No building or structure to be occupied for one or more of the following purposes or for similar special occupancies shall hereafter be erected, nor shall an existing building or structure or premises not used for one or more or such enumerated uses prior to the adoption of this chapter hereafter be altered or converted to such use or altered or converted from one to another of such enumerated uses, except by permission of the Planning Board in accordance with the provisions of § 475-53 and such other safeguards and conditions which the Planning Board may impose. The Planning Board may withhold such permission in its absolute discretion since the following uses are, by their very nature, deemed to be potentially hazardous or injurious to the health, safety and welfare of the citizens of the City of Middletown (and such uses, if allowed by the Planning Board, may only be allowed in an I-2 Heavy Industrial District or I-3 Heavy Industrial Restricted District.
|
Ammonia, chlorine or bleaching powder manufacture
|
|
Atomic research or radioactive materials
|
|
Auto or vehicle wrecking yards
|
|
Boiler making
|
|
Crematory
|
|
Cooperage
|
|
Distillation of coal, wood or bones
|
|
Dry-dyeing establishments
|
|
Dumps, incinerators or reduction works, or recycling
establishments, or sewage and sludge treatment plants; solid waste
establishments or solid waste transfer stations are allowable only
on City-owned property
[Amended 2-21-2006] |
|
The manufacture, sale or storage of explosives
|
|
Fat rendering
|
|
Fertilizer manufacture
|
|
Bulk fuel storage
|
|
The manufacture, sale or storage of gas, including
bottled gas and propane
|
|
Glue, size and gelatin manufacture
|
|
Liquid petroleum gas distributing stations
|
|
Oilcloth or linoleum manufacture
|
|
Paint, oil, varnish or turpentine manufacture
|
|
Petroleum refining or storage
|
|
Pyroxylin manufacture
|
|
Rags and waste: sorting or storage
|
|
Rawhide or skins: storage, curing or tanning
|
|
Saw or planing mill
|
|
Slaughtering of animals
|
|
Soap manufacture
|
|
Starch, glucose or dextrine manufacture
|
|
Stockyards
|
|
Sulfurous, sulfuric, nitric or hydrochloric
acid manufacture
|
|
Tallow, grease or lard manufacture or refining
|
|
Tar distillation or manufacture
|
|
Tar roofing or tar waterproofing manufacturing
|
[Added 6-10-2002]
A.
The outdoor and sidewalk cafe regulations as set forth
in this section are designed to permit those cafes in areas where
they are appropriate and to promote and protect the public health,
safety and general welfare. Specific purposes of this section are:
(1)
To ensure adequate space for pedestrians on the sidewalk
adjacent to outdoor and sidewalk cafes.
(2)
To preserve and enhance the character of neighborhoods
through the City and to protect adjacent residential areas.
(3)
To simplify administrative and strengthen enforcement
procedures for outdoor and sidewalk cafes that are effective, efficient
and enforceable.
(4)
To promote the most desirable use of land and to provide
compensation to the City for use of City-owned land for sidewalk cafe
purposes.
B.
CITY CLERK
OUTDOOR CAFE
PERMIT
SIDEWALK CAFE
For the purposes of this section, the following terms
shall have the following meanings:
The City Clerk, Registrar and Clerk of the Common Council
or his/her designee.
[Amended 1-7-2008]
Those exterior facilities adjacent to and a part of establishments
selling food and/or drink, located entirely on private property, open
to the elements except for awnings and/or low walls or fences, temporary
or permanent in nature, such as rooftop cafes and those at street
level, not using any City-owned property.
Written authorization issued by the City Clerk pursuant to
this section permitting the operation of either an outdoor or sidewalk
cafe.
Those exterior facilities adjacent to and a part of establishments
selling food and/or drink that require the use of some City-owned
property for operation, open to the elements except for awnings and/or
temporary low walls or fences.
C.
No outdoor or sidewalk cafe shall be allowed to operate
unless a permit has been obtained from the City Clerk. The following
procedures (which may be supplemented by the City Clerk as he/she
deems necessary and appropriate) must be followed before the City
Clerk can issue such permit:
(1)
Any request to operate an outdoor or sidewalk cafe
must be in writing on such application form(s) as may be required
or designated by the City Clerk.
(2)
Whenever the application provides for construction
or alteration of existing premises, the applicant must also apply
for and obtain a building permit from the Department of Public Works
of the City before a permit can be issued by the City Clerk. The City
Clerk's permit will be conditioned upon receipt of a certificate of
occupancy or compliance from the City's Department of Public Works
in connection with the building permit.
(3)
The application must be accompanied by a nonrefundable
fee of $50 and shall include at least the following information
(a)
The name, address and telephone number of the
applicant.
(b)
The name, address and telephone number of the
establishment which is the subject of the application.
(c)
The days and hours for which the permit is requested.
(d)
Whether alcoholic beverages are to be served,
and whether a license for the same has been obtained from the New
York State Liquor Authority.
(e)
The number of tables and chairs desired for
the area of the outdoor or sidewalk cafe, and a drawing or rendering
of positions of tables and chairs relative to entrances and exits
of the outdoor or sidewalk cafe and the main establishment to which
the outdoor or sidewalk cafe is appended, and relative to the sidewalk.
(f)
A description of facilities and equipment to
be used, including whether music is to be played and what devices
are needed for the provision of such music, when applicable.
(g)
A site plan and property survey map, drawn to
scale and prepared by a licensed surveyor and/or engineer, showing
proper clearance around ingress and egress to the building and to
fire safeguards, and also showing proper amount of clearance on the
sidewalk for pedestrian traffic. The map must also indicate property
lines and which property is owned by the applicant (or by the applicant's
landlord) and which property is owned by the City (and if the property
is not owned by the applicant, then the landlord's consent to the
application must be indicated on the application).
(h)
Proof of insurance, in such forms and amounts
as required by the Corporation Counsel.
(i)
An indication of all fixtures such as fencing,
decking, awnings and/or planters to be used, and an indication of
whether or not they will be removed when the outdoor or sidewalk cafe
is closed.
(j)
Any other information as the City Clerk may
deem reasonably necessary or appropriate for the fair determination
as to whether a permit should be issued.
(4)
Prior to making a decision with respect to the permit
application, the City Clerk shall send a copy of the application to
the Commissioner of Public Works, the Corporation Counsel, the Chief
of Police and the Chief of the Fire Department for their comments.
(5)
The City Clerk shall issue a permit upon a finding
that the proposed outdoor or sidewalk cafe will not unreasonably interfere
with the pedestrian traffic or use of the City-owned portion of property
to be used; that the applicant has complied with the requirements
of the City's Department of Public Works with respect to the building
permit and any issues under the New York State Uniform Fire and Building
Code; that the applicant has complied with the requirements of the
Corporation Counsel with respect to insurance; that if the application
is for a sidewalk cafe, the applicant has obtained approval of the
Common Council of the City for the use of City-owned property; and
that the applicant has met all other applicable provisions of this
chapter of the City, including site plan and special use permit approval,
if required, for the use of the main building to which the outdoor
or sidewalk cafe area is appended for an eating and drinking establishment.
Notice of permit issuance shall be given to the Commissioner of Public
Works, the Corporation Counsel, the Chief of Police and the Chief
of the Fire Department. The permit holder must also post the permit
in a conspicuous place in the outdoor or sidewalk cafe so that the
permit is visible from the street.
