This chapter shall be known and may be cited as the "Wireless
Telecommunications Facilities Siting Law."
The Telecommunications Act of 1996 affirmed the Town of Colonie's
authority to make reasonable, nondiscriminatory decisions concerning
the placement, construction and modification of wireless telecommunications
facilities. The Town of Colonie finds that wireless telecommunications
facilities may pose significant concerns to the health, safety, public
welfare, character and environment of the Town and its inhabitants.
The Town also recognizes that facilitating the development of wireless
service technology can be an economic development asset to the Town
and of significant benefit to the Town and its residents. In order
to insure that the placement, construction or modification of wireless
telecommunications facilities is consistent with the Town's land
use policies, the Town is adopting a single, comprehensive, wireless
telecommunications facilities application and permit process. It is
the purpose of this chapter to accommodate the communications needs
of residents and businesses consistent with the applicable federal
and state laws and regulations, while protecting the health, safety
and general welfare of the residents of the Town by facilitating the
provision of wireless telecommunications and other communication services
to the residents and businesses of the Town while simultaneously preserving
the character, appearance, aesthetic resources, environmental features
and property value of the Town by:
A. Requiring a wireless telecommunications special use permit for any
new, co-location or modification of a wireless telecommunications
facility;
B. Implementing a fair, consistent and efficient application process
for persons seeking a wireless telecommunications special use permit;
C. Promoting and encouraging, wherever possible, the sharing and/or
co-location of wireless telecommunications facilities among service
providers;
D. Promoting and encouraging, wherever possible, the placement, height
and visual quality of wireless telecommunications facilities in such
a manner as to minimize adverse aesthetic and visual impacts on the
land, property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable; and
E. Assuring an integrated, comprehensive review of environmental impacts
of such facilities.
For purposes of this chapter, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meaning given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
ACCESSORY FACILITY OR STRUCTURE
An ancillary facility or ancillary structure serving or being
used in conjunction with wireless telecommunications facilities, and
located on the same property or lot as the wireless telecommunications
facilities, including but not limited to utility or transmission equipment
storage sheds or cabinets.
ANTENNA
A system of electrical conductors or apparatus that transmits
and/or receives electromagnetic waves or radio frequency or other
wireless signals.
APPLICANT
Any wireless service provider submitting an application for
a wireless telecommunications special use permit for wireless telecommunications
facilities.
APPLICATION
All necessary and appropriate documentation that an applicant
submits in order to receive a wireless telecommunications special
use permit for wireless telecommunications facilities.
BOARD
The Zoning Board of Appeals of the Town of Colonie, New York.
CO-LOCATION
The use of an existing tower or structure to support antennas
for the provision of wireless services. A replacement tower that is
constructed on the same site as an existing tower will be considered
a co-location as long as the new tower is no taller than the old tower
and the old tower is removed in a reasonably short time frame after
the new tower is constructed.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be commercially impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
COMPLETED APPLICATION
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated
and authorized successor agency.
HEIGHT
In reference to a tower or structure, the vertical distance
measured from the preexisting grade level to the highest point on
the tower or structure, even if said highest point is an antenna or
lightning protection device.
MODIFICATION or MODIFY
The addition, removal or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernable
components, vehicular access, parking and/or an upgrade or changeout
of equipment for better or more modern equipment. Adding a new wireless
carrier or service provider to a telecommunications tower or telecommunications
site as a co-location is a modification. A modification shall not
include the replacement of any components of a wireless facility where
the replacement is identical to the component being replaced or the
normal repair and maintenance of a wireless facility without adding,
removing or changing any visually discernable components or aspects
of a wireless facility.
NIER
Nonionizing electromagnetic radiation.
PERSON
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest, or any other entity.
STATE
The State of New York.
STEALTH or STEALTH TECHNOLOGY
Use of design, materials and placement of facilities to minimize
adverse aesthetic and visual impacts on the land, property, buildings,
and other facilities adjacent to, surrounding, and in generally the
same area as the requested location of such wireless telecommunications
facilities, which shall mean using the least visually and physically
intrusive facility that is not technologically or commercially impracticable.
