[HISTORY: Adopted by the Town Board of the Town of Wheatland 9-18-2003
by L.L. No. 3-2003. Amendments noted where applicable.]
The Telecommunications Act of 1996 affirmed the Town of Wheatland’s
authority concerning the placement, construction and modification of wireless
telecommunications facilities. The Town of Wheatland 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 Wheatland.
This chapter shall be known and cited as the “Wireless Telecommunications
Facilities Siting Local Law for the Town of Wheatland.”
A.
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.
B.
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 determination by the Town.
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.
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 transmits or receives 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
use permit for wireless telecommunications facilities.
All necessary and appropriate documentation that an applicant submits
in order to receive a special use permit for wireless telecommunications facilities.
The Town Board of the Town of Wheatland.
The use of a tower or structure to support antennas for the provision
of wireless services without increasing the height of the tower or structure.
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 commercial impracticable
and shall not render an act or the terms of an agreement commercially impracticable.
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 or lightning protection device.
The addition, removal or change of any of the physical and visually
discernable 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 discernable components, vehicular
access, parking and/or an upgrade or changeout 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 for any matters that involve the normal repair and maintenance of a wireless
facility without adding, removing or changing anything.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership, joint-stock
company, association of two or more persons having a joint common interest,
or any other entity.
See definition for “wireless telecommunications facilities.”
Shall have the same meaning as defined and used in the 1996 Telecommunications
Act.
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.
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.
The State of New York.
The transmission and/or reception of audio, video, data, and other
information by wire, radio frequency, light, and other electronic or electromagnetic
systems.
See definition for “wireless telecommunications facilities.”
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.
The Town of Wheatland.
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 camouflage 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 or exclusively for private, noncommercial radio and television
reception and private citizen’s bands, amateur radio and other similar
noncommercial telecommunications where the height of the facility is below
the height limits set forth in this chapter.
In order to ensure that the placement, construction, and modification
of wireless telecommunications facilities protects the Town’s health,
safety, public welfare, 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 hereby adopts an overall policy
with respect to a special use permit for wireless telecommunications facilities
for the express purpose of achieving the following goals:
A.
Implementing an application process for person(s) seeking
a special use permit for wireless telecommunications facilities;
B.
Establishing a policy for examining an application for
and issuing a special use permit for wireless telecommunications facilities
that is both fair and consistent.
C.
Establishing reasonable time frames for granting or not
granting a special use permit for a telecommunications tower, or recertifying
or not certifying, or revoking the special use permit granted under this chapter.
D.
Promoting and encouraging, wherever possible, the sharing
and/or collocation of wireless telecommunications facilities among service
providers;
E.
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.
A.
All applicants for a special use 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 whom applications for a special use
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
use permits for wireless telecommunications facilities. The Town 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 use permits for wireless telecommunications facilities.
B.
An application for a special use 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, any false or misleading statement in the application
may subject the applicant to denial of the application without further consideration
or opportunity for correction.
C.
Applications not meeting the requirements stated herein
or which are otherwise incomplete, may be rejected by the Town.
D.
The applicant shall include a statement in writing that:
(1)
The applicant’s proposed wireless telecommunications
facilities shall be maintained in a safer manner, and in compliance with all
conditions of the special use permit, without exception, unless specifically
granted relief by the Town 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;
(2)
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.
E.
No wireless telecommunications facilities shall be installed
or constructed until the application is reviewed and approved by the Town,
and the special use permit has been issued.
F.
