[HISTORY: Adopted by the Town Board of the Town of Smithtown 3-27-2001 by L.L. No.
2-2001. Amendments noted where applicable.]
A.
The Town Board of the Town of Smithtown, Suffolk County, New York,
finds herewith that personal wireless communications services and
personal wireless service facilities comprise a rapidly growing segment
of the utilities and communications sector and have merit and value
for the community as a whole. The United States Congress adopted the
Telecommunica-tions Act of 1996, including Section 704 which defines
personal wireless service and personal wireless service facilities
and preserves local zoning authority over decisions regarding the
placement, construction and modification of personal wireless service
facilities except for five limitations, to wit:
(1)
A local government shall not unreasonably discriminate among providers
of functionally equivalent services.
(2)
A local government shall not prohibit or have the effect of prohibiting
the provision of personal wireless services.
(3)
A local government shall act on any requests for authorization to
place, construct or modify personal wireless service facilities within
a reasonable period of time after the request is filed.
(4)
A local government shall put any decision to deny a personal wireless
service facility into writing and support such decision by substantial
evidence contained in a written record.
(5)
A local government shall not regulate personal wireless service facilities
on the basis of the environmental effects of radio frequency emission
to the extent that such facilities comply with the Federal Communications
Commission Guidelines for Evaluating the Environmental Effects of
Radiofrequency Radiation (FCC Guidelines).
B.
The Town of Smithtown is authorized to adopt laws to provide for
the health, safety and welfare of the citizens of the Town of Smithtown,
and the regulation of the placement, installation and construction
of personal wireless service facilities preserves and protects the
health, safety, welfare and general well-being of the citizens of
the Town of Smithtown. The Town of Smithtown Planning Department and
the Town of Smithtown Town Board have, during the period of a current
moratorium, undertaken a deliberative process to establish policy,
standards and procedures related to the location, siting and design
of mounts and antenna arrays for personal wireless services; and the
Town of Smithtown Town Board has conducted workshops during the current
moratorium on deployment of wireless communications and has found
that alternatives to towers exist for the purpose of deploying personal
wireless service facilities.
C.
The purpose and intent of this chapter is to establish standards
for the location, siting and design of personal wireless service facilities,
and the goals of this chapter are to:
(1)
Allow for alternative types of personal wireless service facilities
in any location subject to standards.
(2)
Encourage the use of existing structures, including, but not limited
to, rooftops, utility poles and steeples, for deploying personal wireless
service facilities.
(3)
Expedite the review process for those applications choosing the least
intrusive alternative of deploying personal wireless service facilities.
(4)
Encourage users of guyed and lattice towers, monopoles and antennas
to locate, site and design them in a way that minimizes the adverse
visual impact of the lattice or guyed towers, monopoles and antennas.
(5)
Enhance the ability of the providers of personal wireless services
to provide such services to the community quickly, effectively and
efficiently.
(6)
Promote personal wireless service facilities compatible with surrounding
land uses and protect the attractiveness, health, safety, general
welfare and property values of the community.
D.
Therefore, the Town Board of the Town of Smithtown has prepared this
chapter to revise the Town of Smithtown Zoning Law to more clearly
reflect the above facts.
As used in this chapter, the following terms shall have the
meanings indicated:
B.
AGL
ANTENNA
ANTENNA ARRAY
APPLICANT
CAMOUFLAGE
CARRIER
CELLULAR
COAPPLICANT
COLLOCATION
COMMERCIAL MOBILE RADIO SERVICES (CMRS)
CONCEAL
DESIGN
DISGUISE
ELEVATION
ENHANCED SPECIALIZED MOBILE RADIO (ESMR)
EQUIPMENT CABINET/EQUIPMENT SHELTER
FALL ZONE
FEDERAL COMMUNICATIONS COMMISSION (FCC)
FUNCTIONALLY EQUIVALENT SERVICES
GUYED TOWER
HEIGHT
LATTICE TOWER
LICENSED CARRIER
LOCATION
MICROCELL
MITIGATION
MODIFICATION
MONOPOLE
MOUNT
Definition of terms.
Above ground level. The actual height of the PWSF from the
ground to the highest part of the mount or the antenna, whichever
is higher.
A whip (omnidirectional antenna), panel (directional antenna),
disc (parabolic antenna) or similar device used for transmission and/or
reception of radio frequency signals.
One or more whips, panels, discs or similar devices used
for the transmission or reception of radio frequency signals, which
may include omnidirectional antennas (whips), directional antennas
(panels) and parabolic antennas (discs). The antenna array does not
include the mount as defined herein.
A person or entity with an application before the Town for
a permit for a personal wireless service facility (PWSF).
A way of painting and mounting a PWSF that requires minimal
exterior changes to the host structure in order to accommodate the
facility.
