[HISTORY: Adopted by the Town Board of the
Town of Wales 4-9-1997 by L.L. No. 1-1997. Amendments noted where
applicable.]
GENERAL REFERENCES
Zoning — See Ch. 200.
A.
Statutory authority. Pursuant to the authority conferred
by Article 16 of the Town Law of the State of New York and the Municipal
Home Rule Law of the State of New York, the Town Board of the Town
of Wales, County of Erie and State of New York, has ordained and does
hereby enact this chapter regulating and restricting the location,
size and use of telecommunications facilities and their accessory
structures in the Town of Wales.
B.
Legislative intent. The Town of Wales recognizes the
increased demand for wireless communications 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 the telecommunications facilities
in accordance with the guidelines of the Telecommunications Act of
1996 and other applicable laws by:
(1)
Accommodating the need for telecommunications towers/antennas
while regulating their location and number in the community.
(2)
Minimizing adverse visual impacts of these towers/antennas
through proper siting, design and screening.
(3)
Preserving and enhancing the positive aesthetic qualities
of the natural environment and current development in the Town of
Wales.
(4)
Providing for the health, safety and welfare of the
community by avoiding potential damage or other negative impact to
adjacent properties from power failure, falling ice, etc., through
proper siting and engineering.
(5)
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 transmit or receive
frequency signals. Such signals shall include but not be limited to
radio, television, cellular, paging, digital and/or data communications,
personal wireless communications services (PWS) and microwave communications.
Towers and/or antennas and accessory structures together
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
and similar broadcast services. (Also referred to as "facilities"
or "equipment.")
A structure designed to support antennas. It includes, without
limit, freestanding towers, guyed towers, monopoles and similar structures
which do or which do not employ camouflage technology.
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.
A.
Collocated/existing structure antennas.
(1)
"Collocated/existing structure antennas" shall be
defined as any antenna that is attached to an existing communications
tower, smokestack, water tower or other existing structure, and shall
be permitted in all zoning districts.
(2)
Approvals and bulk requirements. A collocated or existing
structure antenna is permitted as of right upon issuance of a building
permit. The building permit application shall include the following:
(a)
A structural analysis/report certified by a
professional engineer or architect licensed by New York State verifying
the ability of the structure to handle the antenna.
(b)
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.
(c)
The height of the new antenna shall not extend
above the height of the existing structure.
(d)
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.
B.
Noncollocated/new structure antennas.
(1)
A "noncollocated/new structure antenna" shall be defined as an antenna that will not be mounted on an existing structure as defined above, or is higher than the existing structure on which it is mounted. Such is permitted in accordance with the requirements set forth in § 100-3B(2) of this chapter.
(2)
Approvals and bulk requirements. No application for
a noncollocated or new structure antenna 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:
(a)
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.
(b)
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.
(c)
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:
[1]
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.
[2]
The existing or proposed equipment would cause
interference with other existing or proposed equipment which could
not reasonably be mitigated or prevented.
[3]
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.
[4]
Other reasons which make it impracticable to
locate or place the proposed equipment on said facilities or structures.
C.
All other telecommunications facilities.
(1)
In all zoning districts, new towers must be set back
a minimum of 500 feet from all residential dwellings, schools and
historic structures.
(2)
Approvals and bulk requirements. For all new or replacement
towers, a tower special permit shall be required. The tower must also
be set back a minimum of 1 1/2 times the height of the tower
from all property lines and any existing buildings, except as set
forth above. The Town Board may require an additional setback area
in the case of guyed wires, taking into consideration the length of
guyed wires and the location of ground anchors.
The Town Board shall be the issuing agency for
all tower special permits and shall also be the lead agency for SEQRA.
A.
Content of application. All applicants for a tower
special permit shall file a building permit application and make a
written application for special permit to the Town Board, through
the Building Inspector. Said 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 § 200-31 of the Town of Wales Zoning Code 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.
[1]
Editor's Note: Fees are on file in the office
of the Town Clerk.
(3)
A site plan in the form and content acceptable to
the Town, prepared to scale and in sufficient detail and accuracy.
At minimum, such site plan shall include:
(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, plus any amendments thereto,
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 Assessor's 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 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)
Search ring analysis.
(a)
A search ring analysis prepared by a qualified
radio frequency engineer (signed and sealed by a 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.
(b)
The applicant must 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
collocation shall be part of this requirement.
(6)
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
impact 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.
(7)
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 specialty designed towers, additional
screening, greater setbacks and improved landscaping. Siting in these
areas should be avoided to the maximum extent possible.
The following criteria will be considered by
the Town prior to the approval/denial of a request for 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.
A guideline for the Town's preference, from most desirable to least
desirable zoning districts/property, is as follows:
(2)
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. 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. 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 requirements 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)
The type of finish, color and lighting shall be subject
to Town and/or Federal Aviation Administration (FAA) approval. 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.
(c)
The party desiring to collocate has a similar
policy of collocation for the applicant.
(7)
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 frequencies and power levels designated by the Federal
Communications Commission (FCC) 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.
(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 Inspector. Radio
emission inspection shall be performed by a professional engineer
licensed in New York State 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 Inspector or pertinent Town consultant 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)
All towers shall include anticlimbing devices for
a minimum of 25 feet extending above ground level.
E.
Removal of tower.
(1)
The applicant shall agree to remove the tower if the
telecommunications facility becomes obsolete or ceases to be used
for its intended purpose for 12 consecutive months. 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 professional
engineer licensed by New York State, the cost of the same to be borne
by the applicant. If said analysis and report determine 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
professional engineer, licensed in New York State 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 Inspector.
The structural inspection shall be performed by a professional engineer
licensed by New York State 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 inspection indicates structural
deficiencies, then the deficiencies must be remedied within the time
reasonably set by the Building 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 be kept and available
for Town review upon request.
A.
Tower and antenna(s) may be repaired and maintained
without restriction.
B.
Antennas and satellite antennas used solely for residential
household television and radio reception shall be exempt.
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 shall be exempt.
(NOTE: FCC rule regarding preemption of local zoning and regulations
for satellite antennas, 47 CFR 25.)
A.
In the event of any conflicts or inconsistencies between this chapter and any other local law, including Chapter 200, Zoning, of the Code of the Town of Wales, this chapter is meant to control for telecommunication towers and similar facilities in the Town unless otherwise specifically referenced in this chapter.
B.
In the event that there is a change in technology
that alters the use of the telecommunications facilities sited pursuant
to this chapter, the Town reserves the right to require a new application
to be submitted, which complies with the above requisites, from all
owners of such telecommunications facilities.
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 permits issued hereunder,
the Town may seek enforcement under any available authority, including
but not limited to Town Law § 268.
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.
