Town of Somers, NY Article XXIIA Wireless Telecommunications Facilities

[Added 10-17-2002 by L.L. No. 9-2002]

§ 170-129.1 Purposes.

A. The purposes of this article are to:

(1) Establish standards for the siting of wireless and attached wireless telecommunications facilities consistent with the Telecommunications Act of 1996.

(2) Promote the health, safety and general welfare of the residents of the Town, through the establishment of minimum standards to reduce the adverse visual and community character effects of wireless and attached wireless telecommunications facilities.

(3) Minimize the total number of wireless and attached wireless telecommunications facilities throughout the Town in order to preserve the Town's natural resources and scenic beauty,

(4) Protect residential areas, land uses and property values from potential adverse impacts of wireless and attached wireless telecommunications facilities.

(5) Encourage the location of wireless and attached wireless telecommunications facilities and antennas to the extent possible, in areas resulting in the least adverse impact on the neighborhood and Town.

(6) Promote the appropriate use of existing buildings, structures, towers, and alternative host sites to minimize the intrusion of wireless and attached wireless telecommunications facilities.

(7) Safeguard against potential damage and injury to persons and property associated with the collapse, debris and ice fall from wireless and attached wireless telecommunications facilities.

(8) Require and promote the design and configuration of wireless and attached wireless telecommunications facilities to minimize their adverse impact on the neighborhood and Town through the reasonable use of the best available technology, stealth technology and camouflage techniques.

(9) Require that wireless and attached wireless telecommunications facilities be suitably screened, buffered and adequately separated from residential uses.

(10) Safeguard against the potential for blight from the location of an excessive number of wireless or attached wireless telecommunications facilities at the same site.

(11) Ensure that wireless or attached wireless telecommunications facilities are maintained in a safe condition in good order and repair and to require a periodic safety and maintenance reports.

(12) Enable the providers of telecommunications services to provide such services to the community, in an effective manner, consistent with the purposes enumerated above.

B. The classification of wireless and attached wireless telecommunications facilities as a special permit use under this article is made in recognition of the Telecommunications Act of 1996. No presumption should be made or derived from that classification that the Town has found that the use is harmonious generally with its zoning plan or that such use will not adversely impact neighborhood or community character.

§ 170-129.2 Definitions; word usage.

[Amended 12-9-2010 by L.L. No. 8-2010]

A. As used in this article, the following terms shall have the following meanings unless the context shall otherwise require:

ANTENNA ARRAY

One or more rods, panels, discs, or similar devices used for the transmission and/or reception of radio frequency signals, which may include omnidirectional antennas (whip), directional antennas (panel) and parabolic antennas (dish).

APPROVING AUTHORITY

When a wireless or attached wireless telecommunications facility is permitted by special use permit, the approving authority for the special permit authority shall be the Somers Planning Board.

ATTACHED WIRELESS TELECOMMUNICATIONS FACILITY

An antenna array that is attached to or substantially enclosed within a building or structure (attachment structure), the primary use of which is not for wireless telecommunications, with any accompanying pole or device (attachment device) which attaches the antenna array to the building or structure; connection cables; and an equipment facility which may be located either inside or outside of the attachment structure.

BEST AVAILABLE TECHNOLOGY

The latest stage of development of processes, facilities and methods of operation practically suitable for the intended purpose to reduce the impact of a wireless or attached wireless telecommunications facility on an immediate neighborhood and the Town, including, but not limited to, camouflage techniques and stealth technology. It is anticipated that the processes, facilities and methods will change with time in light of technological advances and improvements in scientific knowledge and understanding. Economic considerations shall be included in assessing practical suitability, but shall not be the sole or overriding consideration, in the absence of extraordinary circumstances shown.

CO-LOCATION

The mounting of equipment for wireless telecommunications on a support structure, building, or other existing structure by two or more wireless license holders or by one wireless license holder or by one wireless license holder for more than one type of communications technology.

DISTANCE REQUIREMENT

The horizontal distance from the base of a support structure.

EQUIPMENT FACILITY

Any structure, including but not limited to cabinets, shelters, a buildout of an existing structure, and pedestals, used to contain ancillary equipment as part of a wireless telecommunications facility or attached wireless telecommunications facility.

FCC

The Federal Communications Commission or any successor agency.

LINK BUDGET

The tabulation of all communications system gains, losses and wireless signal effects due to propagation. The purpose of a link budget is to enable a judgment to be made whether sufficient signal strength will exist to permit reliable wireless telecommunications service throughout a proposed cell.