A company licensed by the Federal Communications Commission
(FCC) that provides wireless services. A tower builder is not automatically
a carrier.
A mobile telephone service operating in the 800 MHz spectrum.
Any person and/or entity joining with an applicant in an
application for a permit for a PWSF, including the owner(s) of the
PWSF, owner(s) of the subject property and any proposed tenant(s)
for the PWSF.
The use of a common PWSF or common site by two or more wireless
license holders or by one wireless license holder for more than one
type of communications technology and/or placement or two or more
PWSF's on adjacent properties.
Any of several technologies using radio signals at various
frequencies to send and receive voice, data and video as per Section
704 of the Telecommunications Act of 1996. According to the FCC, these
services are "functionally equivalent services." Section 704 of the
Telecommunications Act prohibits unreasonable discrimination among
functionally equivalent services.
To enclose a PWSF with a natural or man-made feature resulting
in the facility being either invisible or made part of the feature
enclosing it.
The appearance of PWSF's, such as their materials, colors
and shape.
To design a PWSF to appear to be something other than a PWSF.
The measurement of height above sea level. Also "AMSL," or
"above mean sea level."
Private land mobile radio with telephone services.
An enclosed structure at the base of the mount within which
is housed the equipment for the PWSF, such as batteries and electrical
equipment.
The area on the ground within a prescribed radius from the
base of a PWSF. The fall zone is the area within which there might
be a potential hazard from falling debris or collapsing material.
An independent federal agency charged with licensing and
regulating wireless communications at the national level.
Cellular, PCS, enhanced specialized mobile radio, specialized
mobile radio and paging. Section 704 of the Telecommunications Act
prohibits unreasonable discrimination among functionally equivalent
services.
A monopole or lattice tower that is anchored to the ground
or to another surface by diagonal cables.
The distance measured from above ground level (AGL) to the
highest point of a PWSF, including the antenna array. For purposes
of measuring height, all antennas or other attachments mounted on
a structure shall be included in the measurements to determine overall
(i.e., combined) height.
A type of mount that is usually ground-mounted and self-supporting
with multiple legs and cross-bracing of structural steel.
A company authorized by the FCC to construct and operate
a commercial mobile radio services system. A licensed carrier must
be identified for every PWSF application.
The area where a PWSF is located or proposed to be located.
Any PWSF that is designed and limited to generate lower power
density than that limited by the FCC Guidelines for Evaluating the
Environmental Effects of Radiofrequency Radiation.
The reduction or elimination of visual impacts by the use
of one or more methods, including but not limited to concealment,
camouflage and disguise.
The changing of any portion of a PWSF from its description
in a previously approved permit. The FCC definitions for "modification"
are different than local government rules.
A structure that is self-supporting with a single shaft of
wood, steel or concrete and antennas at the top and/or along the shaft.
[Amended 4-9-2002 by L.L. No. 2-2002]
The structure or surface upon which antennas are mounted,
e.g:
(1)
ROOF-MOUNTED -- Mounted on the roof of a building.
(2)
SIDE-MOUNTED -- Mounted on the side of a building.
(3)
GROUND-MOUNTED -- Mounted on the ground.
(4)
STRUCTURE-MOUNTED -- Mounted on a structure other than a building.
(5)
PERSONAL WIRELESS SERVICE FACILITY (PWSF)
PERSONAL WIRELESS SERVICES
RADIO FREQUENCY (RF) ENGINEER
RADIO FREQUENCY RADIATION (RFR)
RADIO FREQUENCY (RF) SIGNAL
SECURITY BARRIER
SEPARATION
SHORT MOUNTS
SITE
SITING
SPECIALIZED MOBILE RADIO (SMR)
STANDARDS
TOWER
UNLICENSED WIRELESS SERVICES
WIRELESS COMMUNICATIONS
INTERIOR-MOUNTED -- Mounted within a building.
A facility for the provision of personal wireless services,
as defined by Section 704 of the Telecommunications Act of 1996. A
PWSF is any facility for the transmission and/or reception of personal
wireless services, usually consisting of an antenna array, transmission
cables, equipment shelter and a mount.
Any personal wireless service defined in the Federal Telecommunications
Act, which includes Federal Communications Commission (FCC) licensed
commercial wireless telecommunications services, including cellular,
personal communications services (PCS), specialized mobile radio (SMR),
enhanced specialized mobile radio (ESMR), paging as well as unlicensed
wireless services, and common carrier wireless exchange access services.
Someone with a background in electrical engineering or microwave
engineering who specializes in the study of radio frequencies.
The emissions from PWSF's which are by-products of the
RF signal.
The actual beam or radio waves sent and received by a PWSF.
A signal is the deliberate product of a PWSF. The RF radiation is
the by-product.
A locked, impenetrable wall, fence or berm that completely
seals an area from unauthorized entry or trespass.
