[HISTORY: Adopted by the Town Board of the Town of Hamlin 12-9-2002 by L.L. No. 11-2002 (Ch. 106 of the 1987 Code). Amendments noted where applicable.]
Zoning — See Ch. 520.
The Telecommunications Act of 1996 affirmed the Town of Hamlin's authority concerning the placement, construction and modification of wireless telecommunications facilities. The Town of Hamlin finds that wireless telecommunications facilities may pose significant concerns to the health, safety, public welfare, character and environment of the Town and its inhabitants. The Town also recognizes that facilitating the development of wireless service technology can be an economic development asset to the Town and of significant benefit to the Town and its residents. In order to insure that the placement, construction or modification of wireless telecommunications facilities is consistent with the Town's land use policies, the Town is adopting a single, comprehensive, wireless telecommunications facilities application and permit process. The intent of this chapter is to minimize the negative impact of wireless telecommunications facilities, 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 Town of Hamlin.
Proposed towers intended to be built without immediate implementation as personal wireless service facilities and/or without a bona fide agreement for forthright antenna attachment and/or without use by an FCC licensed wireless service provider will be assumed to be speculative in nature, not fitting the definition of "personal wireless service facilities" in the 1996 Telecommunications Act and therefore not falling into the classification of "public utility" under New York State law. Such towers as well as proposed commercial radio and television broadcast towers shall be subject to all the rules and regulations of this chapter but shall not in any way enjoy the mandated acceptance directive associated with personal wireless service facilities as stated in the 1996 Telecommunications Act.
This chapter shall be known and cited as the "Wireless Telecommunications Facilities Siting Law for the Town of Hamlin."
If any word, 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.
Any special permit issued under this chapter shall be comprehensive and not severable. If part of a permit is deemed or ruled to be invalid or unenforceable in any material respect, by a competent authority, or is overturned by a competent authority, the permit shall be void in total, upon determination by the Town Board.
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 meaning given in this section.
When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number.
The word "shall" is always mandatory and not merely discretionary.
The word "person" means any individual, corporation, estate, trust, partnership, joint stock company, association of two or more persons having joint common interest, or any other entity.
The word "building" includes the word "structure."
"Lot" includes the word "plot," "parcel" or "tract."
The word "premises" includes a lot and all buildings or structures thereon.
"To erect," "to construct" and "to build" a building or structure each have the same meaning and also include "to excavate" for a building and "to relocate" a building by moving it from one location to another.
"Used" shall be deemed also to include "designed, intended or arranged to be used or occupied."
Administrative terms defined. As used in this chapter, the following terms shall have the meanings indicated:
- PLANNING BOARD
- The Planning Board of the Town of Hamlin.
- PLANNING DEPARTMENT
- The Monroe County Department of Planning and Development.
- The State of New York.
- Town of Hamlin.
- TOWN BOARD
- The Town Board of the Town of Hamlin.
- TOWN LAW
- The Town Law of the State of New York.
- ZONING BOARD OF APPEALS
- The Zoning Board of Appeals of the Town of Hamlin.
Editor's Note: See Art. 8 of the Environmental Conservation Law.
Definitions. As used in this chapter, the following terms shall have the meanings indicated:
- ACCESSORY FACILITY, BUILDING OR STRUCTURE
- An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities and located on the same property or lot as the wireless telecommunications facilities, 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 or other wireless signals. Such shall include, but not be limited to, radio, television, cellular, paging, personal telecommunications services (PCS), microwave telecommunications and services not licensed by the FCC but not expressly exempt from the Town's siting, building and permitting authority.
- Any wireless service provider submitting an application for a special permit for wireless telecommunications facilities. "Applicant" shall include all commercial providers of wireless service whether the service is intended to be bidirectional or unidirectional.
- All necessary and appropriate documentation that an applicant submits in order to receive a special permit for wireless telecommunications facilities.
- The use of a tower or structure to support an antenna for the provision of wireless services without increasing the height of the tower or structure.
- COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
- The inability to perform an act on terms that are reasonable in commerce, the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be commercially impracticable and shall not render an act or the terms of an agreement commercially impracticable.
- COMPLETED APPLICATION
- An application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.
- The Federal Aviation Administration or its duly designated and authorized successor agency.
- The Federal Communications Commission or its duly designated and authorized successor agency.
- 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, lightening protection device, or any other device attached to the top of the tower.
- MODIFICATION or MODIFY
- The addition, removal or change of any of the physical and visually discernible components or aspects of a wireless facility, such as antennas, cabling, radios, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernible components, vehicular access, parking and/or an upgrade or change out of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site is a modification. A modification shall not include the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or any matters that involve the normal repair and maintenance of a wireless facility without adding, removing or changing anything.