(6)
Notwithstanding the foregoing, the City Clerk may
deny a permit upon a finding that the proposed outdoor or sidewalk
cafe will have an undue adverse effect upon nearby property, the character
of the neighborhood, vehicular traffic conditions, pedestrian traffic,
parking, or other matters affecting the public health, safety, welfare
or convenience.
(7)
In making the determination of whether or not to issue
a permit, the City Clerk may hold an administrative hearing with the
applicant for a permit and with any other interested persons to assist
the City Clerk in making such a determination. Such hearing shall
be upon five days' notice to the applicant, the Commissioner of Public
Works, the Corporation Counsel, the Chief of Police, the Chief of
the Fire Department and the President of the Common Council.
(8)
Any person or entity to whom or to which a permit
is issued by the City Clerk shall be bound by all applicable federal,
state and local rules, regulations, ordinances, local laws and statutes.
The permit may be conditioned on the applicant making such modifications
or conforming to such restrictions as may be necessary or appropriate
to ensure compliance with the provisions of this section and to protect
the public health, safety, welfare or convenience.
D.
The person, persons or entities to whom permits are
issued under this section, by applying for and accepting such permit,
understand and agree that such person, persons or entities shall be
liable to and shall indemnify the City against, and hold the City
harmless from, any and all losses, damages, injuries and claims, including
attorney fees, sustained by any person whatever by reason of the negligence
of the person, persons or entities to whom or to which the permit
shall have been issued, or which may arise from or be attributable
to the operation of the outdoor or sidewalk cafe by the person, persons
or entities to whom or to which the permit shall have been issued
and such person's, persons' or entities' employees, agents, contractors,
guests and invitees. The applicant for a permit shall present to the
City a certificate of insurance, prior to the opening and operation
of the outdoor or sidewalk cafe and prior to the issuance of the permit,
which names the City as an additional insured. The amount and form
of the insurance must be acceptable to the Clerk and the Corporation
Counsel of the City. The City Clerk may, in his/her discretion, waive
the requirement for insurance when circumstances warrant.
E.
The City Clerk may revoke a permit issued under this
section if the City Clerk finds that the person, persons or entities
to whom or to which such a permit has been issued has violated any
provision of this section or any other applicable federal, state or
local rule, regulation, ordinance, local law or statute. In addition,
the Police Department of the City, upon inspection and discovery of
a violation of any provision of this section or other applicable federal,
state or local rule, regulation, ordinance, local law or statute,
may immediately cause the offending cafe to be cleared of patrons,
if such action is reasonably necessary to protect the public health,
safety, welfare or convenience. In such case, the Police Department
shall, by the next business day, report such action to the City Clerk.
G.
Miscellaneous provisions.
(1)
The area of the outdoor or sidewalk cafe shall be
cleaned on a daily basis and shall be kept free of refuse at all times.
No large containers for trash shall be placed on the cafe premises.
(2)
For sidewalk cafes, at the expiration of the term
of the permit, all City-owned property shall be delivered back to
the City in good condition. City-owned property may not be altered
in any way during the term of the permit without the express written
approval of the Commissioner of Public Works and the Corporation Counsel.
(3)
Outdoor and sidewalk cafes may open for business no
earlier than 7:00 a.m. and shall close by no later than 2:00 a.m.
[Amended 5-10-2004]
(4)
Music; lighting; outdoor cooking.
[Amended 2-6-2018; 4-16-2019 by Res. No. 79-19; 5-21-2020; 5-4-2021]
(a)
Outdoor and sidewalk cafes may be allowed to provide music, so long
as such music does not violate or does not conflict with any applicable
law or ordinance, such as the City's noise ordinance[2] (except as may otherwise be provided below), or does not
create a nuisance to surrounding residents or properties. Live music
or live music performances are not permitted in or at sidewalk cafes.
With respect to outdoor cafes only (and only within the geographic
area described below), live music or live music performances will
be permitted from May 18, 2021, until and including October 15, 2021,
during the hours of 12:00 noon until 10:00 p.m. on Thursday, Friday
and Saturday, and 1:00 p.m. until 9:00 p.m. on Sunday, in such a manner
as to generate an instantaneous sound pressure level not to exceed
90 decibels (DBA) as measured from any point along the boundary line
of the real property on which the outdoor cafe is located and from
which the sound pressure is generated.
(b)
For purposes of this Subsection G(4), live music or live music performances will be allowed in or at outdoor cafes only within the area contained within the City’s Business Improvement District (except not in or on properties located south of Fulton Street) and in or on properties on either side of East Main Street from Academy Avenue to the west side of Railroad Avenue.
(c)
Live music or live music performances will be allowed in or at outdoor
cafes as described above during a trial period lasting only until
October 21, 2021, unless the ability and permission to have live music
or live music performances in or at outdoor cafes is extended by action
of the Common Council of the City. If the time period is not extended
by action of the Common Council, then live music or live music performances
will not be permitted after October 21, 2021, in or at outdoor cafes.
(d)
Lighting in outdoor and sidewalk cafes shall be minimal and shall
not be allowed to disturb surrounding residents or properties. No
outdoor cooking of any type is permitted in outdoor and sidewalk cafes.
(5)
All fixtures and furnishings of a temporary nature must be secured if left outside and additionally any fixtures left outside after operational hours of the establishment are understood to be the personal property of the establishment and the City of Middletown is held harmless with relation to any claims resulting from said fixtures and furnishings being left outside of the establishment. No objects, except retractable awning(s) and lighting fixtures, may be permanently attached to the exterior. All planters, railings and fences must be temporary and not exceed a height of four feet. No additional signage shall be permitted to be affixed to a cafe's temporary structures or accessories. The provisions of this Subsection G(5) shall not apply to outdoor cafes unless determined to be necessary and a condition of the issuance of the permit by the City Clerk.
[Amended 5-10-2004]
(6)
For all cafes, there shall be a minimum of five feet
or 50% of the total sidewalk width (whichever is greater) for clearance,
to provide adequate and unobstructed pedestrian movement, such measurement
being made from the outermost point of the cafe to the unobstructed
inner edge of the curb. The City Clerk, in his/her sole discretion,
may require a larger pedestrian right-of-way based on the proposed
location and volume of pedestrian traffic typically experienced at
that location.
H.
Violations.
(2)
Notwithstanding the previous subsection and in addition to any penalties imposed under the previous subsection of this § 475-28H, violations of § 475-28G(4) of the Code of the City of Middletown may be enforced by the Police Department, any code enforcement officer of the Department of Public Works or the Fire Inspector and disposed of as follows:
[Added 2-6-2018; amended 4-16-2019; 5-21-2020; 5-4-2021]
(a)
For the first violation of § 475-28(G)(4) of the Code of the
City of Middletown by an outdoor café’s operation, the
owner and/or operator of the outdoor café shall be issued a
verbal or written warning informing the owner and/or operator of the
violation and directing that it be ceased immediately.
(b)
For the second violation and subsequent violations of § 475-28(G)(4)
of the Code of the City of Middletown by an outdoor café’s
operation, the owner and/or operator of the outdoor café shall
be issued a written violation notice and/or an appearance ticket ordering
the owner and/or operator to appear in Middletown City Court to answer
the violation(s).
(c)
At any time, the Police Department of the City, upon inspection and
discovery of a violation of § 475-28(G)(4) of the Code of the
City of Middletown by an outdoor café’s operation, may
immediately cause the offending outdoor cafe to be cleared of patrons,
if such action is reasonably necessary to protect the public health,
safety, welfare or convenience.
