Trailer camps or parks and trailers or mobile
homes for occupancy shall be prohibited in all zones except Mobile
Home Park Zones and except as follows:
A.
One mobile home may be placed on a vacant lot in a
residence or agricultural zone for use as temporary housing during
the construction of a permanent dwelling on said lot for a period
not to exceed 18 months, provided that said mobile home shall be occupied
by the owner of record of said lot.
(1)
Such eighteen-month period may be extended by permission
of the Board of Appeals, upon good cause shown by the owner of the
land on which the mobile home is located, and after a public hearing
on same.
(2)
Said mobile home must be removed upon the completion
of construction although the eighteen-month time limit may not have
fully expired.
B.
Upon special approval of the Board of Appeals to be
reviewed each year, one mobile home for each property owner shall
be permitted in all Agricultural and Low Density Zones, provided that
one of the occupants of said mobile home shall be a full-time agricultural
employee of the property owner or a bona fide agricultural student
doing agricultural work for the property owner.
[1]
Editor’s Note: Former § 270-216, Elder cottages,
was repealed 12-11-2017 by L.L. No. 20-2017.
[Amended 2-11-2008 by L.L. No. 4-2008; 3-12-2012 by L.L. No.
2-2012]
A.
The deposit and removal of fill, including but not
limited to soil, sod, loam, sand, gravel, stone or similar materials
(hereinafter referred to collectively as "fill") is permitted in all
zones, subject to the provisions of this section. In any zone, the
deposit or removal of more than 50 cubic yards of fill on any parcel
in any one year shall be permitted only upon receipt of an approval
pursuant to this section, except in connection with a public work
on the property or the removal of silt or other recently accumulated
material that blocks a normal flow of a watercourse. In addition,
in any zone, the deposit or removal of more than five cubic yards
of fill on any parcel in any one year in or within 100 feet of a wetland
as defined in this chapter shall be permitted only upon receipt of
an approval pursuant to this section.
B.
For the purposes of this section, movement of fill
from one area on a parcel to another location on the parcel shall
be considered a deposit and removal and shall be subject to the fill
permit requirements of this section if the requisite volume of fill
is being moved, unless such activity is an activity specifically excepted
from the requirements of this section by the provisions set forth
below.
C.
The following deposits or removals of fill require approvals as set forth in this Subsection C:
(1)
In any zone except for a Conservation Zone, the deposit or removal of more than 50 but less than 250 cubic yards of fill on any parcel in any one year shall be permitted only upon receipt of approval by the Director of Public Works pursuant to the procedures in Subsection H below.
(2)
In
any zone except for a Conservation Zone, the deposit or removal of
250 cubic yards or more of fill on any parcel in any one year shall
be permitted only upon receipt of a special permit from the Planning
Board in accordance with the procedures set forth in this chapter.
(3)
In
a Conservation Zone, the deposit or removal of more than 50 cubic
yards of fill on any parcel in any one year is permitted only upon
receipt of a special permit for same from the Planning Board in accordance
with the procedures set forth in this chapter.
(4)
Notwithstanding
the foregoing, in any zone, the deposit or removal of more than five
cubic yards of fill on any parcel in any one year in or within 100
feet of a wetland is permitted only upon receipt of a special permit
for same from the Planning Board in accordance with the procedures
set forth in this chapter.
D.
In applying for such approval, the applicant shall submit to the Director of Public Works a plan of the proposed project, showing property lines, and adjacent public ways, grades and depths of proposed deposit or removal, soil types or fill types to be deposited or removed, watercourses, wetlands, erosion control during and after construction as required by Chapter 228, Stormwater Management and Erosion and Sediment Control, projected duration of project, proposed regrading and replanting of the property upon completion of the operation, and such other items as the Planning Board or Director of Public Works may require to adequately review the proposed project.
E.
In those cases requiring a special permit by the Planning
Board, the Board shall not act until the Director of Public Works
has reviewed such plan and advised the Board that in his professional
opinion the plan adequately protects the property and surrounding
properties from significant adverse consequences of such deposit or
removal, including, when completed, adverse drainage, erosion, visual
or other adverse impacts. Before issuing a special permit, the Planning
Board shall make the same findings as are required for the opinion
of the Director of Public Works. In considering the proposed use the
Board shall take into account the distance of the operation from neighboring
property and public ways, the possible detriment of such use to the
future development of the land in question, and significant nuisance
or detriment of the operation to neighboring landowners and to the
community as a whole.
