[HISTORY: Adopted by the Town Board of the Town of Cortlandt 3-16-1998 by L.L. No. 4-1998. Amendments noted where applicable.]
Editor's Note: This local law also provided for the repeal of L.L. No. 11-1997, adopted 12-9-1997, which imposed a moratorium on the activities described in this chapter.
The Telecommunications Act of 1996 affirmed the Town of Cortlandt's authority concerning the placement, construction and modification of telecommunications towers. The Town Board of the Town of Cortlandt finds that telecommunications towers and related facilities may pose a unique hazard to the health, safety, public welfare and environment of the Town of Cortlandt and its inhabitants. In order to ensure that the placement, construction or modifications of telecommunications towers and related facilities is consistent with the Town's land use policies, the Town is adopting a single, comprehensive telecommunications tower application and permit process. The intent of this chapter is to minimize the negative impact of telecommunications towers, 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 Cortlandt.
This chapter may be known and cited as the "Telecommunications Tower Siting and Special Use Permit Law for the Town of Cortlandt."
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 use 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 election by the Zoning Board of Appeals.
[Amended 1-18-2005 by L.L. No. 1-2005]
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 directory.
- ACCESSORY FACILITY OR STRUCTURE
- An accessory facility or structure serving or being used in conjunction with a telecommunications tower and located on the same property or lot as the telecommunications tower, including but not limited to, utility or transmission equipment storage sheds or cabinets.
- A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency signals. Such waves shall include but not be limited to radio, television, cellular, paging, personal telecommunications services (PCS) and microwave telecommunications.
- Shall include any individual, corporation, estate, trust partnership, joint stock company, association of two or more persons, limited liability company, or entity submitting an application to the Town of Cortlandt for a special use permit for a telecommunications tower.
- The form approved by the Board, together with all necessary and appropriate documentation that an applicant submits in its quest to receive a special use permit for a telecommunications tower.
- The Zoning Board of Appeals of the Town of Cortlandt, which is the
officially designated agency or body of the community to whom applications
for a special use permit for a telecommunications tower 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 use permits for telecommunications towers. The Board may at its discretion
delegate or designate other official agencies of the Town to accept, review,
analyze, evaluate and make recommendations to the Board with respect to the
granting or not granting, recertifying or not recertifying or revoking special
use permits for telecommunications towers.[Amended 1-18-2005 by L.L. No. 1-2005]
- BREAK POINT
- The location on a telecommunications tower which, in the event of a failure of the telecommunications tower, would result in the telecommunications tower falling or collapsing within the boundaries of the property on which the telecommunications tower is placed.
- CAMOUFLAGED TOWER
- Any tower or supporting structure that, due to design, location or appearance, partially or completely hides, obscures, conceals or otherwise disguises the presence of the tower and one or more antennas or antenna arrays affixed thereto.
- COLLAPSE ZONE
- The area in which any portion of a telecommunications tower could or would fall, collapse or plunge to the ground or into a river or other body of water. The collapse zone shall be no less than the lateral equivalent of the distance from the break point to the top of the structure plus ten feet, such being not less than 1/2 the height of the structure.
- The use of the same telecommunications tower or structure to carry two or more antennas for the provision of wireless services by two or more persons or entities.
- COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
- Shall have the meaning in this chapter and any special use permit granted hereunder as is defined and applied under the New York Uniform Commercial Code (UCC).
- COMPLETED APPLICATION
- An application that contains all information and/or data necessary to enable the Board to evaluate the merits of the application, and to make an informed decision with respect to the effect and impact of the telecommunications tower on the Town in the context of the permitted land use for the particular location requested.
- Westchester County, New York.
- DIRECT-TO-HOME SATELLITE SERVICES or DIRECT BROADCAST SERVICE or DBS
- Only programming transmitted or broadcast by satellite directly to subscribers' premises without the use of ground receiving equipment, except at the subscribers' premises or in the uplink process to the satellite.
- The environmental assessment form approved by the New York Department of Environmental Conversation.
- State and/or Federal Environmental Protection Agency or its duly assigned successor agency.
- The Federal Aviation Administration or its duly designated and authorized successor agency.
- The Federal Telecommunications Commission or its duly designated and authorized successor agency.
