Town of Elma, NY
Erie County
By using eCode360 you agree to be legally bound by the Terms of Use. If you do not agree to the Terms of Use, please do not use eCode360.
Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Elma 3-5-1997. Amendments noted where applicable.]
GENERAL REFERENCES
Site plan review — See Ch. 117.
Zoning — See Ch. 144.

§ 59A-1 Intent.

The Town of Elma recognizes the increased demand for wireless communication transmitting facilities and other similar technologies and the need for the services they provide. Often, these facilities require the construction of a communications tower and/or similar facilities. The intent of this chapter is to protect the interests of the residents of the Town in requiring the shared use of tower space and the placement of antennas on existing structures, when available and when feasible, to reduce the number of tower placements in the future. It is the intent of the Town to protect the interests of the residents in properly siting towers and/or similar facilities in a manner consistent with sound land use planning and to regulate communications facilities in accordance with the guidelines of the Telecommunications Act of 1996 by:
A. 
Accommodating the need for telecommunication towers/antennas and other similar technologies while regulating their location, height and number in the community.
B. 
Minimizing adverse visual impacts of these towers/antenna through proper design, siting and screening.
C. 
Preserving and enhancing the positive aesthetic qualities of the built and natural environment in the Town of Elma.
D. 
Avoiding potential damage to adjacent properties from tower failure, falling ice and other falling debris, through engineering and proper siting.
E. 
No new tower or structure may be established if there is space available on an existing tower or structure, if the existing tower or structure can structurally hold additional antenna array, if there is no interference with the placement of antennas and if the space on the existing tower or structure is available.
F. 
Maximizing use of any new or existing Town-approved communications tower to reduce the number of towers needed.
G. 
Maximizing the need for the health, safety and general welfare of the citizens of the Town of Elma, to the extent possible.

§ 59A-2 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:
ACCESSORY STRUCTURE
A nonhabitable accessory building or structure serving or being used in conjunction with a communications tower and/or similar structure and usually located on the same lot as the communications tower. Examples of such structures include utility or transmission equipment storage sheds or cabinets.
ANTENNA
A system of electrical conductors that transmit and/or receive frequency signals. Such signals shall include but not be limited to radio, television, cellular, paging, personal communication services (PSC) and microwave communications.
COLOCATED ANTENNAS
Telecommunications facilities which utilize existing towers, buildings or other structures for placement of antennas and do not require construction of a new tower.
FALL-DOWN ZONE
The radius around a tower within which all portions of the tower and antenna would fall in the event of a structural failure of the tower and/or its mounting/anchoring systems.
GUYED TOWER
A communications tower that is supported, whole or in part, by guy wires and ground anchors.
MONOPOLE TOWER
A communications tower consisting of a single pole, constructed without guy wires and ground anchors.
SELF-SUPPORTING TOWER
A communications tower that is constructed without guy wires and ground anchors.
TELECOMMUNICATIONS FACILITIES AND OTHER RELATED TECHNOLOGIES
Towers, similar technologies and/or antennas and/or microwave dishes and accessory structures together used in connection with the provisions of cellular telephone service, personal communications services, digital and/or data communication services, paging services, radio and television broadcast services and similar broadcast services.
TOWER
A structure designed to support antennas. It includes, without limit, freestanding towers, guyed towers, monopoles and similar structures.

§ 59A-3 Building permit required; location categories.

No communications tower and/or similar facilities shall be sited, located, constructed, erected or modified without the issuance of a building permit and such other permits or approvals as are prescribed in this chapter. Procedures in § 59A-9 of this chapter must be followed.
A. 
Colocated/existing structure antennas. An antenna that is to be attached to an existing communications tower which was approved by the Town of Elma, smokestack, water tower or other structure is permitted in all zoning districts. The antenna is permitted upon the approval of a special tower use permit by the Town Board.
B. 
Noncolocated/new structure antennas or unapproved existing towers.
(1) 
An antenna that will not be mounted on an existing structure as defined above or is more than 50 feet higher than the existing structure on which it is mounted or is proposed for an unapproved existing structure is permitted upon approval after a public hearing by Town Board only after site review by the Planning Board. The height restriction may be waived by the Town Board upon proof by the applicant that technological reasons exist for the increase in height. If the structure has not been approved, then the first step will be for the structure to comply with all building and Code laws and to demonstrate compliance by review of the Planning Board.
(2) 
The tower must be set back a minimum of the height of the tower from all property lines, and any existing building. This may be waived by the Town Board upon good cause shown.
(3) 
The SEQRA review process for industrial-zoned property and all municipal-owned property, with the exception of property within a park or recreational area, shall be governed by the facts and situation of the proposed action. If it is an unlisted action, a coordinated review is required. With a park, recreational or historic area, the SEQRA shall be treated as if it is a Type I review. In all other zoning areas, the SEQRA shall be treated as a Type I review.

