[HISTORY: Adopted by the Town Board of the Town of Chester 1-4-2000
by L.L. No. 1-2000. Amendments noted where applicable.]
The Telecommunications Act of 1996 affirmed the Town of Chester's authority
concerning the placement, construction and modification of wireless telecommunications
facilities. The Town Board finds that wireless telecommunications facilities
and related equipment may pose a unique hazard to the health, safety, public
welfare and environment of the Town and its inhabitants and may also have
an adverse visual impact on the community, its character and thus the quality
of life in the Town. The intent of this chapter is to ensure that the placement,
construction or modification of wireless telecommunications facilities and
related equipment is consistent with the Town's land use policies and Zoning
Code to minimize the negative and adverse visual impact of wireless telecommunications
facilities; to assure a comprehensive review of environmental impacts of such
facilities; to protect the health, safety and welfare of the Town of Chester;
and to encourage shared use of wireless telecommunications facilities. These
regulations are not intended to prohibit or have the effect of prohibiting
the provision of personal wireless services nor shall they be used to unreasonably
discriminate among providers of functionally equivalent services consistent
with current federal regulations.
This chapter may be known and cited as the "Wireless Telecommunications
Facilities Siting Law for the Town of Chester," or may otherwise be known
as the "Wireless Facilities Law."
For purposes of this chapter, and where not inconsistent with the context
of a particular section, the defined terms, phrases, words, abbreviations
and their derivations shall have the meanings given in this section. When
not inconsistent with the context, words in the present tense include the
future tense, words used in the plural number include words in the singular
number and words in the singular number include the plural number. The word
"shall" is always mandatory and not merely directory.
An accessory facility or structure serving or being used in conjunction
with a telecommunications facility and located on the same property or lot
as the telecommunications tower, including but not limited to utility or transmission
equipment storage sheds or cabinets.
A system of electrical conductors that transmit or receive electromagnetic
waves or radio frequency signals. Such waves shall include, but not be limited
to, radio, television, cellular, paging, personal telecommunications services
(PCS) and microwave telecommunications.
Includes any individual, corporation, estate, trust partnership,
joint-stock company, association of two or more persons, limited liability
company or entity submitting an application to the Town of Chester for a special
permitted use for a telecommunications facility.
The form approved by the Council, together with all necessary and
appropriate documentation that an applicant submits in order to receive a
special permitted use for a telecommunications facility.
The location on a telecommunications tower (tower) which, in the
event of a failure of the tower, would result in the tower falling or collapsing
within the boundaries of the property on which the tower is placed.
The use of the same telecommunications tower or structure to carry
two or more antennas for the provision of wireless services by two or more
persons or entities.
The meaning in this chapter and any special permitted use granted
hereunder as is defined and applied under the United States Uniform Commercial
Code (UCC).
An application that contains all information and/or data necessary
to enable the Council to evaluate the merits of the application and to make
an informed decision with respect to the effect and impact of the telecommunications
tower on the Town in the context of the permitted land use for the particular
location requested.
The Environmental Assessment Form approved by the New York Department
of Environmental Conservation.
The Federal Aviation Administration or its duly designated and authorized
successor agency.
The Federal Communications Commission or its duly designated and
authorized successor agency.
A tower that is not supported by guy wires and ground anchors or
other means of attached or external support.
When referring to a tower or structure, the distance measured from
the preexisting grade level to the highest point on the tower or structure,
even if said highest point is an antenna.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership, joint-stock
company, association of two or more persons having a joint common interest
or governmental entity.
See definition for "telecommunications tower."
The same meaning as defined and used in the 1996 Federal Telecommunications
Act.
The Town of Chester Planning Board is the officially designated agency
or body of the community to whom applications for a special permitted use
for a telecommunications facility must be made and that is authorized to review,
analyze, evaluate and make decisions with respect to granting or revoking
special permitted use approvals for telecommunications facilities. The Planning
Board may, at its discretion, delegate or designate other official agencies
of the Town to accept, review, analyze, evaluate and make recommendations
to the Planning Board with respect to the granting or not granting, recertifying
or not recertifying or revoking special permitted use approvals for telecommunications
facilities.
