[HISTORY: Adopted by the Town Board of the
Town of Malta 4-6-1998 by L.L.
No. 3-1998. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 167.
The Telecommunications Act of 1996 affirmed
the Town of Malta's authority concerning the placement, construction
and modification of telecommunications towers. The Town Board of the
Town of Malta finds that telecommunications towers and related facilities
may pose a unique hazard to the health, safety, public welfare and
environment of the Town of Malta and its inhabitants. In order to
ensure that the placement, construction or modifications of telecommunications
towers and related facilities is consistent with the Town's land use
policies, and to fulfill our obligations under the State Environmental
Quality Review Act (SEQRA),[1] the Town is adopting a single, comprehensive, telecommunications
tower application and permit process. The intent of this chapter is
to minimize the negative impact of telecommunications towers; minimize
the number of towers in the community by encouraging shared use and
the use of existing structures; establish a fair and efficient process
for review and approval of applications; assure an integrated comprehensive
review of environmental impacts of such facilities; and protect the
health, safety and welfare of the people of the Town of Malta. The
Town Board, recognizing that it cannot ban such facilities from the
Town, intends to implement this chapter so as to minimize to the maximum
extent possible the negative aesthetic impact of such facilities.
[1]
Editor's Note: See Art. 8 of the Environmental
Conservation Law.
As of the effective date of this chapter, no
person shall site, build or prepare any site for the placement or
use of any telecommunications towers, antenna(s) or related facilities
without first duly applying for and obtaining the written approval
of the Town Board (hereinafter "telecommunications siting permit"
or "permit") according to the procedures and requirements of this
chapter.
As used in this chapter, the following terms
shall have the meanings indicated:
A system of electrical conductors that transmit or receive
radio frequency waves. Such waves shall include but not be limited
to radio, television, cellular, paging, personal communications services
and microwave communications.
Shall include any individual, corporation, estate, trust,
partnership, joint-stock company, association of two or more persons,
limited liability company, or entity that submits an application.
The form, together with all necessary and appropriate documentation
required of the applicant to receive a telecommunications siting permit.
The area in which any portion of a telecommunications tower
could or would fall, collapse or plunge to the earth. The collapse
zone shall be no less than the lateral equivalent of the distance
from the break point to the top of the structure plus 10 feet, such
being not less than 1/2 the height of the structure.
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.
Environmental assessment form.
The Federal Aviation Administration.
The Federal Communications Commission.
When referring to a telecommunications 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.
The portion of protected land and tree-lined corridor along
the Northway (Interstate 87) identified in the Town's Master Plan
dated 1988.
Any accessory facility or structure serving or being used
in conjunction with a telecommunications tower, including but not
limited to utility or transmission equipment storage sheds or cabinets.
Any parabolic dish, antenna or other device or equipment
of whatever nature or kind, the primary purpose of which is to receive
television, radio, light, microwave or other electronic signals, waves
and/or communications from space satellites or airborne sources.
The transmission and reception of audio, video, data and
other information or signals by wire, radio, light or other electronic
or electromagnetic systems.
Structure or locations selected, designed or intended to
be used to support an antenna. It includes without limit freestanding
towers, guyed towers, monopoles and structures of similar height including
but not limited to structures such as buildings, church steeples,
silos, water towers, utility towers and poles, signs or other similar
structures. It is a structure intended for transmitting and/or receiving
radio, television, cellular, paging, personal communications services
or microwave communications, but excluding those used exclusively
for fire, police and other dispatch communications, or exclusively
for private radio and television reception and private citizen's band,
amateur radio and other similar communications that do not exceed
height limitations addressed elsewhere in Town regulations.
A.
The Town of Malta's policy is to minimize the impact
of telecommunications towers in the Town and mitigate the impact of
such facilities as are required.
B.
The Town finds that collocation and effective camouflaging
of telecommunications facilities is in the public interest and should
be encouraged. As hereinafter described, the Town Board will waive
such requirements of the application for facilities to be collocated
on existing structures, or for facilities which will be effectively
camouflaged (sometimes called "stealth facilities") in either existing
or new structures. The Town Board will expedite review and approval
of such applications.