§ 59A-4 Tower special use permits application materials.

A. 
All applicants for a tower special use permit shall make written application to the Building Inspector. This application must include the following:
(1) 
Town-supplied tower special user permit application form.
(2) 
Proof of notification (certified-mail-return receipts to be given to the Town by the applicant) of all property owners within 500 feet of the boundaries of the property that the tower is to be constructed, as well as notification of the surrounding communications tower owners to explore colocation.
(3) 
Appropriate fee as the Town Board from time to time sets.
(4) 
Site plan application forms provided by the Town, including long form environmental assessment form (EAF).
(5) 
Site plan.
(a) 
Site plan using the Town site plan application, prepared to scale and in sufficient detail and accuracy showing at a minimum the following:
[1] 
The exact location of the proposed tower, together with guy wires and guy anchors, if applicable.
[2] 
The maximum height of the proposed tower.
[3] 
A detail of tower type (monopole, guyed, freestanding or other) along with the maximum wind load area in square feet, at the maximum wind speed in miles per hour, of the tower, as published by its manufacturer.
[4] 
The color or colors of the tower.
[5] 
The location, type and intensity of lighting on the tower.
[6] 
Proof of landowner's consent if the applicant will not own the property. (A copy of the complete lease agreement must also be provided if the applicant will not own the property.)
[7] 
The property boundaries. (A copy of a property survey must also be provided.)
[8] 
The location of all structures on the property and all structures on any adjacent property within 500 feet of the property lines, together with the distance of these structures to the tower. All buildings and other structures to be located on the same property as a communications tower shall conform with the setbacks established for the underlying zoning district.
[9] 
Communications towers or similar structures shall not encroach into or through any established, public or private airport approach path, as established by the Federal Aviation Administration (FAA). Each applicant to construct or alter a communications tower shall include proof of application for approval from the FAA and shall be submitted with each application. Based upon the location or height of the proposed tower, the Town may require a statement of no objection from all surrounding airports, public or private. A building permit shall not be issued until FAA approval is obtained. Any approval of a tower special use permit, for a proposed new tower or similar technology, shall be conditioned upon FAA approval and any conditions set by the FAA and the Town. The applicant must supply copies of all forms submitted to FAA, including Form 7460-1.
[10] 
The names and addresses of adjacent landowners as supplied by the Town upon the request of the applicant.
[11] 
The location, nature and extent of any proposed fencing and landscaping or screening.
[12] 
The location and nature of proposed utility easements and access road, if applicable. All towers shall have an access road suitable for emergency vehicles to utilize in the event of an emergency. Further, each tower shall have a fire hydrant within sufficient distance to service the tower and accessory buildings. A fire-suppression system may be required if it is necessary to protect the surrounding area and/or neighborhood from damage and/or injury.
[13] 
Buildings elevations of accessory structures or immediately adjacent structures and/or buildings.
[14] 
Adequate inventory report specifying existing communication facility sites and structures of height exceeding 75% of the height of the proposed tower within a five-mile radius from the proposed site. The inventory report shall contain an evaluation of opportunities for shared use as an alternative to proposed location. The applicant must demonstrate that the proposed telecommunication facility or similar facility cannot be accommodated on existing telecommunication facility sites in the inventory due to one or more of the following reasons:
[a] 
The planned equipment would exceed the structural capacity of existing and approved telecommunication facilities or other structure, considering existing and planned use for those facilities.
[b] 
The planned equipment would cause radio-frequency interference with other existing or planned equipment, which cannot be reasonably prevented.
[c] 
Existing or approved telecommunication facilities or other structures do not have space on which proposed equipment can be placed so it can function effectively and reasonably.
[d] 
Other technical reasons make it impracticable to place the equipment proposed by the applicant on existing facilities or structures.
[e] 
The property owner or owner of the existing tower or other structure refuses to allow such colocation.
[15] 
A report prepared by a New York State licensed professional engineer, which describes the height and design, including a cross section of the structure; demonstrates the tower's compliance with applicable structural standards; and describes the tower's capacity, including examples of the number, type and location by height on the tower of antennas it may accommodate. In the case of an antenna mounted on an existing structure, the report shall indicate the existing structure's suitability to accept the antenna and proposed method of affixing the antenna to the structure. Complete details of all tower, fixtures and couplings and the point of attachment shall be indicated on a design plan.
[16] 
Visual impact analysis shall be prepared by a landscape architect registered in New York State. The Town, at the expense of the applicant, may employ consulting assistance to review the findings and conclusions of the visual impact analysis as well as any other expert necessary to process the application.
[17] 
Copies of all leases to each company planned to be colocated.
(b) 
The applicant shall provide to the Town a simulated picture and/or drawing of what the proposed tower or similar structure will look like to the surrounding area.
(6) 
Before and after propagation studies prepared by a qualified radio frequency engineer, demonstrating existing signal coverage, contrasted with the proposed signal coverage resulting from the proposed telecommunications facility. Further, the radio frequency engineer must certify that the cumulative emissions from all antennae proposed to be located at the proposed site meet federal guidelines.
(7) 
A search ring prepared by a qualified radio frequency engineer and overlaid on an appropriate background map, demonstrating the area within which the telecommunications facility needs to be located in order to provide proper signal strength and coverage to the target cell. The applicant must be prepared to explain to the Planning Board and Town Board why it selected the proposed site, discuss the availability or lack of availability of a suitable structure within the search ring which would have allowed for a colocated antenna(s) and to what extent the applicant explored locating the proposed tower in a more intensive use district. Correspondence with other telecommunications companies concerning colocation is part of this requirement.
(8) 
The Town upon reviewing the application, may request reasonable additional visual and aesthetic information as it deems appropriate on a case-by-case basis. Such additional information may include, among other things, enhanced landscaping plans, line-of-sight drawings and/or visual simulations from viewpoints selected by the Town Board and/or Planning Board. Line-of-sight drawings and visual simulations are mandatory for applications in residential and neighborhood commercial zoning districts for all new towers.
(9) 
In historic areas and important preservation/conservation areas, including parks and recreational areas, the Town will require additional site plan review and tower special use permits. These requirements can include, but are not limited to, specially designed towers, additional screening, greater setbacks and improved landscaping. These areas for siting should be avoided to the maximum extent possible.
(10) 
The Town shall look at the surrounding use of properties.
(11) 
The proposed locations and number of towers and/or antennas proposed for each company within the boundaries of the Town.
(12) 
Explanation through documentation of and/or testing of what the proposed coverage area is, indicating receiving distances and sending distances from each tower; also indicating where new towers are being proposed.
(13) 
Locations of towers within six miles.
(14) 
Written projected need for additional towers in the Town within the next five years.

§ 59A-5 Communications facility standards.