- Non-ionizing electromagnetic radiation.
- PERSONAL WIRELESS FACILITY
- See definition for "wireless telecommunications facilities."
- PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS
- The same meaning as defined and used in the 1996 Telecommunications Act.
- SITE MAP
- An appropriately scaled engineer's drawing of all measurable physical aspects of a proposed tower or telecommunications facility location in all degrees of required detail.
- SPECIAL PERMIT (not to be confused with "special use permit")
- The official document or permit by which an applicant is allowed to construct and use wireless telecommunications facilities as granted or issued by the Town Board. The requirements for such a permit are totally contained within this chapter.
- STEALTH or STEALTH TECHNOLOGY
- Minimizing adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
- The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
- TELECOMMUNICATIONS SERVICE
- The providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium, excluding cable television service.
- TELECOMMUNICATIONS SITE
- See definition for "wireless telecommunications facilities."
- TELECOMMUNICATIONS STRUCTURE
- A structure used in the provision of services described in the definition of "wireless telecommunications facilities."
- Temporary in relation to all aspects and components of this chapter; something intended to, or that does, exist for fewer than 90 days.
- WIRELESS TELECOMMUNICATIONS FACILITIES (includes "telecommunications tower," "tower," "telecommunications site" and "personal wireless facility")
- A structure, facility or location designed or intended to be used as or used to support antennas or other transmitting or receiving devices. This includes, without limit, towers of all types and kinds and structures that employ stealth technology, including but not limited to structures such as a multistory building, church steeple, silo, water tower, sign or other structures that can be used to mitigate the visual impact of an antenna or the functional equivalent of such, including all related facilities such as cabling, equipment shelters and other structures associated with the site. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, paging, 911, personal telecommunications services, commercial satellite services, microwave services and services not licensed by the FCC but not expressly exempt from the Town's siting, building and permitting authority, excluding those used exclusively for the Town's Fire, Police and Highway Departments or exclusively for private, noncommercial radio and television reception and private citizens' bands, amateur radio and other similar noncommercial telecommunications where the height of the facility is below the height limits set forth in this chapter. Said exemptions may require compliance with Chapter 520, Zoning, § 520-33A and B.
In order to ensure that the placement, construction, and modification of wireless telecommunications facilities protects the Town's health, safety, public welfare, and environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this chapter, the Town Board hereby adopts an overall policy with respect to a special permit for wireless telecommunications facilities for the express purpose of achieving the following goals:
Implementing an application process for person(s) seeking a special permit for wireless telecommunications facilities.
Establishing a policy for examining an application for and issuing a special permit for wireless telecommunications facilities that is both fair and consistent.
Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless telecommunications facilities among service providers.
Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner, including but not limited to the use of stealth technology, to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
All applicants for a special permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this section. The Town Board is the officially designated agency or body of the Town to which applications for a special permit for wireless telecommunications facilities must be made and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking special permits for wireless telecommunications facilities. The Town Board may, at its discretion, delegate or designate other official agencies of the Town or others to accept, review, analyze, evaluate and make recommendations to the Town Board with respect to the granting or not granting, recertifying or not recertifying, or revoking special permits for wireless telecommunications facilities.
An application for a special permit for wireless telecommunications facilities 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 Town 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.
An applicant shall submit to the Town the number of completed applications determined to be needed at the preapplication meeting. Written notification of the application shall be provided to the legislative body of all adjacent municipalities.
Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the Town.
The applicant shall include a statement in writing that:
The applicant's proposed wireless telecommunications facilities shall be maintained in a safe manner and in compliance with all conditions of the special permit, without exception, unless specifically granted relief by the Town Board, in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable Town, state and federal laws, rules, and regulations.
The construction of the wireless telecommunications facilities is legally permissible, including but not limited to the fact that the applicant is authorized to do business in the state.
No wireless telecommunications facilities shall be installed or constructed until the application is reviewed and approved by the Town Board and the special permit has been issued.
All applications for the construction or installation of new wireless telecommunications facilities shall contain the information hereinafter set forth. Where a certification is called for, such certification shall bear the signature and seal of a professional engineer licensed in the state. The application shall include the following information:
Documentation that demonstrates the need for the wireless telecommunications facility to provide service primarily and essentially within the Town. Such documentation shall include propagation studies of the proposed site and all adjoining planned, proposed, in-service or existing sites.
The name, address and phone number of the person preparing the report.
The name, address, and phone number of the property owner, operator, and applicant, and to include the legal form of the applicant.
The postal address and Tax Map parcel number of the property.
The zoning district or designation in which the property is situated.
A minimum 50:1 and two-foot contour site map which is to include but not be limited to:
Size of the property stated both in square feet and lot line dimensions and a diagram showing the location of all lot lines.