RADIO FREQUENCY OR RF DRIVE TEST

The process of erecting a temporary transmit antenna for the purpose of measuring path loss from a proposed base transceiver station or otherwise measuring the actual system performance, including the use of a temporary transmitter to provide a test signal to the elevated antenna while a vehicle equipped with measurement instruments is driven on roadways to collect samples of average signal strength at numerous locations in all areas of target coverage. Data is gathered for existing coverage and for each incremental height of the test antenna.

RESPONSIBLE PARTY OR PARTIES

The owner of the property on which a wireless or attached wireless telecommunications facility is located, the owner or lessee of a wireless or attached wireless telecommunications facility; any provider of a wireless telecommunications using a wireless or attached wireless telecommunications facility.

SETBACK

The shortest horizontal distance from a lot line to the part of a support structure or an equipment facility which is nearest to such lot line.

SUPPORT STRUCTURE

Any structure designed and constructed to support an antenna array, including self-supporting lattice towers, guy-wire support towers, or monopole towers.

WIRELESS TELECOMMUNICATIONS

Any personal wireless service as defined in the Federal Telecommunications Act of 1996, which includes Federal Communications Commission (FCC) licensed commercial wireless telecommunications services, including cellular, personal communications services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging, and similar services that currently exist or that may in the future be developed.

WIRELESS TELECOMMUNICATIONS FACILITY

An unstaffed facility for the transmission and/or reception of wireless telecommunications services, consisting of an antenna array, connection cables, an equipment facility, and a support structure to achieve the necessary elevation, the primary use of which is for a wireless telecommunications facility.

B. In the event of a conflict between the definitions in this article and § 170-3 of this chapter, the definitions in this article shall apply to the provisions of this article.

§ 170-129.3 Applicability.

A. This article shall apply to all wireless and attached wireless telecommunications facilities located, proposed to be located, in use or operation, or constructed in the Town of Somers, except that this article shall not apply to:

(1) A communications facility used solely and exclusively for police communication, fire communication, private radio, private television reception, private citizen's band, private amateur Ham radio and other similar private, residential communications systems, serving users on an individual property, provided that such system is not located on and does not contain a wireless or attached wireless telecommunications facility used or designed for a commercial purpose; or

(2) A wireless or attached wireless telecommunications facility proposed to be located on the property of a governmental agency, which facility has been found not to be subject to the zoning and planning jurisdiction of the Town or for which a resolution has been adopted by the Town Board to the extent of waiving special permit and site plan review and approval, upon a determination that it is in the overall best interests of the Town to do so.

B. Pending applications to construct a wireless or attached wireless telecommunications facility before any board of the Town at the time of enactment of this article shall continue to be processed to minimize delay and undue expense to the applicant, to the extent practicable, but shall be subject to the provisions of this article and shall be decided under this article. Applicants shall submit any additional information required by this article. Information already on file shall be used to the extent applicable to satisfy submission requirements under this article.

§ 170-129.4 Compliance required.

A. No wireless or attached wireless telecommunications facility shall be placed, constructed, or used or operated in the Town without compliance with the provisions of this article. No wireless or attached wireless telecommunications facility in the Town may be modified, moved, reconstructed, expanded, changed or structurally altered without compliance with the provisions of this article.

B. A wireless or attached wireless telecommunications facility which existed prior to the enactment of this article shall not require a special permit or site plan approval to be maintained, used or operated, but will require a special permit and be subject to site plan review and approval if modified, moved, reconstructed, expanded, changed, or structurally altered.

C. Without limiting the generality of the foregoing, the addition of a new antenna array or equipment facility to a wireless or attached wireless telecommunications facility shall be a change requiring compliance with this article.

§ 170-129.5 Generally applicable regulations and requirements.

A. General. The requirements of this section shall apply to each and every wireless or attached wireless telecommunications facility to which this article applies under § 170-129.3, including, but not limited to, a facility for which a special use permit is required and a facility in existence prior to the enactment of this article.

B. Regulatory compliance. All wireless and attached wireless telecommunications facilities shall comply with any and all applicable laws, rules and regulations, including the provisions of the Code of Federal Regulations pertaining to objects affecting navigable airspace as delineated in Federal Aviation Regulation (FAR) Part 77 and the criteria for obstructions to air navigation as established by FAR Part 77, Subpart C, Obstruction Standards.

C. FCC NIER standards. A wireless and attached wireless telecommunications facility shall comply at all times with emissions of nonionizing electrical radiation (NIER) standards established by the FCC or any subsequent superseding standards. If at any time during the operation of the wireless or attached telecommunications facility the emissions are not in compliance with these standards, the Building Inspector shall be immediately notified. A written report shall be made to the Building Inspector within a reasonable period of time thereafter explaining the cause of the failure to comply with emissions standards, the corrective actions taken, and the measures taken to prevent such noncompliance in the future.

