The purpose of conditional use permit approval is to allow the
proper integration of uses into the community and appropriate zoning
districts. Because of their characteristics, or the special characteristics
of the area in which they are to be located, conditional uses require
special consideration so that they may be properly located with respect
to the objectives of this chapter and their effect on surrounding
properties.
In cases where a conditionally permitted use is proposed to
be developed on property and the subdivision and/or site plan approval
process is required, the Planning Board or Town Board, as the case
may be, shall have jurisdiction in granting such a permit. In all
other cases, the Zoning Board of Appeals shall have the authority
to grant such a permit. In permitting a conditional use or the modification
of a conditional use, the board having jurisdiction may impose any
additional conditions which the board considers necessary to protect
the best interests of the surrounding property, the neighborhood or
the Town as a whole, in addition to those standards and requirements
expressly specified by this article. These conditions may include,
but are not limited to, increasing the required lot size or yard dimensions;
limiting the height of buildings; controlling the location and number
of vehicle access points; increasing the street widths; increasing
the number of off-street parking and loading spaces required; limiting
the number, size and location of signs; and required diking, fencing,
screening, landscaping, or other facilities to protect adjacent property.
All permits granted pursuant to this section shall be issued by the
Town Clerk at a fee as required by resolution by the Town Board.
A property owner(s) or his/her agent(s) may initiate a request
for a conditional use or the modification of a conditional use by
filing an application with the authorized official using forms provided
for such requests by the Town. The applicant shall submit all information
required to review said application and deemed necessary by the authorized
official and a filing fee as required by resolution by the Town Board.
A conditional use shall comply with the standards of the zoning
district in which it is located. Notwithstanding any provision of
this chapter to the contrary, in no event shall a conditional use
permit be issued to authorize any explicitly prohibited use.
A.
In order to approve any conditional use, the board having jurisdiction
shall find that the request is:
(1)
In harmony with the general purpose and intent of this chapter
and the zoning district in which it is proposed.
(2)
Not detrimental to adjacent properties because of its:
(a)
Means of ingress and egress.
(b)
Adequacy of parking facilities.
(c)
Potential impact to both present or future uses.
(d)
Compatibility with the general area in which it is to be located.
(e)
Type and amount of signage.
(f)
Potential noise level.
(g)
Clear sight distance.
(h)
Existing or proposed buffering.
(i)
Proposed generation of noxious odors.
(j)
Exterior lighting.
(k)
Proposed hours of operation.
(3)
Not detrimental to the health, safety or general welfare of
persons residing or working in the neighborhood of such proposed use
or detrimental or injurious to the property and improvements in the
neighborhood, or to the general welfare of the Town.
B.
A conditional use permit shall become void one year after approval
unless the permitted activity has commenced, or as otherwise specified.
Before a conditional use is permitted, the use shall be considered by the board having jurisdiction at a public hearing. Notice of said hearing shall be given as provided in § 250-15.4.
A.
The Planning Board or Town Board, as the case may be, may grant a conditional use permit to be issued by the Town Clerk for the construction and maintenance of a golf course, as hereinafter defined, in any district of the Town, pursuant to § 250-13.2.
B.
A golf course, as defined in Article II of this chapter, may include the following facilities as also permitted with the principal use:
(1)
Clubhouse, including kitchens, dining areas, game rooms, bar,
grill, locker rooms, and baths. In cases where a clubhouse is approved
with dining facilities, said facilities may be utilized on a year-round
basis.
(2)
Swimming pools.
(3)
Parking areas.
(4)
Tennis or paddleball courts.
(5)
Designated area dedicated to outdoor events, such as awards
ceremonies, banquets, weddings, musical functions, etc. Said area
may be open-air or tented.
D.
Prior to the granting of such a permit, the board having jurisdiction
shall find, after public notice and hearing, that such action would
not:
(1)
Be detrimental to adjacent property.
(2)
By reason of its location or nature create a significant hazard
of any nature to the public or to any adjacent owner or occupant.
(3)
Unreasonably interfere with the lawful enjoyment of the public
highway or of adjacent property.
(4)
Endanger or tend to endanger the public health, safety, morals
or the general welfare of the community. In making such determination,
the Board shall consider lot areas; necessity for and size of buffer
zone; type of construction; parking facilities; traffic hazards; fire
hazards; offensive odors, smoke, fumes, noise and lights; the general
character of the neighborhood; the nature and use of other premises,
and the location and use of other buildings in the vicinity; and whether
or not the proposed use will be detrimental to neighborhood property.
(5)
Discourage the appropriate development and use of adjacent land
and buildings nor impair the value thereof; further, that the proposed
use will be in harmony with the probable future development of the
neighborhood.
E.
In granting such a permit, the Board may attach such conditions and
limitations as it considers to be desirable in order to ensure compliance
with the application and the purposes of this chapter.
F.
Subject to the payment of the annual renewal fee, as hereinafter
provided, any such permit granted hereunder shall be deemed to be
indefinitely extended; provided, however, that it shall expire if
the special use shall be terminated, abandoned or cease for more than
six months for any reason, or if there is a default in the payment
of the renewal fee; and further provided that it may be revoked by
the board having jurisdiction after due hearing on not less than 10
days' notice to the person holding such permit in the event the use
thereof violates any of the conditions or restrictions imposed by
the board or becomes a nuisance.
A.
The
Zoning Board of Appeals (or in cases of new construction where subdivision
and/or site plan approval is required, the Planning Board or Town
Board, as the case may be) may issue a conditional use permit for
the operation of a gasoline service station in any LB, GB or FC District.
Such conditional use shall be issued to the operator of a gasoline
service station, and no gasoline service station shall be operated
in the Town without the required gasoline service station conditional
use permit. Prior to the first issuance, as distinct from a renewal,
of a permit under this section, the board having jurisdiction may
require the applicant to submit such information as it may require
and to fix the location of all structures on the premises. Prior to
the first issuance of such conditional use permit, the board shall
find, at a public hearing, that:
(1)
The proposed structures are located consistent with the regulations
of the LB, GB or FC District in which they are to be located, and
that the design and type of the proposed structures are in harmony
with other structures in such neighborhood.
(2)
The proposed use will not create a traffic hazard at the proposed
location. To this end, a minimum frontage of 200 feet will be required
on any road used for access to the station.
(3)
The applicant has, in writing, agreed to construct and operate
such proposed station in strict accordance with such conditions and
restrictions as may be imposed by the board having jurisdiction.
(4)
The lot area is sufficient to permit construction of the largest
station that might be needed in the future. This should, at the least,
provide for four inside bays and parking for 15 cars, of which 10
spaces must be in a screened area behind the station.
(5)
All parking and outside storage shall comply with the front,
side and rear lot setback requirements.
(6)
At the time of application for a permit, the applicant shall
submit a full site plan or instrument survey of the property showing
all tank locations, island setbacks, and such other and further information
that may be necessary to determine compliance with the provisions
of this chapter and any other provisions of law.
B.
Permit
regulations.
(1)
Any permit granted hereunder shall be issued by the Town Clerk
for a period of one year initially, and shall be renewable annually
thereafter upon a favorable recommendation of the Fire Marshal. Prior
to making such favorable recommendation to the Zoning Board of Appeals,
the Fire Marshal shall first assure himself/herself, based upon a
physical inspection, that the gasoline service station is operated
in a manner consistent with the requirements of current fire codes.
(2)
Any permit granted hereunder shall be automatically terminated
in the event the operator in whose name the permit has been issued
ceases to operate the gasoline service station referred to in the
conditional use permit.
(3)
The fees for the issuance of a conditional use permit shall
be the fees as established by resolution by the Town Board.
(4)
Any conditional use permit granted hereunder may be revoked
by the board having jurisdiction after due hearing on not less than
10 days' notice to the person holding such permit in the event that
the use violates any of the conditions or restrictions imposed by
the board having jurisdiction upon the issuance of such conditional
use permit, or shall have become a nuisance.
C.
General
regulations.
(1)
Gasoline service stations shall be operated and maintained at
all times in conformity with the requirements of this article, National
Fire Protection Association Code No. 30, state fire protection codes
and all other New York applicable regulations.
(2)
All vehicles at motor vehicle supply station facilities shall
be stored within a building when the facilities are not open for business.