For new tower applications, measured from the center point of the proposed tower, the location of the nearest residential structure, as well as all structures 1,500 feet into contiguous lots, properties, and tracts, as well as structures located within 500 feet across the road/highway right-of-way line(s) which may form a boundary of the proposed site, even if across the road is in another town.
For co-location applications, measured from the center of the proposed antenna, the location of the nearest residential structure, as well as all structures 750 feet into contiguous lots, properties, and tracts, as well as structures located within 500 feet across the road/highway right-of-way line(s) which may form a boundary of the proposed site, even if across the road is in another town.
The location, size, and height of all proposed structures on the property which is the subject of the application.
The location, size, and height of all trees over 12 inches in diameter measured four feet off the ground.
Dimensional architectural elevation drawings from all four sides, including the location, size and height of all proposed and existing towers and antennas and all appurtenant structures.
The type, locations and dimensions of all proposed and existing landscaping and fencing.
The number, type and design of the tower(s) and antenna(s) proposed and the basis for the calculations of the tower's capability to accommodate multiple users.
The make, model and manufacturer of the tower and antenna(s).
A description of the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above preexisting grade, materials, color and lighting.
The frequency, modulation and class of service of radio or other transmitting equipment.
The actual intended transmission and the maximum effective radiated power of the antenna(s).
Direction of maximum lobes and associated radiation of the antenna(s).
Certification that the NIER levels at the proposed site are within the threshold levels adopted by the FCC.
Certification that the proposed antenna(s) will not cause interference with other telecommunications devices.
A copy of the FCC license applicable to the intended use of the wireless telecommunications facilities.
Certification that a topographic and geomorphologic study and analysis have been conducted and that, taking into account the subsurface and substrata and the proposed drainage plan, the site is adequate to assure the stability of the proposed wireless telecommunications facilities on the proposed site.
In the case of a new tower, the applicant shall be required to submit a written report demonstrating its meaningful efforts to secure shared use of existing tower(s) or the use of alternative buildings or other structures within the Town. Copies of written requests and responses for shared use shall be provided to the Town in the application, along with any letters of rejection stating the reason for rejection.
The applicant shall certify by a New York State licensed professional engineer that the telecommunications facility, foundation and attachments are designed and will be constructed to meet all local, Town, state and federal structural requirements for loads, including wind and ice loads.
The applicant shall certify by a New York State licensed professional engineer that the wireless telecommunications facilities will be effectively grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.
An applicant shall be required to submit an environmental assessment analysis Type I SEQRA and a visual addendum. Based on the results of the analysis, including the visual addendum, the Town may require submission of a more detailed visual analysis. The scope of the required environmental and visual assessment will be reviewed at the preapplication meeting.
The applicant shall furnish a visual impact assessment, which shall include:
A zone of visibility map which shall be provided in order to determine locations from which the tower may be seen.
Pictorial representations of before and after views from key viewpoints both inside and outside of the Town as may be appropriate, 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 any other location where the site is visible to a large number of visitors, travelers or residents. Guidance will be provided concerning the appropriate key sites at a preapplication meeting.
An assessment of the visual impact of the tower base, any appurtenances and accessory buildings on abutting and adjacent properties and streets as relates to the need or appropriateness of screening.
The applicant shall demonstrate and provide, in writing and/or by drawing, how it shall effectively screen from view the base and all related facilities and structures of the proposed wireless telecommunications facilities.
Any and all representations made by the applicant to the Town on the record during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Town.
All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, ordinances, rules and regulations of the Town, including specifically but not limited to the National Electrical Safety Code and the National Electrical Code where appropriate.
All wireless telecommunications facilities shall contain a demonstration that the facility will be sited so as to be the least visually intrusive reasonably possible and thereby have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area of the wireless telecommunications facility.
Existing on-site vegetation shall be preserved to the maximum extent possible, and the clear-cutting of trees beyond 20,000 square feet per new tower site, excluding road and/or right-of-way, and/or driveway, any or all of which intended to serve only this facility, shall be prohibited.
Both the wireless telecommunications facility and any and all accessory or associated facilities shall maximize the use of building materials, colors and textures designed to blend with the structure to which they may be affixed and/or to harmonize with the natural surroundings; this shall include the utilization of stealth or concealment technology as may required by the Town.
At a telecommunications site an all-weather access road/driveway, turnaround space, and parking shall be provided to assure adequate emergency and service access. Depending on the linear length of the access road, one or more pull-off spots enabling two-vehicle passing may be required. The minimum width of the road, not including passing areas, shall be 12 feet. The turnaround and parking area(s) shall be large enough to handle two large emergency vehicles such as fire trucks. The thickness of the road, including passing areas, turnaround, and parking lot, shall be at a minimum of one foot compressed, processed stone. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.
