[HISTORY: Adopted by the Town Board of the Town of Athens 8-10-1998 by L.L. No. 3-1998. Amendments noted where applicable.]
Zoning — See Ch. 180.
This chapter may be known and cited as the "Telecommunications Tower Law for the Town of Athens."
As used in this chapter, the following terms shall have the meanings indicated:
- ACCESSORY FACILITY
- An accessory facility serves the principal use, is subordinate in area, extent and purpose to the principal use and is located on the same lot as the principal use. Examples of such facilities include transmission equipment and storage sheds.
- A system of electrical conductors that transmit or receive electromagnetic waves. Such waves shall include but not be limited to radionavigation, radio, television and microwave communications.
- SPECIAL USE (ALSO KNOWN AS "CONDITIONAL USE")
- A use which is deemed allowable within a given zoning district but which is potentially incompatible with other uses and, therefore, is subject to special standards and conditions set forth for such use subject to approval by the Town of Athens Planning Board, hereinafter referred to as the "Board."
- TELECOMMUNICATIONS TOWER
- A structure on which transmitting and/or receiving antennas are located.
- Hereinafter refers to telecommunications tower, antenna and accessory facility as a unit.
- TOWN OF ATHENS
- Hereinafter referred to as the "town."
The purpose of these supplemental regulations is to promote the health, safety and general welfare of the residents of the town; to provide standards for the safe provision of telecommunications consistent with applicable federal and state regulations; to minimize the total number of towers in the community by encouraging shared use of existing and future towers and the use of existing appropriate buildings and other appropriate structures; and to minimize adverse visual effects from towers by requiring careful siting, visual impact assessment and appropriate landscaping.
No tower, except those approved prior to the effective date of this chapter, shall be used unless in conformity with these regulations. No tower shall hereafter be erected, moved, reconstructed, changed or altered unless in conformity with these regulations. No existing structure shall be modified to serve as a tower unless in conformity with these regulations.
Applicants proposing to co-locate on a previously approved tower do not require a special permit. They are, however, subject to site plan review. The Board may require the applicant to submit any of the items under § 162-5A below as part of the site plan review process.
The regulations shall apply to all property within the Town of Athens.
At all times, shared use of existing appropriate structures (for example, water towers, multistory buildings, church steeples, farm silos, etc.) and existing or approved towers (see § 162-4B above) shall be preferred to the construction of new towers.
An applicant proposing to share use of an existing appropriate structure shall be required to submit:
A completed application for a special use permit.
Documentation of intent from the owner of the existing facility to allow shared use.
A site plan. The site plan shall show all existing and proposed structures and improvements, including antennas, roads, buildings, guy wires and anchors, parking and landscaping, and shall include grading plans for new facilities and roads. Any methods used to conceal the modification of the existing facility shall be indicated on the site plan.
An engineer's report certifying that the proposed shared use will not diminish the structural integrity and safety of the existing appropriate structure and explaining what modifications, if any, will be required in order to certify to the above.
A completed short environmental assessment form (EAF) and a completed visual EAF addendum.
A copy of its Federal Communications Commission (FCC) license.
If an applicant proposing to share use of an existing appropriate structure submits complete and satisfactory documentation in accordance with Subsection A above, and if modifications indicated according to Subsection A are deemed insignificant by the Board, and after the Board conducts a public hearing and complies with all SEQRA provisions, the Board shall grant a special permit without further review under this chapter. If the Board determines that any modifications indicated according to Subsection A are significant, it may require further review according to §§ 162-10 through 162-26 below.
The Board may consider a new tower when the applicant demonstrates that shared use of existing appropriate structures and existing or approved towers is impractical. An applicant shall be required to present an adequate report inventorying all existing appropriate structures and existing or approved towers within a reasonable distance of the proposed site. This distance shall be determined by the Board in consultation with the applicant. The report shall outline opportunities for shared use of these existing facilities as an alternative to a proposed new tower. The report shall demonstrate good faith efforts to secure shared use from the owner of each existing appropriate structure and existing or approved tower as well as documentation of the physical, technical and/or financial reasons why shared usage is not practical in each case. Written requests and responses for shared use shall be provided.