- FREESTANDING TOWER
- A tower that is not supported by guy wires and ground anchors or other means of attached or external support.
- When referring to a tower or structure, the distance measured from the preexisting grade level to the highest point on the tower or structure, even if said highest point is an antenna.
- Nonionizing electromagnetic radiation.
- Any individual, corporation, estate, trust, partnership, joint stock company, association of two or more persons having a joint common interest, or governmental entity.
- PERSONAL WIRELESS FACILITY
- See "telecommunications tower."
- PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS
- Shall have the same meaning as defined and used in the 1996 telecommunications Act.
- See "telecommunications tower."
- SPECIAL USE PERMIT
- The official document or permit by which an applicant is allowed to construct and use a telecommunications tower as granted or issued by the municipality.
- The State of New York.
- The transmission and reception of audio, video, data and other information by wire, radio frequency, light and other electronic or electromagnetic systems.
- TELECOMMUNICATIONS TOWER or TOWER or SITE or PERSONAL WIRELESS FACILITY
- A structure or location designed or intended to be used or used to support antennas. It includes without limit, freestanding towers, guyed towers, monopoles and similar structures that employ camouflage technology, including, but not limited to structures such as a church steeple, silo, water tower, sign or other similar structures intended to mitigate the visual impact of an antenna or the functional equivalent of such. It is a structure intended for transmitting and/or receiving radio, television, cellular, paging, personal telecommunications services or microwave telecommunications, but excluding those used exclusively for fire, police and other dispatch telecommunications, or exclusively for private radio and television reception and private citizen's bands, amateur radio and other similar telecommunications that do not exceed height limitations addressed elsewhere in Town regulations.
- TELECOMMUNICATIONS STRUCTURE
- A structure used in the provision of services described in the definition of "telecommunications tower."
- In relation to all aspects and components of this chapter, something intended to, or that does, exist for fewer than 90 days.
Editor's Note: The definition of “Zoning Board of Appeals or ZBA,” which immediately followed this definition, was repealed 1-18-2005 by L.L. No. 1-2005. See now the definition of “Board” above.
In order to ensure that the placement, construction and modification of telecommunications towers conforms to the Town's land use code or law, the Board creates a special use permit for a telecommunications tower. As such, the Board adopts an overall policy with respect to a special use permit for a telecommunications tower for the express purpose of achieving the following goals:
Implementing an application process for person(s) seeking a special use permit for a telecommunications tower.
Establishing a policy for examining an application for and issuing a special use permit for a telecommunications tower that is both fair and consistent with the current land use code or law of the Town.
Establishing reasonable time frames for granting or not granting a special use permit for a telecommunications tower, or recertifying or not recertifying, or revoking the special use permit granted under this chapter.
Promoting and encouraging, wherever possible, the sharing and/or collocation of a telecommunications tower among service providers.
Promoting and encouraging, wherever possible, the placement of a telecommunications tower in such a manner as to cause minimal disruption to aesthetic considerations of the land, property, buildings and other facilities adjacent to, surrounding and in generally the same area as the requested location of such a telecommunications tower.
All applicants for a special use permit for a telecommunications tower shall comply with the requirements set forth in this section.
Any application for a special use permit for a telecommunications tower shall be signed by an officer of the applicant attesting to the truth and completeness of the information. The landowner, if different that the applicant, shall acknowledge the application and verify that they are aware of the application and are aware that the Town may deny the application or issue a permit with conditions. At the discretion of the Board, any false statement regarding the requirements of this section may subject the applicant to denial of the application without further consideration or opportunity for correction.
Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the Board as invalid, without prejudice to the resubmission by an applicant of an appropriate and complete application.
The applicant shall state in writing:
That the applicant's proposed telecommunications tower will be maintained in a safe manner and in compliance with all conditions of the special use permit, without exception, unless specifically granted relief by the Board in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable county, state and federal laws, rules and regulations.
That the construction of the telecommunications tower is legally permissible, including but not limited to the fact that the applicant is authorized to do business in New York State.
No telecommunications tower shall be installed or constructed until the site plan is reviewed and approved by the Board. The site plan application shall include, in addition to the other requirements for the special use permit under applicable municipal code, the following additional information:
All applications for the construction or installation of a new telecommunications tower shall be accompanied by a report containing the information hereinafter set forth. The report shall be signed by a licensed professional engineer registered in the state and shall contain the following information. Where this section calls for certification, such certification shall be by a qualified New York State licensed professional engineer acceptable to the Town, unless otherwise noted.