C.
The Town Board may retain the services of consultants
or experts to assist it in reviewing applications pursuant to this
chapter.
D.
The Town Board may refer any applications or part
thereof to any advisory or other committee for nonbinding recommendations.
E.
The Town Board may conduct preapplication meetings
with potential applicants, at the applicant's request.
F.
Except for necessary building permits and subsequent
certificates of compliance, no additional permits or approvals from
the Town of Malta (e.g. site plan, zoning approvals) will be required
for facilities covered by this chapter.
G.
The Town Board will undertake review of applications
pursuant to this chapter in a timely fashion, consistent with its
responsibilities, 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.
H.
Given the public's perception of the risks of radio
frequency, technology, the Town Board may hold one or more public
information sessions for purposes of addressing the public's concerns
regarding the health and safety implications of the applicant's requested
permit, and may compel that the applicant be available to answer questions.
The Town Board may not, however, refuse to issue a telecommunications
siting permit or the grounds of the public's concern regarding the
health and safety of the proposed facility's radio frequency (RF)
emissions if the parameters of the RF emissions comply with applicable
federal law.
I.
The Town Board intends to be lead agency pursuant
to SEQRA. The Town Board shall conduct an integrated comprehensive
environmental review of the proposed project as part of its review
of the application under this chapter.
J.
The Town Board shall refer applications to the county
planning agency of Saratoga County when and as required by law.
A.
An application to construct a new telecommunications tower shall be accompanied by an application fee in an amount set forth in Table A to Chapter 88.
[Amended 11-3-2010 by L.L. No. 9-2010]
B.
An application for collocation on an existing tower, or an application for construction of a new, completely camouflaged (i.e., stealth site) telecommunications tower, shall be accompanied by an application fee in an amount set forth in Table A to Chapter 88.
[Amended 11-3-2010 by L.L. No. 9-2010]
C.
All applicants will be required to deposit with the Town funds sufficient to reimburse the Town for the actual reasonable costs of the Town's consulting engineer, attorney or other consultant and expert assistance to the Town Board in connection with review of the application. The Town Building Department will maintain a separate account for all escrow deposits. The Town's consultants shall provide at the Board's request estimates and the basis for their charges, and shall bill the Town monthly for their services in reviewing such application and performing their duties. These monthly billings shall be charged against the applicant's escrow balance. If at any time during the review and approval process the applicant's escrow account shows a negative balance, additional funds must be submitted to the Town Building Department before any further action can be taken on the application. If at the conclusion of the review and approval process the amount of such services is more than the amount escrowed pursuant hereto, the applicant shall pay the difference to the Town Building Department prior to the issuance of any building permits or certificates of compliance, and in the event that the amount held in escrow by the Town Building Department is more than the amount of the actual billing the difference shall be refunded to the applicant. Collection of such costs and/or fees may be made pursuant to any of the methods set forth in this chapter, as well as by any means set forth in Chapter 88.
[Amended 11-3-2010 by L.L. No. 9-2010]
A.
Applications under this chapter must contain at least
the information required by this section. The application must be
verified by a responsible officer of the applicant. The landowner,
if different than the applicant, shall acknowledge the application
and verify that he is aware of the application and is aware that the Town
may deny the application or issue a permit with conditions. Where
this section calls for certification, such certification shall be
by a qualified person acceptable to the Town of Malta, unless otherwise
noted. All applicants should seek preapplication meetings with the
Town Board.
B.
The Town Board of the Town of Malta will, upon the
applicant's request, waive some of the provisions of this section
in cases where the application is for a collocated facility or an
effectively camouflaged (i.e., stealth) facility. The applicant should
seek a preapplication meeting with the Town Board to review such a
proposed application and settle the waivers or establish provisions
which will help to expedite review and permitting for such applications.
The purpose to such waivers or other alternative procedures shall
be to expedite and minimize the cost to the applicant and the Town
of Malta for review and permitting for collocation and other applications
that meet the minimization and mitigation goals of this chapter.
C.
An application for a permit under this chapter shall
contain at least the following information:
(1)
Name(s) and address(es) of person(s) preparing the
report and the telephone number of a contact person.
