[HISTORY: Adopted by the Town Board of the Town of Eden 4-14-2004
by L.L. No. 2-2004.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Conservation easements — See Ch. 95.
Fire prevention and building construction — See Ch. 110.
Subdivision of land — See Ch. 184.
Zoning — See Ch. 225.
[1]
Editor's Note: This local law supersedes former Ch. 197, Telecommunications
Facilities, adopted 2-12-1997 by L.L. No. 2-1997.
The Town of Eden recognizes the increased demand for wireless communication
transmitting facilities and the need for the services they provide. Often,
these facilities require the construction of a communications tower and/or
similar facilities. The intent of this chapter is to regulate the location,
construction and modification of telecommunications facilities in accordance
with the guidelines of the Telecommunications Act of 1996 and other applicable
laws by:
A.
Accommodating the need for telecommunications towers/antennas
while regulating their location and number in the community.
B.
Minimizing adverse visual impacts of these towers/antennas
through proper siting, design and screening.
C.
Preserving and enhancing the positive aesthetic qualities
of the natural environment and current development in the Town of Eden.
D.
Providing for the health, safety and welfare of the community
by avoiding potential damage or other negative impact to adjacent properties
from tower failure, falling ice, etc., through proper siting and engineering.
E.
Requiring the joint use of towers when available and
encouraging the placement of antennas on existing structures to minimize the
number of such structures in the future.
As used in this chapter, the following terms shall have the meanings
indicated:
A nonhabitable accessory facility or structure serving or being used
in conjunction with a communications tower and/or similar facility and usually
located on the same lot as the communications tower. Examples of such structures
include utility or transmission equipment storage sheds or cabinets.
A system of electrical conductors that transmits or receives frequency
signals. Such signals shall include but not be limited to radio, television,
cellular, paging, digital and/or data communications, personal wireless communication
services (PWS) and microwave communications.
One or more towers, foundations, supporting devices, and/or antennas
and accessory structures used in connection with the provision of cellular
telephone service, personal communications services, digital and/or data communication
services, paging services, radio and television broadcast services, switches
and/or routers and similar broadcast services (also referred to as "facilities"
or equipment").
A structure designed or used to support antennas and/or satellite
dishes. It includes, without limit, freestanding towers, guyed towers, monopoles
and similar structures which do or which do not employ camouflage technology.
A.
No telecommunications facility shall be sited, located,
constructed, erected or modified without the issuance of a building permit
and such other permits or approvals as are prescribed in this chapter.
B.
All applications shall be processed with due regard for
lighting and safety requirements of state or local agencies and/or emergency
services (such as Mercy Flight, Erie County Sheriff's Department, etc.).
C.
Collocated/existing structure antennas.
(1)
An antenna that is to be attached to an existing communications
tower, smoke stack, water tower or other existing structure is permitted in
all zoning districts.
(2)
Approvals and bulk requirements.
(a)
The antenna is permitted as of right upon issuance of
a building permit. The building permit application will include the following:
[1]
A structural analysis/report, certified by a New York
State licensed professional engineer or architect, verifying the ability of
the structure to safely support the antenna.
[2]
Certification by a qualified radio frequency engineer
(signed and sealed by a professional engineer registered in the State of New
York) that the cumulative emissions from all antennas proposed to be located
at the proposed site meet federal guidelines.
(b)
The height of the new antenna shall not extend above
the height of the existing structure by more than 50 feet.
(c)
The antenna and any mounting structure and related equipment
shall be integrated into said structure in such a manner as to minimize its
visual impact to the greatest extent practicable.
(3)
When the telecommunication facilities owner applies to
renew the special use permit, a complete inventory of all existing facilities
currently collocated upon the subject tower shall be submitted. Inventory
shall include, but not be limited to: a description of the collocated facilities,
a plan showing the location of the collocated facilities upon the tower, and
the owner of the collocated facilities.
D.
Non-collocated/new structure antennas. An antenna that
will not be mounted on an existing structure as defined above, or is more
than 50 feet higher than the existing structure on which it is mounted, is
permitted in accordance with the following regulations:
(1)
No application for a non-collocated or a new site for
a telecommunications facility shall be considered complete unless and until
the applicant shall have submitted a report which establishes to the satisfaction
of the Planning Board the following: that the applicant is required to provide
service to locations which it is not able to serve through existing facilities
which are located either within or outside of the Town, showing the specific
locations and/or areas the applicant is seeking to serve.