D. Annual NIER report. By February 1 of each odd-numbered year, a report prepared by a qualified, licensed professional engineer shall be filed with the Building Inspector on behalf of the responsible parties concerning the nonionizing electrical radiation emitted by any wireless or attached wireless telecommunications facility in operation in the Town. The report shall cover the prior two calendar years. If the facility has been in operation for a lesser period, the report shall cover the period the facility has been in operation to the end of the calendar year preceding the filing of the report. Such report shall provide an analysis of the nonionizing electrical radiation emitted by the facility under the FCC's "A Local Government Official's Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance," and shall be accompanied by sufficient underlying data so that the analysis can be reviewed for accuracy and completeness by an expert in the field. Such report shall certify whether or not the wireless or attached wireless telecommunications facility has complied at all times with the applicable FCC nonionizing electrical radiation standards and shall specifically identify any noncompliance and its cause. The Building Inspector may refer the report for a professional review under Chapter 133 of the Somers Code, at the expense of the responsible parties. In the event that the report is not submitted as required, the Building Inspector may obtain the report on behalf of the Town, and if the responsible parties fail to pay for the report within 30 days after a demand has been made by the Town, the cost shall constitute a lien against the property involved and may be levied, assessed and collected in the same manner as Town taxes. The assessment of cost against the property shall not limit any other right or remedy of the Town to recover its costs against the responsible parties.

E. Lights. Signal lights or illumination shall be prohibited on a wireless or attached wireless telecommunications facility, but necessary equipment facility safety lighting shall be permitted. No wireless or attached wireless telecommunications facility for which signal lights or illumination would be required by the FCC or the Federal Aviation Administration shall be constructed, maintained or operated in the Town.

F. Signs. Signs shall be prohibited on a wireless or attached wireless telecommunications facility, except for a sign or signs not exceeding 150 square inches in the aggregate placed in a visible location containing the name, address and contact information of the party principally responsible for operating and maintaining the facility and other public safety service information, or prohibiting trespassing. The foregoing shall not prohibit signs mandated by applicable laws, rules or regulations.

G. Facility limits per site. No more than one support structure for a wireless telecommunications facility may be located on a single parcel less than 100 acres in area, provided that if more than one such facility is located on a lot not in conformity with this restriction at the time this section is enacted, such additional facilities may remain, but may not be increased in number. No building or structure, the primary use of which is not for wireless telecommunications, shall be the site of more than four attached wireless telecommunications facilities.

H. Certificate of occupancy. A wireless or attached wireless telecommunications facility may not be used or operated unless a certificate of occupancy issued by the Building Inspector is in effect for such use. A certificate of occupancy shall continue in effect as long as the wireless or attached wireless telecommunications facility shall remain in full compliance with all applicable laws, rules and regulations, and its site plan approval, its special permit approval, including all conditions thereof. The Building Inspector may revoke a certificate of occupancy in the event of a substantial violation of an applicable law, rule or regulation, the site plan or special permit approval, or any condition thereof.

I. Responsible parties. By February 1 of each year, a written statement shall be filed with the Building Inspector stating the current name, address, and telephone number of the responsible parties. The provisions of this article, including site plan and special permit approval and conditions thereof, shall apply to and be binding, jointly and severally, upon the responsible parties.

J. Maintenance. By February 1 of every odd-numbered year, a report shall be filed with the Building Inspector by a qualified, licensed professional engineer specializing in structural engineering certifying that the wireless or attached wireless telecommunications facility is structurally safe, has been maintained in good order and repair, and complies with all applicable structural safety standards. Every wireless or attached wireless telecommunications facility shall at all times be maintained in good order and repair and in a structurally safe condition.

K. Abandonment. A wireless telecommunications facility or attached wireless telecommunications facility not operated for the provision of wireless telecommunications services for a continuous period of 12 months or more shall be deemed to be abandoned and shall be promptly removed, in no event later than 90 days after such twelve-month period has expired. In addition, upon receipt of a notice of a determination of abandonment from the Building Inspector, a wireless telecommunications facility or attached wireless telecommunications facility shall be removed within 90 days. When a notice of intent to cease operations is filed with the FCC, a copy shall contemporaneously be filed with the Building Inspector. A wireless telecommunications facility or attached wireless telecommunications facility shall be removed within 90 days of filing such notice with the FCC. If a wireless or attached wireless telecommunications facility is not removed within the time prescribed by this section, the Town may remove such facility and obtain reimbursement for its costs from one or more of the responsible parties. In its discretion, the Town may enforce any bond submitted. Costs incurred by the Town in enforcing the provisions of this section shall constitute a lien against the property on which the wireless or attached wireless telecommunications facility is located, and shall be levied, assessed and collected in the same manner as Town taxes. The foregoing shall not be construed to limit any of the rights or remedies of the Town to require the removal of a facility or to recover any costs incurred by the Town.

