[HISTORY: Adopted by the Town Board of the Town of Phelps 4-6-1998 by L.L. No. 2-1998. Amendments noted where applicable.]
Zoning — See Ch. 145.
The purpose of this chapter is to promote the health, safety and general welfare of the residents of the Town of Phelps through the establishment of minimum standards to reduce the adverse visual effects of wireless service facility transmission towers and antennas through careful design, siting and screening; to protect property values; to protect the physical appearance of the community and to preserve it's scenic and natural beauty; to avoid potential damage to adjacent properties from tower failure through proper engineering and careful siting of structures; to ensure that all residents of the Town of Phelps are adequately served by personal wireless services technology; to protect a citizen's ability to receive communication signals without interference from other communication providers while preserving competition among communications providers; and to maximize the use of existing towers or antenna host sites within prescribed districts so as to minimize the number and visual impact of towers needed to serve the Town of Phelps.
Except as specifically set forth in the Zoning Law, all new wireless service facilities in the Town of Phelps shall be subject to these and all applicable regulations.
As used in this chapter, the following terms shall have the meanings indicated:
- The American National Standards Institute.
- A device used in communications which converts radio frequency electrical energy to radiated electromagnetic energy and vice versa; in a transmitting station, an antenna is the device from which radio waves are emitted.
- The mounting of wireless service facilities used by two or more persons, firms or corporations on the same equipment mounting structure.
- The environmental assessment form as defined in 6 NYCRR Part 617.
- The Environmental Protection Agency.
- EQUIPMENT MOUNTING STRUCTURE
- Any structure used primarily to support reception or transmission equipment, including but not limited to antenna support structures, towers and monopoles.
- The Federal Aviation Administration.
- FEDERAL COMMUNICATIONS COMMISSION OR FCC
- The federal agency responsible for licensing and regulation of wireless communications which has primary regulatory control over communications providers.
- PERSONAL WIRELESS SERVICES
- Commercial mobile services, wireless telecommunications services, duly authorized devices which do not require individual licenses (excluding the provision of direct-to-home satellite services), and common carrier wireless exchanges including cellular radiotelephone, specialized mobile radio system and personal communications services.
- PUBLIC UTILITY
- Any person, firm, corporation or governmental agency which is duly authorized to furnish to the public, under governmental regulation, electricity, water, sewage treatment or steam.
- SPECIAL 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 of such use subject to the approval of the Zoning Board of Appeals.
- WIRELESS SERVICE FACILITY
- A facility for the provision of wireless services. A wireless service facility includes an antenna, equipment mounting structure and accessory buildings and equipment.
All new wireless service facilities and all additions and/or modifications to currently existing wireless service facilities shall be allowed in all areas of zoning, except R-1, and only pursuant to a special use permit issued by the Zoning Board, in accordance with the criteria set forth in this chapter.
All applicants for a special use permit shall file with the Zoning Officer five copies of the following documents:
Site plan. The site plan shall show elevations, height, width, depth, type of materials, color schemes and other relevant information for all existing and proposed structures, equipment, parking and other improvements. The site plan shall also include a description of the proposed wireless service facility and such other information that the Zoning/Planning Board requires.
Environmental assessment form: a completed environmental assessment form (EAF), including the visual EAF addendum. Particular attention shall be given to visibility from key viewpoints identified in the visual EAF addendum, existing treelines and proposed elevations.
Landscape plan: a landscape plan delineating the existing trees or areas of existing trees to be preserved, the location and dimensions of proposed planting areas, including the size, type and number of trees and shrubs to be planted, curbs, fences, buffers, screening, elevations of fences and materials used.
Documentation of proposed height: documentation sufficient to demonstrate that the proposed height is the minimum height necessary to provide service to locations which the applicant is not able to serve with existing facilities within and outside the Town of Phelps.
Statement regarding collocation: for new wireless service facilities, a statement by the applicant that construction of the facility will accommodate collocation of additional facilities for future users.
Structure engineering report: a report prepared by a New York State licensed professional engineering firm specializing in structural integrity of the wireless service facility. In the case of a tower or monopole, the structural engineering report shall describe the structure's height and design, including a cross section of the structure, demonstrate the structure's compliance with applicable structural standards and describe the structure's capacity, including the number of antennas it can accommodate and the precise point at which the antenna shall be mounted. In the case of an antenna mounted on an existing structure, the structural engineering report shall indicate the ability of the existing structure to accept the antenna, the proposed method of affixing the antenna to the structure and the precise point at which the antenna shall be mounted.