F.
The Board may impose such conditions upon the applicant
as it deems necessary to protect the general welfare of the community,
which may include a time limit upon operations, standards for performance,
and the requirement that a performance bond be posted to insure compliance
with the requirements of this chapter and with any further reasonable
conditions imposed by the Board.
G.
(Reserved)
H.
Proposed deposit or removal of less than 250 cubic
yards of fill where approval is required by the Director of Public
Works.
(1)
Where approval of the Director of Public Works is
required, the Director of Public Works may grant written approval
provided that he or she determines, before issuing the approval, that
the proposed plan:
(a)
Provides for appropriate erosion control during
and after construction;
(b)
Protects against adverse drainage on the subject
property and surrounding properties;
(c)
Provides for appropriate revegetation when necessary;
(d)
Provides for appropriate slope controls; and
(e)
Does not adversely affect properties surrounding
the designated site both during and after removal or deposit of the
fill.
(2)
The Director of Public Works may impose such reasonable
conditions upon the applicant as the Director of Public Works deems
necessary to protect the general welfare of the community, which may
include a reasonable time limit upon operations, reasonable standards
for performance, and the requirement that a performance bond or other
security in a reasonable amount be posted to insure compliance with
the requirements of this chapter and with any further reasonable conditions
imposed by the Director of Public Works.
I.
The following are excepted from the requirements set
forth above:
(1)
Any normal building operation in connection with a
legal building permit, such as excavation, filling, or grading, shall
be excepted from the provisions of this section provided, however,
that this exception shall apply only where the total amount of material
moved from one place to another place on the construction site is
less than 700 cubic yards and where the total amount of material removed
from the construction site to an off-site location (or brought to
the construction site from an off-site location) is less than 500
cubic yards. For the purpose of this section a "construction site"
consists of the larger of the following areas:
(2)
Removal or deposit of fill in connection with the
construction of a septic field or septic system on an individual lot
pursuant to a permit obtained from the Tompkins County Health Department.
(3)
Deposit or removal of fill in connection with construction
in accordance with a site plan approved by the Town Planning Board,
provided that such construction occurs within three years of the final
site plan approval. Notwithstanding the foregoing, if fill is being
removed to or from another site in the Town, and if the plans for
the removal from, or deposit on, such other site were reviewed by
the Director of Public Works and the Planning Board was advised of
the results of such review and specifically included the proposed
disposition of such fill in its approval, no further approval under
this section shall be required provided the construction occurs within
the time limits set forth above. If the disposition of fill was not
specifically approved by the Planning Board in connection with final
site plan approval, this exception shall not apply and the applicant
shall be required to obtain approval for the deposit or removal of
fill relative to such other site in accordance with the terms of this
section.
(4)
Deposit or removal of not more than 500 cubic yards
of fill on any parcel in an Agricultural Zone in any three-year period
in conjunction with one or more bona fide agricultural uses.
(5)
Removal or deposit of fill in connection with construction
of roads and other facilities in a subdivision approved in accordance
with the requirements of the Town of Ithaca Planning Board provided,
however, that:
(a)
Plans for such construction showing in sufficient
detail the proposed removal and/or deposit of fill (including, when
removal from or deposit on to an off-site location is contemplated,
adequate plans of such off-site location showing the required information
relative to the disposition or removal of fill to or from same) were
submitted to the Planning Board and approved by the Director of Public
Works in conjunction with the subdivision approval; or
(b)
The Planning Board expressly waived the requirement
of submission of such drawings and the total amount of fill to be
either deposited or removed is less than 500 cubic yards.
No part of any building used as a vehicle repair
garage or gasoline service station and no filling pump, lift or other
service appliance shall be erected within 25 feet of any residence
zone or in any required side yard.
[Amended 5-9-2005 by L.L.
No. 5-2005; 5-12-2014 by L.L. No. 9-2014; 6-26-2023 by L.L. No. 12-2023]
A.
Purpose and legislative intent.
(1)
The purpose of this section is to establish uniform standards
for the siting, design, permitting, maintenance, and use of personal
wireless service facilities in the Town of Ithaca. While the Town
recognizes the importance of personal wireless service facilities
in providing high-quality communications service to its residents,
businesses and institutions, the Town also recognizes that it has
an obligation to protect public safety and to minimize the adverse
effects of such facilities.