L. BHP District and other excluded areas. No wireless or attached wireless telecommunications facility shall be constructed, established or maintained in the following areas:

(1) Business Historic Preservation District.

(2) Scenic roadways designated under Chapter 138, or parcels adjoining a scenic roadway unless the facility would not be visible from the scenic roadway.

M. Conforming lot. A wireless or attached wireless telecommunications facility shall be located on a lot which conforms with all of the requirements of this chapter and shall be at least 80,000 square feet in area.

N. Staffing and equipment facility. A wireless or attached wireless telecommunications facility shall be unstaffed, and the equipment facility shall house only the equipment required for the operation and maintenance of the particular site.

O. Noise. Noise from a wireless or attached wireless telecommunications facility shall be minimized to the maximum extent possible.

P. Co-location. The responsible parties of a wireless or attached wireless telecommunications facility shall accept reasonable structurally and technically feasible co-location from other wireless telecommunications service providers on such facility, which shall include the obligation to negotiate in good faith, and to rent, lease or otherwise make available space under the terms of a commercially reasonable fair market lease, license, contract or other transaction, without discrimination against other wireless telecommunications service providers, for such reasonable co-location.

§ 170-129.6 Special use permit.

[Amended 12-9-2010 by L.L. No. 8-2010]

A. A wireless telecommunications facility or an attached wireless telecommunications facility shall be permitted in the following zones and areas by special permit only:

(1) Lower-impact locations are as follows:

(a) Office and Light Industry (OLI) Districts;

(b) Office Business (OB-100) Districts;

(c) Corporate Research/Office (CRO) Districts;

(d) Designed Residential Development (DRD) Districts (utility parcel only);

(e) Lincoln Hall School property.

(2) Higher-impact locations are as follows:

(a) All zoning districts or areas not designated as lower-impact areas, except areas or districts excluded under § 170-129.5L.

B. A special permit under this article may be granted by the approving authority in accordance with the applicable provisions of this article and pursuant to the procedures set forth in § 170-105, which includes the conduct of a public hearing. Compliance with each and every applicable requirement specified in this article and § 170-106 shall be required for the issuance of any special permit. The applicant shall bear the burden of demonstrating such compliance.

C. The approving authority may approve, disapprove, or approve with modifications a special use permit for a wireless telecommunications facility or an attached wireless telecommunications facility under the applicable requirements of this article and the general special permit standards of § 170-106.

D. Any special use permit granted shall be for a five-year term from the date of issuance. Special permits may be issued with reasonable conditions directly related to and incidental to the proposed special permit use.

E. A bond satisfactory to the approving authority and the Town shall be required to ensure that the wireless or attached wireless telecommunications facility is removed in a timely manner upon abandonment.

F. When the approving authority has issued a special use permit for a wireless or attached telecommunications facility, any change or modification of said facility shall be subject to the approval of the approving authority under the procedures for an original application unless the approving authority waives a public hearing upon a finding that the change or modification is minor.

G. A special permit issued under this article may be renewed on application for additional five-year terms, provided that the applicant shall demonstrate that the wireless or attached wireless telecommunications facility is and has been in compliance with the requirements of this article, the special permit and conditions. The applicant shall be required to pay the required application fee for such renewal. Such renewal application shall, at minimum, include a complete statement of the users of the facility, a complete description of all equipment at the facility, a report from an engineer specializing in structural engineering certifying that the facility is structurally safe based upon a personal inspection and appropriate testing, a complete description of all requests for co-location and the disposition of the requests, a report on any future plans for the construction of any new wireless or attached wireless telecommunications facility in the Town, and an abandonment bond for the ensuing five-year period. The approving authority may, in its discretion, waive a public hearing on the renewal application if it finds that the public hearing is unnecessary.

H. A special permit issued for a wireless or attached wireless telecommunications facility under this article may be revoked by the approving authority after a hearing conducted upon at least 10 days' notice to the responsible parties and an opportunity to be heard. If at such hearing it shall be shown by substantial evidence that the facility constitutes a nuisance or that this article or the conditions of the special permit have been materially violated, the approving authority may revoke the special permit. Upon such revocation the facility shall be removed within 90 days. If not removed in 90 days, the Town may invoke the powers to secure removal of the facility as provided by the abandonment provisions of this article, including the recovery of cost.