The distance between one carrier's antenna array and
another carrier's antenna array.
Alternatives to monopoles or guyed and lattice towers, such
as masts or poles. For example, two short poles or three short masts
might be an alternative to one tall lattice tower.
That portion of a subject property where a PWSF is to be
placed. Any acceptable location may have several potential sites within
it.
The method and form of placement of PWSF's on a specific
area of a subject property.
A form of dispatch or two-way communication used by companies
that rent space or time from an SMR carrier; used primarily for data,
delivery vans, truckers or taxis within a small, definable geographic
area.
Rules or measures by which acceptability is determined. Personal
wireless service facilities are measured by standards measuring visibility
or safety. Wireless planning tends to regulate PWSF's on three
levels: location (or where the PWSF site can go), siting (or how the
PWSF is placed within its setting) and design (or what the PWSF looks
like)
A term used to describe a tall, nonhabitable structure which
may be used for a variety of purposes, such as a water tower, lattice
tower, an antenna tower, and so forth. For purposes of this chapter,
the term "tower" shall not include monopoles, as defined in this section,
utility poles, flagpoles, transmission line facilities, or similar
structures.
[Amended 4-9-2002 by L.L. No. 2-2002]
Commercial mobile services that can operate on public domain
frequencies and therefore need no FCC license for their sites.
Any form of signaling by wireless, including personal wireless
services, that require a transmitter, a receiver and a path, sometimes
straight, sometimes indirect, between them.
A.
Purpose and intent. The purpose and intent of this chapter is to
establish standards for the location, siting and design of PWSF's,
and the goals of this chapter are to:
(1)
Allow for alternative types of PWSF's in any location subject
to standards.
(2)
Encourage the use of existing structures, including but not limited
to rooftops, utility poles and church steeples, for deploying PWSF's.
(3)
Expedite the review process for those applications choosing the least
intrusive alternative of deploying PWSF's.
(4)
Encourage users of guyed and lattice towers, monopoles and antennas
to locate, site and design them in a way that minimizes the adverse
visual impact of the lattice or guyed towers, monopoles and antennas.
(5)
Enhance the ability of the providers of personal wireless services
to provide such services to the community quickly, effectively and
efficiently.
(6)
Promote PWSFs' compatibility with surrounding land uses, and
protect the attractiveness, health, safety, general welfare and property
values of the community.
B.
Preexisting personal wireless service facilities.
(1)
Permits and renewals.
(a)
A PWSF for which a building permit has been issued prior to
the effective date of this chapter shall be deemed a permitted use,
subject to the conditions of that permit. When an unpermitted PWSF
is identified by the Town of Smithtown to be attached to a mount approved
for another use or PWSF, a separate permit must be applied for it,
even when:
(b)
The issuance of permit renewals or other new permits for such
facilities shall be in accordance with the provisions of this chapter.
Unpermitted PWSF's will be considered out of compliance with
this chapter.
(2)
Placement of any attached array, microcell or any other portions
of a PWSF on an existing structure, whether legally nonconforming
or in, as well as out of, compliance, shall require a permit to be
obtained for the PWSF under the terms of this chapter.
(3)
Any carrier with at least one preexisting PWSF in the Town of Smithtown
that is out of compliance with the Town of Smithtown building or zoning
requirements shall not be eligible for any new approvals of personal
wireless service facilities by the Town until the preexisting PWSF
or PWSF's are brought into compliance with this chapter.
C.
Exclusions for amateur radio facilities. This chapter shall not govern
the installation of any amateur radio facility that is owned and operated
by a federally licensed amateur radio station operator or is used
exclusively for noncommercial, receive-only antennas.
D.
Unpermitted facilities, mounts or equipment ineligible for collocation.
(1)
No permit shall be issued under this chapter for a request to collocate,
attach or share an existing PWSF site, mount or facility when such
existing site, mount or facility is found to have one or more PWSF's
without permits and/or any structure, mount or facility is found to
lack one or more building permits, electrical permits or any other
permits required by the Town of Smithtown.
(2)
Any application by a wireless carrier or other entity shall not be
approved by the Town of Smithtown if that wireless carrier has a preexisting
PWSF on, or the other entity owns, a mount, rooftop or tower, on which
there is any unpermitted PWSF until that PWSF is brought into compliance
with this chapter.
A.
No PWSF shall be permitted except in accordance with the provisions of this chapter and § 322-8 of the Building Zone Ordinance.
B.
