[HISTORY: Adopted by the Town Board of the Town of Colden 11-6-1997 by L.L. No.
7-1997. Amendments noted where applicable.]
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 Colden,
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 Colden.
B.
Legislative intent. The Town of Colden 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 tower/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 Colden.
(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 communications
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)
A "collocated or existing-structure antenna" 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 or new-structure antenna shall be defined as an antenna that will not be mounted on an existing structure as declined above, or is higher than the existing structure on which it is mounted. Such is permitted in accordance with the requirements set forth in § 96-3B(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 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 use permit shall be required for the following:
[Amended 5-9-2002 by L.L. No. 1-2002]
(a)
Freestanding, monopole towers, and towers with only three guys
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.
(b)
Multiguyed towers with two or more anchor points per leg may
be set back on 1/2 the height of the tower from property lines and
existing buildings. The Town Board may require an additional setback
area in the case of guyed wires and the location of the ground anchors.
A.
The Town Board shall be the issuing agency for all tower special
permits and shall also be the lead agency for SEQRA.
B.
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)
Building and permit application forms; payment of fee.
(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 Chapter 108, Article XXII, of the Town of Colden Zoning Code generally applicable to special permits.
(b)
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.
(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 guyed
wires and ground anchors, if applicable, and any accessory structures.
(b)
The maximum height of the proposed tower.
(c)
A detail of the 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
roads, if applicable. The applicant must demonstrate that all private
access roads will be maintained, including proper snow removal, 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)
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. 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 nontransferrable.
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 requirement(s) 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
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 or 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 by 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 determines 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 by 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.
The 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.
C.
Satellite antennas measuring two meters or less in diameter and located
in commercial districts, and satellite antennas measuring three feet
six inches or less, shall not require a building permit. Satellite
antennas measuring over three feet six inches in diameter shall require
the issuance of a building permit and shall be located to the rear
of the front building line of the principal building and, if located
in a side yard, shall conform to side yard requirements.
[Amended 5-9-2002 by L.L. No. 1-2002]
A.
The Town Board may waive or vary any requirements of this chapter
for good cause shown.
B.
In the event of any conflicts or inconsistencies between this chapter
and any other chapter, including the Zoning Law,[1] this chapter is meant to control for telecommunications
towers and similar facilities in the Town unless otherwise specifically
referenced in this chapter.
C.
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 permit(s) 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.