TELECOMMUNICATIONS
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
TEMPORARY
Temporary in relation to all aspects and components of this
chapter, something intended not to, or that does not, exist for more
than 90 days.
TOWER
Any structure designed primarily to support one or more antennas
or the functional equivalent of such for receiving and/or transmitting
a wireless signal.
WIRELESS TELECOMMUNICATIONS FACILITIES
A structure, facility or location designed, or intended to
be used as, or used to support antennas or other transmitting or receiving
devices for transmitting and/or receiving radio, television, cellular,
specialized mobile radio (SMR), paging, 911, personal communications
services (PCS), commercial satellite services, microwave services
and any commercial wireless telecommunication service not licensed
by the FCC. "Wireless telecommunications facilities" means and includes
a telecommunications site. Wireless telecommunications facilities
include, without limit, towers of all types and kinds and structures,
including, but not limited to, buildings, steeples, silos, water towers,
signs or other structures that can be used as a support structure
for antennas or the functional equivalent of such. Wireless telecommunications
facilities further include all related facilities and equipment such
as cabling, equipment shelters and other structures associated with
the site. The following are excluded from the meaning of wireless
telecommunications facilities:
A.
Over-the-air reception devices including the reception antennas
for direct broadcast satellites (DBS), multichannel multipoint distribution
(wireless cable) providers (MMDS), television or radio broadcast stations
and other customer-end antennas that receive and transmit fixed wireless
signals that are primarily used for reception.
B.
Facilities exclusively for private, noncommercial radio and
television reception and private citizen's bands, licensed amateur
radio and other similar noncommercial telecommunications.
WIRELESS TELECOMMUNICATIONS SPECIAL USE PERMIT
The initial written authorization, or renewal thereof, issued
by the Board in accordance with the provisions of this chapter, for
the right and authority to install, construct, maintain, operate or
modify a wireless telecommunications facility, and/or to file for
a building permit if required therefor.
The following shall be exempt from this chapter:
A. Wireless communications facilities owned or leased by the federal
government, state, Town, or a special district within the Town, except
for any part or component of the wireless communications facilities,
including but not limited to an antennae or an accessory structure,
which is not owned or operated by the federal government, state, Town,
or a special district within the Town.
B. Any repair and maintenance of a wireless telecommunications facility
consisting of the replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or involving the normal repair and maintenance of a wireless facility
without the addition, removal or change of any of the physical or
visually discernable components or aspects of a wireless facility
that will add to the visible appearance of the facility as originally
permitted.
C. Any facilities expressly exempt from the Town's siting, building
and permitting authority.
D. Facilities exclusively for providing unlicensed spread spectrum technologies
[such as IEEE 802.11a, b, g (Wi-Fi) and Bluetooth] where the facility
does not require a new tower.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner that prevents
unauthorized access. Specifically:
A. All antennas, towers and other supporting structures, including guy
anchor points and wires, shall be made inaccessible to individuals
and constructed or shielded in such a manner that they cannot be climbed
or collided with; and
B. Transmitters and telecommunications control points shall be installed
in such a manner that they are readily accessible only to persons
authorized to operate or service them.
Wireless telecommunications facilities shall contain a sign
no larger than four square feet in order to provide adequate notification
to persons in the immediate area of the presence of RF radiation or
to control exposure to RF radiation within a given area. An additional
sign no larger than four square feet is also to be installed to contain
the name(s) of the owner(s) and operator(s) of the antenna(s) as well
as emergency phone number(s). The sign shall be located on the equipment
shelter or cabinet of the applicant and be visible from the access
point of the site, and must identify the equipment owner of the shelter
or cabinet. If no equipment shelter or cabinet is present at the wireless
telecommunications facility, or no such sign placed on such equipment
shelter or cabinet would be visible from the access point, the sign
may be placed on a fence or may be freestanding. On tower sites, an
FCC registration sign as applicable is also to be present. The signs
shall not be lighted, unless applicable law, rule or regulation requires
lighting. No other signage, including advertising, shall be permitted.