§ 170-129.7 Special permit standards for wireless or attached wireless telecommunications facility.

A special permit application for a wireless or attached wireless telecommunications facility shall be subject to the following standards:

A. Necessity.

(1) A proposed wireless or attached wireless telecommunications facility must be necessary to provide adequate wireless telecommunications service to locations which are not and cannot be adequately served with existing facilities within and outside of the Town, constituting a significant "gap" in wireless telecommunications services coverage, as demonstrated by standard engineering practice, prevailing industry service standards, and the standards hereof. The applicant's demonstration of necessity shall include the submission of empirical information and evidence, to the satisfaction of the approving authority.

(2) Necessity is presumed not to exist if:

(a) The wireless or attached wireless telecommunications facility is not the minimum required to provide wireless telecommunications services in the area where a significant "gap" in wireless telecommunications services is claimed to exist; or

(b) The wireless or attached wireless telecommunications facility is not the least intrusive means for closing a significant "gap" in coverage in a remote user's ability to reach a wireless or attached wireless telecommunications facility that provides access to landlines.

(3) A significant "gap" in wireless telecommunications services coverage is presumed not to exist if:

(a) The users in the claimed coverage "gap" possess some ability to reach a wireless or attached wireless telecommunications facility; or

(b) The claimed "gaps" in coverage are very limited in number or size so that the lack of coverage is likely to be very small, such as in the interior of buildings in a sparsely populated area, or confined to a limited number of houses or spots in a more densely populated area.

(4) In applying these standards, consideration shall be given to whether the application of these standards unreasonably discriminates among providers of functionally equivalent wireless telecommunications services.

B. Siting in a lower impact location.

(1) A wireless and attached wireless telecommunications facility shall be located only in a lower impact location specified in § 170-129.6A(1), unless the applicant makes a clear and convincing demonstration under § 170-129.7C(2), to the satisfaction of the approving authority.

(2) In a lower impact location, use of an existing building or structure, or collocation with an existing wireless or attached wireless telecommunications facility, shall be required unless the applicant shall demonstrate in a particular case that the purposes of this article will be better served without such use or collocation, all to the satisfaction of the approving authority.

C. Siting in a higher impact location.

(1) In a higher impact location, the number of wireless or attached wireless telecommunications facilities shall be minimized to the greatest extent reasonably possible, consistent with the standards of this article.

(2) A higher impact location shall not be an acceptable location for a wireless or attached wireless telecommunications facility unless the applicant shall demonstrate clearly and convincingly to the satisfaction of the approving authority that in a particular case, utilizing best efforts and all reasonable and available technologies:

(a) The location of a facility in a lower impact location is technically not achievable; or

(b) The location of a facility in a lower impact area will prevent the applicant from providing adequate wireless telecommunications service under the necessity standard of § 170-129.7A, now and in the foreseeable future.

(3) In a higher impact location, use of existing buildings and structures or collocation with an existing wireless or attached wireless telecommunications facility shall be required unless the applicant shall demonstrate clearly and convincingly to the satisfaction of the approving authority that in a particular case, utilizing best efforts and all reasonable and available technologies:

(a) The use of an existing building or structure, or collocation with an existing wireless or attached wireless telecommunications facility, is technically not achievable; or

(b) The use of an existing building or structure, or collocation with an existing wireless or attached wireless telecommunications facility, will prevent the applicant from providing adequate wireless telecommunications services under the necessity standard of § 170-129.7A, now and in the foreseeable future.

D. Use of best available technology.

(1) The siting and the design of a wireless or attached wireless telecommunications facility shall accommodate and utilize the best available technology to reduce, to the maximum extent reasonably possible, the impact of the facility on the Town, the immediate neighborhood, residential areas, parks, scenic vistas and roadways.

(2) Examples of stealth technology and camouflage techniques include, but are not limited to, the design of a facility as an artificial tree not substantially greater in height than a surrounding stand of like trees within which the facility will be located, comparatively small antenna attached to traffic-related structures not changing the overall appearance of such structures, a facility resembling a traffic structure, the incorporation of a facility on electrical transmission facilities, the design of a facility as an aesthetically pleasing structure suitable for a particular area, such as a silo in or about a farm operation, a steeple, clock tower, light pole, and the use of the smallest technically feasible antenna array.

(3) In a higher impact location, the maximum use of the best available technology, including, but not limited to, stealth technology and camouflage techniques, shall be required in the siting and design of a wireless or attached wireless telecommunications facility, unless the applicant demonstrates clearly and convincingly to the satisfaction of the approving authority that in a particular case, utilizing best efforts and all reasonable and available technologies:

(a) The use of best available technology is technically not achievable; or

(b) The use of best available technology would result in extreme financial hardship.