The name and address of the person preparing the report.
The name and address of the property owner, operator and applicant, to include the legal form of the applicant.
The postal address and sheet, block and lot or parcel number of the property.
The zoning district or designation in which the property is situated.
The size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines.
The location of the nearest residential structure.
The location of the nearest habitable structure.
The location of all structures on the property which is the subject of the application.
The location, size and height of all proposed and existing antennas and all appurtenant structures.
The type, size and location of all proposed and existing landscaping.
The number, type and design of the telecommunications tower(s) antenna(s) proposed and the basis for the calculations of the telecommunications tower's capacity 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 transmission and maximum effective radiated power of the antenna(s).
The direction of maximum lobes and associated radiation of the antenna(s).
The applicant's proposed tower maintenance and inspection procedures and related system of records.
Certification that NIER levels at the proposed site are within the threshold levels adopted by the FCC, though the certifying engineer need not be approved by the Town.
Certification that the proposed antenna(s) will not cause interference with existing telecommunications devices, though the certifying engineer need not be approved by the Town.
A copy of the FCC license applicable to the use of the telecommunications tower.
Certification that a topographic and geomorphologic study and analysis has been conducted, and that, taking into account the subsurface and substrata, and the proposed drainage plan, that the site is adequate to assure the stability of the proposed telecommunications tower on the proposed site, though the certifying engineer need not be approved by the Town.
Propagation studies of the proposed site and all adjoining proposed or in-service or existing sites.
The applicant shall disclose in writing any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any new telecommunications tower that it constructs.
In the case of a new telecommunications tower, the applicant shall be required to submit a report demonstrating its efforts to secure shared use of existing telecommunications tower(s). Copies of written requests and responses for shared use shall be provided to the Board.
Certification by a licensed engineer that the telecommunications tower and attachments both are designed and constructed ("as built") to meet all county, state and federal structural requirements for loads, including wind and ice loads.
Certification by a licensed engineer that the telecommunications tower is designed with a break point that would result in the telecommunications tower falling or collapsing within the boundaries of the property on which the telecommunications tower is placed.
After construction and prior to receiving a certificate of compliance, the applicant shall have certified by a licensed engineer that the telecommunications tower and related facilities are grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.
The applicant shall submit a completed long form EAF and a completed visual environmental assessment form (visual EAF addendum). The Board may require submission of a more detailed visual analysis based on the results of the visual EAF. Applicants are encouraged to seek preapplication meetings with the Zoning Board of Appeals to address the scope of the required visual assessment.
[Amended 1-18-2005 by L.L. No. 1-2005]
A visual impact assessment which shall at the Board's request 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, including but not limited to state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors or travelers. If requested by the applicant, the Zoning Board of Appeals, acting in consultation with its consultants or experts, will provide guidance concerning the appropriate key sites at a presubmission conference.
[Amended 1-18-2005 by L.L. No. 1-2005]
An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets.
Any and all representations made to the Board, on the record, during the application process, whether written or verbal, shall be deemed a part of the application and will be relied upon in that context and in good faith by the Board.
[Amended 1-18-2005 by L.L. No. 1-2005]
The applicant shall effectively screen from view its proposed telecommunications tower base and all related facilities and structures, subject to Board approval.
All utilities leading to and away from any telecommunications tower site shall be installed underground and in compliance with all laws, rules and regulations of the Town, including specifically but not limited to the National Electrical Safety Code and the National Electrical Code where appropriate. The Board may waive or vary the requirements of undergrounding installation of utilities whenever, in the opinion of the Board, such variance or waiver shall not be detrimental to the health, safety, general welfare or environment, including the visual and scenic characteristics of the area.
All telecommunications towers and accessory facilities shall be sited so as to have the least practical adverse visual effect on the environment and its character, and the residences in the area of the telecommunication tower site.
Accessory facilities shall maximize use of building materials, colors and textures designed to blend with the natural surroundings.
An access road and parking will be provided to assure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent not commercially or physically impracticable. Road construction shall at all times minimize ground disturbance and vegetation-cutting. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential. Usual requirements regarding weight and carrying capacity for emergency vehicles should apply to access roads.