The following criteria will be considered by the Town prior to the approval/denial of a request for a special tower use permit. The criteria listed may be used as a basis to impose reasonable conditions on the applicant.
A. 
Siting preferences.
(1) 
The Town may express a preference that the proposed telecommunications facility and/or similar facility or technology be located in an alternate technologically feasible and available location or multiple locations. A guideline for the Town's preference, from most favorable to least favorable districts/property, is as follows:
(a) 
Property with an existing structure suitable for colocation.
(b) 
Municipal and government property.
[1] 
Town of Elma owned property.
[2] 
Any other municipal- or government-owned property.
[3] 
Industrial zoning districts.
[4] 
Commercial zoning districts not located in or near residential districts.
[5] 
Residential districts and historic district and important preservation/conservation areas, including parks and recreational sites owned by private homeowners and municipalities. The maximum height of a tower in these zoning districts is 50 feet. An area variance for height will be required from the Zoning Board of Appeals to exceed this height, prior to initial review by Planning Board. Final approval is required by the Town Board after a public hearing.
(2) 
Any request by the Town for information on a preferred alternate site shall not unreasonably delay the application.
B. 
Aesthetics. Telecommunications facilities or similar structures shall be located and buffered to the maximum extent which is practical and technologically feasible to help ensure compatibility with surrounding land uses. In order to minimize any adverse aesthetic effect on neighboring residences to the extent possible, the Planning Board may impose reasonable conditions on the applicant, including the following:
(1) 
The Town may require a monopole or guyed tower (if sufficient land is available to the applicant) instead of a freestanding tower.
(2) 
The Town requires reasonable landscaping consisting of trees or shrubs to screen the base of the tower and/or to screen the tower to the extent possible from adjacent residential property. Existing on-site trees and vegetation shall be preserved to the maximum extent possible.
(3) 
The Town may require additional site plan requirements, such as specially designed towers, additional screening, greater setbacks and improved landscaping to address aesthetic concerns.
(4) 
The Town may require the applicant to show that he has made good faith efforts to colocate on existing towers or tower available and appropriate structures and/or to construct new towers near existing towers in an effort to consolidate visual disturbances. However, such request shall not unreasonably delay the application.
(5) 
Towers should be designed and sited so as to avoid, whenever possible, application of FAA lighting and painting requirements. Towers shall not be artificially lighted except as required by the Federal Aviation Administration (FAA). Towers shall be galvanized finish or painted to be aesthetically pleasing and/or less disturbing to the surrounding area. Any lights which may be required by (FAA) shall not consist of strobe lights, unless specifically mandated by FAA.
(6) 
No tower shall contain any signs or advertising devices. A small sign on the fencing shall be placed to identify the ownership of the facility and a telephone number for emergencies.
(7) 
The applicant must submit a copy of its policy regarding colocation on the proposed tower with other potential future applicants. Such policy should allow colocation under the following conditions:
(a) 
The new antennas and equipment do not exceed structural loading requirements, interfere with Town space used or to be used by the applicant nor pose any technical or radio-frequency interference with existing equipment;
(b) 
The party desiring to colocate pays the applicant an appropriate and reasonable sum to colocate; and
(c) 
The party desiring to colocate has a similar policy of colocation for the applicant.
(8) 
The Town may require a fall zone surrounding any support towers to be equal to the height of the structure and any antennas attached thereto. The Town Board may shorten the fall zone based upon the type of tower and certified technological data supplied by the applicant. The entire fall zone may not include public roads and must be located on property either owned or leased by the applicant or for which the applicant has obtained an easement, nor can this land contain any structure other than those associated with the telecommunications facilities, except as further allowed in this subsection, and may not be located within any setback area established by this chapter. If the facility is attached to an existing structure, fall-zone requirements may be modified by specific permission of the Town Board.