See "telecommunications tower."
The official document or permit by which an applicant is allowed
to construct and use a telecommunications tower as granted or issued by the
Town.
The transmission and reception of audio, video, data and other information
by wire, radio frequency, light and other electronic or electromagnetic systems.
Any structure used in, associated with or necessary for the provision
of wireless services and as described in the definition of "wireless telecommunications
facility."
In relation to all aspects and components of this chapter, fewer
than 90 days.
The Town of Chester, New York.
A structure or location designed or intended to be used or used to
support antennas. It includes without limit antennas applied to the facade
of a building or roof-mounted antennas, freestanding towers, guyed towers,
monopoles and similar structures that employ camouflage technology and including,
but not limited to, structures such as a church steeple, water tower, sign
or other similar structures intended to mitigate the visual impact of an antenna
or the functional equivalent of such. It is a facility or structure intended
for transmitting and/or receiving radio, television, cellular, paging, personal
telecommunications services or microwave telecommunications, but excluding
those used exclusively for private radio and television reception and private
citizens bands, amateur radio and other similar telecommunications.
Telecommunications facilities and towers shall be specially permitted
within the Town subject to regulation pursuant to this chapter, site plan
approval and coordinated SEQR review, pursuant to Environmental Conservation
Law of New York.
All applicants for a special permitted use for a wireless telecommunications
facility or any modification of such facility shall comply with the requirements
set forth in this section.
A.
An application for a special permitted use for a wireless
telecommunications facility shall be signed on behalf of the applicant by
the person preparing the same and with knowledge of the contents and representations
made therein and attesting to the truth and completeness of the information.
The landowner, if different than the applicant, shall also sign the application.
At the discretion of the Planning Board, any false or misleading statement
in the application may subject the applicant to denial of the application
without further consideration or opportunity for correction.
B.
Applications not meeting the requirements stated herein
or which are otherwise incomplete may be rejected by the Planning Board.
D.
No wireless telecommunications facility or tower or other
tall structure shall be installed or constructed for the purpose of providing
wireless telecommunications service until a plan of the site is reviewed and
approved by the Planning Board. No construction may be undertaken in furtherance
of an application until SEQR review has been completed and site plan approval
and special permit approvals have been granted by the Planning Board.
E.
All applications for the construction or installation
of a new wireless telecommunications facility shall be prepared by a New York
licensed professional engineer and land surveyor and shall address, either
on the site plan or on a narrative report which may accompany the site plan
submission, the following:
(1)
The need for the wireless telecommunications facility
to provide service primarily within the Town.
(2)
Name and address of person preparing the report.
(3)
Name and address of the property owner, operator and
applicant, to include the legal form of the applicant.
(4)
Postal address and Tax Map parcel number of the property.
(5)
Zoning district or designation in which the property
is situated.
(6)
Size of the property stated both in square feet and lot
line dimensions and a diagram showing the location of all lot lines.
(7)
Location of all residential structures within 750 feet.
(8)
Location of all occupied structures within 750 feet.
(9)
Location of all structures on the property which is the
subject of the application.
(10)
Location, size and height of all proposed and existing
antennas and all appurtenant structures.
(11)
Type, size and location of all proposed and existing
landscaping.
(12)
The number, type and design of the wireless telecommunications
facility(s) antenna(s) proposed and the basis for the calculations of the
wireless telecommunications facility's capacity to accommodate multiple users.
(13)
The make, model and manufacturer of the wireless facility
and antenna(s).
(14)
A description of the proposed wireless facility and antenna(s)
and all related fixtures, structures, appurtenances and apparatus, including
height above preexisting grade, materials, color and lighting.