A person who holds a special use permit for a telecommunications tower shall construct, operate, maintain, repair, modify or restore the permitted telecommunications tower in strict compliance with all current technical, safety and safety-related codes adopted by the Town, the county, the state, or the United States, including but not limited to the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsibly workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to construction, building, electrical, fire, safety, health and land use codes.
A holder of a special use permit granted under this chapter shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or Law, and must maintain the same, in full force and effect, for as long as required by the Town or other appropriate governmental entity or agency.
The Board intends to be the lead agency, pursuant to the State Environmental Quality Review Act (SEQRA). The Board shall conduct an integrated, comprehensive environmental review of the proposed project in combination with its review of the application under this chapter.
An applicant shall submit no fewer than eight copies of the entire completed application to the Zoning Board of Appeals and a copy of the application to the legislative body of any adjacent and adjoining municipalities and to the County Planning Agency.
[Amended 1-18-2005 by L.L. No. 1-2005]
The applicant shall examine the feasibility of designing a proposed telecommunications tower to accommodate future demand for at least two additional commercial applications, e.g. future collocations. The scope of this examination shall be determined by the Board. The telecommunications tower shall be structurally designed to accommodate at least two additional antenna arrays equal to those of the applicant, and located as close to the applicant's antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the telecommunications tower is not technologically feasible, or is commercially impracticable and creates an unnecessary and unreasonable burden, based upon:
The number of FCC licenses foreseeably available for the area.
The kind of telecommunications tower site and structure proposed.
The number of existing and potential licenses without telecommunications tower spaces/sites.
Available space on existing and approved telecommunications towers.
Priority of locations.
Applications for telecommunications towers shall locate, site and erect said telecommunications towers or other tall structures in accordance with the following priorities (outside of any residential district within the Town), (a) being the highest priority and (e) being the lowest priority:
[Amended 3-13-2001 by L.L. No. 5-2001]
On existing telecommunications towers or other tall structures.
Collocation on a site with existing telecommunications towers or structures.
In nonresidentially zoned areas of the Town, including on municipally-owned properties.
In nonresidentially zoned areas of the Town.
On other property in the Town.
If the proposed property site is not the highest priority 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 or service provider if not granted, or the benefits that might inure, and the beneficiaries of such an alternative site.
An applicant may not bypass sites of higher priority by stating the site presented is the only site leased or selected. An application shall address collocation as an option and if such option is not proposed, the applicant must explain why collocation is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting collocation shall not be a valid basis for any claim of commercial impracticability or hardship.
Notwithstanding the above, the Board may approve any site located within an area in the above list of priorities, provided that the Board finds that the proposed site is in the best interest of the health, safety and welfare of the Town and its inhabitants.
Upon filing an application for a special use permit for a telecommunications tower, the applicant shall submit a written report demonstrating the applicant's review of the above locations in order of priority, demonstrating the technological reason for the site selection. If the site selected is not the highest priority, then a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.
The applicant shall, in writing, identify and disclose the number and locations of any additional sites that the applicant has, is or will be considering, reviewing or planning for telecommunications towers in the Town and all municipalities adjoining or adjacent to the Town for a two-year period from the date of the subject application.
Notwithstanding that potential sites may be situated in areas described in Subsection A of this section, the Board may disapprove an application for reasons of noncompatibility, for any of the following reasons:
Conflict with safety and safety-related codes and requirements;
Conflict with traffic needs or traffic laws, or definitive plans for changes in traffic flow or traffic laws;
Conflict with the historic nature of a neighborhood or historical district;
The use or construction of a telecommunications tower which is contrary to an already stated purpose of a specific zoning or land use designation;
The placement and location of a telecommunications tower which would create an unacceptable risk, or the probability of such, to residents, the public, employees and agents of the Town, or employees of the service provider or other service providers; or
Otherwise conflict with the provisions of this chapter.
Shared use of existing telecommunications towers shall be preferred by the Town, as opposed to the proposed construction of new telecommunications towers. Additionally, where such shared use is unavailable, location of antennas on other preexisting structures shall be considered and preferred. The applicant shall submit a comprehensive report inventorying existing towers and other appropriate structures within four miles of any proposed new tower site, unless the applicant can show that some other distance is more reasonable, and outlining opportunities for shared use of existing facilities and the use of other preexisting structures as a preferred alternative to new construction.