Where shared use of existing appropriate structures and existing or approved towers is found to be impractical, the applicant shall investigate shared usage of an existing tower site for its ability to accommodate a new tower and accessory uses. Documentation and conditions shall be in accordance with § 162-6 above. Any proposals for a new tower on an existing tower site shall also be subject to the requirements of §§ 162-9 through 162-26 below.
The Board may consider a new tower on a site not previously developed with an existing tower when the applicant demonstrates that shared use of existing appropriate structures and existing or approved towers is impractical and submits a report as described in § 162-6 above and when the Board determines that shared use of an existing tower site for a new tower is undesirable based upon the applicant's investigation in accordance with § 162-7. Any proposal for a new tower shall also be subject to the requirements of §§ 162-9 through 162-26 below.
Towers shall be located to minimize the following potential impacts:
Visual/aesthetics. Towers shall, when possible, be sited off ridgelines and where visual impact is least detrimental to scenic areas, such as scenic areas of statewide significance (SASS), state-designated scenic roads, public parks and historic sites, landmarks or districts.
Diminution of property values.
Safety, in the event of structural failure, falling or blowing ice or attractive nuisance.
The Board shall require proof that the tower or personal cellular communications (PCS) site does not exceed Federal Communications Commission (FCC) guidelines.
The applicant shall design a proposed new tower to accommodate future demand for reception and transmitting facilities. The applicant shall submit to the Board a letter of intent committing the owner of the proposed new tower, and his/her successors in interest, to negotiate in good faith for shared use of the proposed tower by other telecommunications providers in the future. This letter shall be filed with the Code Enforcement Officer prior to issuance of a building permit. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the special permit. The letter shall commit the new tower owner and his/her successors in interest to:
Respond within 90 days to a request for information from a potential shared use applicant.
Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers.
Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. 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.
An applicant shall be required to submit a site plan. The site plan shall show all existing and proposed structures and improvements, including roads, buildings, towers, guy wires and anchors, antennas, parking and landscaping, and shall include grading plans for new facilities and roads.
Supporting documentation. The applicant shall submit a complete short EAF, a complete visual environmental assessment form (visual EAF addendum) and documentation on the proposed intent and capacity of use, as well as a justification for the height of any tower and justification for any clearing required. The applicant shall also submit a copy of its FCC license.
All proposed towers shall be located on a single parcel and shall be set back from abutting parcels and street lines a distance sufficient to substantially contain on site all ice fall or debris from tower failure and preserve the privacy of any adjoining residential properties.
Lot size of parcels containing a tower shall be determined by the amount of land required to meet the setback requirements. If the land is to be leased, the entire area required shall be leased from a single parcel, unless the Board determines that this provision may be waived.
All tower bases shall be located at a minimum setback from any property line and/or public road at a minimum distance equal to 11/2 times the height of the tower.
The Board shall require the applicant to undertake a visual impact assessment to include:
A Zone of Visibility Map, which shall be provided in order to determine locations where the tower may be seen.
Pictorial representations of before and after views from key viewpoints both inside and outside of the Town of Athens, including but not limited to state highways and other major roads, state and local parks, other public lands, preserves and historic sites normally open to the public, and from any other location where the site is visible to a large number of visitors or travelers. The Board shall determine the appropriate key sites at a presubmission conference with the applicant.
Assessment of the visual impact of the tower base, guy wire, accessory facilities and overhead utility lines from abutting properties and streets.
Alternative designs shall be considered for new towers, including but not limited to lattice and single pole structures. The design of a proposed new tower shall comply with the following:
Any new tower shall be designed to accommodate future shared use by not fewer than four other telecommunications providers, unless the Board determines that this provision may be waived.