(15)
The frequency, modulation and class of service of radio
or other transmitting equipment.
(16)
Transmission and maximum effective radiated power of
the antenna(s).
(17)
Direction of maximum lobes and associated radiation of
the antenna(s).
(18)
The applicant's proposed wireless facility maintenance
and inspection procedures and related system of records.
(19)
Certification that NIER levels at the proposed site are
within the threshold levels adopted by the FCC.
(20)
Certification that the proposed antenna(s) will not cause
interference with existing telecommunications devices. The certifying engineer
need not be approved by the Town.
(21)
A copy of the FCC license applicable for the use of the
wireless telecommunications facility.
(22)
Certification that topographic and geologic conditions,
which are to be confirmed by field tests, are sufficient to assure the stability
of the proposed wireless telecommunications tower.
(23)
Propagation studies of the proposed site and all adjoining
proposed or in-service or existing sites.
(24)
The applicant shall disclose, in writing, any agreement
in existence prior to submission of the application that would limit or preclude
the ability of the applicant to share any new wireless telecommunications
facility that it constructs.
F.
In the case of a new wireless telecommunications facility,
the applicant shall be required to submit a report demonstrating its efforts
to secure shared use of existing wireless telecommunications facility(s).
Copies of written requests and responses for shared use shall be provided
to the Planning Board.
G.
Certification that the wireless telecommunications facility
and attachments both are designed and constructed (as built) to meet all county,
state and federal structural requirements for loads, including wind and ice.
H.
Prior to issuance of a certificate of compliance or certificate
of occupancy the applicant shall post with the Town cash bond or surety for
the cost of removal of the tower in the event that it should be abandoned
or become a hazard or otherwise be subject to removal pursuant to valid exercise
of police power of the Town.
I.
The applicant shall submit a completed long-form EAF
and a completed visual EAF addendum.
J.
The visual EAF addendum shall be in the form of a visual
impact assessment which may include:
(1)
A Zone of Visibility Map, indicating the full range and
line of sight within which the proposed facility will be visible.
(2)
Pictorial representations of "before" and "after" views
from key viewpoints to be determined by the Planning Board, including but
not limited to state highways and other major roads, state and local parks,
other public lands, historic districts, preserves and historic sites normally
open to the public; and from any other location where the site is visible.
(3)
An assessment of the visual impact of the facility base,
guy wires and accessory buildings from abutting and adjacent properties and
streets.
(4)
A discussion of the feasibility of disguising the proposed
facility utilizing stealth technology to blend with the surrounding vista.
K.
The applicant shall provide a plan for mitigation of
the visual impacts, which shall include a screening plan and such other methods
as the applicant may employ to diminish any adverse visual impact attributable
to the proposal.
L.
Unless otherwise directed by the Planning Board, all
utilities serving any wireless telecommunications facility site shall be installed
underground and in compliance with all laws, rules and regulations of the
Town, including specifically, but not limited to, the National Electrical
Safety Code and the National Electrical Code, where appropriate. Noise suppression
materials shall be utilized in the design and construction of the tower and
any appurtenances.
M.
Both the wireless telecommunications facility and any
and all accessory or associated facilities shall to the maximum extent employ
building materials, colors and textures which are compatible with the natural
surroundings of the site.
N.
An access road and parking to assure adequate emergency
and service access shall be provided should such be deemed necessary by the
Town Board. Existing roads, whether public or private, shall be utilized to
the extent possible.
O.
All wireless telecommunications facilities shall be constructed,
operated, maintained, repaired, modified or restored in strict compliance
with all current technical, safety and safety-related codes adopted by the
Town, county, state or United States, including but not limited to the most
recent editions of the National Electrical Safety Code and the National Electrical
Code, as well as accepted and responsibly workmanlike industry practices and
recommended practices of the National Association of Tower Erectors. The codes
referred to are codes that include, but are not limited to, construction,
building, electrical, fire, safety, health and land use codes. In the event
of a conflict between or among any of the preceding, the more stringent shall
apply.