An applicant intending to share use of an existing telecommunications tower or other tall structure shall be required to document the intent of the existing owner to share use.
With respect to an application to share the use of an existing telecommunications tower that does not increase the height of the telecommunications tower, the Board shall waive such requirements of the application required by this chapter as may be upon good cause shown. The applicant is encouraged to seek a preapplication meeting with the Board to review such a proposed application and settle the waivers or established provisions which will help to expedite review and permitting for such applications. The purpose of such waivers or other alternative procedures shall be to expedite for the applicant and the Town the review and permitting for the shared use of an existing telecommunications tower.
Such shared use shall consist only of the minimum antenna array technologically required to provide service within the Town, to the extent practicable, unless good cause is shown.
The applicant must submit documentation justifying to the Board the total height of any telecommunications tower and/or antenna and the basis therefor. Such justification shall be to provide service within the Town, to the extent practicable, unless good cause is shown.
Telecommunications towers shall be no higher than the minimum height necessary. Unless waived by the Board upon good cause shown, the presumed maximum height shall be 140 feet, based on three collocated antenna arrays and ambient tree height of 80 feet.
The maximum height of any telecommunications tower and attached antennas constructed after the effective date of this chapter shall not exceed that which shall permit operation without artificial lighting of any kind or nature, in accordance with municipal, county, state and/or any federal law and/or regulation.
Telecommunications towers shall not be artificially lighted or marked, except as required by law.
Telecommunications towers shall be of a galvanized finish, or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings as approved by the Board, 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, and an artist's rendering or other visual representation showing the effect of light emanating from the site on neighboring habitable structures within 1,500 feet of all property lines on which the telecommunications tower is located.
All telecommunications towers and antennas shall be located, fenced or otherwise secured in a manner which prevents unauthorized access. Specifically:
All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or run into.
Transmitters and telecommunications control points must be installed such that they are readily accessible only to persons authorized by the FCC's licensee to operate or service them.
Telecommunications towers shall contain a sign no larger than four square feet to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities. The sign shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be located so as to be visible from the access point of the site. No other signage, including advertising, shall be permitted on any antennas, antenna supporting structures or antenna towers unless required by law.
All proposed communications towers shall be set back from abutting parcels, recorded rights-of-way and road and street lines a distance sufficient to substantially contain on-site all ice-fall or debris from a tower or tower failure, and to preserve the privacy and sanctity of any adjoining properties.
Telecommunications towers shall be located with a minimum setback from any property line a distance equal to 1/2 the height of the tower or the existing setback requirement of the underlying zoning district, whichever is greater. Further, any accessory structure shall be located so as to comply with the minimum setback requirements for the property on which it is situated.
The Board may hire any consultant and/or expert necessary to assist the Board in reviewing and evaluating the application and any requests for recertification.
[Amended 1-18-2005 by L.L. No. 1-2005]
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 Board in connection with the review of any application. The initial deposit shall be $7,500. These funds shall accompany the filing of an application and the Town will maintain a separate escrow account for all such funds. The Town's consultants/experts shall bill or invoice the Town no less frequently than monthly for its services in reviewing the application and performing its duties. If at any time during the review process this escrow account shows a negative balance, additional funds must be submitted to the Town before any further action or consideration will be permitted to be taken on the application. If at the conclusion of the review process the cost of such consultant/expert services is more than the amount escrowed pursuant hereto, the applicant shall pay the difference to the Town prior to the issuance of any special use permit. In the event that the amount held in escrow by the Town is more than the amount of the actual billing or invoicing, the difference shall be promptly refunded to the applicant.
The total amount of the funds 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 by the Board or its consultant/expert to complete the necessary review and analysis. Additional funds, as required, shall be paid by the applicant. The initial amount of the escrow deposit shall be established at a preapplication meeting with the Town. Notice of the hiring of a consultant/expert shall be given to the applicant at or before this meeting.
No person shall be permitted to site, place, build, construct or modify or prepare any site for the placement or use of a telecommunications tower as of the effective date of this chapter without having first obtained a special use permit for a telecommunications tower. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those exceptions noted in the definition of telecommunications tower.