(d)
If the operation of an outdoor cafe is alleged to be in violation
of § 475-28(G)(4) of the Code of the City of Middletown a second
time, the outdoor café permit issued to the owner and/or operator
of the outdoor café shall be revoked by the City Clerk.
(e)
Any person found guilty of violating § 475-28(G)(4) of the Code
of the City of Middletown shall be guilty of a violation and shall
be liable for a fine of not less than $250 nor more than $2,000 for
the first occurrence, and such fines shall be increased to a fine
of not less than $500 nor more than $4,000 for any subsequent occurrence(s).
I.
This section is to be a permanent section of the Middletown
Zoning Code, and any permits issued under the trial periods previously
established by the Common Council may be continued in full force and
effect, subject to the modification, revocation and other regulatory
provisions of this section.
[Amended 4-22-2003]
[Added 5-17-2011]
A.
The regulations as set forth in this section regarding sidewalk sales
by retail stores are designed to permit such sales only in the area
encompassed by the geographic boundaries of the Downtown Business
Improvement District and to promote and protect the public health,
safety and general welfare. Specific purposes of this section are:
(1)
To ensure adequate space for pedestrians on the sidewalk adjacent
to the location of sidewalk sales by retail stores.
(2)
To preserve and enhance the character of area contained within
the Downtown Business Improvement District.
(3)
To simplify administrative and strengthen enforcement procedures
for sidewalk sales that are effective, efficient and enforceable.
(4)
To promote the most desirable use of land and to provide compensation
to the City for use of City-owned land for sidewalk sales by retail
stores.
B.
CITY CLERK
PERMIT
SIDEWALK SALES
For the purposes of this section, the following terms shall have
the following meanings:
The City Clerk, Registrar and Clerk of the Common Council
or his/her designee.
Written authorization issued by the City Clerk pursuant to
this section permitting sidewalk sales.
Use of sidewalks adjacent to retail stores located within
the geographic boundaries of the Downtown Business Improvement District
for outdoor sales by those retail stores of items otherwise sold within
those stores and for signs advertising sales by those retail stores.
C.
No sidewalk sales shall be allowed to operate unless a permit has
been obtained from the City Clerk. The following procedures (which
may be supplemented by the City Clerk as he/she deems necessary and
appropriate) must be followed before the City Clerk can issue such
permit:
(1)
Any request to conduct sidewalk sales must be in writing on
such application form(s) as may be required or designated by the City
Clerk.
(2)
No construction or alteration of existing premises will be allowed
in connection with the sidewalk sales.
(3)
The application must be accompanied by a nonrefundable fee of
$50 and shall include at least the following information:
(a)
The name, address and telephone number of the applicant.
(b)
The name, address and telephone number of the establishment
which is the subject of the application.
(c)
The days and hours for which the permit is requested.
(d)
A drawing or rendering of the placement of equipment, signs
and the like relative to entrances and exits of the main establishment
to which the outdoor sales is connected and relative to the sidewalk.
(e)
A description of facilities, equipment and signs to be used.
(f)
A site plan showing proper clearance around ingress and egress
to the building and to fire safeguards, and also showing proper amount
of clearance on the sidewalk for pedestrian traffic. The site plan
must also indicate property lines and which property is owned by the
applicant (or by the applicant's landlord) and which property is owned
by the City (and if the property is not owned by the applicant, then
the landlord's consent to the application must be indicated on the
application).
(g)
Proof of insurance, in such forms and amounts as required by
the Corporation Counsel.
(h)
Any other information as the City Clerk may deem reasonably
necessary or appropriate for the fair determination as to whether
a permit should be issued.
(4)
Prior to making a decision with respect to the permit application,
the City Clerk shall send a copy of the application to the Commissioner
of Public Works, the Corporation Counsel, the Chief of Police and
the Chief of the Fire Department for their comments.
(5)
The City Clerk shall issue a permit upon a finding that the
proposed sidewalk sales will not unreasonably interfere with the pedestrian
traffic or use of the City-owned portion of property to be used; that
the applicant has complied with the requirements of the City's Department
of Public Works with respect to any issues under the New York State
Uniform Fire and Building Code; that the applicant has complied with
the requirements of the Corporation Counsel with respect to insurance;
that the applicant has obtained approval of the Board of Estimate
and Apportionment of the City for the use of City-owned property;
and that the applicant has met all other applicable provisions of
this chapter of the City, including site plan and special use permit
approval, if required, for the use of the main building to which the
sidewalk sales area is appended for a retail store. Notice of permit
issuance shall be given to the Commissioner of Public Works, the Corporation
Counsel, the Chief of Police and the Chief of the Fire Department.
The permit holder must also post the permit in a conspicuous place
in the area of the sidewalk sales so that the permit is visible from
the street.
(6)
Notwithstanding the foregoing, the City Clerk may deny a permit
upon a finding that the proposed sidewalk sales will have an undue
adverse effect upon nearby property, the character of the neighborhood,
vehicular traffic conditions, pedestrian traffic, parking, or other
matters affecting the public health, safety, welfare or convenience.
(7)
In making the determination of whether or not to issue a permit,
the City Clerk may hold an administrative hearing with the applicant
for a permit and with any other interested persons to assist the City
Clerk in making such a determination. Such hearing shall be upon five
days' notice to the applicant, the Commissioner of Public Works, the
Corporation Counsel, the Chief of Police, the Chief of the Fire Department
and the President of the Common Council.
(8)
Any person or entity to whom or to which a permit is issued
by the City Clerk shall be bound by all applicable federal, state
and local rules, regulations, ordinances, local laws and statutes.
The permit may be conditioned on the applicant making such modifications
or conforming to such restrictions as may be necessary or appropriate
to ensure compliance with the provisions of this section and to protect
the public health, safety, welfare or convenience.
(9)
A permit issued pursuant to this section shall be valid for
one year from the date of its issuance. Permits may be renewed upon
the filing and approval of an application consistent with the requirements
of this section.
D.
The person, persons or entities to whom permits are issued under
this section, by applying for and accepting such permit, understand
and agree that such person, persons or entities shall be liable to
and shall indemnify the City against, and hold the City harmless from,
any and all losses, damages, injuries and claims, including attorney
fees, sustained by any person whatever by reason of the negligence
of the person, persons or entities to whom or to which the permit
shall have been issued, or which may arise from or be attributable
to the operation of the sidewalk sales by the person, persons or entities
to whom or to which the permit shall have been issued and such person's,
persons' or entities' employees, agents, contractors, guests and invitees.
The applicant for a permit shall present to the City a certificate
of insurance, prior to the opening and operation of the sidewalk sales
and prior to the issuance of the permit, which names the City as an
additional insured. The amount and form of the insurance must be acceptable
to the Clerk and the Corporation Counsel of the City. The City Clerk
may, in his/her discretion, waive the requirement for insurance when
circumstances warrant.
E.
The City Clerk may revoke a permit issued under this section if the
City Clerk finds that the person, persons or entities to whom or to
which such a permit has been issued has violated any provision of
this section or any other applicable federal, state or local rule,
regulation, ordinance, local law or statute. In addition, the Police
Department of the City, upon inspection and discovery of a violation
of any provision of this section or other applicable federal, state
or local rule, regulation, ordinance, local law or statute, may immediately
cause the offending sidewalk sales to be cleared of patrons, if such
action is reasonably necessary to protect the public health, safety,
welfare or convenience. In such case, the Police Department shall,
by the next business day, report such action to the City Clerk.
F.
Appeals from the issuance, denial, revocation or other condition
of a permit may be taken to the Zoning Board of Appeals in accordance
with the procedures established in this chapter for such Board.