A person who holds a special permit for wireless telecommunications facilities shall construct, operate, maintain, repair, provide for removal of, modify or restore the permitted wireless telecommunications facilities in strict compliance with all current applicable technical, safety and safety-related codes adopted by the Town, 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 responsible 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.
A holder of a special permit granted under this chapter shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or code 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.
The applicant shall examine the feasibility of designing a proposed tower to accommodate future demand for at least five additional commercial applications, for example, future co-locations. The tower shall be structurally designed to accommodate at least five 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, in writing, demonstrates that the provision of future shared usage of the tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden based upon:
The foreseeable number of FCC licenses available for the area;
The kind of wireless telecommunications facilities site and structure proposed;
The number of existing and potential licenses without wireless telecommunications facilities spaces/sites;
Available space on existing and approved towers.
The owner of the proposed new tower, and his/her successors in interest, shall negotiate in good faith for the shared use of the proposed tower by other wireless service providers in the future and shall:
Respond within 60 days to a request for information from a potential shared-use applicant.
Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers.
Allow shared use of the new tower if another telecommunications provider agrees, in writing, to pay reasonable charges. The charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.
Failure to abide by the conditions outlined above may be grounds for revocation of the special permit for the tower.
There shall be a preapplication meeting. The purpose of the preapplication meeting will be to address issues which will help to expedite the review and permitting process. A preapplication meeting shall also include a site visit if there has not been a prior site visit for the requested site. Costs of the Town's consultants to prepare for and attend the preapplication meeting will be borne by the applicant.
The holder of a special permit shall notify the Town of any intended modification of a wireless telecommunications facility and shall apply to the Town to modify, relocate or rebuild a wireless telecommunications facility.
In order to better inform the public, in the case of a new telecommunications tower, the applicant shall, prior to the public hearing on the application, hold a balloon test. The applicant shall arrange to fly, or raise upon a temporary mast, a minimum of a three feet in diameter brightly colored balloon at the maximum height of the proposed new tower. The dates (including a second date, in case of poor visibility on the initial date), times and location of this balloon test shall be advertised by the applicant seven days and 14 days in advance of the first test date in a newspaper with a general circulation in the Town. The applicant shall inform the Town, in writing, of the dates and times of the test, at least 14 days in advance. The balloon shall be flown for at least four consecutive hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen. The primary date shall be on a weekend, but in case of poor weather on the initial date, the secondary date may be on a weekday.
The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the tower or existing structure intended to support wireless facilities requires lighting under Federal Aviation Administration Regulation Part 77. This requirement shall be for any new tower or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines that the FAA must be contacted, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided in a timely manner.
Addressing the relevance of the Migratory Song Bird Treaty, Code of Federal Regulations at Part 50, and the National Environmental Policy Act Sections 1501.6 and 1503.4 as involves possible commentary by the United States Department of the Interior Fish and Wildlife Service. Hamlin's rural location on the southern shore of Lake Ontario makes it a very popular bird-watching destination. Hamlin is frequently referred to in the local newspaper bird watching articles as well as national bird watching databases. Hamlin is directly in the flyway for migratory songbirds. A North American "top 100" bird watching location, the Braddock Bay Wildlife Management Area is in close proximity to Hamlin's northeastern border. Given fact that FAA mandated lighted towers, 200 feet and above, kill birds in varying quantities, especially in areas of frequent low cloud ceilings as lakeside Hamlin is situated, it is imperative that the applicant for a new tower, or for a raising of an existing tower's height, or for raising the height of any existing facility, show that any proposed tower or accessory thereof will not violate the intent of the 1918 Migratory Bird Act. Commentary from the United States Fish and Wildlife Service may be requested and shared with the Town as is stated in the National Environmental Policy Act Sections 1501.6 and 1503.4.
Applicants for wireless telecommunications facilities shall locate, site and erect, within allowable setbacks, said wireless telecommunications facilities in accordance with the following priorities, (a) being the highest priority within each numerical priority, and proceeding down through the alphabet.
Priorities for co-locators on existing towers or other structures without increasing the height of the tower or structure:
If the proposed site is not in the highest priority (priorities) listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.
An applicant may not bypass sites of higher priority by stating the site proposed is the only site leased or selected. An application shall address co-location as an option. If such option is not proposed, the applicant must explain to the reasonable satisfaction of the Town why co-location is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting co-location shall not be a valid basis for any claim of commercial impracticability or hardship.
Notwithstanding the above, the Town may approve any site located within an area in the above list of priorities, provided that the Town finds that the proposed site is in the best interest of the health, safety and welfare of the Town and its inhabitants and will not have a deleterious effect on the nature and character of the community and neighborhood.