However, licensed vehicles at motor vehicle supply stations for minor
repairs may be left outside for a period not to exceed 72 hours. At
no time shall any unlicensed or dismantled automobiles, trucks, tractors,
trailers or accessories thereof be outside of a building. At no time
shall any vehicles for sale be displayed inside or outside of a building.
(3)
There shall be no outside storage or display of accessories
or portable signs when gasoline service station facilities are not
open for business.
(4)
Rubbish, oil cans, tires, discarded motor vehicle parts and
components and other waste materials may be temporarily stored in
a completely fenced-in opaque enclosure adjacent to the gasoline service
station facility building. The area of such enclosure shall not exceed
200 square feet. There shall be no storage at any time of any of the
above-mentioned items outside of such enclosure.
(5)
No repair work may be performed out of doors. This does not
preclude, however, adding oil to motor vehicles, changing windshield
wipers or other similar simple repairs normally performed in conjunction
with the sale of gasoline.
(6)
Snow must be piled on a gasoline service station facility site
so that it does not interfere with the internal circulation and parking
or driver vision when entering or leaving the facility.
(7)
During the hours that a gasoline service station facility is
open, all cars of employees, customers and tow trucks must be parked
only in areas designated on the site plan for such vehicles.
(8)
All landscape areas designated on the gasoline service station
facility site plan and/or landscaping plan must be maintained in a
neat and healthy condition.
(9)
Motor vehicles being serviced shall not extend over the public
sidewalk.
(10)
A nearby exterior door of the lubritorium or wash rack shall
be open when a car motor is running, unless the exhaust gases of the
car are carried directly to the outside by means of a flexible tube
designed for this purpose.
(11)
Liquids shall be stored in approved closed containers not exceeding
60 gallons' capacity, or in tanks located in the ground, or above
ground, subject to permit issuance by the Fire Marshal.
(12)
Class I liquids (liquids having a flash point below 100° F.)
shall not be stored or handled within a building having a basement
or pit into which flammable vapors may travel, unless adequate ventilation
is supplied.
(13)
Accurate on-premises inventory records shall be maintained on
all Class I liquid storage tanks for possible indication of leakage
from tanks or piping.
(14)
Signs.
(a)
Signs shall be conspicuously posted setting forth the operating
instructions of the dispensing units and also incorporating the following
or equivalent wording:
|
WARNING —
| ||
|
1)
|
IT IS UNLAWFUL TO DISPENSE GASOLINE INTO CONTAINERS NOT APPROVED
FOR SUCH USE.
| |
|
2)
|
NO SMOKING.
| |
|
3)
|
STOP ENGINE.
| |
(b)
A clearly visible numeral or letter at least six inches in height
shall be conspicuously posted on each island with a smaller corresponding
numeral or letter.
(15)
In locations where flammable vapors may be present, precautions
shall be taken to prevent ignition by eliminating or controlling sources
of ignition, which may include open flames, lighting, smoking, cutting
and welding, hot surfaces, friction heat, sparks, spontaneous ignition,
chemical and physical chemical reaction and radiant heat.
(16)
Gasoline, diesel fuel, and all Class I and Class II flammable
liquids shall be stored in approved underground storage tanks. The
total aggregate storage of such fuel at any one location shall not
exceed 24,000 gallons.
(a)
All accidental spillage or leakage of a flammable liquid in
quantities of five gallons or greater, whether or not it may enter
sewers, shall be immediately reported to the Fire Department.
(b)
Five fifty-pound bags of Stay Dry absorbent, or equivalent,
must be kept on the premises at all times for flammable liquid spills,
and should be used for this purpose whenever possible instead of flushing
with water.
(c)
The telephone number of the owner, lessee or station operator
shall be posted on the door in a conspicuous location so that proper
notification can be made in the event of an emergency.
(17)
No gasoline may be sold or dispensed unless into an approved
container. Said product sales shall be made into approved containers
clearly marked with the name of the product contained therein, and
equipped with a closure filled with a screwed or spring cover, and
a spout so designed that the contents can be poured. In addition,
no gasoline sales shall be permitted to persons under the age of 16
without a parent or guardian present.
(18)
There shall be no smoking on the driveway of gasoline service
stations in the areas used for fueling motor vehicles, dispensing
flammable anti-freeze or receipt of products by tank vehicles, or
in those portions of the building used for servicing automobiles,
tractors or internal combustion engines. Conspicuous signs prohibiting
smoking shall be posted within sight of the customer. Letters on such
signs shall be not less than four inches high. The motors of all vehicles
being fueled shall be shut off during the fueling operation.
(19)
Vents from underground tanks shall terminate at least 12 feet
above grade and be carried around and above any nearby building overhang
or other obstruction. They shall be in operating condition at all
times.
(20)
There is to be no more than one tank truck on the premises at
any one time. Before making any deliveries to underground tanks, the
driver shall set the brakes of the truck and shall turn off the engine
of the vehicle. The driver shall remain at the point of delivery to
prevent spillage and overflow. In case of overflow, fire authorities
and the Town Fire Marshal are to be notified immediately.
(21)
The premises are to be maintained in a neat and clean condition
without the accumulation of used materials, automobile parts, dismantled
cars or cars left by their owners over a considerable period of time.
Used rags are to be kept in covered metal containers. Grease and other
filters and/or traps shall be approved as required by the Superintendent
of Sewers and the Monroe County Health Department for the purpose
of protection of the public sewer system and public bodies of water.
(22)
There shall be one or more fire extinguishers capable of fighting
Class A, B and C fires (Underwriters' Laboratories classification)
hung in the sales room of the gasoline service station. There shall
also be one or more fire extinguishers of the same capability hung
in the lubritorium. At least one fire extinguisher having a minimum
classification of 5B, C shall be hung within 100 feet of each pump,
dispenser or underground fill pipe opening.
(23)
All electric wiring, fixtures and equipment shall be inspected
and approved by the New York State Board of Fire Underwriters or other
organization, which may be approved by the Town Board, by resolution
and maintained in first class condition. All existing wiring material
equipment and installations in hazardous locations, as defined in
Chapter 5 of the National Electrical Code, shall conform to the requirements
of that code, including current revisions.
(24)
Air compressors shall be installed at least one foot six inches
above the main floor level of the station, and open-flame heaters
shall be installed at least eight feet zero inches above said floor.
(25)
Alcohol or kerosene shall be dispensed from drums or tanks using
equipment which meets the approval of the American Petroleum Institute
and NFPA standards. Said drums or tanks shall be placed in locations
which are remote from any exit.
(26)
Gasoline shall never be used for cleaning motor parts or cleaning
the floor of the service station. Accumulation or spillage of oil
or grease should be dried with Fuller's earth or equal.
D.
Attendants.
(1)
Each gasoline service station open to the public shall, at all
times it is operating, have a qualified attendant or supervisor on
duty.
(2)
Said attendant shall have been qualified by the gasoline service
station facility operator, by means of instructions and certification,
as well versed in proper handling and care of all petroleum dispensing
equipment on premises and familiar with all necessary aspects of emergency
operation.
(3)
It shall be the specific duty of the attendant to directly supervise,
observe and control the dispensing of all flammable liquids. In addition,
he/she shall be responsible for the control of sources of ignition
and the immediate handling of accidental spills and fire extinguishers.
E.
Tanks,
pumps and piping.
(1)
Tanks, pumps and piping shall in general be designed and equipped
so as to comply with all principles of sound engineering design. They
shall be able to withstand all necessary pressures and to adequately
control the escape of liquids and vapors. All equipment on premises
shall be constructed and equipped so as to ensure the safe and proper
dispensation of Class I liquids and shall comply with necessary guidelines
as expressed in National Fire Protection Association No. 30, Flammable
and Combustible Liquids Code.
(2)
Class I liquids shall be conveyed from a main storage tank to
the dispensing pump by means of a system of piping utilizing an arrangement
of three swing joints laid in a horizontal position.
(3)
No gasoline pump shall be located closer than 25 feet to any
property line.
(4)
Leaking tanks containing any flammable or combustible liquid
or any pump or piping used in connection therewith which may be defective
or in need of repair shall be repaired or replaced immediately, and
it shall be within the sole discretion of the Fire Marshal as to whether
the station or facility must cease any or all operations while such
repairs or replacements are being made.
