The Telecommunications Act of 1996 affirmed
the Town of Ghent's authority concerning the placement, construction
and modification of wireless telecommunications facilities. The Town
of Ghent 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 ensure that the placement,
construction or modification of wireless telecommunications facilities
is cosistent 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 Ghent.
This chapter shall be known and cited as the
"Wireless Telecommunications Facilities Siting Law for the Town of
Ghent."
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 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.
APPLICANT
Any wireless service provider submitting an application for
a special use permit for wireless telecommunications facilities.
APPLICATION
All necessary and appropriate documentation that an applicant
submits in order to receive a special use permit for wireless telecommunications
facilities.
ANTENNA
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.
BOARD
The Town of Ghent Planning Board.
COLLOCATION
The use of a tower or structure to support antennae for the
provision of wireless services without increasing the height of the
tower or structure.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
The inability to perform an act on terms that are reasonable
in commerce; the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be "commercial impracticable" and shall not render an act or the
terms of an agreement "commercially impracticable."
COMPLETED APPLICATION
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated
and authorized successor agency.
HEIGHT
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 lightening
protection device.
MODIFICATION or MODIFY
The addition, removal or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernable
components, vehicular access, parking and/or an upgrade or change
out of equipment for better or more modern equipment. Adding a new
wireless carrier or service provider to a telecommunications tower
or telecommunications site is a modification. A modification shall
not include the replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or for any matters that involve the normal repair and maintenance
of a wireless facility without adding, removing or changing anything.
NIER
Nonionizing electromagnetic radiation.
PERSON
Any individual, corporation, limited liability company, estate,
trust, partnership, joint-stock company, association of two or more
persons having a joint common interest, or any other entity.
SPECIAL USE PERMIT
The official document or permit by which an applicant is
allowed to construct and use wireless telecommunications facilities
as granted or issued by the Town.
STEALTH or 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,.
STATE
The State of New York.
TELECOMMUNICATIONS
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
TEMPORARY
In relation to all aspects and components of this chapter,
means something intended to, or that does, exist for fewer than 90
days.
WIRELESS TELECOMMUNICATIONS FACILITIES
Includes a "telecommunications tower" and "tower" and "telecommunications
site" and "personal wireless facility," and means a structure, facility
or location designed, or intended to be used as, or used to support,
antennas or other transmitting or receiving devices. This includes
without limit, towers of all types and kinds and structures that employ
stealth technology, including, but not limited to, structures such
as a multistory building, church steeple, silo, water tower, sign
or other structures that can be used to mitigate the visual impact
of an antenna or the functional equivalent of such, including all
related facilities and equipment 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 citizens' bands, amateur radio
and other similar noncommercial telecommunications.
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. Promoting and encouraging, wherever possible, the
sharing and/or collocation of wireless telecommunications facilities
among service providers;
D. Promoting and encouraging, wherever possible, the
placement, height and quantity of wireless telecommunications facilities
in such a manner, including but not limited to the use of stealth
technology, to minimize adverse aesthetic and visual impacts on the
land, property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
All 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 RF radiation or to control exposure to RF radiation within a given
area. A sign of the same size is also to be installed to 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 accesspoint of
the site and must identify the equipment owner of the shelter or cabinet.
On tower sites, an FCC registration site as applicable is also to
be present. The signs shall not be lighted, unless applicable law,
rule or regulation requires lighting. 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.
The extent and parameters of a special use permit
for wireless telecommunications facilities shall be as follows:
A. Such special use permit shall not be assigned, transferred
or conveyed without the express prior written notification to the
Town.
B. 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.
[Amended 11-19-2009 by L.L. No. 1-2009]
The applicant and the owner of record of any
proposed wireless telecommunications facilities property site shall,
at its 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 as determined by the Planning Board in its discretion based
upon the scope and magnitude of the project, which amount shall be
sufficient 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 Planning Board shall consult with the Town Engineer
for the project and/or with the Town Attorney for input as to the
amount of the bond or security. 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 and regulations and other applicable
requirements, the Town may inspect all facets of said permitholder'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.
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.
[Amended 11-19-2009 by L.L. No. 1-2009]
Any applicant desiring relief, waiver or exemption
from any aspect or requirement of this chapter may request such relief,
waiver or exemption in accordance with the provisions and criteria
of this section. 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
not significant effect on the health, safety and welfare of the Town
or its residents.
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.