C. 
Radio-frequency effect. The Planning Board may impose a condition to the applicant that the communication antennas be operated only at Federal Communications Commission (FCC) designated frequencies and power levels and/or Environmental Protection Agency (EPA) technical exposure limits and that the applicant provide competent documentation to support that maximum allowable frequencies, power levels and exposure limits for radiation will not be exceeded.
D. 
Traffic, access and safety.
(1) 
A road, turnaround and one parking space shall be provided to assure adequate emergency and service access such that service vehicles will not have to back out onto a public thoroughfare. Maximum use of existing roads, public or private, shall be made. The use of public roadways or road rights-of-way for the siting of a tower or antenna or accessory structures is strictly prohibited.
(2) 
All towers and guy anchors, if applicable, shall be enclosed by a fence not less than eight feet in height or otherwise sufficiently protected from trespassing or vandalism.
(3) 
The applicant must comply with all applicable state and federal regulations, including but not limited to FAA and FCC regulations.
(4) 
Motion-activated or staff-activated security lighting around the base of the tower or accessory structure entrance may be provided if such lighting does not project off the site. Such lighting should only occur when the area within the fenced perimeters has been entered.
(5) 
There shall be no permanent steps or climbing pegs within 20 feet of the ground of any proposed tower even if surrounded by a fence.
E. 
Removal of tower. The applicant shall sign an agreement, in writing, to remove the tower within six months if the telecommunications facility becomes obsolete or ceases to be used for its intended purpose for six consecutive months. The applicant shall be required to notify the Town Board of its cessation of use of the tower within the six-month period and indicate that it will not be using the tower. The Planning Board shall require the applicant to provide a demolition bond (in an amount to be recommended by the Planning Board to the Town Board) for the removal of the telecommunications facility in the event that the applicant fails to remove it as required above. The Town must receive the demolition bond listing the Town as assignee prior to any building permit being granted. The sufficiency of the demolition bond shall be examined at least every five years and at the time of renewal and/or modifying the special use permit. The Town does have the option of negotiating with the company and to acquire the tower rather than having it demolished.
F. 
Structural safety. During the application process and every other year after construction of the tower, the applicant/owner shall provide a certification from a qualified professional engineer registered in the State of New York, certifying that the tower meets applicable structural safety standards. This certification must be filed in the Town Clerk's office every other year. If no certification is filed at the appropriate time, then the tower is deemed abandoned.
G. 
Maintenance of telecommunications facility. All telecommunications facilities shall be maintained in good order and repair. This shall be the sole responsibility of the applicant.
H. 
The Town Board may require that towers and antenna(s) be set back a sufficient distance from adjacent property lines and/or structures to safeguard the general public and/or adjacent property from damage in the event of tower failure or falling debris, such as ice. It is presumed that the fall-down zone should be equal to the height of the tower and any antennas attached to the tower. The fall-down zone should be the distance required from any adjacent residential property line and at least 50 feet from any adjacent property line in any other district and any off-site structure. The Town Board may waive any portion of this upon a showing of technical data that a different fall-down zone upon receipt of information from the applicant which demonstrates the safety of the general public or adjacent property is protected.
I. 
The size of a leased or owned lot shall be, at a minimum, sufficiently large to include the entire fall zone. A lot leased or owned for the purpose of construction of a tower as part of telecommunications facility or related technology shall not result in the creation of a nonconforming lot.
J. 
The municipality, at the expense of the applicant, may employ its own consulting assistance to review the findings and conclusions of the applicant.