(2)
The report shall set forth an inventory of existing facilities
and/or structures, within or outside of the Town, which might be utilized
or modified in order to provide coverage to the locations the applicant is
seeking to serve and include a report on the possibilities and opportunities
for collocation as an alternative to a new site.
(3)
The applicant must demonstrate that the proposed facility
cannot be accommodated on any such existing facility or structure either within
or outside of the Town due to one or more of the following reasons:
(a)
The proposed equipment would exceed the existing and
reasonably potential structural capacity of existing facilities or structures
within or outside of the Town, considering existing and planned use for those
facilities or structures.
(b)
The existing or proposed equipment would cause interference
with other existing or proposed equipment, which could not reasonably be mitigated
or prevented.
(c)
Said existing facilities or structures do not have space
on which the proposed equipment can be placed so it can function effectively
and reasonably, and/or the applicant has not been able, following good faith
efforts, to reach an agreement with the owner(s) of such facilities or structures.
(d)
Other reasons which make it impracticable to locate or
place the proposed equipment on said facilities or structures.
E.
Zoning districts, approvals and bulk requirements. In
all zoning districts, new towers must be set back a minimum of 500 feet from
all residential dwellings, schools and historic structures.
(1)
On municipal or government-owned property or in industrial
districts (GI or PI areas):
(2)
In RR, GB, OB, C and A Zoning Districts:
(a)
Approvals and bulk requirements: site plan approval and
a tower special permit as set forth herein.
(b)
The tower must be set back a minimum of the height of
the tower from all property lines and any existing building(s). The Planning
Board may require an additional setback area in the case of guyed towers,
taking into consideration the length of guy wires and the location of ground
anchors.
(c)
The maximum height of a tower in these zoning districts
is 195 feet. A variance will be required from the Zoning Board of Appeals,
following review by the Planning Board, to exceed this height.
(d)
Towers exceeding 195 feet in height in these zoning districts
shall be treated as Type 1 actions under the State Environmental Quality Review
Act (SEQRA).
(3)
In LB and Residential (SR, SR* and HR) Zoning Districts:
(a)
Approvals and bulk requirements. Site plan review and
a tower special permit are required.
(b)
The tower must be set back a minimum of the height of
the tower from all property lines and any existing building(s) in these zoning
districts. The Planning Board may require an additional setback area in the
case of guyed towers, taking into consideration the length of guy wires and
the location of ground anchors.
(c)
The maximum height of a tower in these zoning districts
is 100 feet. A variance will be required from the Zoning Board of Appeals,
following review by the Planning Board, to exceed this height.
(d)
All applications for telecommunications facilities in
these zoning districts shall be treated as Type 1 actions under the SEQRA.
A.
The Town Board shall be the issuing agency for all tower
special permits and shall also be the lead agency for SEQRA.
B.
All applicants for a tower special permit shall file
a building permit application and make written application to the Town Board,
through the Building and Zoning Inspector. This application shall include:
(1)
A building permit application form and a letter from the applicant to be used as a tower permit application form. In addition to the requirements set forth herein, all applications shall be processed in accordance with the requirements of Chapter 225, Zoning, § 225-46, generally applicable to special permits. The application shall be accompanied by the payment of the tower special permit application fee, as established by the Town Board in the Schedule of Fees.[1] In addition to the tower special permit application fee, the applicant
shall also be responsible for all reasonable costs incurred by the Town in
reviewing and analyzing any engineering or technical reports or studies submitted
by the applicant relative to its application. In no event shall the applicant's
responsibility be greater than the actual costs of such services. Periodic
monetary deposits may be required from the applicant, on account with the
Town, from which the Town may make payments to such consultants for services
rendered, after approval of consultants' vouchers by the Town Board.
(3)
A site plan, in form and content acceptable to the Town, complying with the requirements of Chapter 225, Zoning, § 225-30, prepared to scale and in sufficient detail and accuracy. In addition to the requirements of Chapter 225, Zoning, § 225-30, said site plan shall also show:
(a)
The exact location of the proposed tower, together with
guy wires and ground anchors, if applicable, and any accessory structures.
(b)
The maximum height of the proposed tower.
(c)
A detail of tower type (monopole, guyed, freestanding
or other).
(d)
The color or colors of the tower.
(e)
The location, type and intensity of any lighting on the
tower.
(f)
A survey showing the boundary of the property and a topographical
map of the property with contour lines not exceeding five-foot intervals.
(g)
Proof of ownership of the land by the applicant or the
landowner's consent if the applicant will not own the property. (A copy
of the final lease agreement must also be provided if the applicant will not
own the property.)