All applications for the construction or installation
of new wireless telecommunications facilities shall contain the information
hereinafter set forth. The application shall be signed by an authorized individual
on behalf of the applicant. 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:
(1)
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;
(2)
The name, address and phone number of the person preparing
the report;
(3)
The name, address, and phone number of the property owner,
operator, and applicant, and to include the legal form of the applicant;
(4)
The postal address and tax map parcel number of the property;
(5)
The zoning district or designation in which the property
is situated;
(6)
The size of the property stated both in square feet and
lot line dimensions, and a diagram showing the location of all lot lines;
(7)
The location of the nearest residential structure;
(8)
The location, size and height of all structures on the
property which is the subject of the application;
(9)
The location, size and height of all proposed and existing
antennas and all appurtenant structures;
(10)
The type, locations and dimensions of all proposed and
existing landscaping, and fencing;
(11)
The number, type and design of the tower(s) and antenna(s)
proposed and the basis for the calculations of the tower’s capacity
to accommodate multiple users;
(12)
The make, model and manufacturer of the tower and antenna(s);
(13)
A description of the proposed tower and antenna(s) and
all related fixtures, structures, appurtenances and apparatus, including height
above preexisting grade, materials, color and lighting;
(14)
The frequency, modulation and class of service of radio
or other transmitting equipment;
(15)
The actual intended transmission and the maximum effective
radiated power of the antenna(s);
(16)
The direction of maximum lobes and associated radiation
of the antenna(s);
(17)
Certification that the NIER levels at the proposed site
are within the threshold levels adopted by the FCC;
(18)
Certification that the proposed antenna(s) will not cause
interference with other telecommunications devices;
(19)
A copy of the FCC license applicable for the intended
use of the wireless telecommunications facilities;
(20)
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, the site is adequate to assure
the stability of the proposed wireless telecommunications facilities on the
proposed site.
G.
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.
H.
The applicant shall certify 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.
I.
The applicant shall certify that the wireless telecommunications
facilities will be effectively grounded and bonded so as to protect persons
and property and installed with appropriate surge protectors.
J.
An applicant may be required to submit an environmental
assessment analysis 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.
K.
The applicant shall furnish a visual impact assessment,
which shall include:
(1)
A “ Zone of Visibility Map” which shall be
provided in order to determine locations from which the tower may be seen.
(2)
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 from 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.
(3)
An assessment of the visual impact of the tower base,
guy wires and accessory buildings from abutting and adjacent properties and
streets as relates to the need or appropriateness of screening.
L.
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.
M.
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.
N.
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.
O.
All wireless telecommunications facilities shall contain
a demonstration that the facility 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.
P.
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
it 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.
Q.
At a telecommunications site, an access road, turnaround
space and parking shall be provided to assure adequate emergency and service
access. 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.
R.
A person who holds a special use 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 of Wheatland, State of New York,
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.
S.
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 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.
T.
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 and to the Town Planning Department.
U.
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 collocations. 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 provisions
of future shared usage of the tower is not technologically feasible, is commercially
impracticable or creates an unnecessary and unreasonable burden, based upon:
(1)
The foreseeable number of FCC licenses available for
the area;
(2)
The kind of wireless telecommunications facilities site
and structure proposed;
(3)
The number of existing and potential licenses without
wireless telecommunications facilities spaces/sites;
(4)
Available space on existing and approved towers.
V.
Shared use.
(1)
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:
(a)
Respond within 60 days to a request for information from
a potential shared-use applicant;
(b)
Negotiate in good faith concerning future requests for
shared use of the new tower by other Telecommunications providers;
(c)
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.
(2)
Failure to abide by the conditions outlined above may
be grounds for revocation of the special use permit for the tower.
W.
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.
X.
The holder of a special use 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.
Y.
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 foot
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 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.
Z.
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.
A.
Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities in
accordance with the following priorities, one being the highest priority and
six being the lowest priority:
(1)
On existing towers or other structures without increasing
the height of the tower or structure;
(2)
On Town-owned properties;
(3)
On properties in areas zoned for heavy industrial use;
(4)
On properties in areas zoned for commercial use;
(5)
On properties in areas zoned for agricultural use;
(6)
On properties in areas zoned for residential use;
B.
If the proposed site is not proposed for 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 if the permit were not granted for the proposed
site.
C.