§ 59A-6 Exemptions.

A. 
The tower and antennas may be repaired and maintained without restriction.
B. 
Exemptions shall be as follows:
(1) 
Antennas used solely for residential-household television and radio reception.
(2) 
Satellite antennas measuring two meters or less in diameter and located in commercial districts and satellite antennas one meter or less in diameter regardless of location. FCC rule regarding preemption of local zoning regulation for satellite antennas, 47 CFR Part 25.

§ 59A-7 Miscellaneous.

A. 
The Planning Board may recommend to the Town Board to waive or vary any requirements in this chapter for good cause shown.
B. 
Any application requiring a special tower use permit and any other approvals from another Board (i.e., Zoning Board of Appeals) must receive Planning Board review prior to any other Board approvals.
C. 
This chapter is meant to control towers and similar facilities in the Town unless specifically referenced in this chapter, other sections of the Zoning Law[1] are intended to be inapplicable (such as height limitations normally required in the relevant zoning district).
[1]
Editor's Note: See Ch. 144, Zoning.
D. 
Any facilities receiving a special tower use permit, that subsequently does not meet the requirements of that permit, shall have its permit revoked, and the tower shall be removed within 90 days of notification by the Town.
E. 
The Town may engage any expert or consultant, at the applicant's expense, necessary, in the opinion of the Town, for the Town to adequately review and process the application.

§ 59A-8 Guidelines.