(h)
The location of all current and proposed structures on
the property and all structures on any adjacent property within 50 feet of
the property lines, together with the distance of these structures to the
tower.
(i)
Identification of adjacent landowners (for example, a
copy of the current Tax Map and printout from the Board of Assessors'
office).
(j)
The location, nature and extent of any proposed fencing
and landscaping or screening. Existing on-site vegetation shall be preserved
to the maximum extent possible.
(k)
The location and nature of proposed utility easements
and access road, if applicable. The applicant must demonstrate that all private
access roads will be maintained in order to ensure access by emergency vehicles
on a year-round basis.
(l)
Building elevations of accessory structures or immediately
adjacent buildings.
(4)
"Before" and "after" propagation studies prepared by
a qualified radio frequency engineer (signed and sealed by a certified professional
engineer registered in the State of New York) demonstrating existing signal
coverage, contrasted with the proposed signal coverage resulting from the
proposed telecommunications facility.
(5)
A plan showing the approximate location of all facilities
the applicant has erected, or collocated on, or upon which it plans to erect
or collocate on in the Town of Eden.
(6)
A search ring analysis prepared by a qualified radio
frequency engineer (signed and sealed by a certified professional engineer
registered in the State of New York) and overlaid on an appropriate background
map demonstrating the area within which the telecommunications facility needs
to be located in order to provide proper signal strength and coverage to the
target cell.
C.
The applicant shall be prepared to explain to the Planning
Board and/or the Town Board how and why it selected the proposed site, discuss
the availability (or lack of availability) of a suitable structure within
the search ring which would have allowed for collocated antenna(s) and to
what extent the applicant explored locating the proposed tower in a more desirable
use district. Proof of correspondence with other telecommunications companies
concerning co-location may be part of this requirement, as may technical information,
documentation and data to demonstrate that reasonable efforts have been made
to fit within established grid systems or facilities, preexisting or already
operating within the Town of Eden.
D.
The Planning Board and/or the Town Board, upon reviewing
the application, may request reasonable additional visual and aesthetic and
site information, as it deems appropriate on a case-by-case basis. Such additional
information may include, among other things, visual impacts statements, enhanced
landscaping plans, line-of-sight drawings and/or visual simulations from viewpoints
selected by the Town staff/advisory committees. Visual impact statements,
line-of-sight drawings and visual simulations are mandatory for applications
in residential and local business zoning districts. (See Appendix I of the
"Planning and Design Manual for the Review of Applications for Wireless Telecommunications
Facilities" published by the New York State Department of State and the New
York State Department of Environmental Conservation program policy entitled
"Assessing and Mitigating Visual Impacts.")
E.
For sites in close proximity to significant historical
sites or important preservation/conservation areas, the Town will require
additional site plan and tower special permit requirements. These requirements
can include specially designed towers, additional screening, greater setbacks
and improved landscaping. Siting in these areas should be avoided to the maximum
extent possible.
F.
Tower special permits shall be renewed on an annual basis,
provided applicable permit conditions are satisfied. Each year, the owner
shall supply any required reports or documents and the renewal fee. The Building
Inspector shall report to the Town Board any complaints or problems that have
occurred during the previous year.
The following criteria will be considered by the Town prior to the approval/denial
of a request for a site plan approval and/or a tower special permit. The criteria
listed may be used as a basis to impose reasonable conditions on the applicant.
All denials shall be in writing and supported by substantial evidence contained
in a written record. Tower special permits are nonassignable and nontransferable.
A.
Siting preferences.
(1)
The Town may express a preference for an alternative
site(s) and/or that the proposed telecommunications facility be located in
a higher intensity use district or on higher intensity use property, provided
that there is a technologically feasible and available location.
(2)
A guideline for the Town's preference, from most
desirable to least desirable zoning districts/property, is as follows:
(a)
Property with an existing structure suitable for collocation.
(b)
Municipal or government-owned property.
(c)
GI or PI Districts.
(d)
RR, GB, OB, C or A Districts.
(e)
LB or SR, SR* or HR Residential Districts or sites which
are in close proximity to significant historic sites and/or important preservation/conservation
areas.
(3)
Where a tower is identified for possible co-location,
but the tower is unable to accommodate a new telecommunications facility,
for example, the tower is full or the tower is too short, the applicant shall
show reasonable efforts to work with the existing tower owner and attempt
to augment the tower in order to accommodate the new telecommunications facility.