G.
Miscellaneous provisions.
(1)
The area of the sidewalk sales shall be cleaned on a daily basis
and shall be kept free of refuse at all times. No large containers
for trash shall be placed in or adjacent to the area of the sidewalk
sales.
(2)
At the expiration of the term of the permit, all City-owned
property shall be delivered back to the City in good condition. City-owned
property may not be altered in any way during the term of the permit
without the express written approval of the Commissioner of Public
Works and the Corporation Counsel.
(3)
Sidewalk sales may be conducted no earlier than 8:00 a.m. and
shall close by no later than 9:00 p.m.
(4)
All fixtures, equipment and furnishings of a temporary nature
must be secured if left outside. All such fixtures, equipment and
furnishings are understood to be the personal property of the owner
of the retail store to which they relate, and the City of Middletown
is held harmless with relation to any claims resulting from said fixtures,
equipment and furnishings being left outside of the retail store.
No additional signage shall be permitted to be affixed to a retail
store's temporary structures or accessories, although freestanding
signs may be allowed so long as they are approved as to size and location
by the City Clerk and whose dimensions do not exceed two feet by three
feet.
(5)
For all sidewalk sales, there shall be a minimum of five feet
or 50% of the total sidewalk width (whichever is greater) for clearance,
to provide adequate and unobstructed pedestrian movement, such measurement
being made from the outermost point of the sidewalk sales area to
the unobstructed inner edge of the curb. The City Clerk, in his/her
sole discretion, may require a larger pedestrian right-of-way based
on the proposed location and volume of pedestrian traffic typically
experienced at that location.
(6)
Sidewalk sales cannot extend for more than ten linear feet or
30% of the width of the retail store to which such sales relate, whichever
is smaller.
[Added 5-16-2023 ]
A.
The sale of cannabis, cannabinoids, cannabinoid hemp, cannabis flower, cannabis products, cannabis-infused products, hemp and hemp extract, as those terms are defined in Section 3 of the New York Cannabis Law, is prohibited in and on all private and public property in every zoning district in the City of Middletown.
B.
Penalties. Any person who violates any of the provision of this section or any person who owns or controls property upon which such violation occurs shall, upon conviction, be guilty of an offense punishable by a fine of not less than $250 nor more than $2,000 or by imprisonment for a period not exceeding 15 days, or by both such fine and imprisonment. Each day that a violation is permitted to exist shall constitute a separate offense. The term "person," as used in this Section, shall include the owner, property manager as defined in Chapter 296 of the City Code, occupant, mortgagee, vendee in possession, assignee of rents, receiver, executor, trustee, lessee, agent, or any other person, firm or corporation directly or indirectly in control of a premises or part thereof.
[Amended 11-1-2011; 12-20-2011]
A.
Outside vending machines such as soda and beverage
machines, other self-service machines, and coin-operated, credit card-
or telephone card-operated telephones and telephone booths or any
other similar structures, apparatuses or devices located on the outside
of any building (whether freestanding or attached to said building)
shall not be permitted in any zoning district except by special permission
and at the discretion of the Planning Board, and subject to such conditions,
restrictions and safeguards as may be deemed necessary by said Planning
Board.
B.
Such vending machines, self-service machines and coin-operated,
credit card- or telephone card-operated telephones and telephone booths
in existence without permission of the Planning Board at the date
of this chapter shall, at the expiration of three months from such
date, become a prohibited and nonconforming use and shall be discontinued
immediately.
C.
Donation
bins, sheds and boxes.
(1)
Bins,
sheds and boxes for the deposit of donated shoes and clothing, and
any other similar structures, apparatuses or devices located on the
outside of any building (whether freestanding or attached to said
building) shall not be permitted in any zoning district within the
City of Middletown.
(2)
Any such bins, sheds and boxes for the deposit of donated shoes and clothing, and any other similar structures, apparatuses or devices located on the outside of any building (whether freestanding or attached to said building) in existence as of the date of the adoption of this § 475-29C shall, as of March 30, 2012, become a prohibited and nonconforming use and shall be discontinued immediately.
A.
No temporary, movable or portable structures used
in connection with any gainful occupation or business, whether such
structures are for sale, storage or display purposes, and including,
but not necessarily limited to, temporary, movable or portable structures
used by flower vendors and furniture vendors, shall be permitted in
any zoning district except by special permission and at the discretion
of the Planning Board and subject to such conditions, restrictions
and safeguards as may be deemed necessary by said Planning Board.
Any such approval shall be valid for not longer than a one-year period,
which may be renewed by the Planning Board in its sole discretion
upon proper application therefor and subject to such conditions, restrictions
and safeguards as it may deem necessary. In no event shall such temporary,
movable or portable structures be used for the storage of hazardous
or toxic materials or products.
[Amended 3-3-2020]
B.
All such temporary, movable or portable structures
in existence without permission of the Planning Board at the date
of this chapter shall, at the expiration of three months from such
date, become a prohibited and nonconforming use and shall be discontinued
immediately.
A.
Any vehicle equipped to be used for temporary living
or sleeping purposes, commonly known and used as a camping or travel
trailer or recreational vehicle (RV), or a boat, whether or not mounted
on wheels, may be located in any district, provided that:
(1)
Such vehicle or boat is unoccupied.
(2)
The length of such vehicle or boat, including hitch,
does not exceed 32 feet.
(3)
Such vehicle or boat is stored only in a rear yard, unless the Commissioner
of Public Works issues a permit for side yard storage, after considering
the following criteria:
[Amended 12-18-2018]
(4)
In a residential district, not more than one such
vehicle or boat shall be permitted on a lot.
B.
House trailers, mobile homes and trailer camps are
prohibited in all districts.
C.
Any permit issued pursuant to Subsection A(3), above, shall be limited to a single vehicle or boat and storage shall be limited to a side yard only. Any such permit shall be valid for a period of one year only, and shall be subject to renewal for yearly periods in the discretion of the Commissioner of Public Works after consideration of the criteria provided in Subsection A(3), above. Such permit shall be revocable by the Commissioner of Public work for violation of any of the provisions of the Zoning Code or of applicable Uniform State Codes. A fee of $5 shall be charged for each permit and renewal.
[Added 12-18-2018]
Nothing in this chapter shall restrict the construction or use of underground or overhead distribution conduits of public utilities operating under the laws of the State of New York and regulated by the Public Service Commission of the State of New York, except for antenna, antenna accessory structures and towers. Public utility buildings and electrical substations are permitted in a residential district only when the location within such district is necessary for the furnishing of service to customers, and provided that no business offices, warehouses, construction or repair shops or garage facilities are included, and provided that the Planning Board approves such application in accordance with the provisions of § 475-53.
A.
The following parking spaces shall be provided and
satisfactorily maintained by the owner of the property for each building
which, after the date when this chapter becomes effective, is erected,
used, enlarged or altered for use for any of the following purposes:
(1)
Dwelling: At least one parking space for each dwelling
unit in the building or buildings. No parking of any vehicles shall
be allowed anywhere within the front yard of the lot upon which the
dwelling unit(s) is/are located, except on a driveway which is no
wider than 30 feet wide (unless the Commissioner of Public Works,
in his sole discretion, allows a wider driveway to be constructed),
and not more than two such driveways shall be allowed on such lot
in the case of one-family and two-family dwellings.
[Amended 8-8-2000; 12-15-2015]
(2)
Dwelling used as a doctor's or dentist's office: At
least four parking spaces.