(2)
By enacting this section, the Town intends to:
(a)
Provide for the managed development of personal wireless service
facilities in a manner that accommodates the needs of Town residents,
businesses, and institutions to receive, and wireless carriers to
provide, communication signals without interference from other communication
providers, in accordance with federal, state, and local laws and regulations;
(b)
Establish fair and efficient processes for review and approval
of applications;
(c)
Establish procedures for the design, siting, construction, installation,
maintenance, and removal of personal wireless service facilities in
the Town;
(d)
Encourage the co-location of personal wireless service facilities
on existing structures rather than the construction of new support
structures;
(e)
Minimize the number of personal wireless service facilities
used to provide personal wireless service coverage, and avoid unnecessary,
redundant wireless infrastructure;
(f)
Protect Town residents, businesses and institutions from potential
adverse impacts of personal wireless service facilities, to the maximum
extent permitted under law;
(g)
Avoid and minimize safety hazards and avoid potential damage
to adjacent properties through proper locational, engineering, and
operational requirements;
(h)
Protect the physical appearance of the Town and preserve its
scenic and natural beauty by avoiding and minimizing adverse visual
and aesthetic impacts of personal wireless service facilities to the
maximum extent practicable through careful design, siting, landscaping,
screening, and innovative camouflaging techniques;
(i)
Protect the public health, safety, and welfare;
(j)
Protect property values of the community;
(k)
Minimize the impact of such facilities on residential properties;
and
(l)
Encourage the siting of personal wireless service facilities
on properties and in areas which are not used exclusively for residential
purposes.
B.
ANTENNA
ANTENNA EQUIPMENT
ANTENNA FACILITY
BASE STATION
CARRIERS
CO-LOCATION and/or CO-LOCATE
DEPLOYMENT
DIRECTOR OF CODE ENFORCEMENT
DIRECTOR OF PLANNING
EFFECTIVE PROHIBITION
ELIGIBLE FACILITIES REQUEST
FAA
FACILITY
FCC
GENERAL POPULATION/UNCONTROLLED EXPOSURE LIMITS
HEIGHT
IN-KIND CALL TESTING
LAST-MINUTE SUBMISSIONS
LEAST INTRUSIVE MEANS
MAINTENANCE
NEPA
NHPA
NODE
NON-SMALL WIRELESS FACILITY
OCCUPATIONAL EXPOSURE LIMITS
PERMITTEE
PERSONAL WIRELESS SERVICE FACILITY or PWSF
PERSONAL WIRELESS SERVICE FACILITY PERMIT or PWSF PERMIT
PERSONAL WIRELESS SERVICE, PERSONAL WIRELESS SERVICES
PWSF
PWSF STRUCTURE
REPAIRS
RF
SEQRA
SHOT CLOCK PERIOD
SHPO
SMALL WIRELESS FACILITY
(1)
(a)
(b)
(c)
(2)
(3)
(4)
(5)
(6)
SMALL WIRELESS FACILITY STRUCTURE
STEALTH
STRUCTURE
TCA
TOLLING or TOLLED
TOWER
TOWN
WIRELESS CARRIERS
Definitions. As used in this section, the following terms shall have
the meanings indicated:
An apparatus designed for the purpose of emitting radio frequency
(RF) radiation, to be operated or operating from a fixed location
pursuant to Federal Communication Commission authorization, for the
provision of personal wireless services and any commingled information
services. For purposes of this definition, the term "antenna" does
not include an unintentional radiator, mobile station, or device authorized
under 47 CFR Part 15 (Radio Frequency Devices).
Equipment, switches, wiring, cabling, power sources, shelters
or cabinets associated with an antenna, located at the same fixed
location as the antenna, and, when co-located on a PWSF structure,
is mounted or installed at the same time as such antenna.
An antenna and associated antenna equipment.
Shall have the definition in the FCC's regulations at
47 CFR 1.6100.
See "wireless carriers."
The mounting or installation of an antenna facility on a
preexisting PWSF structure, or the modification of a PWSF structure
for the purpose of mounting or installing an antenna facility on that
PWSF structure.
The placement, construction, or modification of a personal
wireless service facility.
The Town of Ithaca's Director of Code Enforcement, or
their designee.
The Town of Ithaca's Director of Planning, or their
designee.
Denial by the Town of a PWSF approval or permit for a personal
wireless service facility that is the least intrusive means of remedying
a significant gap in personal wireless service coverage (the ability
of wireless telephones to make and receive voice calls to and from
landlines that are connected to the national telephone network).