All PWSF's shall be classified as follows:
(1)
Tier One. This tier is limited to applications that:
[Amended 4-9-2002 by L.L. No. 2-2002]
(a)
Place PWSF's on existing utility poles (telephone poles,
utility distribution poles, streetlights and traffic signal stanchions),
flagpoles, transmission line towers, public water towers, or similar
structures as determined by the Board of Site Plan Review; or
(b)
Place PWSF's on new utility poles or similar structures
as determined by the Board of Site Plan Review when the carrier specifies
a utility pole structure that meets the Town of Smithtown specifications;
and
(c)
Meet all location standards, design standards and safety standards
in this law. In the event that any of the standards in this law are
in conflict for a particular application, one or the other conflicting
standard shall be met. The decision of which standard shall be met
shall be subject to the approval of the Town of Smithtown.
(2)
Tier Two. This tier is limited to applications that:
(a)
Do not qualify for Tier One status; and
(b)
Propose to place PWSF's on or in buildings or propose to
conceal PWSF's in natural or man-made features approved by the
Smithtown Planning Board; and
(c)
Meet all location standards, design standards and safety standards
in this chapter. In the event that any of the standards in the chapter
are in conflict for a particular application, one or the other conflicting
standard shall be met. The decision of which standard shall be met
shall be subject to the approval of the Town of Smithtown.
(3)
Tier Three. This tier is limited to applications that:
(a)
Do not qualify as either Tier One or Tier Two status; and
(b)
Require the erection, establishment, siting, location, construction,
modification or development of a guyed tower, monopole, lattice tower
or similar structure as determined by the Town Board; and
(c)
Meet all location standards, design standards and safety standards
in this chapter. In the event that any of the standards in the chapter
are in conflict for a particular application, one or the other conflicting
standard shall be met. The decision of which standard shall be met
shall be subject to the approval of the Town of Smithtown.
The approval of PWSF's shall be subject to meeting or exceeding
the following standards:
A.
Location standards.
(1)
Opportunity sites. A PWSF shall be located at one of the following
opportunity sites:
(2)
Avoidance areas. A Tier 2 or Tier 3 PWSF shall not be located in
the following avoidance areas:
(a)
Flood hazard zones.
(b)
Historically and culturally significant resources.
(c)
Designated conservation areas.
(d)
Parklands, including common areas of clustered subdivisions.
(e)
Parkways.
(f)
Nissequogue River Corridor.
(g)
Scenic or visual corridors as defined by the Town.
(h)
Wetlands, both tidal and freshwater.
(3)
Interpretation of opportunity sites and avoidance areas shall be
based on maps or aerial photographs provided by the Town of Smithtown
Department of Planning and Community Development and/or the applicant.
(4)
Personal wireless service facilities may also be permitted in areas
that are not opportunity sites subject to the following siting, design
and safety standards and permitted in avoidance areas subject to the
following siting, design and safety standards.
(5)
These standards apply regardless of radio frequency (RF) engineering
considerations.
B.
Siting standards.
(1)
Personal wireless service facilities shall meet the following siting
standards:
(a)
To the greatest extent possible, PWSF's shall be concealed
within existing structures or where camouflaged conditions surround
them, or on inconspicuous mounts.
(b)
Placement within trees shall be encouraged, but no antennas
shall extend higher than 10 feet above the average tree height.
(c)
Placement on existing roofs or nonwireless structures shall
be favored over ground-mounted PWSF's.
(d)
Roof-mounted PWSF's shall not project more than 10 additional feet above the height of a building. If the roof-mounted PWSF's project above the height limit, they shall be screened pursuant to § 322-20F.
(e)
Side-mounted PWSF's shall not project more than 20 inches
from the face of the mounting structure.
(2)
These standards shall apply regardless of RF engineering considerations.
C.
Design standards.
(1)
Personal wireless service facilities shall meet the following design
standards:
(a)
Color. All PWSF's shall be painted or complemented with
natural tones (including trees and sky).
(b)
Size. The silhouette of the PWSF shall be reduced to the minimum
visual impact.
(e)
Height shall be kept to a minimum.
[1]
Heights of PWSF's shall be no higher than the height of
the uppermost height of nearby structures (within 300 horizontal feet
when measured along the ground) of the proposed PWSF, regardless of
prevailing height limits in the zoning district.
[2]
In the event that there are no nearby buildings (within 300
horizontal feet when measured on the ground) of the proposed site
of the PWSF, the following shall apply:
[a]
All ground-mounted PWSF's (including the security barrier)
shall be surrounded by nearby dense tree growth for a radius of 20
horizontal feet (when trunk center lines are measured on the ground)
from the PWSF in any direction. These trees can be existing on the
subject property or installed to meet the twenty-foot requirement
as part of the proposed PWSF or they can be a combination of both.
[b]
Ground-mounted PWSF's shall not project more than 10 feet
above the average tree height.
(2)
These standards apply regardless of RF engineering considerations.
D.
Safety standards. Personal wireless service facilities shall meet
the following safety standards:
Tier Three applications shall meet the following standards:
B.
Setback.