(3)
Dwelling used as a professional office other than
by a doctor or dentist, in which is located a home occupation: At
least one parking space.
(4)
Places of assembly such as a theater, dance hall,
auditorium or stadium, or similar uses and purposes, including membership
clubs where the chief activity or primary purpose is a service customarily
carried on as a business or primarily for gain: At least one parking
space for each eight seats provided for its patrons, based on maximum
seating capacity.
(5)
Hotel or motel: At least one parking space for each
three guest sleeping rooms.
(6)
Eating or drinking place: At least one parking space
for each five seats, except when it is in a building which provides
parking spaces, in which case the number of places already provided
may be taken to be available for the eating or drinking places.
(7)
Adult care facility, hospital, sanitarium or nursing
home: At least one parking space for each five patients or residents.
(8)
Stores and service establishments: At least one parking
space for each 150 square feet of store floor area.
[Amended 12-7-2009]
(9)
Office buildings: At least one parking space for each
300 square feet of office floor area.
(10)
Industrial or manufacturing establishments:
At least one parking space for each 400 square feet of gross floor
area or for each two workers.
(11)
For membership clubs catering to members and
their guests and for any other use not listed, the number of spaces
shall be determined by the Planning Board so that persons using or
connected with such use shall not park on the street.
B.
Not more than one commercial vehicle, which shall
be of not over 1 1/2 tons' capacity or two tons' weight, shall
be housed or parked on any off-street parking area or yard in any
R-1, R-2, OR-2, UR-3, SR-3, SR-3A, SR-3B or R-4 Residence District.
These restrictions as to commercial vehicles shall not apply to farm
implements or vehicles on farms.
C.
In all residential districts, no parking shall be
allowed anywhere within the front yard of the lot upon which the dwelling
unit(s) is/are located, except on a driveway which is wide enough
to encompass up to three vehicles (unless the Commissioner of Public
Works, in his sole discretion, allows a wider driveway to be constructed),
and not more than two such driveways shall be allowed on such lot
in the case of one-family and two-family dwellings. In addition, there
shall be no dismantling, wrecking or repairing of motor vehicles or
the storage or parking of disabled, dismantled, obsolete or wrecked
vehicles or parts thereof, except that nonconforming gasoline stations
or public garages in residential districts may make minor repairs
to motor vehicles as part of the service station business and except
that motor vehicles owned by the occupants of the premises may be
repaired or stored for personal use, not business or commercial use,
of the occupants. In no event, however, shall more than one such motor
vehicle be repaired at one time on any outside area on the premises,
and in no event shall any such motor vehicle be stored or left standing
for repairs or otherwise on the outside area of such premises for
a period of time exceeding two weeks.
[Amended 12-15-2015]
D.
All parking spaces provided pursuant to this section
shall be on the same lot with the building for which the parking is
used, except that the Planning Board may permit the parking spaces
to be on a lot within 500 feet of the building if it determines that
it is impractical to provide parking on the same lot with the building.
E.
The Planning Board may permit a lesser number of parking
spaces than those herein required to be provided whenever it determines
that because of location there are sufficient other parking areas
in the vicinity or when it is impractical and causes a serious hardship
to the owner of the building to provide the number of required parking
spaces.
F.
Inapplicability to existing building and uses. The provisions of this section, except Subsections A(1), B and C, shall not apply to any building, structure or use lawfully in existence at the effective date of this chapter, whether continued as a permitted or nonconforming use, or to any enlargements, alterations or replacement of the same, whether of the same use or to a different use.
A.
Berths required. In any district, in connection with
every building or building group or part thereof hereafter erected
and having a gross floor area of 10,000 square feet or more which
is to be occupied by manufacturing or commercial uses or distribution
by vehicles of material or merchandise, there shall be provided and
maintained, on the same zone lot with such building, off-street loading
berths in accordance with the following requirements:
|
Use
|
Floor Area
(square feet)
|
Required Off-Street Loading Berths
|
|---|---|---|
|
Retail, commercial wholesale, manufacturing,
storage and miscellaneous
|
From 10,000 to 25,000
|
1
|
|
From 25,000 to 40,000
|
2
| |
|
From 40,000 to 60,000
|
3
| |
|
From 60,000 to 100,000
|
4
| |
|
For each additional 50,000 or major fraction
thereof
|
1 additional
|
B.
Size and location. Each loading space shall be not
less than 10 feet in width, 70 feet in length and 14 feet in height
and may occupy all or any part of any required yard except the front
yard (unless the Planning Board varies the requirement that no such
loading space be located in a front yard).
C.
Inapplicability to existing buildings and uses. The
provisions of this section shall not apply to any building, structure
or use lawfully in existence at the effective date of this chapter,
whether continued as a permitted or nonconforming use, or to any enlargements,
alterations or replacement of the same, whether of the same use or
to a different use.
A.
The taking of a boarder or the renting of a room by a residential
family in a one-family dwelling in any zoning district is permitted,
provided that:
[Amended 4-5-2016]
(1)
The dwelling is owner-occupied; and
(2)
The taking in of a boarder and the renting of a room is incidental
only to the family use of such residence; and
(3)
The number of such boarders shall not exceed one person; except that the Planning Board may grant a revocable special use permit, pursuant to the provisions of § 475-53, for a greater number of boarders or the renting of rooms in one-family dwellings in all zoning districts if the building is owner-occupied and if the Planning Board determines it to be in the public interest, and then only on such conditions and regulations as the Planning Board deems necessary to protect neighboring properties; and
C.
Boardinghouses.
(1)
All boardinghouses are prohibited in all R-1, R-2,
OR-2, SR-3A, SR-3B and C-1A Districts, excepting, however, that this
subsection shall not apply to any boardinghouse which is owner-occupied
and which has received a special use permit from the Planning Board
or Common Council prior to the enactment of this chapter.
(2)
All boardinghouses are prohibited in C-1, C-2, C-3,
C-3A and Industrial Districts, excepting, however, that this subsection
shall not apply to any boardinghouse which either:
(3)
All boardinghouses are uses which require the issuance
of a special use permit and site plan approval by the Planning Board
in UR-3, SR-3 and R-4 Districts, excepting, however, that this subsection
shall not apply to any boardinghouse which either:
(4)
Notwithstanding any other provision of this chapter, boardinghouses
for college students are uses permitted in all R-1, R-2, OR-2, SR-3A,
SR-3B, C-1, C-2, C-1A, C-3A and DMU Zoning Districts, provided that:
[Added 04-03-2018 by Res.
No. 96-18; amended 9-3-2019 by Res. No. 187-19]
(a)
The college students must be full-time students during the entire
period of their occupancy at an accredited college or university located
in Orange County ("full-time students" is defined to mean undergraduate
or graduate students who are taking at least 12 credit hours of classes
per semester at such college or university, or 30 credit hours of
classes during such college's or university's academic year, or full-time
medical residents at or associated with Orange Regional Medical Center.);
(b)
There can be no more than three such students in any such boardinghouse;
(c)
The owner(s) must apply for and receive a student housing rental permit pursuant to the provisions of Article III of Chapter 296 of the Middletown City Code. This rental permit shall be applied for and issued in accordance with all of the requirements contained in Article III for boardinghouse permits, except:
[Added 4-18-2023]
A.