P.
Each applicant shall obtain all other permits and licenses
required by applicable rule, regulation or law and must maintain the same,
in full force and effect, for as long as required by the Town or other governmental
entity or agency having jurisdiction over the applicant.
Q.
All new towers shall demonstrate the feasibility of accommodation
of future demand. The scope of this examination shall be determined by the
Planning Board. The wireless telecommunications facility shall be structurally
designed to accommodate at least two additional antenna arrays equal to those
of the applicant and located as close to the applicant's antenna as possible
without causing interference. This requirement may be waived, provided that
the applicant demonstrates that the provisions of future shared usage of the
wireless telecommunications facility is not technologically feasible, or is
commercially impracticable and creates an unnecessary and unreasonable burden,
based upon:
(1)
The number of FCC licenses available for the area.
(2)
The kind of wireless telecommunications facility site
and structure proposed.
(3)
The number of existing and potential licenses without
wireless telecommunications facility spaces/sites.
(4)
Available space on existing and approved telecommunications
towers.
A.
Priority of location.
(1)
Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities, including towers or other tall structures, in accordance with the following priorities, Subsection A(1)(a) being the highest priority and Subsection A(1)(e) being the lowest priority:
(2)
If the proposed property site is not the highest priority
listed above, an explanation shall be provided.
(3)
Sites with superior priority may not be bypassed absent
a demonstration that such site is unavailable. Each applicant shall address
collocation as an option, and if such option is not proposed, the applicant
must explain. Agreements between providers limiting or prohibiting collocation
shall not be a valid basis for any claim of commercial impracticability or
hardship.
(4)
Notwithstanding the above, the Planning Board may approve
any site located within an area in the above list of priorities, provided
that it finds that such approval is in the best interest of the health, safety
and welfare of the Town.
B.
The applicant shall submit a written report demonstrating
the applicant's review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If the site selected is not
the highest priority, then a detailed written explanation as to why sites
of a higher priority were not selected shall be included with the application.
C.
The applicant shall identify the locations of any additional
sites that the applicant has, is or will be considering, reviewing or planning
for wireless telecommunications facilities in the vicinity of the Town.
A.
Location of antennas on preexisting structures shall
be considered and preferred. Shared use of existing telecommunications towers
or other existing structures shall be preferred by the Town.
(1)
Where such shared use is unavailable, the applicant shall
submit a comprehensive report inventorying existing towers and other appropriate
structures within four miles of any proposed new tower site; and
(2)
The applicant shall provide analysis of the feasibility
of shared use of any facility so identified.
B.
An applicant intending to share use of an existing telecommunications
tower or other tall structure shall be required to document the feasibility
of same.
C.
In the event that an application to share the use of
an existing telecommunications tower does not increase the height of the telecommunications
tower, the Planning Board may waive any portion of this chapter deemed by
the Board to be redundant of prior review.
A.
The applicant shall submit documentation justifying to
the Planning Board the total height of any wireless telecommunications facility
and/or antenna and the basis therefor.
B.
Wireless telecommunications facilities shall be no higher
than the minimum height necessary. Unless waived by the Planning Board upon
good cause shown, the maximum height shall be 100 feet, based on three collocated
antenna arrays and ambient tree height of 70 feet.
C.
The maximum height of any wireless telecommunications
facility and attached antennas constructed after the effective date of this
chapter shall not exceed that which shall permit operation without artificial
lighting of any kind in accordance with municipal, county, state and/or any
federal law and/or regulation.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.
Unless otherwise directed by the Planning Board, towers
and facilities shall contain a galvanized finish or be painted with a rust-preventive
paint of an appropriate color to harmonize with the surroundings as approved
by the Planning Board. To the extent available, the facility shall employ
available technology to obscure the facility from public view.
C.