Unless specifically required by other regulations, a tower shall have a finish (either painted or unpainted) that minimizes its degree of visual impact to the satisfaction of the Board.
The maximum height of any new tower shall not exceed that which shall permit operation without artificial lighting of any kind or nature, in accordance with municipal, state and/or federal law and/or regulation. The Board, at its discretion, may modify this requirement if the applicant can justify the need to exceed this height limitation.
The Board shall request a review of the application by a qualified engineer in order to evaluate the need for, and the design of, any new tower, at the applicant's expense.
Accessory facilities shall maximize the use of building materials, colors and textures designed to blend with the natural surroundings.
Existing on-site vegetation shall be preserved to the maximum extent possible. No cutting of trees exceeding four inches in diameter (measured at a height of four feet off the ground) shall take place prior to the approval of the special permit unless waived by the Board.
Deciduous or evergreen tree plantings may be required to screen portions of the tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas. Where a site abuts a residential property or public property, including public streets, screening shall be required.
Adequate emergency and service access shall be provided. Maximum use of existing roads, public or private, shall be made. Road construction shall, at all times, minimize ground disturbance and vegetation cutting to within the toe of fill, the top of cuts or no more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential.
Parking shall be provided to assure adequate emergency and service access. The Board shall determine the number of required spaces based upon a recommendation from the applicant.
The tower and any accessory facilities shall be adequately enclosed by a fence, the design of which shall be approved by the Board.
Under the following circumstances, the Board may determine that the health, safety and welfare interests of the town warrant and require revocation of the special use permit and the removal of the tower:
A permitted tower has been abandoned for a period exceeding 90 consecutive days, or 180 days in any period of 365 days, which in this case means not used for the intended and permitted purpose for such a period, except for situations caused by the commonly recognized definition of force majeur or acts of God of an extraordinary and catastrophic nature and effect.
A permitted tower falls into such a state of disrepair that it creates a health or safety hazard for the public.
A tower has been located, constructed or modified on property located within the town without having obtained the required special use permit or other necessary authorization.
If the Board makes such a determination as noted in Subsection A, then the Board shall notify the holder of the special use permit for the tower within 48 hours that said tower must and shall be removed, unless the Board approves an extension to the special use permit, such as to enable the sale of the tower.
If the tower is not removed voluntarily within 90 days after the permit holder has been served notice of revocation of the special use permit, or if substantial progress has not been made to remove the tower within 90 days of said notice, then the Board may order officials or representatives of the town to remove the tower at the sole expense of the owner or permit holder, or the town, at its discretion, may take possession of the tower.
If, pursuant to Subsection C, officials, employees or representatives of the town remove, or cause to be removed, a tower and the owner of the tower does not claim the property within 10 days of its removal, then the town may take whatever steps are available under state law to declare the tower abandoned and sell the facility and its components.
If the Board approves an extension to the special use permit for the tower, such extension shall be for no more than 90 days, during which time a suitable plan for removal or conversion or relocation of the affected tower shall be developed by the holder of the permit, subject to the approval of the Board, and an agreement to such plan shall be executed by the holder of the permit and the town. If such a plan is not developed within the ninety-day time frame, then the town may take possession of and dispose of the affected tower in the manner noted in Subsection C.
In conjunction with removal of the tower and all associated structures and facilities, the holder of the special use permit, or its successors and assigns, shall restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability. However, if the owner of the property upon which the tower is located wishes to retain any access roadway to the tower, the owner may do so without the approval of the Board.
Performance security. The applicant and the owner of record of the premises shall execute and file with the town a bond or other form of security acceptable to the town's Attorney and Clerk as to the type of security and the form and manner of execution, in an amount sufficient to assure the faithful performance of the terms and conditions of the special use permit issued pursuant to this chapter, including the maintenance of the tower throughout the term of the special use permit, and to provide for the removal of the tower in the event the special use permit is revoked or surrendered or in the event the tower is abandoned. The amount required shall be determined by the Board. In the event of default upon the performance of any conditions of the special use permit or violation of the requirements of this chapter, the bond or security shall be forfeited to the town, which shall be entitled to maintain an action thereon. The bond or security shall remain in full force and effect throughout the term of the special use permit and/or until the removal of the tower and any necessary site restoration is completed.