(4) In a lower impact location, the maximum use of the best available technology, including, but not limited to, stealth technology and camouflage techniques, shall be required in the siting and design of a wireless or attached wireless telecommunications facility, unless the applicant shall demonstrate to the satisfaction of the approving authority that in a particular case:

(a) The use of the best available technology is technically not achievable; or

(b) The use of the best available technology would result in extreme financial hardship; or

(c) The purposes of this article would be better served by not using the best available technology.

E. Operation and security.

(1) A wireless or attached wireless telecommunications facility shall be designed, constructed, maintained, and operated in a manner that minimizes noise and traffic to surrounding areas and ensures the security of the facility.

(2) A wireless or attached wireless telecommunications facility shall be protected against unauthorized access.

(3) A wireless telecommunications facility shall be enclosed by a fence, or other appropriate enclosure, the design of which shall be approved by the approving authority.

(4) All uses ancillary to the wireless or attached wireless telecommunications facility, including a business office, maintenance depot, and vehicle and equipment storage (other than equipment needed for operation and maintenance of the facility), shall be prohibited on the same site.

F. Nonionizing electrical radiation. The applicant shall demonstrate to the satisfaction of the approving authority that emissions of nonionizing electrical radiation (NIER) will be in compliance with standards established by the FCC or any subsequent superseding standards.

G. New support structure.

(1) If a new support structure is proposed, it shall be a monopole rather than a self-supporting lattice or guy-wire support tower, unless otherwise authorized by the approving authority for extraordinary cause shown.

(2) The applicant shall document additional capacity for future shared use of the support structure and shall certify that such additional capacity shall be available to future providers of wireless telecommunications services in accordance with § 170-129.5Q.

(3) A new support structure shall utilize the best available technology, including stealth technology and camouflage techniques, to minimize the impact of the support structure, subject to a demonstration by the applicant under the applicable provisions of § 170-129.7D to the satisfaction of the approving authority.

H. Height standards.

(1) Wireless telecommunications facility with support structure.

(a) The height of the wireless telecommunications facility shall be the minimum necessary to provide adequate service under the necessity standard.

(b) In a higher or lower impact location, the maximum height of a wireless telecommunications facility with support structure shall extend no higher than 25 feet above the height of the highest point of the surrounding foliage or structures located within 100 feet of the wireless telecommunications facility.

(c) The foregoing shall supersede the provisions of § 170-47 of this chapter with respect to the height of a wireless telecommunications and support structure.

(2) Attached wireless telecommunications facility.

(a) The height of an attached wireless telecommunications facility shall be the minimum necessary to provide adequate service under the necessity standard.

(b) The antenna array and attachment device for an attached wireless telecommunications facility attached to an attachment structure shall not extend more than 20 feet above the highest point of the attachment structure or building.

(c) The foregoing shall supersede the provisions of § 170-47 of this chapter with respect to the height of an attached wireless telecommunications facility.

I. Setback and distance standards.

(1) A wireless telecommunications facility (including support structure), an attached wireless telecommunications facility (including the antenna array), and any equipment facility shall comply with the dimensional and setback requirements for a principal building in the zoning district in which it is located, except height. Additional setbacks may be required by the approving authority in individual cases to contain on-site substantially all debris resulting from support structure failure or ice-fall and/or to preserve privacy of adjoining private and public property and to minimize visual impact on the Town, the immediate neighborhood, residential property, parks, scenic vistas and roadways.

(2) The minimum distance requirements for a wireless telecommunications facility shall be at least 500 feet from any dwelling unit, school, place of worship or day-care facility, and at least 1 1/2 times the height of such facility from all property lines of adjoining parcels, within or without the Town. In the case of an attached wireless telecommunications facility, the foregoing distance requirement shall not apply.

J. Visual mitigation.

(1) A wireless telecommunications facility or attached wireless telecommunications facility shall be sited and designed to have the minimum adverse visual impact on the Town, the immediate neighborhood, residential property, parks, scenic vistas and roadways, taking into account the proximity to potential viewers and sight lines from major viewing points, and shall incorporate camouflage or stealth technology to the maximum extent reasonably possible as provided in § 170-129.7D.

(2) Attached wireless telecommunications facility. An antenna array located on the exterior of an attachment structure shall be of colors that are harmonious with the exterior of the attachment structure.

(3) Wireless telecommunications facility with support structure. A support structure shall be of a neutral color that is harmonious with the surrounding natural features, buildings and structures.

(4) Equipment facility.