The Planning Board may impose such conditions for maintenance
as are deemed necessary to preserve the appearance of the structure.
D.
If lighting is required, the applicant shall provide
a detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations and an artist's
rendering or other visual representation showing the effect of light emanating
from the site on neighboring habitable structures within 1,500 feet of all
property lines of the parcel on which the wireless telecommunications facility
is located.
All wireless telecommunications facilities and antennas shall be located,
fenced or otherwise secured in a manner which prevents unauthorized access.
Specifically:
A.
All antennas, towers and other supporting structures,
including guy wires, shall be made inaccessible to individuals and constructed
or shielded in such a manner that they cannot be climbed or run into; and
B.
Transmitters and telecommunications control points must
be installed such that they are readily accessible only to persons authorized
to operate or service them.
Signage shall be governed by the regulation of the particular district
within which the facility is to be located.
In addition to the bulk requirements of the Town Zoning Law,[1] any proposed telecommunications towers and associated equipment
shall satisfy the following additional requirements:
A.
Be additionally set back from abutting parcels, recorded
rights-of-way and road and street lines a distance sufficient to contain on
site all icefall or debris from a tower or tower failure and to preserve the
privacy and sanctity of any adjoining properties. In order to better protect
the health, safety and welfare of the general public and to avoid the potential
for injury due to falling ice or debris, all towers shall be not less than
350 feet from the nearest property boundary of any school, park, day-care
center, public playground or similar occupancy.
B.
Have a minimum setback from any property line a distance
equal to the height of the facility, plus 10 feet, or the existing setback
requirement of the underlying zoning district, whichever is greater. All accessory
structures shall be located so as to comply with the minimum setback requirements
for the property on which it is situated.
A.
In addition to the provisions of 6 NYCRR 617.17(c), the
Planning Board may engage such consultants as it may deem necessary to assist
the Board in reviewing and evaluating the application and any requests for
recertification.
B.
An applicant shall deposit with the Town funds sufficient
to reimburse the Town for all reasonable costs of consultant and expert evaluation
and consultation to the Planning Board in connection with the review of any
application.
In addition to the requirements of Town Code § 98-30 governing site plans:
A.
No person shall be permitted to site, place, build, construct
or modify or prepare any site for the placement or use of a wireless telecommunications
facility as of the effective date of this chapter without having first obtained
a special permitted use for a wireless telecommunications facility. Notwithstanding
anything to the contrary in this section, no special permitted use shall be
required for those exceptions noted in the definition of "wireless telecommunications
facility," such as those used exclusively for fire, police and other dispatch
telecommunications, or exclusively for private radio and television reception
and private citizens bands, amateur radio and other similar telecommunications.
B.
New construction, including routine maintenance on an
existing wireless telecommunications facility, shall comply with the requirements
of this chapter.
C.
All wireless telecommunications facilities existing on
or before the effective date of this chapter shall be allowed to continue
as they presently exist; provided, however, that any modification to existing
facilities must comply with this chapter.
The Planning Board shall hold a public hearing prior to the grant of a special permit. Such public hearing may, in the judgment of the Planning Board, be held jointly with either the public hearing required pursuant to Town Code § 98-30F(4), Preliminary site plan, and 98-30G(3), Final site plan, and all provisions relating thereto, including notice and publication.
A.
The Planning Board will undertake a review of an application
pursuant to this chapter in a timely fashion and shall act within a reasonable
period of time given the relative complexity of the application and the circumstances
with due regard for the public's interest and need to be involved and the
applicant's desire for a timely resolution.
B.
Except for necessary building permits, and subsequent
certificates of compliance, no additional permits or approvals from the Town
other than the special permitted use granted under this chapter shall be required
for telecommunications facilities covered by this chapter.
C.
After the public hearing and after formally considering
the application, the Planning Board may approve and issue or deny a special
permitted use and/or site plan. Its decision shall be in writing and shall
be based on substantial evidence in the record. The burden of proof for the
grant of the permit shall always be upon the applicant.