All applications for a new tower or to place a new antenna on an existing structure will be subject to the following guidelines:
A. 
Nonionizing electromagnetic radiation standards (NIER) A new source of NIER or increase in NIER from an existing source, when combined with existing sources of NIER, shall not expose the general public to ambient radiation exceeding that defined by the federal government from time to time; provided, however, that if a federal or local standard is adopted that is more stringent than the presently defined standard that such more stringent standard shall apply.
B. 
No special use permit or renewal thereof or modification of the conditions of a current special use towers permit relating to a telecommunications facility shall be authorized by the Town unless it finds that such telecommunication facility:
(1) 
Is necessary to meet current or expected demands for the services supported by the telecommunication facility for that applicant's network.
(2) 
Conforms with all applicable regulations promulgated by the Federal Communications Commission.
(3) 
Is designed and constructed in a manner which minimizes its visual impact to the extent practical.
(4) 
Complies with all other requirements of this chapter.
(5) 
Is the most appropriate site within the technically feasible area for the location of the telecommunication facility.

§ 59A-9 Procedures.

A. 
Procedures for a municipally owned parcel of land, excluding parkland or recreational land.
(1) 
The applicant will apply for building permit and special use tower permit through the Building Department.
(2) 
The applicant will supply 20 copies of application and supporting documents to the Town Clerk at least 20 days prior to the Planning Board or Town Board Meeting that the applicant wishes to be heard at. The applicant would pay all applicable fees 20 days prior to any scheduled date.
(3) 
The applicant appears at the Planning Board for site plan and review, for a recommendation to the Town Board. Notice to surrounding property owners within 500 feet of the proposed tower is required and should be supplied by applicant.
(4) 
After reviewing, the Planning Board makes a recommendation to the Town Board as to whether the site is viable and necessary and what conditions it would place on the tower if approved.
(5) 
The applicant would appear at the Town Board for review and disposition of the proposal after a public hearing.
(6) 
The maximum height of any tower in any residential area, not owned by a municipality in these zoning districts, is 50 feet. An area variance for height may be required from the Zoning Board of Appeals to exceed this height. This provision may be waived by the Town Board if supported by technological materials supplied by the applicant. Final approval is required by the Town Board.
(7) 
The applicant shall provide a demolition bond prior to final approval for removal after abandonment of the tower for a period of six months or other suitable documentation upon approval of the Town Board.
B. 
Procedures for construction of towers on nonmunicipal-owned property and/or the addition of antenna to an existing unapproved tower and/or structure.
(1) 
The applicant shall apply for building permit and special use tower permit through the Building Department.
(2) 
The applicant shall supply 20 copies of application and supporting documents to the Town Clerk at least 20 days prior to the Planning Board or Town Board meeting that the applicant wishes to be heard at. The applicant would pay all applicable fees 20 days prior to any scheduled date.
(3) 
The applicant shall appear at the Planning Board for full site plan and review, for a recommendation to the Town Board. Notice to surrounding property owners within 500 feet of the proposed tower is required and should be supplied by the applicant. The public hearing is to be held by the Planning Board.
(4) 
If the Planning Board finds that the existing structure was not built in compliance with the Town of Elma codes and with Town approvals then the structure must be reviewed prior to any permission being issued. Further, fees for review and approval of existing structure must be paid to comply with the Town Code prior to completion of any other review. It will be necessary for applicant to pay the applicable fees that the Town sets from time to time.
(5) 
If the height requirements are over the listed amount, then the Zoning Board of Appeals must review and give its approval on this proposed height. This shall be done after public notice and a public hearing is held.
(6) 
After review by the Planning Board and, if applicable, the Zoning Board of Appeals, each Board will forward their recommendations to the Town Board.
(7) 
The applicant would appear at the Town Board for review and disposition of the proposal, who, after a public hearing, will approve or disapprove the application.
(8) 
The applicant shall provide, upon final approval, a demolition bond for removal after abandonment of the tower for a period of six months. The amount of the bond is to be reviewed by the Planning Board. The Planning Board is to receive from the applicant several estimates as to how much the proposed structure will cost to remove it. The Planning Board will recommend to the Town Board to obtain a bond not less than 1 1/2 times the current removal value. This demolition bond value is to be reviewed for adequacy every five years. If at the review, additional security is found to be needed then the applicant shall promptly obtain and forward to the Town Clerk's office for filing.