(2)
Name(s) and address(es) of the proposed property site
owner, operator and applicant.
(3)
Postal address and sheet, block and lot or parcel
number of the proposed property site.
(4)
Zoning district in which the proposed site is situated.
(5)
A map showing the size of the proposed property site
and the location of all lot lines.
(6)
Location of the nearest residential structure.
(7)
Location of the nearest habitable structure.
(8)
Location of all structures on the proposed property
site which is the subject of the application.
(9)
Location, size and height of all proposed and existing
antennas and all appurtenant structures, and showing the collapse
zone on the drawing.
(10)
Type, size and location of all proposed and existing
landscaping.
(11)
The number, type and design of the tower and antenna(s)
proposed, the basis for the calculations of tower and system capacity,
and the grounding for the installation.
(12)
The make, model and manufacturer of the tower and
antenna(s).
(13)
A description of the proposed tower and antenna(s)
and all related fixtures, structures, appurtenances and apparatus,
including height above grade, materials, color and lighting.
(14)
The frequency, modulation and class of service of
radio equipment.
(15)
Transmission and maximum effective radiated power
of the antenna(s).
(16)
Direction of maximum lobes and associated radiation
of the antenna(s).
(17)
The applicant's proposed tower maintenance and inspection
procedures and record systems.
(18)
Certification by a qualified professional that NIER
levels at the proposed site are within parameters adopted by the FCC.
(19)
Certification by a qualified professional that the
proposed antenna(s) will not cause interference with existing communication
devices.
(20)
Certification by a New York State licensed professional
engineer that the tower and attachments as designed meet all structural
requirements for such items as loads, wind, ice, etc.; after construction,
the applicant shall certify that, as built, the structure also meets
all applicable requirements.
(21)
The applicant shall name the Town as an additional
insured on its insurance policy, in a reasonable amount to be agreed
upon between the applicant and the Town Supervisor.
[Amended 6-1-1998 by L.L. No. 4-1998]
(22)
A copy of the FCC license applicable to the application.
(23)
The applicant's plan for a period of at least two
years for telecommunications facilities located or to be located in
the Town and all adjoining municipalities. The applicant shall identify
and disclose the number and locations of any additional sites that
the applicant has, is or will be considering, reviewing or planning
for towers, antenna(s) or related facilities in the Town, and all
Towns adjoining the Town for a period of at least two years from the
date of the submittal of the application.
(24)
The applicant shall demonstrate its review of proposed
alternatives as required by this chapter. An applicant may not omit
analysis of appropriate alternative sites of lesser impact on the
grounds that the site presented is the only site leased or selected.
An application shall address collocation as an option and if such
option is not proposed, the applicant must explain why the option
is not feasible.
(25)
In the case of an application for a new telecommunications
tower, the applicant must examine the feasibility of designing a proposed
tower to accommodate future demand for at least two additional commercial
applications (i.e., future collocations). The tower must 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. The requirement
to construct a tower that can accommodate collocation may be waived
by the Town, provided that the applicant demonstrates that the provisions
of future shared usage of the facility is not feasible and an unnecessary
burden, based upon consideration such as, for example:
(a)
The number of FCC licenses foreseeable available
for the area.
(b)
The kind of tower site and structure required.
(c)
The number of existing and potential licenses
without tower spaces/sites.
(d)
Available spaces on existing and approved towers.
(e)
The potential for significant adverse visual
impact of a tower designed for shared use.
(26)
The applicant may be required to address the impact
upon property values in the neighborhood brought about by the proposed
tower.
(27)
The applicant shall set forth alternative tower designs,
color schemes and disguises for the telecommunications tower, antennas
and related facilities, including a design which effectively camouflages
the facility (stealth facility) or avoids the use of a freestanding
metal tower. The applicant shall explain why a towerless system, such
as a system that uses cable television or other technologies, is not
feasible.
[Amended 6-1-1998 by L.L. No. 4-1998]
(28)
The applicant shall submit copies of its site prioritization
and propagation studies or analyses.