(5)
No installation, alteration or replacement of underground or
aboveground tanks, pumps, piping and other equipment relating to the
storage of flammable liquids shall be permitted without prior notification
to the Fire Marshal, nor shall any pressure test or other test for
leaks be conducted without giving at least 24 hours' prior notification
to the Fire Marshal.
A.
Each gasoline self-service station shall have a qualified attendant
on duty whenever the station is open for business. It shall be the
responsibility of the qualified attendant to control and operate remote
pumping equipment. Class I liquids shall at no time be dispensed without
the direct supervision of the qualified attendant.
B.
A control shall be provided that will permit the pump to operate
only when a dispensing nozzle is removed from its bracket on the dispensing
unit and the switch for this dispensing unit is manually activated.
This control shall also stop the pump when all nozzles have been returned
to their brackets. Lock open devices are not permitted on nozzles.
C.
Each gasoline self-service station shall have the remote dispensing
equipment situated in such a manner as to give the qualified attendant
controlling said equipment an optimum view of the dispensing of Class
I liquids.
D.
Class I liquids may be dispensed only by customers possessing a valid
motor vehicle operator's license. No sale of gasoline is permitted
to a minor (under the age of 16) without a parent or guardian present.
E.
Gasoline self-service stations shall provide adequate fire protection
systems in the form of an approved system of dry powder release, which
will act as an automatic fire extinguisher. All systems shall be approved
by the Fire Marshal prior to the start of operation.
F.
An automatic fire extinguishing system shall be installed in conformity
with nationally recognized good practices and standards and approved
by the Fire Marshal. Said system shall also be designed to be activated
from a location remote from the pump island area. Said location shall
be in the control room area if said station is so equipped, and be
able to automatically terminate the electrical power to all service
islands in the event of system malfunctions. Where a service station
has one self-service island within 30 feet of a full-service island,
both the self-service and full-service island shall be so equipped
with the automatic fire-extinguishing system as provided for herein.
G.
Self-service pumps and nozzles shall be confined to service islands
with no more than three self-service dispensing units per island,
each of which dispensing units shall utilize no more than two hoses
and nozzles per unit. Approved dispensing devices, such as but not
limited to coin-operated, card-operated and remote preset types, shall
be permitted, provided that the dispensing of Class I liquids is under
the direct supervision of a qualified attendant.
H.
A traffic mirror, of sufficient size, shall be located on each end
of each pump island to give the attendant a clear and unobstructed
view of each island, said mirrors to be installed in locations acceptable
to the Fire Marshal. An approved video camera system that permits
unobstructed view of each island pump location shall be permitted
in lieu of mirrors, subject to the approval of the Fire Marshal.
I.
A two-way communications system of the public address type shall
be installed to facilitate direct and individual communication between
the control room area and each pump island at all times that Class
I liquids are being dispensed.
J.
Each gasoline self-service station shall provide a means of keeping
pumps locked or otherwise inoperable when the station is not open
for business.
A conditional use permit for a bed-and-breakfast facility shall
be granted for a period deemed to be appropriate by the board to comply
with all applicable provisions of this chapter. The proposed bed-and-breakfast
facility shall comply with the following standards:
A.
The maximum number of sleeping rooms for transient guests shall be
three, which rooms shall be located in the principal dwelling structure
on site and not in any other detached buildings or structures.
B.
The maximum length of stay for transient guests shall be one week.
C.
The principal dwelling unit shall be owner-occupied.
D.
No exterior changes shall be made.
E.
Nameplate signs only may be used to identify the bed-and-breakfast
facility. Such signs shall not exceed two square feet in area or be
located closer than five feet to any property line. Such signs may
be building-mounted or ground-mounted.
F.
Breakfast shall not be offered to the public at large, but only to
such transient guests. No other meals shall be offered to any persons
relating to the bed-and-breakfast operation.
H.
No kitchens shall be attached to or located within sleeping rooms.
A.
Child-care facilities shall be permitted in all zoning districts
and shall comply with current state regulations and the following
criteria:
(1)
"Child care" shall be defined as that care relating to children
between the ages of six weeks and 12 years of age.
(2)
Child-care facilities in residential zoning districts shall
be sized, with respect to lot area, at the determination of the board
having jurisdiction and in compliance with the requirements of the
New York State Office of Family Services, Division of Child Care Services.
[Amended 2-3-2021 by Res. No. 21T-066]
(3)
Child-care facilities in residential zoning districts shall
be sized, with respect to building area, at the determination of the
board having jurisdiction and in compliance with the requirements
of the New York State Office of Family Services, Division of Child
Care Services.
[Amended 2-3-2021 by Res. No. 21T-066]
(4)
The number of children permitted for child-care facilities shall
be at the determination of the board having jurisdiction and in compliance
with the requirements of the New York State Office of Family Services,
Division of Child Care Services.
[Amended 2-3-2021 by Res. No. 21T-066]
(5)
All outdoor play areas shall be fenced by a minimum four-foot-high
fence and shall be sized to accommodate 100 square feet of area per
child utilizing the area at any given time.
(6)
There shall be a minimum one-hundred-foot buffer from all structures,
play areas, parking facilities and driving lanes to any adjacent residential
property line.
(8)
There shall be an adequate circular means of ingress and egress
and turning radii for school buses and emergency vehicles.
(9)
There shall be a specific drop-off/pick-up zone to accommodate
the site.
(10)
The school district in which the facility is proposed shall
review and make recommendation to the board having jurisdiction with
respect to location, serviceability and potential impact to the respective
district.
(11)
In the case of nonresidential sites such as plazas and office
parks, the board having jurisdiction shall determine the appropriate
amount of lot area and parking facilities necessary to accommodate
a child-care facility and its relation to other tenants operating
from the site.
B.
In-home day care and those child-care facilities being conducted
in conjunction with and accessory to religious or educational institutions
within the Town of Penfield are not subject to review by the Town
and are not subject to the criteria hereinabove.
[Amended 9-2-2020 by L.L. No. 3-2020]
A.
Wireless communications facilities in general.
(1)
Purpose.
(a)
The intent of this section is to provide a means of regulating
the installation and operation of wireless communications facilities
for the use, enjoyment and convenience of the residents of the Town
of Penfield, while at the same time providing for the maximum protection
of the health, safety and aesthetic sensibilities of the residents.
(b)
It is a further purpose of this section to minimize visual intrusion
of such WCFs and to protect residents from unsafe structures and equipment.
Further, this section is intended to promote the health, safety, and
general welfare of the residents of the Town of Penfield, to provide
standards for the safe provision of wireless communications service
consistent with applicable federal and state regulations, and to protect,
as much as possible, the natural features and aesthetic characteristics
of the Town of Penfield.
(c)
The Town of Penfield recognizes the increased demand for WCFs
and the need for the services they provide. Often the facilities require
the construction of wireless support structures. The intrusion of
large or high structures of unusual shape or size, monolithically
towering above standard-appearing homes and structures, can be aesthetically
objectionable and disturbing to visual sensitivities. Bulk and visual
impact of such installations create aesthetic problems, making it
appropriate to have some special limitations as to size and placement
thereof. The intent of this section is to protect the Town's interest
by properly siting structures in a manner consistent with sound land
use planning while also allowing wireless services providers to meet
their technological and service objectives.
(d)
The proliferation of the construction and installation of WCFs
must be regulated so as to protect the health, safety, and welfare
of the citizens to the maximum degree possible and to coordinate and
control the same so as to preserve and protect the aesthetic qualities
of the Town of Penfield and its environs.
(e)
Among other things, reasonable controls contribute to the good
appearance of the Town, stabilize property values, assure the safety
of the owner and others, and, in general, contribute to the preservation
of a pleasant community within which to work and live. This section
shall be construed and administered so as to not unduly hamper satisfactory
reception or transmission of other communication signals.
(2)
Applicability.
(a)
Unless otherwise exempted by this section, no WCF shall hereafter
be used, erected, moved, reconstructed, changed or altered except
after approval by the Town in accordance with the requirements of
this section.
(b)
No existing structure shall be modified to serve as a wireless
support structure unless in conformity with this section.
(3)
Exemptions. The following are exempt from the requirements of
securing a conditional use permit and site plan approval pursuant
to this section:
(a)
Satellite dish antennas measuring one meter or less in diameter.