D.
If the Planning Board approves the special permitted
use for a wireless telecommunications facility, then the applicant shall be
notified of such approval in writing.
E.
If the Planning Board denies the special permitted use
for a wireless telecommunications facility, then the applicant shall be notified
of such denial in writing.
F.
The Town's decision on an application for a special permitted
use for a wireless telecommunications facility shall be supported by substantial
evidence contained in a written record.
A.
The special permit granted pursuant to this chapter shall
be valid for a period of five years measured from the date of final action
by the Planning Board.
B.
Prior to the expiration of a special permit granted pursuant
to this chapter, a holder may seek extension/renewal for a period not to exceed
five years. The holder of a special permitted use for such tower shall submit
a written request for extension/renewal. In the written request for recertification,
the holder of such special permitted use shall submit a renewal application
in a form to be established by the Planning Board, which form shall require
the following information in support thereof:
(1)
The name of the holder of the special permitted use for
the wireless telecommunications facility.
(2)
If applicable, the number or title of the special permitted
use.
(3)
The date of the original granting of the special permitted
use.
(4)
Any physical changes to the site covered by the permit.
(5)
A summary of the maintenance record of the facility during
the term of the existing permit, which shall include any and all structural
changes.
(6)
Any requests for waivers or relief of any kind whatsoever
from the requirements of this chapter and any requirements for a special permitted
use.
C.
If, after such review, the Planning Board determines
that the permitted wireless telecommunications facility is in compliance with
the special permitted use and all applicable codes, laws and rules, then the
Planning Board shall issue an extension/renewal of the special permitted use
for the wireless telecommunications facility, which may include any new provisions
or conditions that are mutually agreed upon, or required by codes, law or
regulation.
D.
If the Planning Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special permitted use, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facility shall receive an extension of the special permitted use for up to six months, in order for the Planning Board to complete its review.
E.
If the holder of a special permitted use for a wireless telecommunications facility does not submit a request recertification of such special permitted use within the time frame noted in Subsection A of this section, then, and in that event, the special permitted use and any authorizations granted thereunder shall expire and the rights granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special permitted use, or subsequent fifth anniversaries, unless the holder of the special permitted use adequately demonstrates to the Planning Board that extenuating circumstances prevented a timely submission.
The extent and parameters of a special permitted use for a wireless
telecommunications facility shall be as follows:
A.
Such special permitted use shall be nonexclusive.
B.
Such special permitted use shall not be assignable or
transferable without the consent of the Town Planning Board and Town Board.
C.
Such special permitted use may be revoked, canceled or
terminated for a violation of the conditions and provisions of the special
permitted use for a wireless telecommunications facility or for a material
violation of this chapter.
A.
At the time the person submits an application for a special
permitted use for a new wireless telecommunications facility, such person
shall pay an application fee to the Town of Chester of $5,000 or such other
fee as the Town Board may establish at the annual reorganization meeting of
the Town Board.
B.
The application fee for extension/renewal shall be $2,500
or such other fee as the Town Board may establish at the annual reorganization
meeting of the Town Board.
The applicant and the owner of record of any proposed wireless telecommunications
facility property site shall be jointly required to execute and file with
the Town a bond or other form of security acceptable to the Town as to type
of security and the form and manner of execution, in an amount and with such
sureties as are deemed sufficient by the Planning Board to assure the faithful
performance of the terms and conditions of this chapter and conditions of
any special permitted use issued pursuant to this chapter. The full amount
of the bond or security shall remain in full force and effect throughout the
term of the special permitted use and/or until the removal of the wireless
telecommunications facility and any necessary site restoration is completed.
The failure to pay any annual premium for the renewal of any such security
shall be a violation of the provisions of the special permitted use and shall
entitle the Planning Board to revoke the special permitted use after prior
written notice to the applicant and holder of the permit.