In order to keep neighboring municipalities informed and to facilitate the possibility of directing that an existing appropriate structure or existing telecommunications tower in a neighboring municipality be considered for shared use and to assist in the continued development of county 911 services, the Board shall require that:
An applicant who proposes a new telecommunication tower shall notify in writing the legislative body of each municipality that borders the Town of Athens, the Greene County Planning Board and the Director of Greene County Emergency Services. 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 Board at the time of application.
The applicant shall be required to mail notice of the public hearing directly to all landowners whose property is located within 500 feet of the property line of the parcel on which a new tower is proposed. Notice shall also be mailed to the administrator of any state or federal parklands from which the proposed tower would be visible if constructed. Notification, in all cases, shall be made by certified mail, return receipt requested. Documentation of this notification shall be submitted to the Board prior to the public hearing.
Towers shall be permitted one sign no larger than two feet square (two feet by two feet) to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmitting and receiving capabilities. The sign shall also contain the name of the owner and operator of the antenna as well as emergency phone number(s). The sign shall be located so as to be visible from the access point of the site. No other signage, including advertising, shall be permitted on any antenna, antenna supporting structure, monopole or antenna tower, unless required by federal, state or local regulation.
At any time between 12 months and six months prior to the five-year anniversary date and all subsequent fifth anniversaries of the original granting of the special use permit for a tower, the holder of a special use permit for such tower shall submit a written request for recertification. In the written request for recertification, the holder of such special use permit shall note the following:
The name of the holder of the special use permit for the tower.
If applicable, the number or title of the special use permit.
The date of the original granting of the special use permit.
Whether the tower has been moved, relocated, rebuilt, repaired or otherwise modified since the issuance of the special use permit.
If the tower has been moved, relocated, rebuilt, repaired or otherwise modified, then whether the Board approved such action and under what terms and conditions and whether those terms and conditions were complied with and abided by.
Any requests for waivers or relief of any kind whatsoever from the requirements for a special use permit.
That the tower is in compliance with the special use permit and compliance with all applicable codes, laws, rules and regulations.
If, after such review, the Board determines that the permitted tower is in compliance with the special use permit and all applicable codes, laws and rules, then the Board shall issue a recertification special use permit for a tower, which may include any new provisions that are mutually agreed upon or required by the force of law or regulation.
If the Board does not complete its review, as noted in Subsection B, prior to the expiration date of the special use permit, then the applicant for the permitted tower shall receive an automatic extension of the special use permit for up to six months, in order for the Board to complete its review as noted in Subsection B.
If the holder of special use permit for a tower does not submit a request for recertification of such special use permit within the time frame noted in Subsection A, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimate extenuating circumstances, then the holder of the special use permit may submit a recertification request for the existing special use permit for a tower to be extended for up to six months in order to allow the Board adequate time to review the recertification request.
To the extent permitted by federal and state law, any person adversely affected by the Board's actions with respect to an application, recertification application or revocation of a special use permit for a tower shall have the right to appeal the adverse decision to the Town of Athens Zoning Board of Appeals.
Any special use permit issued pursuant to this chapter shall contain a provision with respect to indemnity. Such provision shall require the holder of the special use permit, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless and exempt the town, officials of the town, its officers, agents, servants and employees from any or all penalties, damage or charges arising out of claims, suits, demands, causes of action or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the construction, erection, modification, location, product performance, operation, maintenance, repair, installation, replacement, removal or restoration of a tower within the town. With respect to the penalties, damages or charges referenced herein, reasonable attorney's fees, consultant's fees and expert witness fees are included in those costs that are recoverable by the town.