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 appropriate, based on selecting a site of lower priority, a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.
Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Town may disapprove an application for any of the following reasons:
Conflict with safety and safety-related codes and requirements.
Conflict with the historic nature or character of a neighborhood or historical district.
The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation.
The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the reasonable probability of such, to residents, the public, employees and agents of the Town, or employees of the service provider or other service providers.
Conflicts with the provisions of this chapter.
Locating on existing towers or others structures without increasing the height shall be preferred by the Town, as opposed to the construction of a new tower. The applicant shall submit a comprehensive report inventorying existing towers and other suitable structures within three miles of the location of any proposed new tower, unless the applicant can show that some other distance is more reasonable and demonstrate conclusively why an existing tower or other suitable structure cannot be used.
An applicant intending to locate on an existing tower or other suitable structure shall be required to document the intent of the existing owner to permit its use by the applicant.
Such shared use shall consist only of the minimum antenna array technologically required to provide service primarily and essentially within the Town, to the extent practicable, unless good cause is shown.
The applicant shall submit documentation justifying the total height of any tower, facility and/or antenna and the basis therefor. Such documentation will be analyzed in the context of the justification of the height needed to provide service primarily and essentially within the Town, to the extent practicable, unless good cause is shown. Only the minimum height to provide service primarily within the Town shall be acceptable.
The maximum permitted height of a new tower shall be 140 feet, based on six co-located antenna arrays requiring 10 feet of vertical space each, and an ambient tree height of 80 feet.
No tower constructed after the effective date of this chapter, including allowing for all attachments, shall exceed that height which shall permit operation without required artificial lighting of any kind in accordance with municipal, state, or federal statute, law, code, rule or regulation.
Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.
Guy-wired towers shall not be permitted. Latticework towers may be allowed under certain camouflage conditions. Monopole towers, including but not limited to pre-designed dual use flagpoles where appropriate, are preferred.
Economies of scale and/or cost efficiencies shall not necessarily drive an application's acceptance.
Towers shall be galvanized and painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained in accordance with the requirements of this chapter.
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.
All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner that prevents unauthorized access, specifically:
All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to unauthorized individuals and constructed or shielded in such a manner that they cannot be climbed or collided with.
Transmitters and telecommunications control points shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them.
Wireless telecommunications facilities shall contain a weatherproof sign no larger than four square feet in order to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities and shall contain the name(s) of the landowner(s), tower owner(s), antenna owner(s), and antenna operator(s), as well as emergency phone number(s). The sign shall be placed on the site's enclosing fence and be generally legible from a point immediately outside the fence. In the case of a co-locator on a structure other than a tower, the sign's location shall be mutually agreed upon by the Town, applicant, and owner/operator of the structure on which the co-location will occur. The sign shall not be lighted, unless lighting is required by applicable law, rule or regulation. No other signage, including advertising, shall be permitted. Each antenna operator shall be responsible for displaying a sign with its own appropriate information. The tower owner, if different from any of the operators, shall be responsible for its own separate information sign. A larger square-foot sign, if necessary, is an option with the approval of the Town.
All proposed telecommunications towers in any permitted zoning district shall be set back from recorded rights-of-way and road and street lines by a minimum distance not less than six times the height of the proposed tower or wireless telecommunications facility structure.
All proposed telecommunications towers in any permitted zoning district shall have side and rear setbacks to contiguous properties at a minimum of 1 1/2 the total height of the proposed tower or wireless facility structure.
Co-locators shall be afforded the same setback approvals/restrictions that were applied to the initial construction of a tower if a tower is being attached to. Co-locators on other structures shall conform to the front, side and rear setbacks of the zoning district in which they intend to operate. Any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.
The Town may hire any consultant and/or expert necessary to assist the Town in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any requests for recertification.
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 Town in connection with the review of any application, including the construction and modification of the site, once permitted. The initial deposit shall be $8,500. The placement of the $8,500 with the Town shall precede the preapplication meeting. The Town will maintain a separate escrow account for all such funds. The Town's consultants/experts shall invoice the Town for their services in reviewing the application, including the construction and modification of the site, once permitted. If at any time during the process this escrow account has a balance less than $2,500, the applicant shall immediately, upon notification by the Town, replenish said escrow account so that it has a balance of at least $5,000. Such additional escrow funds shall be deposited with the Town before any further action or consideration is taken on the application. In the event that the amount held in escrow by the Town is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall be promptly refunded to the applicant.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this chapter without having first obtained a special permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special permit shall be required for those noncommercial exceptions noted in the definition of "wireless telecommunications facilities."
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 substantive modification of an existing wireless telecommunications facility must comply with this chapter.