(b)
Commercial satellite dish antennas measuring two meters or less
in diameter located in the following commercial districts: Limited
Industrial (LI), General Business (GB), Limited Business (LB), Business
Non-Retail (BN-R), Four Corners (FC), and LaSalle's Landing Development
District (LLD).
(4)
Existing applications. The board having jurisdiction is hereby
empowered to continue the processing of any applications for wireless
communications facilities that are pending before it as of the effective
date of this section. Notwithstanding the foregoing, those boards
shall apply the specifications and standards contained in this section
in considering such applications.
B.
The following regulations shall apply to all tower-based WCFs that
do not meet the definition of a small WCF:
(1)
Height. The maximum height for all tower-based WCFs permitted
under this section, including any antennas, extensions, or other devices
extending above the structure of the wireless support structure, measured
from the ground surface immediately surrounding the site, shall be
no higher than 190 feet.
(2)
Commercial tower-based WCFs and accessory equipment permitted in certain primary zoning districts. Tower-based WCFs and their accessory equipment are permitted in any of the following primary zoning districts, subject to final site plan approval pursuant to Article XII by the Planning Board or Town Board, as the case may be, and upon approval and issuance of a conditional use permit pursuant to Article XIII and under the procedures set forth in this chapter and subject to and complying with all other applicable laws, rules and regulations:
(a)
Limited Industrial (LI).
(b)
General Business (GB).
(c)
Limited Business (LB).
(d)
Residential R-1-20*.
(e)
Rural Residential 1 (RR-1)*.
(f)
Rural Agricultural 2 (RA-2)*.
(g)
Conservation Residential (CR-2)*.
Notes: *On the above-referenced zoning district parcels having
a minimum of five acres.
(3)
Minimum lot area in single-family residential use districts. Notwithstanding any language to the contrary in § 250-5.1F of this chapter, the minimum lot area in single-family residential use districts for the installation of a commercial tower-based WCF shall be five acres.
(4)
Commercial tower-based WCFs and accessory equipment prohibited
in certain primary zoning districts. Commercial tower-based WCFs and
accessory equipment are not permitted in the following zoning districts:
(5)
Tower-based WCFs and accessory equipment are not permitted in
the public rights-of-way in any Town zoning district.
(6)
Review procedures for commercial tower-based WCFs.
(a)
For the purposes of this section, all commercial tower-based WCFs are subject to site plan approval and to the conditional use permit process pursuant to the requirements of Articles XII and XIII of this chapter. The Planning Board shall have jurisdiction in the both the site plan review and conditional use permit review.
(b)
Notwithstanding the foregoing subsection, to encourage subsequent
carriers seeking collocation of non-tower wireless communications
facilities on existing commercial and noncommercial tower-based WCFs
within the Town of Penfield, the authorized official is hereby authorized
to issue conditional use permits to allow such collocation but may
refer an application for collocation to the appropriate board for
review if, in his/her opinion, the proposed collocation facilities
are not consistent with those existing facilities.
(7)
Conditional use permit and site plan application requirements.
Prior to the issuance of a conditional use permit and site plan approval
for a proposed tower-based WCF by the Planning Board, the following
requirements shall be complied with:
(a)
Conditional use permit and site plan. All applications for a
conditional use permit and site plan approval shall be by written
application on forms provided by the Town Planning Department. The
application shall include a site plan setting forth specific site
data on a map, acceptable in form and content to the Planning Board,
and shall be prepared to scale and in sufficient detail and accuracy
and shall show the following:
[1]
The location of property lines and permanent easements.
[2]
The location of the tower-based WCF, together with
guy wires and guy anchors, if applicable.
[3]
A side elevation or other sketch of the tower-based
WCF showing the proposed antennas.
[4]
The location of all structures on the property
and all structures on any adjacent property within 200 feet of the
base of the proposed tower-based WCF and at a minimum of 200 feet
from all property lines.
[5]
The names of adjacent landowners as they appear
on the Town of Penfield Assessor's records.
[6]
The location, nature, and extent of any proposed
fencing, landscaping and/or screening.
[7]
The location and nature of proposed utility easements
and access road, if applicable.
[8]
Inventory of other existing and proposed tower-based
and applicant's non-tower-based WCFs within a minimum of two miles
of the proposed location in the Town of Penfield and adjacent communities.
[9]
A completed visual environmental assessment form
(visual EAF) and a landscaping plan addressing other standards listed
within this section, with particular attention to visibility from
key viewpoints within and outside of the municipality as identified
in the visual EAF. The Board may require submittal of a more detailed
visual analysis based on the results of the visual EAF.
[10]
Verification that the proposed facility will comply
with all applicable FCC rules and regulations.
(b)
Preference for siting tower-based WCFs. The following establishes
a system of preferred locations in which a proposed tower-based WCF
is located. This relates to a specific setting or in a specific area
or zoning district, assuming there is a technologically feasible and
available location. A guideline for the preference from most favorable
to least favorable district/setting/property is as follows:
(c)
Shared use.
[1]
Tower-based and non-tower-based WCFs shall be designed
to provide for collocation of at least three carriers or designed
so that they can be retrofitted to accommodate a minimum of three
carriers. Additionally, where such shared use is unavailable, location
of an antenna on preexisting structures shall be considered the next
preferable location. An applicant shall be required to present a report,
inventorying existing tower-based and applicant's non-tower based
WCFs within a minimum of two miles from the proposed location in the
Town of Penfield and adjacent municipalities and outlining opportunities
for shared use of existing WCFs and use of other preexisting structures
as alternatives to new construction.
[2]
An applicant intending to share use of an existing
tower-based or non-tower based WCF shall be required to document consent
from an existing tower-based or non-tower-based WCF owner for that
shared use. The applicant shall pay all reasonable fees and costs
of adapting an existing tower-based WCF or structure to a new shared
use. Those costs of adapting an existing tower-based WCF or structure
to a new shared use include, but are not limited to, structural reinforcement,
preventing transmission or receiver interference, additional site
screening, and other changes, including real property acquisition
or lease required to accommodate the shared use.
[3]
In the case of new tower-based WCFs, the applicant shall be required to submit a report demonstrating good-faith efforts to secure shared use from owners of existing tower-based WCFs. Copies of written requests and responses for shared use shall be provided. The applicant shall also be required to submit a report justifying its inability to place its tower-based WCF and related facilities in areas set forth in Subsection B(6)(b).
[4]
The appropriate board or authorized official, as
the case may be, shall have the power to grant a waiver of the collocation
requirement, provided the applicant proves that such waiver is required
in order for the applicant to render safe and adequate service.
(d)
Aesthetics. In order to minimize any adverse aesthetic effect
on neighboring properties to the maximum extent practicable, the Planning
Board may impose reasonable conditions on the applicant, including
the following:
[1]
All tower-based WCFs and accessory facilities or
structures shall be sited to have the least adverse visual effect
on the environment.
[2]
A freestanding tower-based WCF instead of a guyed
tower-based WCF.
[3]
Reasonable landscaping consisting of trees or shrubs
to screen the base of the tower-based WCF and/or to screen the tower-based
WCF to the extent possible from adjacent residential property. Existing
on-site trees and vegetation shall be preserved to the maximum extent
practicable.
[4]
As defined in Subsection B(6)(c)[3], the applicant
shall show that it has made good-faith efforts to collocate on existing
tower-based WCFs or other available and appropriate structures and/or
to construct new tower-based WCFs near existing tower-based WCFs in
an effort to consolidate visual disturbances. However, such request
shall not unreasonably delay the application.
[5]
Tower-based WCFs should be designed and sited so
as to avoid, whenever possible, application of Federal Aviation Administration
(FAA) lighting and painting requirements. The tower-based WCF shall
not be artificially lighted except as required by the FAA. Any lighting
utilized shall not result in glare on adjacent properties. Tower-based
WCFs are to be of a galvanized finish or painted matte gray unless
otherwise required by the FAA.
[6]
No tower-based WCF shall contain any advertising
signs or devices. Safety warning signs shall not be considered advertising
and shall be permitted, the size and type to be determined and approved
by the appropriate board.
[7]
Accessory facilities and structures shall maximize
the use of building materials, colors, and textures designed to blend
with the natural surroundings.