The Town may from time to time cause the inspection of facilities constructed
pursuant to a permit granted pursuant to this chapter in accordance with state
and local law and building codes to ensure the continued compliance with the
law and conditions of the special permit, if any.
The holder of the special permitted use shall, annually, certify to
the Town that NIER levels at the site are within the threshold levels adopted
by the FCC. The certifying engineer need not be approved by the Town.
A.
A holder of a special permitted use for a wireless telecommunications
facility shall secure and at all times maintain public liability insurance,
property damage insurance and umbrella insurance coverage for the duration
of the special permitted use in amounts as set forth below:
B.
The commercial general liability insurance policy shall
specifically include the Town and its officials, employees and agents as additional
insured.
C.
The insurance policies shall be issued by an agent or
representative of an insurance company licensed to do business in the state.
D.
The insurance policies shall contain an endorsement obligating
the insurance company to furnish the Town with at least 30 days' written notice
in advance of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall
be delivered to the Town at least 15 days before the expiration of the insurance
which such policies are to renew or replace.
F.
Prior to the issuance of a building permit for construction,
the holder of the special permitted use shall deliver to the Town a copy of
each of the policies or certificates representing the insurance in the required
amounts.
Any special permitted use issued pursuant to this chapter shall contain
a provision with respect to indemnification. Such provision shall require
the holder of the special permitted use, to the extent permitted by the law,
to at all times defend, indemnify, protect, save, hold harmless and exempt
the Town, officials of the Town, its officers, agents, servants and employees
from any and all penalties, damage or charges arising out of any and all claims,
suits, demands, causes of action or award of damages, whether compensatory
or punitive, or expenses arising therefrom, either at law or in equity, which
might arise out of, or are caused by, the construction, erection, modification,
location, products performance, operation, maintenance, repair, installation,
replacement, removal or restoration of a wireless telecommunications facility
within the Town. With respect to the penalties, damages or charges referenced
herein, reasonable attorneys' fees, consultants' fees and expert witness fees
are included in those costs that are recoverable by the Town.
A.
Civil sanctions. Any person who violates any of the provisions
of this chapter shall be liable for a civil penalty not to exceed $3,000 for
every such violation.
B.
Criminal sanctions. Any person, firm or corporation who
or which willfully violates any of the provisions of this chapter or permits
promulgated thereunder, excluding provisions set forth in the rules and regulations
promulgated thereunder, upon conviction thereof of the first offense, shall
be guilty of a violation punishable by a fine of not less than $500 and not
more than $1,000 and for a second offense and each subsequent offense, shall
be guilty of a violation punishable by a fine of not less than $1,000 nor
more than $2,000 or a term of imprisonment of not more than 10 days, or both.
C.
Notwithstanding anything in this chapter, the holder
of the special permitted use for a wireless telecommunications facility may
not use the payment of fines, liquidated damages or other penalties to evade
or avoid compliance with this chapter or any section of this chapter. An attempt
to do so shall subject the holder of the special permitted use to termination
and revocation of the special permitted use. The Town may also seek injunctive
relief to prevent the continued violation of this chapter.
A.
If a wireless telecommunications facility is repaired,
rebuilt, placed, moved, relocated, modified or maintained in a way that is
inconsistent or not in compliance with the provisions of this chapter or of
the special permitted use, then the Town shall notify the holder of the special
permitted use, in writing, of such violation. Such notice shall specify the
nature of the violation or noncompliance and that the violations must be corrected
within seven days of the date of the postmark of the notice, or of the date
of personal service of the notice, whichever is earlier. Notwithstanding anything
to the contrary in this subsection or any other section of this chapter, if
the violation causes, creates or presents an imminent danger or threat to
the health or safety of lives or property, the Planning Board may, at its
sole discretion, order the violation remedied forthwith or may take such actions
as may be authorized pursuant to the Town Law and or Executive Law of the
State of New York.
B.