Prior to the approval of any application for a special permit for wireless telecommunications facilities, a public hearing shall be held by the Town Board. There shall be four types of notification action for such a hearing, the type(s) and number of which required shall depend on the type of application. The cost of any and all applicable actions shall be borne by the applicant.
Publication in the official newspaper of the Town no less than 10 calendar days prior to the scheduled date of the public hearing.
A distance-limited first-class mailing to surrounding landowners, not less than 10 days prior to the scheduled public hearing, stating the date and purpose of the public hearing. In order that the Town may notify nearby landowners, the application shall contain the names and address of all landowners whose properties are located within 2,500 feet for a new tower and 1,000 feet for a co-locator of any property line of the lot or parcel on which a new wireless telecommunications facility is proposed to be located, including those persons whose property may lie in a contiguous town.
Sign. Not less than 20 days before the scheduled public hearing, the Town shall construct and install a temporary readable-from-the-road sign at the frontage of the proposed tower/co-locator/facility site listing all pertinent facts as to the intended facility, including but not limited to the type of facility (cell, radio or TV), height of tower, call letters if applicable, frequency, and power.
Mass mailing to all legal Town residents stating the date and purpose of the public hearing.
Requirements by type for notices:
There shall be a public hearing required for an application to co-locate on an existing tower or other structure.
The Town 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.
The Town Board may refer any application or part thereof to any advisory or other committee for a nonbinding recommendation.
After the public hearing and after formally considering the application, the Town Board may approve, approve with conditions, or deny a special permit. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.
If the Town Board approves the special permit for wireless telecommunications facilities, then the applicant shall be notified of such approval, in writing, within 10 calendar days of the Town Board action, and the special permit shall be issued within 30 days after such approval. Except for necessary building permits and subsequent certificates of compliance, once a special permit has been granted hereunder, no additional permits or approvals from the Town, such as site plan or zoning approvals, shall be required by the Town Board for the wireless telecommunications facilities covered by the special permit.
If the Town Board denies the special permit for wireless telecommunications facilities, then the applicant shall be notified of such denial, in writing, within 10 calendar days of the Town's action.
On or before a special permit's anniversary date or the anniversary of the facility's startup date, the owner, manager, or other beneficial party in interest of all telecommunications towers and telecommunications facilities, including co-locators, shall certify to the Town that NIER levels at the site are within the threshold levels adopted by the FCC and that at all times during the previous year there have been no NIER emissions from such facilities at powers levels, frequencies, durations, and directional concentrations as would exceed the heretofore mentioned standards so as to constitute any health hazard to the citizens of the Town of Hamlin. The owner, manager, or other beneficial party in interest may also, for good cause shown, be requested to submit to the Building Inspector, on a Town-provided form, a description of any unusual events, good faith errors, research and development, experimental or testing activities (excluding proprietary information) occurring at its facilities in the Town of Hamlin during the year as would in any way constitute a health hazard via NIER emissions to the citizens of Hamlin. Further, the owner, manager, or other beneficial party in interest shall provide to the Building Inspector copies of any written communication to or from any governmental or regulatory agencies that are related to good faith errors and/or any other unusual events occurring during the operation of these facilities which would constitute any possible health hazard via NIER emissions to the citizens of the Town of Hamlin. Good faith errors are not necessarily punishable by the Town.
Between 12 months and six months prior to the five-year anniversary date after the effective date of the special permit and all subsequent five-year anniversaries of the effective date of the original special permit for wireless telecommunications facilities, the holder of a special permit for such wireless telecommunications facilities shall submit a signed written request to the Town for recertification. In the written request for recertification, the holder of such special permit shall note the following:
The name of the holder of the special permit for the wireless telecommunications facilities.
If applicable, the number or title of the special permit.
The date of the original granting of the special permit.
Whether the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise visibly modified since the issuance of the special permit and, if so, in what manner.
If the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise visibly modified, then whether the Town approved such action, and under what terms and conditions, and whether those terms and conditions were complied with.
That the wireless telecommunications facilities are in compliance with the special permit and compliance with all applicable codes, laws, rules and regulations.
Recertification that the tower and attachments are both designed and constructed and continue to meet all local, Town, state and federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a professional engineer licensed in the state, the cost of which shall be borne by the applicant.
If, after such review, the Town determines that the permitted wireless telecommunications facilities are in compliance with the special permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the Town shall issue a recertification of the special permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon, or that are required by applicable statutes, laws, ordinances, codes, rules or regulations. If after such review it is determined that the permitted wireless telecommunications facilities are not in compliance with the special permit and all applicable statutes, laws, ordinances, codes, rules and regulations, then the Town may refuse to issue a recertification special permit for the wireless telecommunications facilities, and in such event, such wireless telecommunications facilities shall not be used after the date that the applicant receives written notice of the decision by the Town until such time as the facility is brought into compliance. Any decision requiring the cessation of use of the facility or imposing a penalty shall be in writing and supported by substantial evidence contained in a written record and shall be promptly provided to the owner of the facility.