A request that meets the requirements in 47 CFR 1.6100 for
modification of an existing tower or base station that does not substantially
change the physical dimensions of such tower or base station and involving:
The Federal Aviation Administration.
See "personal wireless service facility or PWSF."
The Federal Communications Commission.
The applicable radio frequency radiation exposure limits
set forth within 47 CFR 1.1310(e)(1), Table 1, Section (ii), made
applicable pursuant to 47 CFR 1.1310(e)(3).
The distance measured from the preexisting grade level to
the highest point of a personal wireless service facility.
Testing designed to measure the gap in personal wireless
service coverage asserted by an applicant. In-kind call testing for
a claimed gap in personal wireless services in buildings means call
testing performed in buildings to establish the existence or absence
of such a gap, unless the applicant provides an affidavit sworn under
penalties of perjury demonstrating good faith but unsuccessful attempts
to secure access to buildings to conduct such testing. In-kind call
testing for a claimed gap in personal wireless services in vehicles
or in the open air means call testing performed in vehicles or in
the open to establish the existence or absence of such a gap.
An applicant's submission of new and/or additional materials
in support of an application within 48 hours of the expiration of
an applicable shot clock period, or at an otherwise unreasonably short
period of time before the expiration of the shot clock period, making
it impracticable for the Planning Board, Director of Planning or Director
of Code Enforcement to adequately review and consider such submissions
due to their complexity, volume, or other factors before the expiration
of the shot clock period.
The location and design of a personal wireless service facility that would remedy a significant gap in personal wireless service coverage and 1) does the least disservice to the objectives stated in § 270-219A(2), and 2) deviates as little as possible from a) the preferential order of location in Subsection K (Priority of siting locations) and b) applicable design standards in Subsection L.
Plumbing, electrical, or mechanical work that may require
a building permit but that does not constitute a modification to the
personal wireless service facility. It is work necessary to assure
that a facility exists and operates reliably and in a safe manner,
presents no threat to persons or property, and remains compliant with
the provisions of this chapter and FCC requirements.
The National Environmental Policy Act, 42 U.S.C. § 4321
et seq.
The National Historic Preservation Act, 54 U.S.C. § 300101
et seq., and its regulations at 36 CFR Part 800 et seq.
A fixed antenna and antenna equipment installation that operates
as part of a system of spatially separated antennas, all of which
are connected through a medium through which they work collectively
to provide personal wireless services.
A facility that does not meet the definition of a small wireless
facility.
The applicable radiofrequency radiation exposure limits set
forth within 47 CFR 1.1310(e)(1), Table 1, Section (i), made applicable
pursuant to 47 CFR 1.1310(e)(2).
A holder of a personal wireless service facility permit.
An antenna facility and a PWSF structure, or any components
thereof, used for the provision of personal wireless service, whether
such personal wireless service is provided on a stand-alone basis
or commingled with other wireless communications services.
The permit granted by the Director of Code Enforcement pursuant
to which an applicant is allowed to construct and use a personal wireless
service facility.
Commercial mobile services, unlicensed wireless services,
and common carrier wireless exchange access services, within the meaning
of 47 U.S.C. § 332(c)(7)(C)(i), and as defined therein.
Personal wireless service facility.
A pole, tower, base station, or other building, whether or
not it has an existing antenna facility, that is used or to be used
for the provision of personal wireless service (whether on its own
or commingled with other types of services). "PWSF structure" also
includes the on-site fencing, equipment, switches, wiring, cabling,
power sources, shelters, and cabinets associated with that PWSF structure
but not installed as part of an antenna.
The replacement or repair of any components of a personal
wireless service facility where the replacement is substantially identical
to the component or components being replaced, or for any matters
that involve the normal repair and maintenance of a facility without
the addition, removal, or change of any of the physical or visually
discernible components or aspects of a facility that will impose new
visible intrusions of the facility as originally permitted.
Radio frequency.
The New York State Environmental Quality Review Act (New
York Environmental Conservation Law Article 8), and its implementing
regulations at 6 NYCRR Part 617.
The sum of the number of days specified by federal regulation
as the presumptively reasonable time for the Town to act on the relevant
personal wireless services facility application type, plus the number
of days of any applicable tolling period, per 47 CFR 1.6003.
The New York State Historic Preservation Office.