(e)
Setbacks.
[1]
All freestanding tower-based WCFs and accessory
equipment shall be set back from abutting parcels, public property,
or right-of-way lines a distance sufficient to contain substantially
all ice fall or debris on-site from tower-based WCF failure, or 200
feet, whichever is greater.
[2]
All appurtenances and attachments, such as guy
wires, must be located at a minimum setback from any property line
a distance of at least 200 feet or the minimum setback of the underlying
zoning district, whichever is greater. The minimum setback requirement
of this subsection may be increased at the discretion of Planning
Board, as part of the site plan approval procedures, or it may be
decreased in those instances where the owner/applicant has submitted
plans for a tower-based WCF designed in such a manner as to collapse
within a smaller area. Such tower-based WCF design and collapse zone
must be acceptable to the Town Engineer and the Building Inspector.
(f)
Radio frequency effects. It is recognized that federal law [Telecommunications
Act of 1996, Public Law 104-104, Section 704 (February 8, 1996)] prohibits
the regulation of cellular and personal communications service (PCS)
tower-based WCFs based on the environmental effects of radio frequency
emissions where those emissions comply with the Federal Communications
Commission (FCC) standards for those emissions. The Board shall, however,
impose a condition on the applicant that the communication antennas
be operated only at FCC-designated frequencies and power levels and
require applicants to submit evidence, upon approval and once every
three years thereafter, demonstrating that the proposed use is in
compliance with such standards.
(g)
Retention of experts. The Town may hire any consultant(s) and/or
expert(s) necessary to assist the Town in reviewing and evaluating
the application for approval of a tower-based WCF and, once approved,
in reviewing and evaluating any potential violations of the terms
and conditions of these WCF provisions. The WCF applicant and/or owner
of the WCF shall reimburse the Town for all costs of the Town's consultant(s)
in providing expert evaluation and consultation in connection with
these activities, including reasonable attorney fees.
(h)
Indemnification. To the maximum extent permitted by law, each
person that owns or operates a tower-based WCF shall, at its sole
cost and expense, execute an agreement to indemnify, defend and hold
harmless the Town, its elected and appointed officials, and employees,
at all times against any and all claims for personal injury, including
death, and property damage arising in whole or in part from, caused
by or connected with any act or omission of the person, its officers,
agents, employees or contractors arising out of, but not limited to,
the construction, installation, operation, maintenance or removal
of the tower-based WCF. Each person that owns or operates a tower-based
WCF shall defend any actions or proceedings against the Town in which
it is claimed that personal injury, including death, or property damage
was caused by the construction, installation, operation, maintenance
or removal of a tower-based WCF. The obligation to indemnify, hold
harmless and defend shall include, but not be limited to, the obligation
to pay judgments, injuries, liabilities, damages, reasonable attorney
fees, reasonable expert fees, court costs and all other costs of indemnification.
This indemnification shall not apply to any claim or liability resulting
from the gross negligence or willful misconduct of any indemnified
party.
(i)
Traffic, access, and safety.
[1]
A road and parking area will be provided to assure
adequate emergency and service access. Maximum use of existing roads,
public or private, shall be made. Road construction shall be consistent
with Town standards for private roads and shall at all times minimize
ground disturbance and vegetation cutting. Road grades shall closely
follow natural contours to assure minimal visual disturbance and reduce
soil erosion potential. Public road standards may be waived in meeting
the objective of this subsection.
[2]
All tower-based WCFs and guy anchors, if applicable,
shall be enclosed by climb-proof fencing of a height sufficient to
protect it 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.
(j)
Existing vegetation. Existing on-site vegetation shall be preserved
to the maximum extent possible, and no cutting of trees exceeding
four inches in diameter (measured at a height of four feet off the
ground) shall take place prior to approval of the conditional use
permit.
(k)
Letter of credit/security. The applicant and the owner of record
of the premises shall be required to execute and file with the Town
Clerk of the Town of Penfield a letter of credit or other form of
security acceptable to the Town Attorney as to form and manner of
execution in an amount sufficient for the faithful performance of
the terms and conditions of this section, the conditions of the permit
or approval issued hereunder, for the observation of all Town local
laws to cover the maintenance of the tower-based WCF during its lifetime,
and provide for its removal. The amount required shall be determined
by the Town Engineer. In the event of default upon the performance
of any of such conditions, the letter of credit or security shall
be forfeited to the Town of Penfield, which shall be entitled to maintain
an action thereon. The letter of credit or security shall remain in
full force and effect until the removal of the tower, antenna, pole,
accessory facility/structure, and site restoration. Further, the applicant
and owner shall be required to furnish evidence of adequate insurance,
the adequacy of which shall be determined by the Town's insurance
consultant.
(l)
Removal. In the event that use of a tower-based WCF is to be
discontinued, the owner shall provide written notice to the Town of
its intent to discontinue use and the date when the use shall be discontinued.
Unused or abandoned WCF, or portions of WCF, shall be removed as follows:
[1]
All abandoned or unused WCFs and accessory equipment
shall be removed within one year of the cessation of operations at
the site unless a time extension is approved by the Town.
[2]
If the WCF or accessory equipment is not removed
within one year of the cessation of operations at a site, or within
any longer period approved by the Town, the WCF and/or associated
facilities and equipment may be removed by the Town and the cost of
removal assessed against the owner of the WCF and or the property
owner upon which the tower-based WCF is located.
(m)
Conditions. The Planning Board or Town Board, as the case may
be, may impose reasonable conditions and restrictions in granting
approvals applied for under this section.
(n)
Verification of compliance. The applicant shall submit, on an
annual basis, a written report of compliance to the authorized official,
verifying that the site has maintained compliance with all applicable
FCC emission requirements and mechanical safety regulations.
C.
The following regulations shall apply to all non-tower WCF that do
not meet the definition of a small WCF:
(1)
Permitted in all zones subject to regulations. Non-tower WCF
are permitted outside the public rights-of-way in all zones subject
to the restrictions and conditions prescribed below and subject to
generally applicable permitting by the Town.
(2)
Conditional use authorization required. Any WCF applicant proposing
the construction of a new non-tower WCF that does not substantially
change the dimensions of the underlying wireless support structure,
or the modification of an existing non-tower WCF, shall first obtain
conditional use authorization from the Planning Board. The conditional
use application shall demonstrate that the proposed facility complies
with all applicable provisions in the Town of Penfield Zoning Law.
The application shall include a site plan setting forth specific site
data on a map, acceptable in form and content to the Planning Board,
and shall be prepared to scale and in sufficient detail and accuracy
and shall show the following:
(a)
The location of property lines and permanent easements.
(b)
The location of the non-tower WCF and accessory equipment.
(c)
A side elevation or other sketch of the wireless support structure
showing the proposed antenna(s) and dimensional change as a result
of the installation of the non-tower WCF.
(d)
The location of all structures on the property and all structures
on any adjacent property within 200 feet of the wireless support structure
and at a minimum of 200 feet from all property lines.
(e)
The names of adjacent landowners as they appear on the Town
of Penfield Assessor's records.
(f)
The location, nature, and extent of any proposed fencing, landscaping
and/or screening relating to accessory equipment, if necessary.
(g)
Verification that the proposed facility will comply with all applicable FCC rules and regulations and the requirements of this § 250-13.11C.
(3)
Building permit required. WCF applicants proposing the collocation
of a non-tower WCF on a wireless support structure that already supports
one or more WCF and that does not substantially change the physical
dimensions of the wireless support structure to which they are attached
shall obtain a building permit from the Town Building Department.
In order to be considered for such permit, the WCF applicant must
submit a permit application to the Town in accordance with applicable
permit policies and procedures.
(4)
Prohibited on certain structures. No non-tower WCF shall be
located on single-family detached residences, single-family attached
residences, semi-detached residences, or duplexes.
(5)
Nonconforming wireless support structures. Non-tower WCF shall
be permitted to collocate upon nonconforming tower-based WCF and other
nonconforming structures. Collocation of WCF upon existing tower-based
WCF is encouraged even if the tower-based WCF is nonconforming as
to use within a zoning district.
(6)
Permit fees. The Town may assess appropriate and reasonable
permit fees directly related to the Town's actual costs in reviewing
and processing the application for approval of a non-tower WCF, as
well as related inspection, monitoring and related costs. Such permit
fees shall be established by the Town Fee Schedule and shall comply
with the applicable requirements of the FCC.