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 collocation as an option. If such option is not proposed, the
applicant must explain to the reasonable satisfaction of the Town 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.
D.
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.
E.
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.
F.
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.
(1)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with the historic nature or character of a neighborhood
or historical district;
(3)
The use or construction of wireless telecommunications
facilities which is contrary to an already stated purpose of a specific zoning
or land use designation;
(4)
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;
(5)
Conflicts with the provisions of this chapter.
A.
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 four 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.
B.
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.
C.
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.
A.
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.
B.
The maximum permitted height of a new tower shall be
140 feet, based on six collocated antenna arrays requiring 10 feet of vertical
space each, and an ambient tree height of 80 feet.
C.
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, Town, state, and/or any federal statute, law,
local law, Town ordinance, code, rule or regulation.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.
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.
C.
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:
A.
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 collided with;
and
B.
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 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 owner(s) and operator(s)
of the antenna(s) as well as emergency phone number(s). The sign shall be
on the equipment shelter or cabinet of the applicant and be visible from the
access point of the site and must identify the equipment owner of the shelter
or cabinet. The sign shall not be lighted, unless lighting is required by
applicable law, rule or regulation. No other signage, including advertising,
shall be permitted.
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded rights-of-way
and road and street lines by the greater of the following distances: a distance
equal to the height of the proposed tower or wireless telecommunications facility
structure plus 10% of the height of the tower or structure, or the existing
setback requirement of the underlying zoning district, whichever is greater.
Any Accessory structure shall be located so as to comply with the applicable
minimum setback requirements for the property on which it is situated.
A.
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.
B.
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.
C.
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.
A.
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 use permit for wireless telecommunications facilities. Notwithstanding
anything to the contrary in this section, no special use permit shall be required
for those noncommercial exceptions noted in the definition of “wireless
telecommunications facilities.”
B.
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 visible modification
of an existing Wireless Telecommunications Facility must comply with this
chapter.
A.
Prior to the approval of any application for a special
use permit for wireless telecommunications facilities, a public hearing shall
be held by the Town, notice of which shall be published in the official newspaper
of the Town no less than 10 calendar days prior to the scheduled date 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 property is located
within 1,500 feet of any property line of the lot or parcel on which the new
wireless telecommunications facilities are proposed to be located.
B.
There shall be no public hearing required for an application
to collocate on an existing tower or other structure, as long as there is
no proposed increase in the height of the tower or structure, including attachments
thereto.
A.
The Town Building Inspector 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.
B.
The Town Building Inspector may refer any application
or part thereof to any advisory or other committee for a nonbinding recommendation.
C.
After the public hearing and after formally considering
the application, the Town may approve, approve with conditions, or deny a
special use 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.
D.
If the Town approves the special use permit for wireless
telecommunications facilities, then the applicant shall be notified of such
approval in writing within 10 calendar days of the Town’s action, and
the special use permit shall be issued within 30 days after such approval.
Except for necessary building permits, and subsequent certificates of compliance,
once a special use 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 for the wireless telecommunications facilities covered
by the special use permit.
E.
If the Town denies the special use 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.
A.
Between 12 months and six months prior to the five-year
anniversary date after the effective date of the special use permit and all
subsequent five-year anniversaries of the effective date of the original special
use permit for wireless telecommunications facilities, the holder of a special
use permit for such wireless telecommunication facilities shall submit a signed
written request to the Town Board for recertification. In the written request
for recertification, the holder of such special use permit shall note the
following:
(1)
The name of the holder of the special use permit for
the wireless telecommunications facilities;
(2)
If applicable, the number or title of the special use
permit;
(3)
The date of the original granting of the special use
permit;
(4)
Whether the wireless telecommunications facilities have
been moved, relocated, rebuilt, or otherwise visibly modified since the issuance
of the special use permit and if so, in what manner;
(5)
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;
(6)
That the wireless telecommunications facilities are in
compliance with the special use permit and compliance with all applicable
codes, laws, rules and regulations;
(7)
Recertification that the tower and attachments both are
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.