New construction, including routine maintenance on an existing telecommunications tower, shall comply with the requirements of this chapter.
All telecommunications towers existing on or before the effective date of this chapter shall be allowed to continue their usage as they presently exist; provided, however, that any modification to existing towers must comply with this chapter.
Prior to the approval of any application for a special use permit for a telecommunications tower, a public hearing shall be held by the Zoning Board of Appeals, notice of which shall be published in the official newspaper of the Town no less than two weeks prior to the scheduled date of the public hearing. In order that the Town may notify nearby landowners, the applicant, at least three weeks prior to the date of said public hearing, shall be required to provide names and addresses of all landowners whose property is located within 1,500 feet of any property line of the parcel on which the proposed new telecommunications tower is proposed to be located.
[Amended 1-18-2005 by L.L. No. 1-2005]
The Board will undertake a review of an application pursuant to this chapter in a timely fashion, consistent with its responsibilities, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public's interest and need to be involved, and the applicant's desire for a timely resolution.
The Board may refer any application or part thereof to any advisory or other committee for a nonbinding recommendation.
Except for necessary building permits and subsequent certificates of compliance, no additional permits or approvals from the Town, e.g., site plan or zoning approvals, shall be required for telecommunications towers or facilities covered by this chapter.
After formally considering the application, the Board may approve and issue, or deny, a special use permit. Its decision shall be in writing and shall be based on substantial evidence upon a record. The burden of proof for the grant of the permit shall always be upon the applicant.
If the Board approves the special use permit for a telecommunications tower, then the applicant shall be notified of such approval in writing within 10 calendar days of the Board's action, and the special use permit shall be issued within 30 days after such approval.
If the Board denies the special use permit for a telecommunications tower, then the applicant shall be notified of such denial in writing within 10 calendar days of the Board's action.
The Town's decision on an application for a special use permit for a telecommunications tower shall be supported by substantial evidence contained in a written record.
At any time between 12 months and six months prior to the five-year anniversary date and all subsequent fifth anniversaries of the original granting of a special use permit for a telecommunications tower, the holder of a special use permit for such tower shall submit a written request for recertification. In the written request for recertification, the holder of such special use permit shall note the following:
The name of the holder of the special use permit for the telecommunications tower.
If applicable, the number or title of the special use permit.
The date of the original granting of the special use permit.
Whether the telecommunications tower has been moved, relocated, rebuilt, repaired or otherwise modified since the issuance of the special use permit.
If the telecommunications tower has been moved, relocated, rebuilt, repaired or otherwise modified, then whether the Board approved such action, and under what terms and conditions, and whether those terms and conditions were complied with and abided by.
Any requests for waivers or relief of any kind whatsoever from the requirements of this chapter and any requirements for a special use permit.
That the telecommunications tower is in compliance with the special use permit and compliance with all applicable codes, laws, rules and regulations.
If, after such review, the Board determines that the permitted telecommunications tower is in compliance with the special use permit and all applicable codes, laws and rules, then the Board shall issue a recertification special use permit for the telecommunications tower, which may include any new provisions that are mutually agreed upon, or required by the force of law or regulation.
If the Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted telecommunications tower shall receive an extension of the special use permit for up to six months, in order for the Board to complete its review as noted in Subsection B of this section.
If the holder of a special use permit for a telecommunications tower does not submit a request for recertification of such special use permit within the time frame noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a recertification request for the existing special use permit for a telecommunications tower to be extended for up to six months in order to allow the Board adequate time to review the recertification request.
The extent and parameters of a special use permit for a telecommunications tower shall be as follows:
Such special use permit shall be nonexclusive.
Such special use permit shall not be assignable or transferable without the express written consent of the Board, and such consent shall not be unreasonably withheld.
Such special use permit may be revoked, canceled or terminated for a violation of the conditions and provisions of the special use permit for a telecommunications tower, or for a material violation of this chapter.
An application fee shall be paid at the time that a permit application is submitted hereunder. Said fee shall be determined annually by the Town Board and shall be part of the annual fee resolution of the Town Board establishing fees for all Town permits and activities. The Town Board shall set two fees: one for the construction of a tower and a second fee for collocating on an existing tower.