(1)
All PWSF's, including mounts and equipment shelters, shall comply
with the minimum setback requirements of the applicable zoning district
as set forth in the Town of Smithtown Building Zone Ordinance,[1] depending upon whether any structure is considered a principal
use or an accessory use.
(2)
The antenna array for an attached PWSF, with the exception of a side-mounted
PWSF, is exempt from the setback requirements of this chapter and
from the setback for the zoning district in which it is located, provided
that no such antenna array shall project more than five feet horizontally
from the attachment structure at the point of attachment.
(3)
No portion of any PWSF shall project into a required setback more
than the maximum projection permitted in the zoning district in which
the facilities are located, except as otherwise provided in this chapter.
(4)
On parcels with a principal building housing a principal use, all
components of the PWSF shall be located behind the building line.
An applicant shall submit the following information as part
of an application for a PWSF:
A.
Application information.
(1)
Name, address and telephone number of applicant and all coapplicants
as well as any agents for the applicant or coapplicants.
(2)
The applicant shall provide a copy of the lease between the applicant
and coapplicant(s) and shall provide a description which shall include
the following:
(a)
Whether the landowner can enter into leases with other carriers
for collocation and that the landowner is aware that any future collocation
will be subject to a new application.
(b)
How the landowner will remove the PWSF in the event that the
licensed carrier fails to remove it upon abandonment.
(3)
Original signatures for the applicant and all coapplicants applying
for a special exception permit and/or site plan review; if the applicant
or coapplicant will be represented by an agent, original signature
authorizing the agent to represent the applicant and/or coapplicant.
Photo reproductions of signatures will not be accepted.
B.
Location information. The following information is required for all
applications:
(1)
Identification of the subject property by including the name of the
nearest road or roads, and street address, if any.
(2)
Tax parcel number of subject property.
(3)
Zoning district designation for the subject parcel and for all parcels
within 1,000 feet of the property lines of the subject parcel.
(4)
A line map to scale showing the subject property and all properties
within 1,000 feet and the location of all buildings, including accessory
structures, on all properties shown.
(5)
A Town-wide map showing the other existing PWSF's in the Town
and outside the Town within one mile of its corporate limits.
(6)
The specific locations for this carrier of all existing and future
PWSF's in the Town on a Town-wide map.
C.
Siting information.
(1)
A one-inch-equals-two-hundred-feet vicinity plan showing the following:
(a)
Property lines for the subject property.
(b)
Property lines of all properties adjacent to the subject property.
(c)
Tree cover on the subject property and all properties adjacent
to the subject property, by species and average height, as measured
by or available from a verifiable source.
(d)
Outline of all existing buildings, including purpose (e.g.,
residential buildings, garages, accessory structures, etc.), on subject
property and all properties adjacent to the subject property.
(e)
Proposed location of antenna, mount and equipment shelter(s).
(f)
Location of all roads, public and private, on the subject property
and on all properties adjacent to the subject property, including
driveways proposed to serve the PWSF.
(g)
Distances, at grade, from the proposed PWSF to each building
on the vicinity plan.
(h)
Contour lines.
(i)
Lines representing the sight line showing viewpoint (point from
which view is taken) and visible point (point being viewed) from "Sight
lines" subsection below.
(2)
Sight lines and photographs as described below:
(a)
Sight line representation. A sight-line representation shall
be drawn from the closest facade of each residential building (viewpoint)
included on the vicinity plan to the highest point (visible point)
of the PWSF. Each sight line shall be depicted in profile, drawn at
one-inch-equals-forty-feet. The profiles shall show all intervening
trees and buildings. In the event that there is only one (or more)
residential building on the vicinity plan, there shall be at least
two sight lines from the closest habitable structures, if any.
(b)
Existing (before condition) photographs. Each sight line shall
be illustrated by one four-inch-by-six-inch color photograph of what
can currently be seen from the residential building.
(c)
Proposed (after condition). Each of the existing-condition photographs
shall have the proposed PWSF superimposed on it to show what will
be seen from residential buildings if the proposed PWSF is built.
(3)
A one-inch-equals-forty-feet site plan showing the following:
(a)
The entire subject property, including all lands held in effective
common ownership, property lines and roads (public and private) adjacent
to the subject property.
(b)
All existing buildings, including accessory structures.
(c)
All existing vegetation, by mass or individually by diameter
(four feet from the ground) of each stand-alone tree or shrub. Tree
masses or individual stand-alone trees shall be identified by specie(s).
(d)
Proposed security barrier, indicating type and extent as well
as point of controlled entry.
(e)
All proposed changes to the existing property, including grading,
vegetation removal and temporary or permanent roads and driveways.
(f)
Representations, dimensioned and to scale, of the proposed mount,
antennas, equipment shelters, cable runs, parking areas and any other
construction or development attendant to the PWSF.