Failure to comply with the terms hereof may give rise
to revocation of the special permit and or site plan approval.
A.
In the event that a facility shall be found in any of
the following conditions, it shall be subject to removal pursuant to the authority
of the Town pursuant to Town Law and Executive Law:
(1)
A wireless telecommunications facility which has been
abandoned (i.e., not used as a wireless telecommunications facility) for a
period exceeding 90 days or a total of 180 days in any three-hundred-sixty-five-day
period, except for periods caused by force majeure or acts of God.
(2)
A permitted wireless telecommunications facility falls
into such a state of disrepair that it creates a health or safety hazard.
(3)
A wireless telecommunications facility has been located,
constructed or modified without first obtaining the required special permitted
use, or any other necessary authorization.
B.
The holder of the special permitted use, or its successors
or assigns, shall dismantle and remove such wireless telecommunications facility,
and all associated structures and facilities, from the site and restore the
site to as close to its original condition as is possible, such restoration
being limited only by physical or commercial impracticability, within 90 days
of receipt of written notice from the Town.
C.
If the Town removes, or causes to be removed, a wireless
telecommunications facility, and the owner of the wireless telecommunications
facility does not claim the property and remove the facility from the site
to a lawful property and remove the facility from the site to a lawful location
within 10 days, then the Town may take steps to declare the facility abandoned
and sell it and its components.
A.
Any applicant can request the waiver of application requirements
that are inapplicable to their permit application. Such request shall be in
writing. Requests should be discussed at the preapplication meeting. The applicant
shall have the burden of supporting such requests. Determinations as to applicability
of application requirements shall be made by the Town.
B.
In determining permit conditions, the Planning Board
can waive inapplicable permit requirements, consistent with the policy goals
and priorities of this chapter. The applicant shall have the burden of supporting
such requests. Determinations as to applicability of permit condition requirements
shall be made by the Planning Board.
A.
To the extent that the holder of a special permitted
use for a wireless telecommunications facility has not received relief, or
is otherwise exempt, from appropriate state and/or federal agency rules or
regulations, then the holder of such a special permitted use shall adhere
to and comply with all applicable rules, regulations, standards and provisions
of any state or federal agency, including but not limited to the FAA and the
FCC. Specifically included in this requirement are any rules and regulations
regarding height, lighting, security, electrical and RF emission standards.
B.
To the extent that applicable rules, regulations, standards
and provisions of any state or federal agency, including but not limited to
the FAA and the FCC, and specifically including any rules and regulations
regarding height, lighting and security, are changed and/or are modified during
the duration of a special permitted use for a wireless telecommunications
facility, then the holder of such a special permitted use shall conform the
permitted wireless telecommunications facility to the applicable changed and/or
modified rule, regulation, standard or provision within a maximum of 24 months
of the effective date of the applicable changed and/or modified rule, regulation,
standard or provision, or sooner as may be required by the issuing entity.
Where this chapter differs or conflicts with other laws, rules and regulations,
unless the right to do so is preempted or prohibited by the county, state
or federal government, the more restrictive or protective of the Town and
the public shall apply.
If any phrase, sentence, part, section, subsection or other portion
of this chapter or any application thereof to any person or circumstance is
declared void, unconstitutional or invalid for any reason, then such word,
phrase, sentence, part, section, subsection or other portion, or the proscribed
application thereof, shall be severable, and the remaining provisions of this
chapter, and all applications thereof, not having been declared void, unconstitutional
or invalid, shall remain in full force and effect.
This chapter shall be enforced by the Building Inspector in the same
manner as provided in the Town Code of the Town of Chester, State Building
and Fire Codes and Town Law and Executive Law of the State of New York.
This chapter is enacted pursuant to the Municipal Home Rule Law. This
chapter shall supersede the provisions of Town Law to the extent it is inconsistent
with the same, and to the extent permitted by the New York State Constitution,
the Municipal Home Rule Law or any other applicable statute.