An application fee is not required in order recertify a special use permit for a telecommunications tower, unless there has been a modification of the telecommunications tower since the date of the issuance of the existing special use permit. In the case of any modification, Subsection A shall apply.
The applicant and the owner of record of any proposed telecommunications tower property site shall be jointly required to execute and file with the Town a bond or other form of security acceptable to the Town as to type of security and the form and manner of execution in an amount deemed sufficient by the Board to assure the faithful performance of the terms and conditions of this chapter and any special use 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 use permit and/or until the removal of the telecommunications tower, and any necessary site restoration is completed.
In order to verify that the holder of a special use permit for a telecommunications tower and any and all lessees, renters and/or licensees of a telecommunications tower place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building and land use codes or other applicable requirements, the Town 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 the permitted site.
The Town shall pay for all of its costs associated with such an inspection, except for those circumstances occasioned by said holder's, lessee's or licensee's refusal to provide necessary information or necessary access to such facilities, including towers, antennas, and appurtenant or associated facilities, or refusal to otherwise cooperate with the Town with respect to an inspection, or if violations of this chapter are found to exist, in which case the holder, lessee or licensee shall reimburse the Town for the cost of the inspection.
Payment of such reimbursement shall be made to the Town within 30 days from the date of the invoice or other demand for reimbursement. In the event that the finding(s) of violation is/are appealed in accordance with the procedures set forth in this chapter, said reimbursement payment must still be paid to the Town and the reimbursement shall be placed in an escrow account established by the Town specifically for this purpose, pending the final decision on appeal.
A holder of a special use permit for a telecommunications tower shall secure and at all times maintain public liability insurance, property damage insurance and umbrella insurance coverage for the duration of the special use permit in amounts as set forth below
The public and personal liability and property damage insurance policy shall specifically include the Town and its officials, employees and agents as additional insureds.
The public and personal liability insurance and property damage insurance policy shall be issued by an agent or representative of an insurance company licensed to do business in the state.
The public liability and property damage insurance policy shall contain an endorsement obligating the insurance company to furnish the Town with at least 30 days' written notice in advance of the cancellation of the insurance.
Renewal or replacement policies or certificates shall be delivered to the Town at least 15 days before the expiration of the insurance which such policies are to renew or replace.
Before construction of a permitted telecommunications tower is initiated, but in no case later than 15 days after the grant of the special use permit, the holder of the special use permit shall deliver to the Town a copy of each of the policies or certificates representing the insurance in the required amounts.
Any special use permit issued pursuant to this chapter shall contain a provision with respect to indemnity. Such provision shall require the holder of the special use permit, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless and exempt the Town, officials of the Town, its officers, agents, servants, and employees from any and all penalties, damage or charges arising out of any and all claims, suits, demands, causes of action or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the construction, erection, modification, location, products performance, operation, maintenance, repair, installation, replacement, removal or restoration of a telecommunications tower within the Town. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees and expert witness fees are included in those costs that are recoverable by the Town.
In the event of a violation of this chapter or any special use permit issued pursuant to this chapter, the Board may impose and collect, and the holder of the special use permit for a telecommunications tower shall pay to the Town, fines or penalties as set forth in § 268 of the Town Law of the State of New York.
Notwithstanding anything in this chapter, the holder of the special use permit for a telecommunications tower 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 use permit to termination and revocation of the special use permit. The Town may also seek injunctive relief to prevent the continued violation of this chapter.
When any permitted telecommunications tower is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with either the Town's land use code, or the provisions of this chapter or of the special use permit, then the Board shall notify the holder of the special use permit for a telecommunications tower of the specific inconsistent, noncompliant or violative use or situation. Such notice shall indicate that the telecommunications tower, and any appurtenant or related facilities located at the permitted site, is in violation of or noncompliance with the requirements of this chapter or the special use permit, and that the holder of the special use permit is in default of its special use permit, and that the facilities must be returned to consistent, compliant use and status within seven days of the date of the postmark of the Notice, or of the date of personal service of the notice, whichever is applicable. Notwithstanding anything to the contrary in this Subsection or any other section of this chapter, if the situation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, in the sole determination of the Board, the Board may, at its sole discretion, order the violative or noncompliant situation remedied within 24 hours.