(a) An equipment facility shall be sited to minimize adverse visual impact on surrounding areas, parks and roadways. The approving authority may require that an equipment facility be located completely or partially below grade or be located within an existing building or structure.

(b) An equipment facility not located within an existing building or structure shall be treated in an architectural manner compatible with the buildings and structures in the vicinity using materials, colors and textures designed to blend with the surrounding buildings and structures and/or natural surroundings.

(c) An equipment facility shall be the minimum dimensions necessary to serve the site and shall be no greater than 12 feet in height.

K. Landscaping.

(1) In determining the most appropriate landscaping to be provided, the approving authority shall consider the visual impact of the wireless telecommunications facility or attached wireless telecommunications facility in its setting with regard to immediate proximity of potential observers and the sight lines from major viewing points. The area surrounding the wireless telecommunications facility or attached wireless telecommunications facility shall be landscaped and maintained with trees, shrubs, and ground cover consistent with the surrounding community character and satisfactory to the approving authority.

(2) When a fence is required, the outside of such fencing shall be landscaped with trees, shrubs, or other appropriate planting material satisfactory to the approving authority.

(3) An existing natural vegetative buffer which meets or exceeds the above requirements may be retained to meet the landscape requirements set forth above.

L. Accessway and parking. The accessway shall be suitably improved and provide an adequate turning radius and parking for vehicles servicing the wireless telecommunications facility or attached wireless telecommunications facility. The accessway shall allow vehicles to enter and leave the site without reversing, to the satisfaction of the approving authority. In the discretion of the approving authority, additional parking spaces may be required for the facility, in addition to any other parking requirements for the site.

M. Other. The wireless or attached wireless telecommunications facility shall conform to the requirements of § 170-129.5.

§ 170-129.8 Application procedure.

A. An applicant for a special permit under this article shall submit an application signed by the facility owner or user, and the property owner on which the facility would be located, which shall include the following minimum information:

(1) The name and address of the user of the wireless telecommunications facility or attached wireless telecommunications facility and the name and address of the owner of the property on which such facility is proposed to be located. Additionally, the application shall include the name and address of:

(a) A person who shall be designated as managing agent in control of and responsible for the maintenance of the facility; and

(b) A person who resides or has a place of business in Westchester County who shall have been appointed as the person upon whom process may be served as agent of the responsible parties.

(2) A full environmental assessment form (EAF), Part I, and the visual EAF addendum (Appendix A and Appendix B, 6 NYCRR Part 617.20), including graphic information in the form of photographs or computer-generated images with the wireless telecommunications facility or attached wireless telecommunications facility superimposed, that portrays the visual impact of the facility from various vantage points.

(3) A report signed by a licensed professional engineer with expertise in radio communication facilities and, as to Subsection A(3)(d), (e), (f) and (g), by a health physicist with expertise in radio frequency emissions, containing the following:

(a) The number, type and design of the proposed antenna array.

(b) The make, model and manufacturer of the proposed antenna array.

(c) A description of the proposed antenna array and all related fixtures, structures, appurtenances and apparatus, including height above grade, materials and lighting.

(d) The frequency, modulation and class of service.

(e) Transmissions of maximum effective radiated power.

(f) Direction of maximum lobes and associated radiation.

(g) Certification that the NIER levels based on the maximum equipment output at the proposed site comply with emission standards adopted by the FCC, such certification to be updated periodically as determined by the approving authority.

B. A report signed by a licensed professional engineer specializing in structural engineering, containing the following:

(1) In the case of an attached wireless telecommunications facility, an assurance that building or structure is structurally capable of accommodating the facility, including the antenna array and equipment facility. The proposed method of affixing the antenna array to the structure, and the precise point at which the antenna array shall be mounted shall be documented.

(2) In the case of a wireless telecommunications facility with support structure:

(a) An assurance that the structure is capable of accommodating the facility, including the antenna array, and of sustaining wind pressure and overturning moment in accordance with New York State Uniform Fire Prevention and Building Code and is provided with lightning protection in accordance with New York State Uniform Fire Prevention and Building Code and National Electrical Code; and

(b) A description of the structure's capacity, including the number of antenna arrays it can accommodate and the precise point at which each antenna array can be mounted.

(c) Documentation demonstrating that the structure is designed to collapse and fall upon itself in case of structural failure.

C. Certification that collocation will be accepted as required by § 170-129.5P.

D. If the use of an existing building or structure, or collocation, is not proposed, a signed affidavit demonstrating compliance with the applicable standards of § 170-129.7 pertaining to use of an existing building or structure, or collocation.

E. Certification and supporting evidence may be submitted that the proposed antenna array will not cause interference with existing communication devices, but is not mandatory.