The short-term rental of a residential property or a portion thereof
for a period of less than 30 days is prohibited in all zoning districts
in the City of Middletown, subject to the following exemptions:
(1)
A legally operating commercial hotel/motel is not subject to
this prohibition;
(2)
Short-term rentals of property during emergencies affecting
the City of Middletown declared by any federal, state, county or City
authority shall not be subject to this prohibition, provided that
the owner of the property obtains permission for the rental from the
Commissioner of Public Works; and
(3)
Family members who are granted the use of premises without charge
shall not be subject to this prohibition.
No housing complex (including multiple dwellings),
shopping center or industrial park or any other use shall be constructed
unless such plans shall meet all of the requirements of this chapter
and unless said plans are reviewed by the Planning Board and approved
by the Planning Board, if the zone in which such use is contemplated
requires site plan approval of the particular use by the Planning
Board, and no lots or buildings shall be sold, leased or used pursuant
to said plans until approved.
See also Chapter 394, Signs. No signs or announcements in any residential districts for home occupations, or "For Sale" or "For Rent" or "For Lodging," shall be permitted unless they meet the following conditions:
A.
The sign shall not be more than 18 inches long and
not more than 12 inches wide.
B.
The sign shall not project more than 24 inches beyond
that portion of the building or porch which faces the street, and
in no event shall the sign project beyond the property line.
C.
Should any sign be illuminated, all illuminating devices
shall be confined and contained within the sign itself and no exterior
lights can be used.
D.
All such signs in existence without permission from
the Planning Board or the Commissioner of Public Works at the date
of this chapter shall, at the expiration of six months from such date,
become a prohibited and nonconforming use and shall be discontinued.
See also Chapter 252, Fences.
A.
Fences or garden walls for residential use shall be
limited to four feet in height in any front and side yard and six
feet in height in any rear yard. For all other uses in residential
districts, such fences or garden walls may be erected to greater heights
if approved or required by the Planning Board. The height of the fence
or wall shall be measured above the finished grade.
B.
Fences or walls in any commercial or industrial district shall be
limited to four feet in height in any front and side yard and six
feet in height in any rear yard. The height of the fence or wall shall
be measured above the finished grade. Higher fences may be erected
only upon approval by the Planning Board. In addition, in any commercial
or industrial district, a fence, wall or evergreen hedge of a height
not less than six feet nor more than 10 feet, or some other type of
buffer or screen, may be required by the Planning Board to screen
the view of an adjoining or neighborhood residence property. The design
and location of such screening shall be approved by the Planning Board.
[Amended 5-20-2014]
C.
No sharp edges, points or barbed wire shall be used
in any fence, and no electrically charged or shock fence shall be
erected or maintained except in industrial districts and then only
if the barbed wire or charged or shock strands are at least seven
feet above the ground level.
D.
No fence shall be constructed of secondhand or used
lumber.
E.
No fences shall be used for advertising, billboard
or poster purposes.
F.
All fences shall be properly constructed and erected
and maintained in a manner so as not to fall into disrepair, and if
not so maintained may be declared to be a nuisance and a nonconforming
use, and the Commissioner of Public Works, or his designee, may direct
that the same be removed, taken down and properly disposed of.
G.
All such fences or garden walls in existence without
permission of the City at the date of this chapter shall, at the expiration
of six months from such date, become a prohibited and nonconforming
use and shall be discontinued.
A.
No spotlights, floodlights, ground lights, roof lights,
pole lights, wall lights or any other lights for exterior illumination
for commercial and industrial areas or uses shall be used unless reflectors
shall be provided with proper glass lenses concentrating the illumination
upon the business area so as to prevent direct glare upon the street
or adjacent property. All commercial and industrial uses shall have
lighting installed on pedestals or poles such that the lighting is
directed upon the lot on which such use is located and upon any buildings
located on such lot, and away from other lots and public streets.
B.
Lights used to illuminate any swimming pool or other
outdoor activity or area in any residence district shall be so arranged
and shaded as to reflect away from adjoining premises and from the
public streets.
[Amended 6-14-2004]
Wherever there is an established building line
which is behind the minimum setback lines required in any district
in this chapter, all buildings newly erected or reconstructed shall
be set back so that the front of said buildings shall be in line with
the established building line on the subject street and block, or
as otherwise determined by the Planning Board.
Any property which may hereafter be annexed
to the City of Middletown shall automatically be zoned R-1 One-Family
Residential District, unless specifically otherwise zoned by ordinance
or resolution of the Common Council.
A.
Findings. There is presently in Orange County a substantial
growth in the number of adult entertainment uses and an increasing
trend toward the concentration of adult entertainment establishments.
Based upon recent studies evaluating the nature and extent of adverse
secondary effects caused by adult uses in residential and commercial
areas, including a 1998 study by the City of Middletown, a 1996 study
by the City of Newburgh, a 1994 study by the City of New York, and
a 1980 study by the Town of Islip, the Common Council hereby finds
that adult uses have negative secondary impacts such as a deterioration
of community character and quality of life, depreciation of property
values, increase in crime rates, and the blighting or downgrading
of surrounding neighborhoods and commercial land uses.
B.
Purpose. In the development and execution of this
section, it is recognized that there are some adult uses which, because
of their very nature, are recognized as having serious objectionable
characteristics. The objectionable characteristics of these uses are
further heightened by their concentration in any one area, thereby
having deleterious effects on adjacent areas. Special regulation of
these uses is necessary to ensure that these adverse effects will
not contribute to the blighting or downgrading of surrounding neighborhoods
or land uses, impede the revitalization of downtown Middletown, increase
crime or police calls, contribute to the spread of prostitution and
AIDS, increase the quantity of transients in residential and commercial
areas, cause a deterioration in the quality of life in residential
and commercial neighborhoods, increase the accessibility of adult-oriented
material and entertainment to minors, and encourage residents and
businesses to locate elsewhere.
C.
ADULT BOOKSTORE
(1)
(2)
(3)
(a)
(b)
(c)
ADULT DRIVE-IN THEATER
(1)
(2)
ADULT ENTERTAINMENT CABARET
ADULT THEATER
(1)
(2)
ADULT USE
MASSAGE ESTABLISHMENT
PEEP SHOW
(1)
(2)
SPECIFIED ANATOMICAL AREAS
SPECIFIED SEXUAL ACTIVITIES
Definitions. As used in this section, and as used
elsewhere in this chapter, the following terms shall have the meaning
indicated:
An establishment having as a substantial or
significant portion of its stock-in-trade any one or more of the following:
books, magazines, other periodicals, films, slides, audiotapes, compact
discs, DVD tapes, videotapes, photographs, motion pictures, cassettes
or other visual representations which are characterized by an emphasis
upon the depiction or description of specified sexual activities or
specified anatomical areas; or
An establishment having as a substantial or
significant portion of its stock-in-trade any one or more of the following:
books, magazines, other periodicals, films, slides, audiotapes, compact
discs, DVD tapes, videotapes, photographs, motion pictures or cassettes,
which establishment is customarily not open to the public generally
but excludes any minor by reason of age or requires permission of
a parent or guardian for such minor to enter upon or into such establishment.
For the purpose of determining whether an adult bookstore has a substantial or significant portion of its stock in materials as defined in Subsections (1) and (2) immediately above, the following factors shall be considered:
The amount of such stock accessible to customers
as compared to the total stock accessible to customers in the establishment;
and
The amount of floor area and cellar space accessible
to customers containing such stock; and
The amount of floor area and cellar space accessible
to customers containing such stock as compared to the total floor
area and cellar space accessible to customers in the establishment.