Engineering analysis of radio emissions: An engineering analysis of radio emissions, and a propagation map for the proposed wireless service facility. The analysis shall be prepared and signed by a New York State licensed professional engineer specializing in electrical engineering with expertise in radio communication facilities. The results from the analysis must clearly show that the power density levels of the electromagnetic energy generated from the proposed facility are within the allowable limits established by the FCC which are in effect at the time of the application. If the proposed wireless service facility would be collocated with an existing facility, the cumulative effects of the facilities must also be analyzed. The power density shall be based on the assumption that all antennas mounted on the proposed facility are simultaneously transmitting radio energy at a power level equal to the maximum antenna power rating specified by the antenna manufacturer.
Map of proposed charges and existing facilities: a map showing the area of coverage of the proposed facility and listing all existing wireless service facilities in the Town of Phelps and bordering municipalities containing wireless service facilities used by the applicant, and a detailed report indicating why the proposed wireless service facility is required to provide service to locations which the applicant is not able to serve with existing facilities which are located within and outside the Town of Phelps, by collocation or otherwise.
Applicants for special use permits for establishment or construction of wireless service facilities shall meet all of the following criteria:
Necessity. The proposed wireless service facility is required to provide service to locations which the applicant is not able to serve with existing facilities which are located within and outside the Town of Phelps, by collocation or otherwise.
Collocation. The collocation of existing wireless service facilities shall be strongly preferred to the construction of new wireless service facilities. If a new site for a wireless service facility is proposed, the applicant shall submit a report setting forth in detail an inventory of existing wireless service facilities which are within a reasonable distance from the proposed facility with respect to coverage, an inventory of existing wireless service facilities with other municipalities which can be utilized or modified in order to provide coverage to the locations the applicant is seeking to serve and a report on the possibilities and opportunities for collocation as an alternative to a new site. The applicant must demonstrate that the proposed wireless service facility cannot be accommodated on an existing facility or on an existing facility in another municipality due to one or more of the following reasons:
The proposed equipment would exceed the existing and reasonably potential structural capacity of existing and approved wireless service facilities, considering existing and planned use for those facilities.
The existing or proposed equipment would cause interference with other existing or proposed equipment which could not reasonably be prevented or mitigated.
Existing or approved wireless service facilities or in neighboring municipalities do not have space on which the proposed equipment can be placed so it can function effectively and reasonably, and the applicant has not been able, following a good-faith effort, to reach an agreement with the owners of such facilities.
Other reasons that make it impracticable to place the proposed equipment on existing and approved wireless service facilities in other municipalities.
Service to the locations to which the applicant seeks to provide service cannot be provided by existing facilities within or outside the Town of Phelps.
Maximum height. Unless the FCC promulgates rules to the contrary or the applicant demonstrates to the satisfaction of the Board granting the special use permit that a greater height is necessary, the maximum height for the tower or monopole shall be 80 feet above ground level or the minimum height necessary to provide service to locations which the applicant is not able to serve with existing facilities within and outside the Town of Phelps, whichever is less.
Minimum lot size. The minimum lot size for a tower or monopole shall be equal to the square of twice the tower or monopole's height, or the minimum lot size required by the underlying zoning district, whichever is greater.
Setbacks. Unless the FCC promulgates rules to the contrary, all wireless service facilities shall be separated from all residential dwellings and roadways by a distance of no less than 500 feet. In no case shall a setback be less than 20 feet or the minimum setback required by the underlying zoning district, whichever is greater. The setback shall increase 100 feet for each 10 feet that the wireless service facility exceeds the maximum height set forth in the underlying zoning district. Setbacks from towers or monopoles shall be measured from the base of the structure.
Security fencing. A chain-link fence with a minimum height of eight feet shall be provided around each tower, monopole and guy anchor to secure the site and provide an opaque barrier. Access to the structure shall be through a locked gate.
Architectural compatibility. Where a wireless service facility is to be attached to an existing building or structure, such facility shall be integrated into such existing building or structure in a manner which blends with the architectural characteristics of the building or structure to the maximum extent practicable.
Placement. Unless wall-mounted on an existing roof-mounted mechanical enclosure or similar appurtenance, all antennas mounted on a roof shall be located so that visibility of the antenna is limited to the greatest extent practicable. Antennas wall-mounted on a roof-mounted mechanical enclosure or similar appurtenance shall not exceed the height of the appurtenance at the point of installation.