(4)
Siting elevations, or views at-grade from the north, south, east
and west for a fifty-foot radius around the proposed PWSF plus from
all existing public and private roads that serve the subject property.
Elevations shall be at either one-quarter-inch-equals-one-foot or
one-eighth-inch-equals-one-foot scale and show the following:
(a)
Antennas, mounts and equipment shelter(s), with total elevation
dimensions and AGL of the highest point.
(b)
Security barrier. If the security barrier will block the views
of the PWSF, the barrier drawing shall be cut away to show the view
behind the barrier.
(c)
Any and all structures on the subject property.
(d)
Existing trees and shrubs at current height and proposed trees
and shrubs at proposed height at time of installation, with approximate
elevations dimensioned.
(e)
Grade changes, or cuts and fills, to be shown as original grade
and new grade line, with two-foot contours AMSL.
D.
Design information.
(1)
Equipment brochures for the proposed PWSF, such as manufacturer's
specifications or trade journal reprints. These shall be provided
for the antennas, mounts, equipment shelters, cables, as well as cable
runs, and security barrier, if any.
(2)
Materials of the proposed PWSF specified by generic type and specific
treatment (e.g., anodized aluminum, stained wood, painted fiberglass,
etc.). These shall be provided for the antennas, mounts, equipment
shelters, cables, as well as cable runs, and security barrier, if
any.
(3)
Colors of the proposed PWSF represented by a color board showing
actual colors proposed. Colors shall be provided for the antennas,
mounts, equipment shelters, cables, as well as cable runs, and security
barrier, if any.
(4)
Dimensions of the PWSF specified for all three directions: height,
width and breadth. These shall be provided for the antennas, mounts,
equipment shelters and security barrier, if any.
(5)
Appearance shown by at least two scaled cross sections of the PWSF
within the subject property. The cross sections shall be provided
for the antennas, mounts, equipment shelters, cables, as well as cable
runs, and security barrier, if any, for the total height, width and
breadth.
(6)
Landscape plan, including existing trees and shrubs and those proposed
to be added, identified by size of specimen at installation and species.
E.
F.
G.
Fees. The Town shall have the right to properly plan for and evaluate
applications for PWSF's and to charge reasonable fees for such
services to the applicant. The Town has retained independent consultants
and experts on wireless planning and may retain future independent
consultants and experts to assist Town staff with proper planning
for PWSF's. The fee for applications shall include, but shall
not be limited to, the prorated share for each applicant of such costs
for the independent consultants and experts and for Town staff. The
fee shall be prorated among all applications on an equal basis. Such
fees shall include, but shall not be limited to, the following:
(1)
Site plan or site plan exemption applications.
(2)
Special exception applications.
(3)
Building permit applications.
(4)
Other review fees. The Town shall have the right to retain independent
technical consultants and experts that it deems necessary to properly
evaluate applications for PWSF's. This fee will be assigned to
the applicant and shall not exceed $10,000.
Each application for a PWSF should also contain at least two
alternatives that differ from the PWSF proposed in the application.
A.
Differences. The alternatives need not be totally different from
the proposed PWSF; however, the alternatives should contain measurable
differences, such as:
(1)
Height. An alternative can be identical to the proposed PWSF except
to be a shorter height.
(2)
Number. An alternative could be for two or more PWSF's that
are shorter than the proposed PWSF.
(3)
Location. An alternative could be located on a different property
than the proposed PWSF.
(4)
Siting. An alternative could be in a different place on the same
property as the proposed PWSF.
(5)
Design. An alternative could be of the same height, location and
siting as the proposed PWSF, but be designed to appear differently.
B.
Submittal requirements for alternatives. The materials submitted
for each alternative should show only the differences between each
of the alternatives and the proposed PWSF.
(1)
If the applicant has not submitted two alternatives, the Town of
Smithtown Department of Planning and Community Development staff shall
prepare at least two alternatives.
(2)
If the applicant has submitted two or more alternatives, the Town
of Smithtown Department of Planning and Community Development staff
shall prepare at least one alternative.
C.
Comparison of proposed personal wireless service facility and alternatives.
The Town of Smithtown Department of Planning and Community Development
staff shall compare the proposed PWSF to the alternatives on the basis
of the following:
(1)
Change in community scale, as exhibited in relative height, mass
or proportion of the PWSF within its proposed surroundings.
(2)
New visible elements proposed on a contrasting background.
(3)
Different colors and textures proposed against a contrasting background.
(4)
Use of materials that are foreign to the existing built environment.
(5)
Conservation of opportunities to maintain community scale, not compromising
buffering areas and low-lying buildings so as to start a trend away
from the existing community scale.
(6)
Amount and diversity of landscaping and/or natural vegetation.
(7)
Preservation of view corridors, vistas and view sheds.