B.
If, after such review, the Town determines that the permitted
wireless telecommunications facilities are in compliance with the special
use permit and all applicable statutes, laws, local laws, ordinances, codes,
rules and regulations, then the Town issue a recertification of the special
use 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 use permit and all applicable
statutes, laws, ordinances, codes, rules and regulations, then the Town may
refuse to issue a recertification special use 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.
C.
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 use permit, or subsequent five-year anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months, in order for the completion of the review.
D.
If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the timeframe 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 five-year anniversaries, unless the holder of the special use 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 use permit may submit a late recertification request or application for a new special use permit.
The extent and parameters of a special use permit for wireless telecommunications
facilities shall be as follows:
A.
Such special use permit shall be nonexclusive;
B.
Such special use permit shall not be assigned, transferred
or conveyed without the express prior written notification to the Town;
C.
Such special use 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 use permit, or
for a material violation of this chapter after prior written notice to the
holder of the special use permit.
A.
At the time that a person submits an application for
a special use 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
use permit for collocating 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.
B.
No application fee is required in order to recertify a special use permit for wireless telecommunications facilities, unless there has been a visible modification of the wireless telecommunications facility since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in Subsection A shall apply.
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 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
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
use permit.
In order to verify that the holder of a special use permit for wireless
telecommunications facilities and any and all lessees, renters, and/or licensees
of wireless telecommunications facilities place and construct 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 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 holder of the special use permit shall, annually, certify to the
Town that NIER levels at the site are within the threshold levels adopted
by the FCC.
A.
A holder of a special use 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 use permit in amounts as set forth below:
B.
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 insureds.
C.
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.
D.
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.
E.
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.
F.
Before construction of a permitted wireless telecommunications
facilities 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.
A.
Any application for Wireless Telecommunication 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.
A.
In the event of a violation of this chapter or any special
use permit issued pursuant to this chapter, the Town may impose and collect,
and the holder of the special use permit for wireless telecommunications facilities
shall pay to the Town, fines or penalties as set forth below.
B.
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 $750 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 $750 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, violations of this chapter or of such
ordinance 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.
C.
Notwithstanding anything in this chapter, the holder
of the special use 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 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, without limiting
other remedies available to the Town.
A.
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 use permit, then the Town shall notify the holder of the special
use 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 twenty-four (24) hours.
B.
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 use 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 use permit for wireless telecommunications facilities, and shall notify the holder of the special use permit within 48 hours of such action.
A.
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:
(1)
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;
(2)
Permitted wireless telecommunications facilities fall
into such a state of disrepair that they create health or safety hazard;
(3)
wireless telecommunications facilities have been located,
constructed, or modified without first obtaining, or in a manner not authorized
by, the required special use permit, or any other necessary authorization.
B.
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 use 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.
C.
The holder of the special use 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.
D.
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 use permit holder.
E.
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 them 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.
F.
Notwithstanding anything in this section to the contrary,
the Town may approve a temporary use permit/agreement for the wireless telecommunications
facilities, for no more than 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 use permit, subject
to the approval of the Town, and an agreement to such plan shall be executed
by the holder of the special use 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 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.
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, waiver or exemption
will have no significant effect on the health, safety and welfare of the Town,
its residents and other service providers.
A.
The Town may at any time conduct a review and examination
of this entire, local law.
B.
If, after such a periodic review and examination of this
chapter, the Town determines that one or more provisions of this chapter should
be amended, repealed, revised, clarified, or deleted, then the Town 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 may repeal this entire local law at any time.
A.
To the extent that the holder of a special use 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 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.
B.
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 wireless telecommunications
facilities, then the holder of such a special use 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.
Where this chapter differs or conflicts with other laws, rules and regulations,
unless the right to do so is preempted or prohibited by the town, state or
federal government, this chapter shall apply.