(7)
Development regulations. Non-tower WCF shall be collocated on
existing structures, such as existing buildings or tower-based WCF,
subject to the following conditions:
(a)
The total height of any wireless support structure and mounted
WCF shall not exceed 20 feet above the maximum height permitted in
the underlying zoning district.
(b)
In accordance with industry standards, all non-tower WCF applicants
must submit documentation to the Town justifying the total height
of the WCF.
(c)
If the WCF applicant proposes to locate the accessory equipment
in a separate building, the building shall comply with the minimum
requirements for the applicable zoning district.
(d)
A security fence having a minimum height of eight feet shall
surround any separate communications equipment building. Vehicular
access to the communications equipment building shall not interfere
with the parking or vehicular circulations on the site for the principal
use.
(8)
Design. Non-tower WCFs shall employ stealth technology and be
treated to match the wireless support structure in order to minimize
aesthetic impact. The application of the stealth technology utilized
by the WCF applicant shall be subject to the approval of the Town.
(9)
Standard of care. Any non-tower WCF shall be designed, constructed,
operated, maintained, repaired, modified and removed in strict compliance
with all current applicable technical, safety and safety-related codes,
including but not limited to the most recent editions of the American
National Standards Institute (ANSI) Code, National Electrical Safety
Code, National Electrical Code, or to the industry standard applicable
to the structure. Any WCF shall at all times be kept and maintained
in good condition, order and repair by qualified maintenance and construction
personnel, so that the same shall not endanger the life of any person
or any property in the Town.
(10)
Wind and ice. All non-tower WCFs shall be designed to withstand
the effects of wind gusts and ice to the standard designed by the
American National Standards Institute as prepared by the engineering
departments of the Electronics Industry Association, and Telecommunications
Industry Association (ANSI/TIA-222, as amended), or to the industry
standard applicable to the structure.
(11)
Aviation safety. Non-tower WCFs shall comply with all federal
and state laws and regulations concerning aviation safety.
(12)
Public safety communications. Non-tower WCFs shall not interfere
with public safety communications or the reception of broadband, television,
radio or other communication services enjoyed by occupants of nearby
properties.
(13)
Radio frequency emissions. A non-tower WCF shall not, by itself
or in conjunction with other WCFs, generate radio frequency emissions
in excess of the standards and regulations of the FCC, including but
not limited to, the FCC Office of Engineering Technology Bulletin
65 entitled "Evaluating Compliance with FCC Guidelines for Human Exposure
to Radio Frequency Electromagnetic Fields," as amended.
(14)
Removal. In the event that use of a non-tower WCF is to be discontinued,
the owner shall provide written notice to the Town of its intent to
discontinue use and the date when the use shall be discontinued. Unused
or abandoned WCFs, or portions of WCFs, shall be removed as follows:
(a)
All abandoned or unused WCFs and accessory equipment shall be
removed within 60 days of the cessation of operations at the site
unless a time extension is approved by the Town.
(b)
If the WCF or accessory equipment is not removed within 60 days
of the cessation of operations at a site, or within any longer period
approved by the Town, the WCF and/or associated facilities and equipment
may be removed by the Town and the cost of removal assessed against
the owner of the WCF and/or the property owner upon which the tower-based
WCF is located.
(15)
Insurance. Each person that owns or operates a non-tower WCF
shall be required to furnish evidence of adequate insurance, the adequacy
of which shall be determined by the Town's insurance consultant.
(16)
Retention of experts. The Town may hire any consultant(s) and/or
expert(s) necessary to assist the Town in reviewing and evaluating
the application for approval of the non-tower WCF and, once approved,
in reviewing and evaluating any potential violations of the terms
and conditions of these WCF provisions. The WCF applicant and/or owner
of the WCF shall reimburse the Town for all costs of the Town's consultant(s)
in providing expert evaluation and consultation in connection with
these activities, including reasonable attorney fees.
(17)
Indemnification. To the maximum extent permitted by law, each
person that owns or operates a non-tower WCF shall, at its sole cost
and expense, execute an agreement to indemnify, defend and hold harmless
the Town, its elected and appointed officials, employees and agents,
at all times against any and all claims for personal injury, including
death, and property damage arising in whole or in part from, caused
by or connected with any act or omission of the person, its officers,
agents, employees or contractors arising out of, but not limited to,
the construction, installation, operation, maintenance or removal
of the non-tower WCF. Each person that owns or operates a non-tower
WCF shall defend any actions or proceedings against the Town in which
it is claimed that personal injury, including death, or property damage
was caused by the construction, installation, operation, maintenance
or removal of a non-tower WCF. The obligation to indemnify, hold harmless
and defend shall include, but not be limited to, the obligation to
pay judgments, injuries, liabilities, damages, reasonable attorney
fees, reasonable expert fees, court costs and all other costs of indemnification.
This indemnification shall not apply to any claim or liability resulting
from the gross negligence or willful misconduct of any indemnified
party.
(18)
Maintenance. To the extent permitted by law, the following maintenance
requirements shall apply:
(a)
The non-tower WCF shall be fully automated and unattended on
a daily basis and shall be visited only for maintenance or emergency
repair.
(b)
Such maintenance shall be performed to ensure compliance with
applicable structural safety standards and radio frequency emissions
regulations.
(c)
All maintenance activities shall conform to industry maintenance
standards.
(19)
Timing of approval.
(a)
Within 90 days of receipt of a complete application for a non-tower
WCF on a preexisting wireless support structure that substantially
changes the wireless support structure to which it is attached, the
Planning Board shall make a final decision on whether to approve the
application and shall notify the WCF applicant in writing of such
decision.
(b)
Within 60 days of receipt of a complete application for a non-tower
WCF on a preexisting wireless support structure that does not substantially
change the wireless support structure to which it is attached, the
Town Building Department shall issue the required building and zoning
permits authorizing construction of the WCF. All applications for
such WCF shall designate that the proposed WCF meets the requirements
of an eligible facilities request.
(20)
Historic buildings. No non-tower WCF may be located within 100
feet of any property, or on a building or structure that is listed
on either the National or New York Registers of Historic Places, or
eligible to be so listed, located within a historic district, or is
included in the official historic structures list maintained by the
Town, including, but not limited to, Town of Penfield locally designated
historical landmarks.
(21)
Removal, replacement and substantial change.
(a)
The removal and replacement of non-tower WCFs and/or accessory
equipment for the purpose of upgrading or repairing the WCF is permitted,
so long as such repair or upgrade does not substantially change the
overall height of the WCF or increase the number of antennas.
(b)
Any substantial change to a WCF shall require notice to be provided
to the Town Planning Department, and possible supplemental permit
approval as determined by the Town Planning Board.
(22)
Inspection. The Town reserves the right to inspect any WCF to
ensure compliance with the provisions of the Zoning Law and any other
provisions found within the Town Code or state or federal law. The
Town and/or its agents shall have the authority to enter the lease
area of any property upon which a WCF is located at any time, upon
reasonable notice to the operator, to ensure such compliance.
D.
The following regulations shall apply to small wireless communications
facilities:
(1)
Location and development standards.
(a)
Small WCF are permitted by administrative review and approval by the Town Planning Department in all Town zoning districts, subject to the requirements of this § 250-13.11D. The application shall include a site plan setting forth specific site data on a map, acceptable in form and content to the Town Planning Department, which shall be prepared to scale and in sufficient detail and accuracy and shall show compliance with the requirements of this § 250-13.11D.
(b)
Small WCFs in the public right-of-way requiring the installation
of a new wireless support structure shall not be located in front
of any building entrance or exit to the extent technically feasible.
(c)
Small WCFs in the public right-of-way requiring the installation
of a new wireless support structure shall only be allowed in areas
where all utilities are underground if the applicant demonstrates
that no opportunity for collocated small WCFs in the public right-of-way
is available. If the installation of a new wireless support structure
is proposed in an area where all utilities are underground, the wireless
support structure shall be a decorative pole as required by the Town
of Penfield Small Wireless Communication Facility Design Manual.
(d)
All small WCFs shall comply with the applicable requirements
of the Americans with Disabilities Act, all requirements of the Town
Code and Town Design Specifications applicable to streets and sidewalks.