(8)
Continuation of existing colors, textures and materials.
D.
Ranking of proposed personal wireless service facility and alternatives.
The Town of Smithtown Department of Planning and Community Development
staff shall rank the proposed PWSF and each alternative based on the
above criteria. The ranking of the proposed PWSF and each alternative
shall be submitted to the appropriate board along with each application.
The reviewing board shall consider the alternatives along with the
proposed PWSF.
A.
Department of Planning and Community Development. After assigning
each application to a tier, the Town of Smithtown Department of Planning
and Community Development shall:
B.
Findings. All decisions resulting in approvals or denials by the
reviewing board shall be in writing and supported by findings of fact
and conclusions of law based upon competent substantial evidence in
the record.
Applicants shall use the following procedure when applying for
PWSF's, although Town staff may waive some steps if they are
redundant.
A.
Tier One applications. Tier One applications do not need staff reports.
The Town of Smithtown shall require the review and approval
of all modifications to PWSF's.
A.
Types of modification. A modification of a PWSF is any of the following:
B.
Applications for modification. Applicants for modifications shall submit an application to the Town for a modified PWSF. The application shall include all materials required in § 242-7 that would change due to the modification.
C.
Subsequent ownership. Any permit issued pursuant to this chapter
shall not be transferable in any way. Any subsequent owner of the
PWSF or the subject property shall be required to obtain a permit
in accordance with this chapter.
A.
Tall mounts discouraged. Tall mounts are discouraged in the Town
of Smithtown, and proliferation of short mounts is considered preferable
to collocation.
B.
Collocation discouraged. Collocation shall be discouraged for all
PWSF applications.
C.
Worst-case review. The Town of Smithtown shall review applications
for collocations on the basis of all positions on the mount, i.e.,
the cumulative, worst-case condition.
D.
Collocation review includes entire facility. Applications for collocations
on mounts, when they are constructed prior to the effective date of
this chapter, require review of the existing mount as well as collocation
under the requirements of this chapter.
E.
Collocations not previously reported. Applications for collocations
on mounts constructed after the effective date of this chapter, when
they did not previously show the proposed collocation, require review
of the existing mount as well as collocation under the requirements
of this chapter.
F.
Public sites. The Town of Smithtown shall work with carriers to facilitate
the siting of PWSF's on Town-owned or other publicly-owned property,
by identifying existing structures, the appropriate contact persons
and the appropriate leasing procedures.
A.
Registry. Each carrier shall file the following information with
the Town on an annual basis, beginning with the date of approval.
(1)
Owner/lessee/intermediary/agent and carrier(s) at the site.
(2)
Location by latitude and longitude, addresses and parcel numbers.
(3)
Height, AGL.
(4)
Collocation status and capability (including if a former collocation
has been removed).
(5)
Last date at which site was modified and the nature of the modification.
(6)
A list of toxic/hazardous materials at the PWSF (including in the
equipment shelter).
(7)
Instructions for emergency personnel on the approach action to be
taken in case of an emergency involving any toxic/hazardous substances.
(8)
The name and telephone number of a representative of the carrier
to be contacted in the event of any emergency at the PWSF site. The
contact representative is to be available on a twenty-four-hour-a-day,
seven-days-a-week basis.
B.
Inspection.
[Amended 5-8-2007 by L.L. No. 5-2007]
(1)
The owner or operator of PWSF shall provide for and conduct an inspection
of mounts at least once every five years. A report shall be provided
to the Town of Smithtown Building Director verifying compliance with
previous approvals and the Town Code.
(2)
The owner or operator of PWSF shall provide for and conduct an inspection
of radio frequency radiation at least once every two years by a licensed
radio frequency engineer. Three copies of a report shall be provided
to the Town of Smithtown Building Director, who shall forward one
copy to the Director of the Department of Environment and Waterways
and one copy to the Director of Planning and Community Development,
verifying that the radio frequency radiation is in compliance with
FCC Guidelines.
C.
Abandonment and removal. Any PWSF that is not operated for a continuous
period of 12 months shall be considered abandoned, and the owner of
such PWSF shall remove same within 90 days of notice from the Town
of Smithtown Department of Public Safety that the PWSF is abandoned.
If such PWSF is not removed within said 90 days, the Town of Smithtown
may have the PWSF removed at the PWSF owner's expense.
D.
Hazardous materials. A PWSF shall be registered as a hazardous facility
if petroleum products are used to fuel power supplies or any toxins
are contained in equipment cabinets or shelters or alternative power
sources.
A.
FCC Guidelines. A statement certifying that, as proposed, the PWSF
complies with the FCC Guidelines for Evaluating the Environmental
Effects of Radio Frequency Radiation (FCC Guidelines) concerning radio
frequency radiation and emissions shall be provided at the time of
final site plan review, or building permit application for facilities
not requiring site plan review.