(4)
Any request by the Town for information or technical
analysis on a preferred alternate site shall be provided by the applicant
at its sole cost and shall not unreasonably delay the application.
B.
Aesthetics. Telecommunications facilities shall be located
and buffered to the maximum extent which is practical and technologically
feasible to help ensure compatibility with surrounding land uses. In order
to minimize any adverse aesthetic effect on neighboring residences to the
extent possible, the Planning Board and/or the Town Board may impose reasonable
conditions on the applicant, including but not limited to the following:
(1)
Tower height and design are matters of primary public
concern.
(a)
The Board may require a monopole or guyed tower (if sufficient
land is available to the applicant) instead of a freestanding tower. Monopoles
are a preferred design.
(b)
The Board may impose reasonable restrictions and/or conditions
on height. For example, the Board may reasonably determine that adverse impact
upon the community will be best mitigated by requiring the applicant to construct
multiple towers of lower height at several different locations to meet the
applicant's demonstrated service coverage requirement(s) or that the
tower height be reduced in the future if the applicant is unable to demonstrate
a continuing need for the approved height in light of changes in the applicant's
service coverage needs or technological advances.
(2)
The Board may require reasonable landscaping consisting
of trees or shrubs to screen the base of the tower and/or to screen the tower
and any accessory structure or buildings to the extent possible from adjacent
residential property. Existing on-site trees and vegetation shall be preserved
to the maximum extent possible.
(3)
The Board may require the applicant to show that it has
made good faith efforts to collocate on existing towers or other available
and appropriate structures and/or to construct new towers near existing towers
in an effort to consolidate visual disturbances. However, such request shall
not unreasonably delay the application.
(4)
Towers should be designed and sited so as to avoid, whenever
possible, application of FAA lighting and painting requirements. Towers shall
be of a nonreflective finish; the color shall be subject to Board approval,
unless otherwise required by the FAA or the Town. Any lights which may be
required by the FAA or the Town shall not consist of strobe lights unless
specifically mandated by the FAA. The Town may require lights to be shielded
to minimize ground visual impact.
(5)
No tower shall contain any signs or advertising devices.
Notwithstanding the foregoing, the Board may require appropriate signage indicating
ownership of the facility and phone numbers to call in case of emergency.
(6)
The applicant must submit a copy of its policy regarding
collocation on the proposed tower with other potential future applicants.
Such policy should allow collocation under the following conditions:
(a)
The new antenna(s) and equipment do not exceed structural
loading requirements, interfere with Town space used or to be used by the
applicant nor pose any technical or radio frequency interference with existing
equipment;
(b)
The party desiring to collocate pays the applicant an
appropriate and reasonable sum to collocate; and
(c)
The party desiring to collocate has a similar policy
of collocation for the applicant.
(7)
The applicant shall be required, as a condition of approval,
to allow municipal communication services such as police, fire and EMS on
its towers.
(8)
All other uses ancillary to the antenna and associated
equipment (including a business office, maintenance depot, vehicle storage,
etc.) are prohibited from the site unless otherwise permitted in the zoning
district in which the facility is located.
C.
Radio frequency effect.
(1)
The Planning Board and/or the Town Board shall impose
a condition on the applicant that the communication antenna will be operated
only at Federal Communication Commission (FCC) designated frequencies and
power levels and/or Environmental Protection Agency (EPA) technical exposure
limits and may periodically require that the applicant provide competent documentation
to support that maximum allowable frequencies, power levels and exposure limits
for radiation will not be exceeded. Applicants must provide the name and phone
number of one or more representatives or agents who will be available on a
twenty-four-hour basis to receive, investigate and respond to complaints of
alleged radio frequency interference emanating from any permitted site. It
shall be a condition of each permit that the permittee maintain a record of
every such complaint showing the date and time of the complaint, name and
address of the complaining party and the outcome of the processing of such
complaint. The permittee shall make all such records available to the Town,
upon request of the Town Code Enforcement Officer.
(2)
Unless otherwise preempted by federal or state law, the
telecommunications facility shall be inspected every two years at the applicant's
expense for radio emissions, and a copy of the report shall be promptly delivered
to the Building and Zoning Inspector. Radio emission inspection shall be performed
by a New York State certified licensed professional engineer specializing
in electrical engineering with expertise in radio communication facilities.