A personal wireless service facility that meets all the following
criteria:
The facility:
Is mounted on a PWSF structure 50 feet or less in height, including
its antennas; or
Is mounted on a PWSF structure no more than 10% taller than
other adjacent structures; or
Does not extend the existing PWSF structure on which it is located
to a height of more than 50 feet or by more than 10%, whichever is
greater;
Each antenna associated with the deployment, excluding associated
antenna equipment, is no more than three cubic feet in volume;
All other wireless equipment associated with the PWSF structure,
including the wireless equipment associated with the antenna and any
preexisting associated equipment on the PWSF structure, is no more
than 28 cubic feet in volume;
CFR Part 17oes not require antenna structure registration under 47 CFR Part 17 — (Construction, Marking, and Lighting of Antenna Structures);
The facility is not located on tribal lands, as defined under
36 CFR 800.16(x); and
The facility will not result in human exposure to radio frequency
radiation in excess of the applicable FCC safety standards set forth
within Table 1 of 47 CFR 1.1310(e)(1).
A PWSF structure for a small wireless facility.
A design or treatment that minimizes adverse aesthetic and
visual impacts on the land, property, buildings, and other facilities
adjacent to, surrounding, and generally in the same area as the requested
location of a personal wireless service facility. This shall mean
building the least visually and physically intrusive facility under
the facts and circumstances.
See "PWSF structure."
The Telecommunications Act of 1996, 47 U.S.C. § 332(c).
The pausing of the running of the time period under the applicable
shot clock period.
A structure built for the sole or primary purpose of supporting
FCC-licensed or -authorized antennas. The term "tower" also includes
the on-site fencing, equipment, switches, wiring, cabling, power sources,
shelters, and cabinets associated with that tower but not installed
as part of an antenna.
The Town of Ithaca.
Companies that provide personal wireless services to end-use
consumers.
C.
General approval and permit requirements for personal wireless service
facilities.
(1)
Subject to the provisions of this section, personal wireless
service facilities (PWSFs) are allowed in every zoning district in
the Town.
(2)
No person shall be permitted to deploy PWSFs, or operate or
prepare any site for the deployment of PWSFs, without having first
obtained the applicable approvals and permits required by this section.
(3)
Repairs to and maintenance of a legally existing PWSF shall
not require site plan approval, a special permit, or a PWSF permit.
(4)
In addition to the requirements set forth in this section for the issuance of a PWSF permit and, where applicable, site plan and special permit approval, any applicant seeking to place a PWSF in the public right-of-way shall also comply with the procedures and requirements set forth in Chapter 230 (Streets and Sidewalks) of the Town Code relating to conducting construction activities within the public right-of-way. To the extent any provisions in Chapter 230 are inconsistent with the provisions set forth in this section, the provisions in this section shall control.
(5)
Exceptions. The requirements set forth in this § 270-219 shall not apply to:
(a)
PWSFs on property owned or controlled by the Town are not subject to § 270-219, except PWSFs within a Town (owned or by use) public right-of-way are subject to § 270-219. The Town Board has sole and absolute discretion to determine whether to allow an applicant to place a PWSF that is not subject to § 270-219 on Town property, and the Town Board may impose such conditions on any such placement and use as it deems appropriate. Nothing herein shall be deemed to create any right or entitlement to use Town property for such PWSF.
(b)
Any facilities exclusively for private, noncommercial radio
and television reception and private citizens bands, licensed amateur
radio and other similar noncommercial telecommunications.
(6)
Nonconforming facilities. The lawful use of any PWSF legally existing on the date of adoption of this § 270-219 may be continued even though such PWSF does not conform to § 270-219. Any proposed modification to a PWSF is subject to the requirements of this § 270-219. Maintenance and repairs are not considered modifications.
D.
Approvals and permits required for each type of personal wireless
service facility.
(1)
All PWSFs shall require a building permit issued by a Code Enforcement
Officer, where the New York State Uniform Fire Prevention and Building
Code or the Ithaca Town Code requires a building permit.
(2)
A small wireless facility proposed to be co-located on an existing
small wireless facility, where the completed facility would still
constitute a small wireless facility after the co-location, shall
require a PWSF permit issued by the Director of Code Enforcement.
(3)
A PWSF proposed to be co-located on an existing PWSF that is
not a small wireless facility shall require a PWSF permit issued by
the Director of Code Enforcement. In addition, site plan and special
permit approvals by the Planning Board are required if the proposed
PWSF co-location will:
(a)
Increase the approved height of the PWSF structure by more than
15%;
(b)
Increase the number of antennas by more than 50% over the previously
approved number of antennas;
(c)
Increase the square footage of accessory buildings by more than
200 square feet over the previously approved square footage of accessory
buildings;
(d)
Add one or more microwave antenna dishes; or
(e)
Expand the footprint of the PWSF structure.