(29)
The applicant shall submit a comprehensive report
inventorying existing towers and other appropriate structures within
four miles (unless the applicant can show that some other distance
is more reasonable) of any proposed new tower site and outlining opportunities
for shared use of existing facilities and use of other preexisting
structures as an alternative to new construction.
(30)
The applicant shall submit a complete New York State
SEQRA long EAF Part I and visual EAF addendum Appendix D. The Town
Board may require submission of a more detailed visual analysis based
on the results of the visual EAF.
(31)
The applicant shall submit a visual impact assessment
which should include:
(a)
A Zone of Visibility Map to determine locations
where the tower may be seen;
(b)
Representations of "before and after" views
from key viewpoints both inside and outside of the Town, including
but not limited to: state highways and other major roads, state and
local parks, other public lands, preserves and historic sites, and
from any other location where the site is visible to a large number
of visitors or travelers. If requested by the applicant, the Town
Board acting in consultation with its consultants or experts will
provide guidance concerning the appropriate key site assessment of
the visual impact.
(32)
The applicant shall explain in detail its proposed
method of effectively screening from view its proposed tower base
and all related facilities.
D.
The Town Board may require the applicant to supply
such further and additional information as it deems necessary in order
to carry out its responsibilities under the law.
E.
The Town Building Inspector shall determine the number
of copies of the application which must be submitted. The applicant
is encouraged to confer with the Building Inspector to explore whether
some portions of the application need not be reproduced in all copies.
Absent a determination by the Building Inspector, the applicant must
submit 12 copies of the complete application.
A.
An applicant must demonstrate to the Town Board's
satisfaction that the telecommunications tower, antenna(s) and related
facilities will meet these conditions. In all cases the burden of
proof shall be upon the applicant.
B.
Applicants for telecommunications towers and antennas
shall locate, erect and site said facilities in accordance with the
following priorities:
C.
No new telecommunications tower which would have an
adverse visual impact upon sensitive areas, such as the Northway Greenbelt,
historic sites, lakes and scenic places, shall be approved. Modifications
of existing towers or addition of antenna(s) to existing towers or
stations in such sensitive areas may be acceptable, if otherwise consistent
with this chapter. The Town Board may establish a list of such areas.
D.
At all times, collocation on existing towers and appropriately
camouflaged use of existing or new structures shall be preferred over
the proposed construction of new towers.
E.
Towers shall be no higher than the minimum height
necessary. Unless waived by the Town Board upon good cause shown,
the presumed maximum height will be 140 feet, based on three collocated
antenna arrays and an ambient tree height of 80 feet.
F.
If a new structure is required, structures that effectively
camouflage the facility shall be preferred.
G.
Except for good cause shown, towers shall not exceed
the height requiring artificial lighting. Telecommunications towers
shall not be artificially lighted or marked except as required by
law. Towers shall be appropriate materials and color to harmonize
with the surroundings. Towers shall be designed and sited so as to
avoid application of lighting requirements.
H.
Telecommunications towers shall be permitted one sign
no larger than two square feet to provide adequate notification to
persons in the immediate area of the antenna(s) that it has transmission
capabilities. The sign shall also contain the name(s) of the owner(s)
and operator(s) of the antenna(s) as well as emergency phone number(s).
The sign shall be located so as to be visible from the access point
of the site. No other signage, including advertising, shall be permitted
on any antenna(s) tower, unless required by law.
I.
Telecommunications towers and antenna(s) shall be
located, fenced or otherwise secured in a manner which prevents unauthorized
access by the general public. All antenna towers, monopoles and other
supporting structures, including guy wires, shall be made inaccessible
to persons and constructed or shielded in such a manner that they
cannot be climbed or run into. Transmitters must be designed and installed
such that any adjustments or controls that could cause the transmitter
to deviate from its authorized operating parameters are readily accessible
only to persons authorized to make such adjustments.
J.
All proposed telecommunications towers and related
facilities shall be set back from abutting parcels and street lines
a distance sufficient to substantially contain on site all ice-fall
or debris from a tower failure and preserve the privacy of any adjoining
properties. Telecommunications towers shall comply with all existing
setback requirements of the underlying zoning district or shall be
equal to 1/2 of the height of the tower, whichever is greater. Accessory
structures shall comply with the minimum setback requirements in the
underlying zoning district.