Security bond. A security bond must be posted with the Town of Phelps to cover the cost of removal of the tower and the restoration of the property. The amount of the bond shall be equal to the amount of the full-assessed value of the wireless service facility with a review by the Town Board every five years.
The proposed wireless service facility shall meet the following applicable design guidelines:
Finish; colors. Towers or monopoles not requiring Federal Aviation Administration (FAA) painting or markings shall either have a galvanized finish or be painted gray or blue-gray above the surrounding treeline and green or tannish-brown below the surrounding treeline.
Towers over 80 feet must have a strobe at the top during daylight hours and have at least one pulsating low-powered red light at the top of the structure and one constant red light 1/2 the distance from the top to the bottom of the structure for the hours of darkness.
Signals, lights or illumination on wireless service facilities shall be as required by the FAA or other federal, state or local authority.
Landscaping for towers or monopoles. For towers or monopoles, vegetative screening shall be provided to effectively screen the tower base and accessory facilities. At a minimum, screening shall consist of one row of native evergreen shrubs or evergreen trees capable of forming a continuous hedge at least five feet in height within two years of planting. Existing vegetation shall be preserved to the extent practicable and may be used as a substitute of or a supplement toward meeting landscaping requirements. Additional screening may be required to screen portions of the structure from nearby residential property or important views. All landscaping shall be properly maintained to ensure good health and viability.
Visibility. All wireless service facilities shall be sited to have minimum adverse visual effect on residential areas, parks or major roadways.
Signage. Signage shall be prohibited on wireless service facilities except for those signs required by regulating government agencies.
Time limit for completion. A building permit must be obtained within six months after approval of a special use permit for a wireless service facility, and construction of such facility must be completed within 12 months of such approval.
It is the applicant's responsibility to have its wireless service facilities, including towers, monopoles and antennas, inspected for structural integrity every fifth year on the anniversary date, in that year, of construction of the building, at the applicant's expense, and a copy of the inspection report shall be promptly transmitted to the Code Enforcement Officer of the Town of Phelps. The structural inspection shall be performed by a New York State licensed professional engineer specializing in structural engineering. The structural inspection report shall describe the structural integrity of the wireless service facility, maintenance issues and repairs needed or made, if any. In the event that the structural inspections indicate structural deficiencies, then the deficiencies must be remedied within 30 days.
It is the applicant's responsibility to have its wireless service facilities, including towers, monopoles and antennas, inspected for radio emissions every fifth year on the anniversary date, in that year, of construction of the building, at the applicant's expense and a copy of the inspection report shall be promptly transmitted to the Code Enforcement Officer of the Town of Phelps. Radio emission inspections shall be performed by a New York State licensed professional engineer specializing in electrical engineering with expertise in radiocommunication 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 facilities is above the allowable limits stated within applicable FCC or ANSI standards or other applicable state or federal guidelines in effect at the time of inspection, the applicant shall cease all use of the facility until such time as it proves to the satisfaction of the Code Enforcement Officer that the power density levels of the electromagnetic energy to be generated at the facility are below the applicable standards.
Abandonment. In the event that the use of any wireless service facility has been discontinued by all operators for a period of 180 days or more or a current/valid FCC license no longer exists, the facility shall be deemed to be abandoned. Determination of the date of abandonment shall be made by the Code Enforcement Officer of the Town of Phelps, who shall have the right to request documentation from the owner/operator of the facility regarding usage thereat. Upon such abandonment, the owner/operator shall remove the facility at its own expense. The owner/operator shall have 90 days to submit a written plan for removal, and then the owner/operator shall have 90 days to remove the facility, and, failing prompt removal, the Town of Phelps may remove the facility at the owner/operator's expense. All special use permits, variances and approvals of any nature granted by the Town of Phelps shall automatically expire as of the date of abandonment of the facility.
Alteration of an existing monopole/tower which results in the increase in the size or height of the monopole/tower and/or the addition of antennas shall be permitted only after application to the Zoning/Planning Boards, which shall review the matter as an entirely new application for a special use permit.
The following are exemptions from this chapter but are regulated by the FCC:
Machines and equipment designed and marketed as consumer products, such as walkie-talkies, ham radios not used in/for commercial purposes and remote-control toys.
Hand-held, mobile, marine and portable radiocommunication transmitters and/or receivers.
Two-way radios utilized for temporary or emergency service communication.
Two-way radios utilized for government service communications.
Back-up wireless transmitters connected to an alarm, monitoring service that transmits to a remote monitoring center in the event of an emergency when the telephone lines are inoperable.
Over-the-air receive-only devices in compliance with FCC rules and standards.