The radio emission inspection shall describe the power density levels of the
electromagnetic energy generated from the facility, including the cumulative
effects of collocated antennas. In the event that the radio emission inspection
indicates that the electromagnetic energy generated from the facility is above
the allowable limits stated within applicable FCC or ANSI standards or other
applicable federal or state guidelines in effect at the time of the inspection,
the applicant shall cease all use of the facility until such time as it proves
to the satisfaction of the Building and Zoning Inspector that the power density
levels of the electromagnetic energy to be generated at the facility are below
the applicable standards.
D.
Traffic, access and safety.
(1)
A road turnaround and one parking space shall be provided
to assure adequate year-round emergency and service access. Maximum use of
existing roads, public or private, shall be made. The use of public roadways
or road rights-of-way for the siting of a tower or antenna(s) accessory structures
is prohibited.
(2)
All towers and ground anchors, if applicable, shall be
enclosed by a fence not less than eight feet in height and otherwise sufficiently
protected from trespassing or vandalism.
(3)
The applicant must comply with all applicable state and
federal regulations, including but not limited to FAA and FCC regulations
and from time to time may be required to provide certification of such compliance.
(4)
It shall be a condition of each permit that the permittee
immediately notify the Town of Eden Police Department in the event of a failure
of any safety device at the telecommunications facility site, including, but
not limited to, tower lighting and perimeter security.
E.
Removal of telecommunications facilities.
(1)
The applicant shall agree to remove the telecommunications
facility if the telecommunications facility becomes obsolete or ceases to
be used for its intended purpose for 12 consecutive months, and to otherwise
restore the site to its condition prior to the installation of the telecommunications
facility. The Planning Board and/or the Town Board shall require the applicant
to provide an appropriate and adequate demolition bond for purposes of removing
the telecommunications facility in case the applicant fails to do so as required
above.
(2)
The sufficiency of the demolition bond shall be confirmed
at least every five years by an analysis and report of the cost of removal
and property restoration to be performed by a New York State licensed professional
engineer, the cost of same to be borne by the applicant. If said analysis
and report determines that the amount of the bond in force is insufficient
to cover the removal, disposal and restoration costs, the bond shall be increased
to the amount necessary to cover such costs within 10 days of the applicant's
receipt of such report.
F.
Structural safety.
(1)
During the application process and after construction
of the tower, the applicant shall provide a certification from a qualified
New York State licensed professional engineer, certifying that the tower meets
applicable New York State and ANSI structural safety standards.
(2)
Unless otherwise preempted by federal or state law, the
telecommunications facility shall be inspected every two years at the applicant's
expense for structural integrity, and a copy of the report shall be promptly
delivered to the Building and Zoning Inspector. The structural inspection
shall be performed by a New York State licensed professional engineer specializing
in structural engineering. The structural inspection report shall describe
the structural integrity of the facility, maintenance, issues and repairs
needed or made, if any. In the event that the structural inspections indicate
structural deficiencies, then the deficiencies must be remedied within the
time reasonably set by the Building and Zoning Inspector. Upon the applicant's
failure to do so, the permit may be revoked.
G.
Maintenance of telecommunications facility. All telecommunications
facilities shall be maintained in good order and repair. The Town may require
reasonable records of such maintenance to be kept and available for Town review
upon request.
The following are exemptions:
A.
The tower and antenna(s) may be repaired and maintained
without restriction.
B.
Antenna(s) used solely for residential household television
and radio reception.
C.
Satellite antennas measuring two meters or less in diameter
and located in commercial districts and satellite antennas one meter or less
in diameter regardless of location. (Note: FCC rule regarding preemption of
local zoning and regulations for satellite antennas, 47 CFR Part 25.)
In the event of any conflicts or inconsistencies between this chapter and any other local law, including Chapter 225, Zoning, this chapter is meant to control for telecommunications towers and similar facilities in the Town unless otherwise specifically referenced in this chapter.
A.
This chapter is adopted pursuant to the zoning and planning
powers granted to the Town under applicable law. In the event of any violation
of this chapter or any permit(s) issued hereunder, the Town may seek enforcement
under any available authority, including but not limited to Town Law § 268,
at the expense of the applicant.
B.
Any facility receiving a tower special permit or site
plan approval that subsequently does not meet the requirements and/or conditions
of that permit or approval shall have its permit or approval revoked, and
the tower and other facilities shall be removed within 90 days of notification
by the Town, at the expense of the applicant.
The Town Code Enforcement Officer or his designee shall be provided
access to any telecommunications facility or site for the purposes of ensuring
compliance with this and any other applicable code. Such access shall be upon
providing twenty-four-hour advance notification to the owner or operator of
any such facility or site.