If the applicant has submitted all of the information requested and required by this chapter, and if the review is not completed, as noted in Subsection B of this section, prior to the five-year anniversary date of the special permit, or subsequent five-year anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special permit for up to six months, in order for the completion of the review.
If the holder of a special permit for wireless telecommunications facilities does not submit a request for recertification of such special permit within the time frame noted in Subsection A of this section, then such special permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special permit, or subsequent five-year anniversaries, unless the holder of the special permit adequately demonstrates that extenuating circumstances prevented a timely recertification request. If the Town agrees that there were legitimately extenuating circumstances, then the holder of the special permit may submit a late recertification request or application for a new special permit.
The extent and parameters of a special permit for wireless telecommunications facilities shall be as follows:
Such special permit shall be nonexclusive.
Such special permit shall not be assigned, transferred or conveyed without the express prior written notification to the Town.
Such special permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled, or terminated for a violation of the conditions and provisions of the special permit or for a material violation of this chapter after prior written notice to the holder of the special permit.
At the time that a person submits an application for a special permit for a new tower, such person shall pay a nonrefundable application fee of $5,000 to the Town. If the application is for a special permit for co-locating on an existing tower or other suitable structure, where no increase in height of the tower or structure is required, the nonrefundable fee shall be $2,000.
No application fee is required in order to recertify a special permit for wireless telecommunications facilities, unless there has been a substantive modification of the wireless telecommunications facility since the date of the issuance of the existing special permit for which the conditions of the special permit have not previously been modified. In the case of any modification, the fees provided in Subsection A of this section shall apply.
Each wireless operator and each tower owner if not the same as an operator on the tower shall pay to the Town an annual maintenance fee of $750 due January 2 of each year.
The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at their cost and expense, 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 of at least $75,000 and with such sureties as are deemed sufficient by the Town to assure the faithful performance of the terms and conditions of this chapter and conditions of any special permit 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 permit and/or until any necessary site restoration is completed to restore the site to a condition comparable to that which existed prior to the issuance of the original special permit.
Any lease negotiated by the Town Board or its representative(s) shall:
Include a lease/rental monthly/yearly fee which is at the average or above of the most recent comparable agreements made locally, regionally, or nationally.
Stipulate specific terms by which the Town shall derive a share of all future co-locator use revenues or any other multiuser sublease type of arrangement where a facility generates more revenue.
Allow both the tenant and Town the option of lease renewal at mutually agreed upon intervals.
Build in accelerator clauses on lease rates within (preferably yearly) the larger framework of the renewable lease segments.
Confirm that the Town will receive a revenue adjustment at the time of lease renewals, the process of determining which will not exclude reevaluating the worth of the lease in light of revenue stream from new technologies added.
The Town Board may waive any one or more of the above criteria, provided that it is making an informed decision.
In order to verify that the holder(s) of a special permit for wireless telecommunications facilities and any and all lessees, renters and/or licensees of wireless telecommunications facilities place, construct, and maintain such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building, and zoning codes, laws, ordinances and regulations and other applicable requirements, the Town, including but not limited to the Fire Marshal, Building Inspector, Town Board and Planning Board members, and any other person or committee appointed by the Town Board, may inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification and maintenance of such facilities, including but not limited to towers, antennas and buildings or other structures constructed or located on a permitted site. The Town reserves the right to periodically and unannounced, but within a reasonable frequency of occurrence, conduct independent tests on NIER, power level, and any other measurable parameter of an incoming or outgoing telecommunications signal.
A holder of a special permit for wireless telecommunications facilities shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage for the duration of the special permit in amounts as set forth below:
The commercial general liability insurance policy shall specifically include the Town and its officers, boards, employees, committee members, attorneys, agents and consultants as additional named insured.
The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a Best's rating of at least A.
The insurance policies shall contain an endorsement obligating the insurance company to furnish the Town with at least 30 days' prior written notice in advance of the cancellation of the insurance.
Renewal or replacement policies or certificates shall be delivered to the Town at least 15 days before the expiration of the insurance that such policies are to renew or replace.
Before construction of a permitted wireless telecommunications facility is initiated, but in no case later than 15 days after the grant of the special permit, the holder of the special permit shall deliver to the Town a copy of each of the policies or certificates representing the insurance in the required amounts.
Any application for wireless telecommunications facilities that is proposed for Town property, pursuant to this chapter, shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the Town and its officers, boards, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, 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 placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said facility, excepting, however, any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the Town or its servants or agents. 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.
