have
the meanings indicated:
A combination of photovoltaic building components integrated
into any building envelope system such as vertical facades including
glass and other facade material, semitransparent skylight systems,
roofing materials, and shading over windows.
A solar energy system that is anchored to the ground and
attached to a pole or other mounting system, detached from any other
structure for the primary purpose of producing electricity for on-site
consumption.
A solar energy system that is ground mounted and produces
energy primarily for the purpose of off-site sale or consumption.
A solar panel system located on the roof of any legally permitted
building or structure for the purpose of producing electricity for
on-site or off-site consumption.
Electrical energy storage devices, material, hardware, inverters,
or other electrical equipment and conduit of photovoltaic devices
associated with the production of electrical energy.
An electrical generating system composed of a combination
of both solar panels and solar energy equipment.
A photovoltaic device capable of collecting and converting
solar energy into electrical energy.
D.
Applicability. The requirements of this section shall apply to all
solar energy systems installed or modified after its effective date,
excluding general maintenance and repair and building-integrated photovoltaic
systems.
E.
Solar as an accessary use or structure.
(1)
Roof-mounted solar energy systems.
(a)
Roof-mounted solar energy systems that use the electricity onsite
or offsite are permitted as an accessory use in all zoning districts
when attached to any lawfully permitted building or structure.
(b)
Height. Solar energy systems shall not exceed the maximum height
restrictions of the zoning district within which they are located
and are provided the same height exemptions granted to building-mounted
mechanical devices or equipment.
(c)
Aesthetics. Roof-mounted solar energy system installations shall
incorporate, when feasible, the following design requirements:
[1]
Panels facing the front yard must be mounted at the same angle
as the roof's surface with a maximum distance of 18 inches between
the roof and highest edge of the system. The Zoning Board of Appeals
is granted authority to permit variances to this requirement with
the advice and consent of the Building Inspector.
(d)
Roof-mounted solar energy systems that use the energy onsite
or offsite shall be exempt from the site plan review under the local
zoning code or other land use regulations.
(e)
Permit. A building permit for solar panels is required from
the Building Department with a fee to be established from time to
time by resolution of the Town Board.
(2)
Ground-mounted solar systems.
(a)
Ground-mounted solar energy systems that use the electricity
primarily on site are permitted as accessory structures in all zones.
(b)
Height and setback. Ground-mounted solar energy systems shall
adhere to the height and setback requirements of the underlying zoning
district.
(c)
Lot coverage. Systems are limited to the current overall coverage
pursuant to the existing zone. The surface covered by ground-mounted
solar panels shall be included in total lot coverage.
(d)
All such systems in residential districts shall be installed
in rear yards.
(e)
Ground-mounted solar energy systems that use the electricity
primarily on site shall be exempt from site plan review under the
local zoning code or other land use regulations.
F.
Large-scale solar energy systems. Large-scale energy systems are
specifically prohibited.
G.
Abandonment and decommissioning. Solar energy systems are considered
abandoned after one year without electrical energy generation and
must be removed from the property. Applications for extensions are
reviewed by the Town Board of Orchard Park for a period of one year.
H.
Enforcement. Any violation of this solar energy section shall be
subject to the same civil and criminal penalties provided for in the
zoning regulations of the Town of Orchard Park .
I.
Severability. The invalidity or unenforceability of any section,
subsection, paragraph, sentence, clause, provision or phrase of the
aforementioned sections as declared by the valid judgment of any court
of competent jurisdiction to be unconstitutional shall not affect
the validity or enforceability of any other section, subsection, paragraph,
sentence, clause, provision or phrase, which shall remain in full
force and effect.