(2)
Nonconforming wireless support structures. Small WCFs shall
be permitted to collocate upon nonconforming tower-based WCFs and
other nonconforming structures. Collocation of WCF upon existing tower-based
WCFs is encouraged even if the tower-based WCF is nonconforming as
to use within a zoning district.
(3)
Standard of care. Any small WCF shall be designed, constructed,
operated, maintained, repaired, modified and removed in strict compliance
with all current applicable technical, safety and safety-related codes,
including but not limited to the most recent editions of the American
National Standards Institute (ANSI) Code, National Electrical Safety
Code, National Electrical Code, or to the industry standard applicable
to the structure. Any WCF shall at all times be kept and maintained
in good condition, order and repair by qualified maintenance and construction
personnel, so that the same shall not endanger the life of any person
or any property in the Town.
(4)
Wind and ice. All small WCF shall be designed to withstand the
effects of wind gusts and ice to the standard designed by the American
National Standards Institute as prepared by the engineering departments
of the Electronics Industry Association, and Telecommunications Industry
Association (ANSI/TIA-222, as amended), or to the industry standard
applicable to the structure.
(5)
Aviation safety. Small WCFs shall comply with all federal and
state laws and regulations concerning aviation safety.
(6)
Public safety communications. Small WCFs shall not interfere
with public safety communications or the reception of broadband, television,
radio or other communication services enjoyed by occupants of nearby
properties.
(7)
Radio frequency emissions. A small WCF shall not, by itself
or in conjunction with other WCFs, generate radio frequency emissions
in excess of the standards and regulations of the FCC, including but
not limited to, the FCC Office of Engineering Technology Bulletin
65 entitled "Evaluating Compliance with FCC Guidelines for Human Exposure
to Radio Frequency Electromagnetic Fields," as amended.
(8)
Time, place and manner. The Town shall determine the time, place
and manner of construction, maintenance, repair and/or removal of
all small WCF in the right-of-way based on public safety, traffic
management, physical burden on the right-of-way, and related considerations
including, but not limited to aesthetics.
(9)
Accessory equipment. Small WCFs and accessory equipment shall
be located so as not to cause any physical or visual obstruction to
pedestrian or vehicular traffic, create safety hazards to pedestrians
and/or motorists, or to otherwise inconvenience public use of the
right-of-way as determined by the Town.
(10)
Graffiti. Any graffiti on the tower or on any accessory equipment
shall be removed at the sole expense of the owner within 10 days of
notification by the Town.
(11)
Design regulations. All small WCFs shall be designed to meet
the requirements of the Town "Small Wireless Communications Facility
Design Manual," a copy of which is kept on file at the Town Planning
Department.
(12)
Timing of approval.
(a)
Within 60 days of receipt of a complete application for collocation
of a small WCF on a preexisting wireless support structure, the Town
Building Department shall make a final decision on whether to approve
the application and shall notify the WCF applicant in writing of such
decision.
(b)
Within 90 days of receipt of an application for a small WCF
requiring the installation of a new wireless support structure, the
Town Planning Department shall make a final decision on whether to
approve the application and shall notify the WCF applicant in writing
of such decision.
(13)
Relocation or removal of facilities.
(a)
Within 180 days following written notice from the Town, or such
longer period as the Town determines is reasonably necessary or such
shorter period in the case of an emergency, an owner of a small WCF
in the right-of-way shall, at its own expense, temporarily or permanently
remove, relocate, change or alter the position of any WCF when the
Town, consistent with its police powers, shall determine that such
removal, relocation, change or alteration is reasonably necessary
under the following circumstances:
[1]
The construction, repair, maintenance or installation
of any Town or other public improvement in the right-of-way;
[2]
The operations of the Town or other governmental
entity in the right-of-way;
[3]
Vacation of a street or road or the release of
a utility easement; or
[4]
An emergency as determined by the Town.
(b)
The Town and owner shall cooperate to the extent possible to
assure continuity of service during any relocation. The Town shall
use best efforts to provide a reasonably equivalent location that
affords owner substantially similar engineering objectives.
(14)
Insurance. Each person that owns or operates a small WCF shall
be required to furnish evidence of adequate insurance, the adequacy
of which shall be determined by the Town of Penfield.
(15)
Reimbursement for right-of-way use. In addition to permit fees
as described in this section, every small WCF in the right-of-way
is subject to the Town's right to fix annually a fair and reasonable
fee to be paid in order to recover the Town's costs for management
of WCF in the right-of-way. Such compensation for right-of-way use
shall be directly related to the Town's actual right-of-way management
costs including, but not limited to, the costs of the administration
and performance of all reviewing, inspecting, permitting, supervising
and other right-of-way management activities by the Town. The owner
of each small WCF shall pay an annual fee to the Town to compensate
the Town for the Town's costs incurred in connection with the activities
described above.
(16)
Retention of experts. The Town may hire any consultant(s) and/or
expert(s) necessary to assist the Town in reviewing and evaluating
the application for approval of a small WCF and, once approved, in
reviewing and evaluating any potential violations of the terms and
conditions of these WCF provisions. The WCF applicant and/or owner
of the WCF shall reimburse the Town for all reasonable costs of the
Town's consultant(s) in providing expert evaluation and consultation
in connection with these activities, including reasonable attorney
fees.
(17)
Indemnification. To the maximum extent permissible by law, each
person that owns or operates a small WCF shall, at its sole cost and
expense, execute an agreement to indemnify, defend and hold harmless
the Town, its elected and appointed officials, employees and agents,
at all times against any and all claims for personal injury, including
death, and property damage arising in whole or in part from, caused
by or connected with any act or omission of the person, its officers,
agents, employees or contractors arising out of, but not limited to,
the construction, installation, operation, maintenance or removal
of the small WCF. Each person that owns or operates a small WCF shall
defend any actions or proceedings against the Town in which it is
claimed that personal injury, including death, or property damage
was caused by the construction, installation, operation, maintenance
or removal of a small WCF. The obligation to indemnify, hold harmless
and defend shall include, but not be limited to, the obligation to
pay judgments, injuries, liabilities, damages, reasonable attorney
fees, reasonable expert fees, court costs and all other costs of indemnification.
This indemnification shall not apply to any claim or liability resulting
from the gross negligence or willful misconduct of any indemnified
party.
E.
Noncommercial tower-based WCFs.
(1)
Radio and television towers and receiving antennas, amateur
radio service transmitting and receiving towers and antennas are accessory
uses within all districts, provided that a conditional use permit
and a building permit are first issued, in accordance with the following
regulations:
(a)
Tower-based WCFs and antennas must be so situated that the placement
of the base of the tower-based WCF is set back a minimum of the height
of the tower-based WCF from any property line; should the structure
fall from whatever cause, it would not collide with any structure
off the lot in which it is located, or with any telephone or electric
power lines or poles, or within the public right-of-way. Freestanding
tower-based WCFs and/or antennas may not be located in front of principal
structures and, when located on the side or rear of principal structures,
must observe the setback requirement for accessory equipment in the
district, whereby the portion of the tower, base, antenna or any component
or accessory thereto (whether vertical or horizontal) closest to the
side or rear property line shall not be within the minimum setback
area for accessory equipment within the zoning district.
(b)
Tower-based WCFs shall be so designed and constructed that guy
wires or other accessories shall not cross or encroach upon any street,
public space, right-of-way or over any telephone, electric power or
cable television lines or encroach upon any other privately owned
property.
(c)
Permitted freestanding tower-based WCFs, climbable from the
ground up to a distance of 12 feet above the ground, or if the tower-based
WCF and antenna require mechanical equipment associated with, and
necessary for operation, including an enclosure for batteries and
storage cells, and if said equipment is located outside the principal
structure, then there shall be provided a completely enclosed (sides
and top) area, the size and extent of which shall be determined by
the Building Inspector or his/her designee, but the extent shall be
the minimum necessary for safe enclosure.
(d)
Permitted freestanding tower-based WCFs and antennas shall not
be lighted in any way, unless such lighting is required by the FAA
or other controlling agency.