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded
rights-of-way and road and street lines by the greater of the following
distances: a distance equal to the height of the proposed tower or
wireless telecommunications facility structure plus 10% of the height
of the tower or structure, or the existing setback requirement of
the underlying zoning district, whichever is greater. Any accessory
structure shall be located so as to comply with the applicable minimum
setback requirements for the zoning district in which it is situated.
The extent and parameters of a wireless telecommunications special
use permit for wireless telecommunications facilities shall be as
follows:
A. Such wireless telecommunications special use permit shall not be
assigned, transferred or conveyed without the express prior written
notification to the Town.
B. Such wireless telecommunications special use permit may, following
a hearing upon due prior notice to the applicant, be revoked, canceled,
or terminated for a violation of the conditions and provisions of
the wireless telecommunications special use permit, or for a material
violation of this chapter after prior written notice to the holder
of the wireless telecommunications special use permit.
At the time that a person submits an application for a wireless
telecommunications special use permit, such person shall pay a nonrefundable
application fee. Application fees shall be established by the Town
Board by resolution from time to time. A fee schedule shall be made
available upon request. No required fee shall be substituted for any
other fee.
The applicant and the owner of record of any proposed wireless
telecommunications facilities property site shall, at its cost and
expense, be jointly required to execute and file with the Town a bond,
or other form of security acceptable to the Town as to type of security
and the form and manner of execution, in an amount of at least $75,000
for a tower facility and $25,000 for a co-location on an existing
tower or other structure and with such sureties as are deemed sufficient
by the Town to assure the faithful performance of the terms and conditions
of this chapter and conditions of any wireless telecommunications
special use permit issued pursuant to this chapter. The full amount
of the bond or security shall remain in full force and effect throughout
the term of the wireless telecommunications special use permit and/or
until any necessary site restoration is completed to restore the site
to a condition comparable to that which existed prior to the issuance
of the original wireless telecommunications special use permit.
In order to verify that the holder of a wireless telecommunications
special use permit for wireless telecommunications facilities and
any and all lessees, renters, and/or licensees of wireless telecommunications
facilities place and construct such facilities, including towers and
antennas, in accordance with all applicable technical, safety, fire,
building, and zoning codes, laws, ordinances and regulations and other
applicable requirements, the Town may inspect all facets of said permit
holder's, renter's, lessee's or licensee's placement,
construction, modification and maintenance of such facilities, including,
but not limited to, towers, antennas and buildings or other structures
constructed or located on the permitted site.
If a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the wireless telecommunications special use permit, then the Town shall notify the holder of the wireless telecommunications special use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in §
189-22, and if a violation is not corrected to the satisfaction of the Town in a reasonable period of time, the wireless telecommunications special use permit is subject to revocation.
Any applicant desiring relief, waiver or exemption from any
aspect or requirement of this chapter may request such, provided that
an explanation of the requested relief or exemption is contained in
the submitted application for either a wireless telecommunications
special use permit, or, in the case of an existing or previously granted
wireless telecommunications special use permit, a request for modification
of its tower and/or facilities. Such relief may be temporary or permanent,
partial or complete. However, the burden of proving the need for the
requested relief, waiver or exemption is solely on the applicant to
prove. The applicant shall bear all costs of the Town in considering
the request and the relief, waiver or exemption. No such relief or
exemption shall be approved unless the applicant demonstrates by clear
and convincing evidence that, if granted, the relief, waiver or exemption
will have no significant affect on the health, safety and welfare
of the Town, its residents and other service providers.
Where this chapter differs or conflicts with other laws, rules
and regulations, unless the right to do so is preempted or prohibited
by the Town, state or federal government, this chapter shall apply.