K.
All utilities leading to and away from any new telecommunications
site shall be installed underground and in compliance with all the
laws, rules and regulations of the Town. The Town Board may waive
or vary the requirements of underground installation whenever, in
the opinion of the Town Board, such variance or waiver shall not be
detrimental to the public health, safety, general welfare or environment,
including the visual and scenic characteristics of the area.
L.
All telecommunication towers and related facilities
shall be sited to the maximum extent practicable to have the least
adverse visual effect on the environment, visual view shed and residences
in the Town.
M.
Related facilities shall maximize use of building
materials, colors, textures and architectural styles designed to blend
with the surroundings.
N.
Existing on-site vegetation shall be preserved to
the maximum extent possible, consistent, however, with the Town Board's
determinations concerning site plantings and screening.
O.
There must be adequate emergency and service access.
Maximum use of existing roads, public or private, shall be made. Road
construction shall at all times minimize ground disturbance and vegetation
cutting. Road grades shall closely follow natural contours to assure
minimal visual disturbance and reduce soil erosion potential.
P.
In the event that a telecommunications tower and/or
related facility is no longer used for the purpose specified in the
application, or the telecommunications tower and/or related facility
ceases operations for a continuous period of 180 days, the Town Board
may by resolution after hearing held upon due notice require the applicant
or its successors or assigns to dismantle and remove such tower, structures
and facilities from the site and restore the site (in the fashion
as ordered by the Town Board) within 90 days of receipt of written
notice from the Town Board.
Q.
After construction and prior to receiving a certificate
of compliance, the applicant shall provide certification acceptable
to the Town that the telecommunications tower is grounded so as to
protect person and property and installed with appropriate surge protectors.
R.
Telecommunications tower shall be designed so that
in the event of failure they will fall within the setback area or
collapse zone, and not threaten neighboring properties.
S.
Noise-producing equipment shall be sited and mitigated
to produce the lowest possible off-site noise impact.
T.
The Town Board may require the applicant to accept
in writing the terms and conditions of a permit.
U.
The applicant shall disclose in writing any agreement
in existence prior to submission of the application that would limit
the ability of the applicant to share any new telecommunications tower.
V.
No applicant or owner shall enter into any agreement
that limits, prohibits or precludes or has the effect of limiting,
prohibiting or precluding the right or ability of any person or applicant
to share space on a telecommunications tower in the Town.
W.
Navigable airspace. Applications for construction
of new telecommunications tower shall comply with the Code of Federal
Regulations pertaining to objects affecting navigable airspace as
delineated within Federal Aviation Regulations (FAR) Part 77. Additionally,
no application for construction of a new telecommunications tower
will be approved if the proposed tower violates the criteria for obstruction
to air navigation as established by FAR Part 77 Subpart C, Obstruction
Standards.
[Added 6-1-1998 by L.L. No. 4-1998]
A.
Prior to issuing a telecommunications facility siting
permit, a public hearing shall be held by the Town Board, notice of
which shall be published in the official newspaper for the Town no
less than 10 days in advance. The applicant shall be required to mail
notice of the public hearing directly to all landowners whose property
is located within 1,500 feet of the property line of the parcel on
which a new tower is proposed. Notice shall also be mailed to the
administrator of any state or federal park lands from which the proposed
tower would be visible if constructed. Notification, in all cases,
shall be made by certified mail or other reliable method acceptable
to the Town no less than 10 days in advance of the hearing. Proof
of notification shall be submitted to the Town Board at least seven
days prior to the hearing.
B.
The Town Board will schedule the public hearing referred
to above once it tentatively finds that the application is complete.
The Town Board at any stage prior to issuing a permit may require
such further information as it deems necessary.
C.
The applicant, its successors or assigns shall file
annually with the Town, within 30 days of the anniversary date of
the permit, certification that the applicant, its successors or assigns
are complying with its maintenance and inspection procedures, including
all visual screening conditions in the permit; that the tower and
related facilities are not a hazard or a threat to the health, safety
or welfare of the public and to the environment; that RF emissions
comply with current FCC or other applicable standards; that the insurance
and financial undertakings required by this chapter are in effect;
and that the facility is in use. If the applicant, its successors
or assigns fail to make certification, the Town Board, upon reasonable
notice and giving the applicant an opportunity to cure, may by resolution
revoke the permit.