B.
No contravention of FCC Guidelines. A PWSF that meets the FCC Guidelines
shall not be conditioned or denied on the basis of radio frequency
impacts.
No equipment shall be operated at a PWSF so as to produce noise
in excess of the applicable noise standards under the Town of Smithtown
Noise Ordinance.[1]
A.
A PWSF shall not be artificially lighted, except for:
(1)
Security and safety lighting of equipment buildings if such lighting
is shielded and directed downward to keep light within the boundaries
of the site; and (2) Such lighting of the PWSF as may be required
by the Federal Communications Commission, Federal Aviation Administration
(FAA) or other applicable authority installed in a manner to minimize
impacts on adjacent residences. Only red lighting shall be utilized
unless otherwise recommended by FAA guidelines.
B.
Security barriers. A security barrier, conforming to the Town of
Smithtown Building Zone Ordinance,[1] shall be required around the perimeter of mounts(s) or equipment structure, and any anchor points. In the case of a roof-mounted PWSF, the security barrier need only be around the antenna. The security barrier shall be maintained by the operator of the PWSF or mount for the life of the installation. No security barrier is needed around side-mounted PWSF's, but distances from windows and balconies should conform to § 242-17C(2) below.
C.
Security barriers for certain populations. The security barriers
around all PWSF's shall be reviewed by the Town Board and found
to be acceptable for:
(1)
Controlled population: those persons who are trained in procedures
for working near or around radio frequency radiation.
(2)
General population: All other persons, some of whom have no concept
of what radio frequency radiation is or how it can cause harm. Members
of the general population should not be allowed within 10 meters of
any antenna.
No signage shall be permitted on any PWSF other than that required
for public safety purposes or by the FCC or FAA, except that each
PWSF shall have a weatherproof plaque mounted at eye level identifying
the carrier, frequency and date of permit approval.
A.
Natural vegetation. Existing natural vegetation shall be undisturbed
to the greatest extent practicable.
B.
Landscaping. Landscaping of disturbed areas of the PWSF site and
security barriers shall be required as follows:
(1)
At least one row of evergreen shrubs capable of forming a continuous
hedge at least five feet in height within two years of planting shall
be spaced not more than five feet apart within 15 feet of the site
boundary; and
(2)
At least one row of evergreen trees or shrubs, at least four feet in height when planted and spaced not more than 15 feet apart, shall be located interior to the perimeter of the shrubs required in Subsection B(1) above; and
(3)
For ground mounts greater than 200 feet tall, at least one row of deciduous trees, not less than 11/2 inches' diameter measured three feet above grade and spaced not more than 20 feet apart, shall be located within the perimeter of the evergreen trees or shrubs required in Subsection B(2) above.
(4)
All security barriers for guy wire anchor points shall be screened
from view by at least one row of evergreen shrubs spaced not more
than five feet apart and capable of forming a continuous hedge at
least five feet in height within two years of planting.
(6)
Landscaping materials shall consist of xeric or drought-resistant
native species and shall be maintained by the operator of the PWSF
for the life of the installation.
A.
Parking. Areas sufficient for the temporary off-street parking of
at least two vehicles shall be provided for mounts. The type and configuration
of parking shall be subject to approval by the Town Board.
B.
Private access. A copy shall be provided to the Town of Smithtown
Department of Planning and Community Development of any road maintenance
agreement for any site accessed by private easement.
A.
Each violation of this chapter, any regulation, order or ruling promulgated
hereunder or any permit issued hereunder shall be punishable by a
fine of not more than $2,500 or imprisonment not exceeding 15 days,
or both; a separate offense shall be deemed committed on each day
during which a violation occurs or continues. In addition to such
a fine, the defendant shall pay all costs and expenses incurred by
the Town in determining such violation. The foregoing shall be in
addition to all other remedies available under the law to the Town
or the Town Board.
B.
In the event of any actual or impending violation of this chapter,
the Town Board, in addition to other remedies, may institute any appropriate
action or proceedings to prevent, restrain, correct or abate such
violation.
C.
In addition to other remedies by law, any appropriate action or proceeding,
whether by legal process or otherwise, may be instituted or taken
to prevent the unlawful erection, construction, reconstruction, alteration,
repair, conversion, maintenance or use to restrain, correct or abate
such violation, to prevent the use of said structure or land or to
prevent any illegal act, conduct, business or use in or about such
premises.
It is the declared intent of the Town of Smithtown Town Board
that, if any section, clause, phrase or provision of this chapter
is held invalid or unconstitutional by a court of competent jurisdiction,
such invalidity or unconstitutionality shall not be so construed as
to render invalid or unconstitutional the remaining provisions of
this chapter.
This chapter shall take effect upon filing with the Secretary
of State of the State of New York.