A drive-in theater that customarily presents
motion or moving pictures, films, videotapes or slide shows which
are characterized by emphasis upon the depiction or description of
specified sexual activities or specified anatomical areas; or
A drive-in theater that customarily presents
motion or moving pictures, films, videotapes or slide shows, which
theater is not open to the public generally but excludes any minor
by reason of age or requires permission of a parent or guardian for
such minor to enter upon or into such establishment.
A public or private establishment that presents (in person
or by videotape, film or similar presentation) topless, bottomless
or nude dancers, strippers, male or female impersonators or exotic
dancers or lap dancers or other similar entertainment in any portion
of the establishment and which is customarily not open to the public
generally but excludes any minor by reason of age or requires permission
of a parent or guardian for such minor to enter upon or into such
establishment, or which presents (in person or by videotape, film
or similar presentation) topless, bottomless or nude dancers, strippers,
male or female impersonators or exotic dancers or lap dancers or other
similar entertainment which is characterized by an emphasis on specified
anatomical areas or specified sexual activities, or which has employees
who, as part of their employment, regularly expose to patrons specified
anatomical areas. In defining "adult entertainment cabaret," it is
irrelevant whether or not such establishment serves food and/or drinks
of any type.
A theater that customarily presents motion or
moving pictures, films, videotapes or slide shows which are characterized
by emphasis upon the depiction or description of specified sexual
activities or specified anatomical areas; or
A theater that customarily presents motion or
moving pictures, films, videotapes or slide shows, which theater is
not open to the public generally but excludes any minor by reason
of age or requires permission of a parent or guardian for such minor
to enter upon or into such establishment.
Includes adult bookstore, adult drive-in theater, adult entertainment
cabaret, adult theater, massage establishment and peep show, all as
defined in this subsection.
Any establishment having a fixed place of business where
massages are administered for pay, including but not limited to massage
parlors, sauna baths and steam baths. This definition shall not be
construed to include a hospital, nursing home or medical clinic or
the office of a physician, surgeon, chiropractor, osteopath, or New
York State duly licensed and certified massage therapist or physical
therapist, or barbershops or beauty salons in which massages are administered
only to the scalp, face, neck or shoulders. This definition also shall
exclude health clubs which have facilities for physical exercise,
such as tennis courts, racquetball courts or exercise rooms, and which
do not receive their primary source of revenue through the administration
of massages.
An establishment which presents material in
the form of live shows, films or videotapes, viewed from an individual
enclosure, which material is characterized by emphasis upon the depiction
or description of specified sexual activities or specified anatomical
areas, for which a fee is charged; or
An establishment which presents material in
the form of live shows, films or videotapes, viewed from an individual
enclosure, for which a fee is charged, which establishment is not
open to the public generally but excludes any minor by reason of age
or requires permission of a parent or guardian for such minor to enter
upon or into such establishment.
D.
Restrictions. The adult uses defined in Subsection C of this section above are to be restricted as to location in the following manner, in addition to any other requirements of this chapter:
(1)
No adult use shall be located in any residential or
commercial zoning district in the City of Middletown or in any industrial
district other than I-3 Heavy Industrial Restricted District.
(2)
No adult use shall be located within a five-hundred-foot
radius of any residential or commercial zoning district.
(3)
No adult use shall be located within a one-thousand-foot
radius of any property containing any church, synagogue, mosque or
other place of religious worship.
(4)
No adult use shall be located within a one-thousand-foot
radius of any property containing any school, park, civic or youth-oriented
center, playground or playing field.
(5)
No adult use shall be located within a five-hundred-foot
radius of the property of another adult use.
E.
Variance. Upon appropriate application, the Zoning
Board of Appeals may issue a use variance to an adult use already
existing at the date of the adoption of this chapter in a commercial
zone (C-3 only) if the applicant satisfies the criteria for a use
variance set forth elsewhere in this chapter as well as the following
additional conditions:
(1)
The proposed adult use will not be contrary to the
public interest or injurious to nearby properties and the spirit and
intent of this section will be observed.
(2)
The establishment of an adult use in the area will
not be contrary or injurious to any program of neighborhood revitalization,
conservation or improvement.
F.
Exterior display prohibited. No adult use shall be
conducted in any manner that allows the observation of any material
depicting, describing or relating to specified sexual activities or
specified anatomical areas from any public way. This provision shall
apply to any display, decoration, sign, show window or other opening.
A.
The purpose of this section is to establish predictable
and balanced regulations for the siting and screening of antennas,
towers, and antenna accessory structures and other structures in order
to accommodate the growth of such systems within the City of Middletown
while protecting the public against any adverse impacts on aesthetic
resources, avoiding potential damage to adjacent properties from tower
failure through structural standards and setback requirements, and
reduce the number of towers needed to serve the community by maximizing
the use of existing towers and buildings.
B.
No antenna or tower shall hereafter be used, erected,
changed or altered unless the applicant for same shall obtain a special
use permit and site plan approval in accordance with the requirements
of this chapter. The Planning Board, in its review process in connection
with applications for towers, antennas, antenna accessory structures
and other, similar structures, shall have the authority to impose
such reasonable conditions and restrictions as are directly related
to and incidental to the proposed tower, antenna, antenna accessory
structure and other, similar structures.
C.
Collocation requirements. All towers or antenna erected,
constructed or located within the City shall comply with the following
requirements:
(1)
A proposal for a tower shall not be approved unless
the Planning Board finds that the antenna planned for the proposed
tower cannot be accommodated on an existing or approved tower or building
within a one-mile search radius (one-half-mile search radius for towers
under 120 feet in height; one-fourth-mile search radius for towers
under 80 feet in height) of the proposed tower due to one or more
of the following reasons:
(a)
The antenna would exceed the structural capacity
of the existing or approved tower or building, as documented by a
qualified professional engineer, and the existing or approved tower
cannot be reinforced, modified, or replaced to accommodate the planned
or equivalent antenna at a reasonable cost.
(b)
The antenna would cause interference materially
impacting the usability of other existing or planned antennas at the
tower or building as documented by a qualified professional engineer
and the interference cannot be prevented at a reasonable cost.
(c)
Existing or approved towers and buildings within
the search radius cannot accommodate the antenna at a height necessary
to function reasonably as documented by a qualified professional engineer.
(d)
Other foreseen reasons that make it infeasible
to locate the antenna upon an existing or approved tower or building.
(2)
Any proposed tower shall be designed, structurally,
electrically, and in all other respects, to accommodate both the applicant's
antennas and no less than either comparable antennas or those typically
used by cellular or personal wireless services providers, whichever
creates a heavier load, for at least two additional users if the tower
is over 100 feet in height or for at least one additional user if
the tower is over 60 feet in height. Towers must be designed to allow
for future rearrangement of antennas upon the tower and to accept
antennas mounted at varying heights. The applicant shall submit to
the Planning Board a letter of intent committing the applicant, and
his/her/its successors in interest, to negotiate in good faith for
shared use of the proposed tower by other personal wireless services
providers in the future. The issuance of a permit (assuming the tower
is approved in accordance with this chapter) shall commit the new
tower owner and his/her/its successors in interest to:
(a)
Respond in a comprehensive manner within 30
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 applicants.
(c)
Allow shared use of the new tower if another
applicant agrees in writing to pay reasonable charges.
(d)
Make no more than a reasonable charge for shared
use, based on generally accepted accounting principles. The charge
may include but is 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,
and depreciation, and all of the costs of adapting the tower or equipment
to accommodate a shared user without causing electromagnetic interference.