(2)
Abandonment or cessation of use. The conditional use permit
and site plan approval shall expire upon:
(a)
The failure to commence active operation of the tower-based
WCF, antenna, pole, or accessory facility/structure within 12 months
of the issuance of a conditional use permit and final site plan approval
by the Planning Board or Town Board, as the case may be; or
(b)
The discontinuance of the active and continuous operation of
the tower-based WCF, antenna, pole, or accessory facility/structure
for a continuous period of 12 months, regardless of any reservation
of an intent not to abandon or discontinue the use or of an intent
to resume active operations. Upon such abandonment or cessation of
use, the applicant shall remove the tower-based WCF and related facilities.
F.
Review procedures for noncommercial tower-based WCFs and accessory equipment. For the purposes of this section, the regulation of noncommercial telecommunications systems that are not exempt shall be subject to the requirements of Article XV of this chapter, and the Zoning Board of Appeals shall have jurisdiction over the review process. Further, in cases where site plan approval may be required in addition to the conditional use permit process pursuant to Article XII, the Planning Board shall have jurisdiction.
G.
Satellite dish antennas.
(1)
Noncommercial satellite dish antennas.
(a)
Unless exempt pursuant to Subsection A(3) of this section, all noncommercial satellite dish antennas (more commonly known as "satellite dishes") shall comply with the specifications and standards set forth herein.
(b)
Satellite dish antennas are considered a permitted accessory
use within all districts pursuant to the procedures of this chapter.
[1]
All satellite dish antennas of a size of one meter
or less are exempt from permit requirements. Satellite dish antennas
in excess of one meter shall be subject to conditional use permit
review and approval by the Zoning Board of Appeals and issuance of
a building permit.
[2]
Satellite dish antennas may be mounted on the residence.
They may also be placed in the yard, subject to compliance with minimum
setback requirements for the zoning district in which they are proposed
to be installed. Any such ground-mounted satellite dish antenna that
cannot comply with minimum setback requirements shall be subject to
area variance approval of the Zoning Board of Appeals.
[3]
Satellite dish antennas shall only be placed on
the property which they serve.
[4]
Satellite dish antennas, when building-mounted,
shall not be installed on any chimney, fire escape or in front of
any window or door in such a manner as to obstruct or prevent emergency
egress from the residence.
[5]
The authorized official may also refer the applicant
to the Zoning Board of Appeals, if in its determination said placement
will adversely impact an adjacent property owner or cause harm to
the general public or the property owner. In such cases, the applicant
shall apply to the Zoning Board of Appeals for relief from the authorized
official's decision.
(2)
Commercial satellite dish antennas.
(a)
Unless exempt pursuant to Subsection A(3) of this section, all commercial satellite dish antennas (more commonly known as "satellite dishes") shall comply with the specifications and standards set forth herein.
(b)
Satellite dish antennas are considered a permitted accessory
use within all districts pursuant to the procedures of this chapter.
[1]
All commercial satellite dish antennas of a size
of two meters or less are exempt from permit requirements. Commercial
satellite dish antennas in excess of two meters shall be subject to
conditional use permit review and approval by the Zoning Board of
Appeals.
[2]
Satellite dish antennas shall be building-mounted
in accordance with the applicable requirements of the New York State
Building Code.
[3]
In cases where it has been technically demonstrated
that it is not reasonable or practicable to have satellite dish antennas
mounted on the roof or walls of the commercial establishment, the
applicant shall comply with the minimum setback requirements for accessory
equipment when determining the placement of such satellite dish antennas.
In such cases, their placement shall be subject to the approval of
the Zoning Board of Appeals.
[Added 10-19-2022 by L.L. No. 5-2022]
A.
Purpose. The purpose of this section is to provide zoning district
locations and regulations governing cannabis retail dispensary establishments
in accordance with New York State's Cannabis Law, as amended or changed.
It is the express purpose and intent of this section to minimize the
adverse impacts cannabis retail dispensaries may have on adjacent
properties and to provide standards for the placement, design, siting,
safety, security, monitoring, modification, and discontinuance of
cannabis retail dispensaries. This section outlines reasonable conditions
that will protect the public health, safety, and welfare of the Penfield
community. This section is intended to encourage appropriate land
use and reasonable safeguards to govern the time, place, and manner
of cannabis retail dispensary operations.
B.
Authorization to approve or deny conditional use permits to establish cannabis retail dispensaries. A conditional use permit shall be required before any property may be used as a cannabis retail dispensary. The power to approve, approve with conditions, or deny such application is vested in the board having jurisdiction as set forth above in § 250-13.2, except that those applications that may be processed administratively as set forth in Subsection D below.
D.
Changes in operator or site. Changes in owner or operator of an existing
cannabis retail dispensary or minor building or site modifications
of a legally existing cannabis retail dispensary may be reviewed and
a revised conditional use permit may be approved administratively
by the Building and Zoning Department. If it is determined that the
change in operator will result in a substantial change in operation
or site plan, the application can be referred to the board having
jurisdiction for a revised conditional use permit and/or revised site
plan approval, subject to a public hearing if required by law or at
the discretion of the board having jurisdiction.
E.
Cannabis retail dispensary standards, rquirements and considerations. In addition to the standards set forth in § 250-13.4, the following standards, requirements and/or considerations shall be addressed in any application for conditional use permit and/or site plan approval associated with a retail cannabis dispensary:
(1)
Minimum distances. For the purposes of this law, distance shall
be measured on a straight line from the nearest boundary line(s) of
the specified use or zoning district to the nearest point of the building
footprint or tenant space footprint of the proposed cannabis retail
dispensary.
(a)
A cannabis retail dispensary shall not be located within 500
feet of any residential zoning district.
(b)
A cannabis retail dispensary shall not be located within 1,000
feet of any recreational facility, school, place of worship, park,
public playground, child-care facility, children's camp, or similar
use(s), as determined by the Code Enforcement Officer.
(c)
A cannabis retail dispensary shall not be located within 1,500
feet of any other cannabis retail dispensary.
(2)
Hours of operation. Cannabis retail dispensaries may be open
for business between the hours of 9:00 a.m. and 8:00 p.m. Monday through
Saturday and between the hours of 11:00 a.m. and 5:00 p.m. on Sundays.
Hours of operation must be provided in the application submission
to the Town.
(3)
The cannabis retail dispensary shall provide for adequate and
proper security at the premises to deter and prevent illegal activities
from taking place on or near the applicant's premises and avoid conduct
that has an adverse effect on the health, safety and/or welfare of
the surrounding neighborhood.
(4)
No marijuana or marijuana product shall be smoked, eaten, or
otherwise consumed or ingested on the premises where sold. All dispensaries
permitted under this section shall comply with all state and local
laws, rules and regulations governing the smoking of tobacco.
(5)
No drive-through service shall be permitted at a cannabis retail
dispensary.
(6)
No outside storage of marijuana, marijuana products, or related
supplies is permitted.
(7)
The applicant must provide an odor control plan that provides
for proper and adequate ventilation and demonstrates that any odors
associated with the cannabis products stored on site shall be effectively
confined to the premises or so treated in order to avoid any negative
impacts to neighboring properties or tenant spaces.
(8)
Any conditional use permit issued under this section shall contain
a condition that the cannabis retail dispensary shall not operate,
and the conditional use permit shall not be valid, until the applicant
has obtained all required licenses and permits issued by the State
of New York and any of its agencies.
(9)
In case of conflict between any of the provisions contained in § 250-13.4 and any other law, rule or regulation, the stricter, more restrictive provision shall govern and apply.
(10)
Subject to applicable law, the conditional use permit application
to the board having jurisdiction must include a copy of all information
submitted to the State of New York in application for a license to
operate under the New York State Cannabis Law, as amended or changed.
F.
License and permit revocation violations and penalties for offenses.
(1)
License and permit revocation.
(a)
A revocation of the cannabis retail dispensary license by New
York State shall render the conditional use permit null and void and
of no further force and effect, and result in the immediate closure
of the dispensary.
(b)
Any violation of this section and/or conditions of approval
shall be grounds for revocation of a conditional use permit issued
under this section.
(2)
Violations and penalties for offenses.
(a)
Notice of violation(s) of this section shall be provided to the business operator in writing directing the conditions requiring correction. Notwithstanding the provisions set forth in § 250-15.8, the notice shall provide a time limit, as determined reasonable by the Code Enforcement Officer, to resolve the observed or reported violations.