F. A statement of anticipated on-site service needs, including frequency of service visits and types of vehicles used for service.

G. A landscape plan delineating the existing trees to be preserved; the location and dimensions of proposed planting areas; the size, type, and number of trees and shrubs to be planted; buffers; and fences, screening elevations of fences and materials to be used.

H. A map depicting and listing all existing sites containing wireless telecommunications facilities and attached wireless telecommunications facilities in the Town and bordering municipalities within a distance of two miles of the site.

I. A form of bond sufficient to ensure the safe and timely removal of the attached wireless telecommunications facility or wireless telecommunications facility in case of abandonment, satisfactory to the approving authority. A bond shall be posted and approved before any building permit is issued in an amount required by the approving authority. The bond shall be maintained for so long as the facility shall be maintained at the site.

J. The required application fee.

K. A form of access agreement may be submitted to enable the Town to perform testing of the facility or to remove a facility after abandonment, if necessary, but is not mandatory. If submitted and approved by the approval authority, such access agreement shall be executed, delivered and filed, satisfactory to the Town prior to the issuance of a building permit.

L. An inventory of all other locations investigated or considered for the facility and a complete description of the reason or reasons the other sites were not chosen.

M. A copy of the applicant's current FCC license.

N. Architectural elevations of the proposed facility.

O. An emergency access plan for the proposed facility.

P. Radio frequency (rf) drive test results for the site shall be provided. In order to make the information usable, both rf drive tests and propagation plots shall conform to certain minimum requirements, including, but not limited to the following:

(1) Each component in the rf drive test setup shall be certified as currently in calibration and traceable to NIST (National Institute of Standards and Technology), and the test plan for demonstrating coverage shall be well-defined and declared.

(2) Both incremental propagation plots, and field rf drive test plots, shall demonstrate a clear transition from "pass" to "fail" as the incremental height of the base station antenna is changed.

(3) Documentation shall clearly identify major roadways and landmarks.

(4) The color code for signal level conditions shall be the same on both propagation plots and rf drive test plots. The color code shall be explicitly defined on the map and preferably printed by a software package that generated the plot so as to avoid errors or omissions.

(5) A complete disclosure of the assumptions under which the analysis was performed, including, but not limited to, foliage losses, fade margins, effective radiated power, and minimum signal level requirements from the link budget, shall be declared.

(6) The rf drive test data shall disclose any time periods or deadlines for the test, and the weather conditions during the test.

(7) The data shall state whether or not the execution of the rf drive test was monitored by an independent nonaffiliated expert and, if so, the name, address and qualifications of the expert shall be stated.

(8) The data shall disclose anomalies, including possible loose connections, uncalibrated receivers, incorrect power transmit power settings, and defective test antenna.

Q. A signed affidavit demonstrating compliance with the standards for the use of best available technology, including stealth technology and camouflage techniques in the siting and design of the facility under § 170-129.7.

R. A report describing the minimum level of service deemed satisfactory by the applicant, a description of the applicant's network design philosophy, and the applicant's link budget.

S. A report detailing all roaming agreement(s) enabling the applicant to access other wireless telecommunications provider's networks which have any coverage in the Town or the coverage "gap" area.

T. The approving authority may, in its discretion, modify the application requirements where the approving authority determines that certain information is not required in a particular case, or may require additional information, reports or affidavits not specifically listed in this section, where the approving authority deems such additional information, report or affidavits to be necessary or desirable in a particular case.

U. The approving authority may obtain professional review of an application under Chapter 133 of the Somers Code at the applicant's expense.

§ 170-129.9 Site plan review.

A. The establishment, construction or modification of a wireless or attached wireless telecommunications facility, including, but not limited to, facilities for which a use variance is required, shall be subject to site plan review by the Planning Board in accordance with § 170-114 of the Somers Code.

B. If the Planning Board finds that a proposed modification, movement, expansion, change, or structural alteration of a wireless or attached wireless telecommunications facility is minor, the Planning Board may, in its discretion, waive site plan review and approval.

C. The Planning Board may waive site plan review and approval for a new wireless or attached wireless telecommunications facility under the provisions of § 170-114F.

D. The Planning Board may require the submission of information and reports under § 170-129.8 in conducting site plan review, in addition to any other information and plans which may be required in connection with site plan review under any other provision of the Somers Code.

E. The Planning Board may obtain professional review of an application under Chapter 133 of the Somers Code at the applicant's expense.

§ 170-129.10 Severability.

The invalidity of any word, section, clause, paragraph, sentence, part or provision of this article shall not affect the validity of any other part of this article which can be given effect without such invalid word, section, clause, paragraph, sentence, part or provision.