In the event of a violation of this chapter or any special permit issued pursuant to this chapter, the Town may impose and collect, and the holder of the special permit for wireless telecommunications facilities shall pay to the Town, fines or penalties as set forth below.
A violation of this chapter is hereby declared to be an offense punishable by a fine not exceeding $350 per day per occurrence or imprisonment for a period not to exceed six months, or both for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine not less than $350 nor more than $700 or imprisonment for a period not to exceed six months, or both; and, upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, and with respect to punishment for violations provided for herein, such violations of this chapter or of such law or regulation shall be deemed misdemeanors, and, for such purpose only, all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.
Notwithstanding anything in this chapter, the holder of the special permit for wireless telecommunications facilities 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 permit to termination and revocation of the special permit. The Town may also seek injunctive relief to prevent the continued violation of this chapter without limiting other remedies available to the Town.
If wireless telecommunications facilities are 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 permit, then the Town shall notify the holder of the special permit, 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 Town may, at its sole discretion, order the violation remedied within 24 hours.
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this chapter, or of the special permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Town may revoke such special permit for wireless telecommunications facilities and shall notify the holder of the special permit within 48 hours of such action.
Under the following circumstances, the Town may determine that the health, safety, and welfare interests of the Town warrant and require the removal of wireless telecommunications facilities:
Wireless telecommunications facilities with a permit have been abandoned (i.e., not used as wireless telecommunications facilities) for a period exceeding 90 consecutive 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, in which case repair or removal shall commence within 90 days.
Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard.
Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required special permit or any other necessary authorization.
If the Town makes such a determination as noted in Subsection A of this section, then the Town shall notify the holder of the special permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed. The Town may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
The holder of the special permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities 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. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the Town.
If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the permit holder has received notice, then the Town may order officials or representatives of the Town to remove the wireless telecommunications facilities at the sole expense of the owner or special permit holder.
If the Town removes, or causes to be removed, wireless telecommunications facilities and the owner of the wireless telecommunications facilities does not claim and remove it from the site to a lawful location within 10 days, then the Town may take steps to declare the wireless telecommunications facilities abandoned and sell them and their components.
Notwithstanding anything in this section to the contrary, the Town may approve a temporary permit/agreement for the wireless telecommunications facilities, for no more 90 days, during which time a suitable plan for removal, conversion, or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the special permit, subject to the approval of the Town, and an agreement to such plan shall be executed by the holder of the special permit and the Town. If such a plan is not developed, approved and executed within the ninety-day time period, then the Town may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.
Any applicant desiring relief, waiver or exemption from any aspect or requirement of this chapter may request such at the preapplication meeting, provided that the relief or exemption is contained in the original application for either a special permit or, in the case of an existing or previously granted special permit, a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete. However, the burden of proving the need for the requested relief, waiver or exemption is solely on the applicant to prove. The applicant shall bear all costs of the Town in considering the request and the relief, waiver or exemption. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted the relief, the waiver or exemption will have no significant affect on the health, safety and welfare of the Town, its residents and other service providers. The Town Board may, at its discretion, delegate or designate other official agencies of the Town, contracted advisors, or others to recommend approval or disapproval of any request for waiver, relief, or exemption, except in the case of the total height of the telecommunications facility. That relief (of height) shall only be granted by the Town Board.
The Town may at any time conduct a review and examination of this entire chapter.
If after such a periodic review and examination of this chapter, the Town Board determines that one or more provisions of this chapter should be amended, repealed, revised, clarified, or deleted, then the Town Board may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted and in the best interests of the Town, the Town Board may repeal this entire chapter at any time.
To the extent that the holder of a special permit for wireless telecommunications facilities 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 permit 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.
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 permit for wireless telecommunications facilities, then the holder of such a special permit shall conform the permitted wireless telecommunications facilities 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.
Unless otherwise expressly provided herein, this chapter supersedes any provisions to the contrary contained in Chapter 520, Zoning, of the Code of the Town of Hamlin and/or in the Town of Hamlin Development Regulations approved by the Hamlin Town Board on July 14, 2008, as amended, and, to the extent permitted by law, the provisions of Article 16 of the Town Law of the State of New York.
In the event of an application for installation of any commercial communication device system/facility construed in any way not to be covered in this chapter but which emits and/or receives a detectable wire, radio frequency, light and any other electronic or electromagnetic signal(s) of any kind, all of the requirements and regulations in this chapter, including but not limited to NIER, aesthetics, and the general well being of the citizens of the Town of Hamlin, shall apply forthwith.
This chapter, constituting Chapter 506 of the Code of the Town of Hamlin, is enacted pursuant to Article 2 of the Municipal Home Rule Law of the State of New York.