(3)
In order to keep neighboring municipalities informed,
and to facilitate the possibility of directing than an existing tall
structure or existing tower in a neighboring municipality be considered
for shared use, the Planning Board shall require that an applicant
who proposes a new tower shall notify in writing the Orange County
Planning Commission and the legislative body of each municipality
that borders the City of Middletown. Notification shall include the
exact location of the proposed tower and a general description of
the project, including but not limited to the height of the tower
and its capacity for future shared use. Documentation of this notification
shall be submitted to the Planning Board at the time of application.
D.
Each application for installation of an antenna shall
include either a preliminary or a certified statement that the installation
of the antenna, including reception and transmission functions, will
not interfere with the radio or television service enjoyed by adjacent
residential and nonresidential properties or with public safety telecommunications.
In the event that only a preliminary statement is submitted with the
application, a final certified statement of noninterference will be
provided and approved by the Planning Board and Commissioner of Public
Works prior to the issuance of a permit. All preliminary and certified
statements shall be prepared by a professional engineer.
E.
Antennas shall be subject to state and federal regulations
pertaining to nonionizing radiation and other health hazards related
to such facilities. The owner shall submit evidence of compliance
with the Federal Communications Commission's and Federal Aviation
Administration's standards on a yearly basis. If new, more restrictive
standards are adopted by any applicable federal or state agency, the
antennas shall be made to comply with such standards, or the Planning
Board will retain jurisdiction to restrict the continuation of operations
at and through such antennas and towers. The cost of verification
of compliance shall be borne by the owner and operator of the tower.
F.
Towers shall not be illuminated by artificial means
and shall not display strobe lights unless such lighting is specifically
required by the Federal Aviation Administration or other federal or
state authority for a particular tower. When incorporated into the
approved design of the tower, light fixtures used to illuminate ball
fields, parking lots, or similar areas may be attached to the tower.
G.
The use of any portion of a tower for signs other
than warning or equipment information signs is prohibited.
H.
The maximum height of a tower is limited to 150 feet
above the ground, including any building upon which the tower is placed.
The Planning Board may allow towers up to 200 feet above the ground,
including any building upon which the tower is placed, if the applicant
can demonstrate that based upon the topography of the site and surrounding
area, siting of the antenna, antenna design, surrounding tree cover
and structures and/or through the use of screening, that off-site
views of the tower will be minimized. The height limitation may be
waived by the Planning Board when the antenna is mounted on an existing
building or structure or to accommodate collocation.
I.
The use of guyed towers is prohibited. Towers must
be self-supporting without the use of wires, cables, beams or other
means. The design should utilize an open framework or monopole configuration.
Permanent platforms or structures exclusive of antennas that serve
to increase off-site visibility are prohibited. The base of the tower
shall occupy no more than 500 square feet and the top of the tower
shall be no longer than the base. The minimum spacing between tower
locations is 1/4 of a mile.
J.
A road and parking shall be provided to assure adequate
emergency and service access. Maximum use of existing roads (whether
public or private) shall be made.
K.
Towers and all antenna accessory structures and other
structures shall conform to each of the following minimum setback
requirements:
(1)
The minimum setbacks of the underlying zoning district
in which the tower or antenna is located shall be met, with the exception
of industrial zoning districts, where towers and antenna accessory
structures may encroach into the rear setback area, provided that
the rear property line abuts another industrially zoned property and
the tower does not encroach upon any easements.
(2)
Towers and antenna accessory structures shall be set
back from the public right-of-way, by a minimum distance equal to
1/2 of the height of the tower, including all antennas and attachments.
(3)
A tower's setback may be reduced in the sole discretion
of the Planning Board to allow the integration of a tower into an
existing or proposed structure such as a church steeple, light pole,
power line, water tower or similar structure.
L.
Existing on-site vegetation shall be preserved to
the maximum extent practicable. The base of the tower and any antenna
accessory structures shall be landscaped as directed by the Planning
Board. Towers and antenna accessory structures shall be provided with
security fencing to prevent unauthorized entry.
M.
Towers and antennas shall be designed to blend into
the surrounding environment through the use of color and camouflaging
architectural treatment, except in instances where the color is dictated
by federal or state authorities such as the Federal Aviation Administration.
Every antenna and tower shall be of neutral colors that are harmonious
with, and that blend with and into, the natural features, buildings
and structures surrounding such antenna and tower; provided, however,
that directional or panel antenna and omnidirectional or whip antennas
located on the exterior of a building that will also serve as an antenna
tower shall be of colors that match, and cause the antenna to blend
with, the exterior of the building. Accessory structures will be designed
to be architecturally compatible with principal structures on the
site. Preference will be given to those antennas and towers located
on municipal buildings or structures or other municipally owned property.
N.
The operator of every antenna shall submit to the
Clerk of the Planning Board copies of all licenses and permits required
by other agencies and governments with jurisdiction over the design,
construction, location and operation of such antenna, and such operator
shall maintain such licenses and permits and provide evidence of renewal
or extension thereof when granted.
O.
Every permit granting approval of an antenna, antenna
accessory structure or tower shall state that any assignment or transfer
of the permit or any rights thereunder may be made only with the approval
of the Planning Board.
P.
The permit granted by the Planning Board shall be
subject to review by the Planning Board at five-year intervals, or
sooner if the Planning Board shall so require, to determine whether
the technology in the provision of personal wireless services or other
services which have need of antennas, antenna accessory structures
and towers has changed such that the necessity for the permit at the
time of its approval has been eliminated or modified, and whether
the permit should be modified or terminated as a result of any such
change.
Q.
The Planning Board may impose on an owner and operator
of a tower, antenna or antenna accessory structure an annual fee for
the continued validity of the permit originally granted by the Planning
Board.
R.
Abandoned or unused towers or portions of towers shall
be removed as follows:
(1)
All abandoned or unused towers and associated facilities
shall be removed within six months of the cessation of operations
at the site unless a time extension is approved by the Planning Board.
A copy of the relevant portions of a signed lease which requires the
applicant to remove the tower and associated facilities (such as antenna
and antenna accessory structures) upon cessation of operations at
the site shall be submitted at the time of application. In the event
that a tower is not removed within six months of the cessation of
operations at a site, the tower and associated facilities may be removed
by the City and the costs of removal assessed against the real property
upon which the tower and associated facilities were located, or the
costs may be recovered from the removal bond described below, in the
City's discretion.
(2)
Unused portions of towers above a manufactured connection
shall be removed within six months of the time of antenna relocation.
The replacement of portions of a tower previously removed requires
the issuance of a new permit by the Planning Board.
(3)
At the time of approval of any tower by the Planning
Board, the applicant must post with the City a removal bond in the
amount of $10,000, or such other amount as may be required by the
Planning Board. The form and amount of the bond must be approved by
the City's Corporation Counsel.
S.
Antennas, antenna accessory structures and towers
in existence at the time of adoption of this chapter which do not
conform to or comply with this chapter are subject to the following
provisions:
(1)
Antennas, antenna accessory structures and towers
may continue in use for the purpose now used and as now existing but
may not be replaced or structurally altered without complying in all
respects with this chapter.
(2)
If such antennas, antenna accessory structures or
towers are hereafter damaged or destroyed due to any reason or cause
whatsoever, the antenna or tower may be repaired and restored to its
former use, location and physical dimensions without complying with
this chapter; provided, however, that if the cost of repairing the
tower to the former use, physical dimensions and location would be
10% or more of the cost of a new tower of like kind and quality, then
the tower may not be repaired or restored except in full compliance
with this chapter.