If within the seven day period set forth in § 277-26A the affected and noncompliant telecommunications tower is not brought into compliance with either the land use code or the provisions of this chapter or of the special use permit, or substantial steps are not taken in order to bring the affected telecommunications tower into compliance, then the Board may revoke such special use permit for a telecommunications tower, and shall notify the holder of the special use permit within 48 hours of such action.
Under the following circumstances, the Board may determine that the health, safety and welfare interests of the Town warrant and require the removal of a telecommunications tower.
A permitted telecommunications tower has been abandoned for a period exceeding 90 days or a total of 180 days in any three-hundred-sixty-five-day period, which in this case means not used for the intended and permitted purpose for such a period, except for situations caused by the commonly recognized definition of force majeur or Acts of God of an extraordinary and catastrophic nature and effect.
A permitted telecommunications tower falls into such a state of disrepair that it creates a health or safety hazard.
A telecommunications tower has been located, constructed or modified on property located within the Town without having obtained the required special use permit or other necessary authorization.
If the Board makes such a determination as noted in Subsection A of this section, then the Board shall notify the holder of the special use permit for the telecommunications tower within 48 hours that said telecommunications tower must and shall be removed, unless the Board approves an interim temporary use agreement/permit, such as to enable the sale of the telecommunications tower.
If a telecommunications tower is not removed voluntarily within 90 days after the permit holder has received notice, or substantial progress has not been made to remove the telecommunications tower within 90 days of said notice, then the Board may order officials or representatives of the Town to remove the telecommunications tower at the sole expense of the owner or permit holder, or the Town, at its discretion, may take possession of the telecommunications tower.
If, pursuant to Subsection C of this section, officials, employees or representatives of the Town remove or cause to be removed a telecommunications tower, and the owner of the telecommunications tower does not claim the property and remove it within 10 days, then the Town may take whatever steps are available under State law to declare the telecommunications tower abandoned, and sell the facility and its components.
If the Board approves an interim temporary use agreement/permit for the telecommunications tower, such agreement/permit shall be for no more 90 days, during which time a suitable plan for removal, conversion or relocation of the affected telecommunications tower shall be developed by the holder of the permit, subject to the approval of the Board, and an agreement to such plan shall be executed by the holder of the permit and the Town. If such a plan is not developed within the ninety-day time frame, then the Town may take possession of and dispose of the affected telecommunications tower in the manner noted in Subsection C of this section.
In the event that a telecommunications tower is no longer used for the purpose specified in the application, or the telecommunications tower ceases operations for a period of 180 days in any three-hundred-sixty-five-day period, the holder of the special use permit, or its successors or assigns, shall dismantle and remove such telecommunications tower 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 Board. However, if the owner of the property upon which the telecommunications tower is located wishes to retain any access roadway to the telecommunications tower, the owner may do so with the approval of the Board.
Any applicant desiring relief or exemption from any aspect or requirement of this chapter may request such from the Board at a preapplication meeting, provided that the relief or exemption is contained in the original application for either a special use permit or, in the case of an existing or previously granted special use permit, a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete, at the sole discretion of the Board. However, the burden of proving the need for the requested relief or exemption, and its lack of significant effect on the Town or its residents or other service providers, is solely on the applicant to prove to the satisfaction of the Board. The applicant shall bear all costs of the Board or the Town in considering the request and the relief shall not be transferable to a new or different holder of the permit or owner of the tower or facilities without the specific written permission of the Board, and such permission shall not be unreasonably withheld.
The Board 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 Board determines that one or more provisions of this chapter should be amended, repealed, revised, clarified or deleted, then the 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 Board may repeal this entire chapter at any time.
To the extent that the holder of a special use permit for a telecommunications tower 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 use 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 use permit for a telecommunications tower, then the holder of such a special use permit shall conform the permitted telecommunications tower to the applicable changed and/or modified rule, regulation, standard, or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard, or provision, or sooner as may be required by the issuing entity.
Where this chapter differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the county, state or federal government, the more restrictive or protective of the Town and the public shall apply.
This chapter is enacted pursuant to the Municipal Home Rule Law. This chapter shall supersede the provisions of Town Law to the extent it is inconsistent with the same, and to the extent permitted by the New York State Constitution, the Municipal Home Rule Law or any other applicable statute.