D.
In order to keep neighboring municipalities informed,
and to facilitate the goal of collocation and shared use, an applicant
who proposes a new telecommunications tower shall notify the legislative
body of each municipality that borders the Town, and the Saratoga
County Planning Board. 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 its capacity for future
shared use. Proof of this notification shall be submitted to the Town
Board at the time of application.
A.
The Town Board may issue a permit, a permit with conditions
or deny the application. Its decision shall be in writing, and based
on substantial evidence, upon a record. The burden of proof is upon
the applicant.
B.
Before the Town Board issues any permit, it shall
find that the applicant has complied with all requirements of this
chapter.
C.
The permit shall be comprehensive and not severable.
If part of a permit is overturned by a competent authority, the permit
shall be void in total.
D.
The Town Board may waive provisions or requirements
of this chapter when such waiver advances the goals and purposes of
this chapter, or where particular provisions would impose a material
adverse financial impact upon an applicant.
E.
For good cause shown the Town Board may review a permit
if industry or scientific standards raise new relevant information
concerning the health and safety of the facility. upon review the
Town Board may require the applicant, its successors or assigns to
take appropriate mitigation and abatement steps, to the extent allowed
by law.
F.
Permits shall be for a five-year term. The owner shall
be entitled to renewal of the permit if the facility is in compliance
with this chapter, is in compliance with all permit conditions and
is in compliance with all current applicable federal standards regarding
RF emissions. Ninety days before the permit expires the owner may
submit a brief written request for a permit renewal, certifying the
compliance of the facility with this section of the law. Within a
reasonable time after receipt of the written request demonstrating
compliance with this provision, the Building Inspector shall issue
a renewed permit, incorporating by reference the relevant conditions
from the initial permit.
A.
Information for Assessor. Before the building permit
is issued for any telecommunications tower or facility, the applicant
shall provide to the Assessor of the Town of Malta such information
concerning the deed, lease or license as is reasonably required by
the Assessor for real property tax purposes. The applicant or owner
will have an ongoing duty to report the cost of any material improvements
to the site. Such information may be exempt from public disclosure
pursuant to Public Officers Law § 87, Subdivision 2, or
similar provisions of law.
B.
Severability. If any provision of this chapter or
its applications to any person or circumstances is held invalid, the
invalidity does not affect other provisions or applications of this
chapter which can be given effect without the invalid provision of
application, and to this end provisions of this chapter are separable.
C.
Bond. The applicant and the owner of record of any
proposed property site shall be jointly required to execute and file
with the Town a bond or other form of security acceptable to the Town
Attorney and Town Supervisor as to form and manner of execution in
an amount deemed sufficient by the Town Board for the faithful performance
of the terms and conditions of this chapter and permit. The bond or
security shall remain in full force and effect until the removal of
the tower and related facilities, and site restoration.
D.
Enforcement of permit conditions.
(1)
The Town of Malta Building Department shall be charged
with enforcing the terms and conditions of the permit, and any ongoing
obligations imposed by this chapter. The Town, acting through its
Building Department or other authorized agent, may enforce the conditions
of a permit in a court of competent jurisdiction.
(2)
Violation of a condition of a permit is a violation
of this chapter and is prohibited.
(3)
Violation of a permit condition shall be subject to
a civil penalty of $100 per day for each violation. The Town, acting
through its Building Department or other authorized agent, may, in
addition to any other remedy available, recover civil penalties through
a civil action in a court of competent jurisdiction.
E.
Effective date. This chapter will be effective upon
filing with the Secretary of State.
F.
Authority. This chapter is enacted pursuant to the
Municipal Home Rule Law. This chapter shall supersede the provisions
of Town Law §§ 130, 261, 262, 263, 264, 265, 267, 268,
269 and 274-a, to the extent inconsistent with the same, and to the
extent permitted by the New York State Constitution, the Municipal
Home Rule Law or any other statute.