(4)
Where more than one PWSF is proposed and at least one PWSF will
not be co-located on an existing structure, all of the proposed PWSFs
(including co-located PWSFs) shall require a PWSF permit issued by
the Director of Code Enforcement, and site plan and special permit
approvals by the Planning Board.
(5)
All other PWSFs shall require a PWSF permit issued by the Director of Code Enforcement, and site plan and special permit approvals by the Planning Board. All Planning Board considerations and approvals of site plans and special permits shall be in accordance with Chapter 270 (Zoning), Article XXIII (Site Plan Review and Approval Procedures) and Article XXIV (Special Permits and Special Approvals), respectively.
(6)
Any site plan, special permit or personal wireless service facility
permit granted hereunder shall be valid only for the dimensions and
number of antenna facilities and PWSF structures for the facility
contained in the original application as so approved. Any subsequent
changes or modifications shall require a new application for same
following the procedures set forth in this section.
(7)
Notwithstanding Subsection D(2) through (5) above, any application that asserts Spectrum Act § 6409(a)[1] applies and that meets the requirements in 47 CFR 1.6100
for an eligible facilities request shall not require site plan or
special permit approval and shall require a PWSF permit issued by
the Director of Code Enforcement. A building permit issued by a Code
Enforcement Officer is also required if the New York State Uniform
Fire Prevention and Building Code or the Ithaca Town Code requires
a building permit.
[1]
Editor's Note: See 47 U.S.C. § 1455(a).
E.
Shot clock periods and tolling.
(1)
To comply with the requirements of 47 U.S.C. § 332(c)(7)(B)(ii) of the TCA, and unless tolled, extended by agreement, or subject to reasonable delays due to circumstances beyond the Town's control, as described in Subsection F below, the Planning Board and Town officials shall issue, grant or deny PWSF site plans, special permits, PWSF permits, building permits and other required Town permits within the following number of days from Town receipt of an application for same:
(a)
For individual co-located facilities:
[1]
Sixty days for PWSFs that meet the requirements in 47 CFR 1.6100
for an eligible facilities request.
[2]
Sixty days for co-location of a new small wireless facility
upon an existing small wireless facility structure, where the completed
facility would still constitute a small wireless facility after the
co-location.
[3]
Ninety days for all other co-locations of a PWSF on an existing
structure.
(c)
For batched applications:
[1]
If a single application seeks authorization for multiple deployments, all of which fall within Subsection E(1)(a)[2] above or all of which fall within Subsection E(1)(b)[1] above, then the presumptively reasonable period of time for the application as a whole is equal to that for a single deployment within the category applicable to the deployments.
[2]
If a single application seeks authorization for multiple deployments, the components of which are a mix of deployments that fall within Subsection E(1)(a)[2] and (b)[1] above, then the presumptively reasonable period of time for the application as a whole is 90 days.
(2)
Upon receipt of an application, the Director of Planning and
Director of Code Enforcement shall review the application for completeness.
If the Director of Planning or Director of Code Enforcement determines
the application is: a) incomplete, b) the wrong type of application,
or c) otherwise defective, then the Director of Planning shall send
the applicant a notice of incompleteness by the Town's digital
software program, email, or first-class mail to the email or mailing
address provided by the applicant.
(3)
For small wireless facilities, the notice of incompleteness
shall be sent within 10 days of the Town's receipt of the application.
For all other PWSFs, the notice of incompleteness shall be sent within
30 days of the Town's receipt of the application.
(4)
The notice of incompleteness shall describe why the application
is incomplete, is the wrong type, or is otherwise defective and shall
specifically identify any missing documents or information and the
specific rule or regulation creating the obligation to submit such
documents or information.
(5)
For proposed small wireless facilities, the Director of Planning's
sending of a notice of incompleteness shall reset and toll the relevant
shot clock period. The reset shot clock period shall begin running
at zero on the day the Town receives all the documents and information
identified by the Town to render the application complete.
(6)
For proposed PWSFs other than small wireless facilities, the
Director of Planning's sending of a notice of incompleteness
shall toll (but not reset) the relevant shot clock period. The shot
clock period shall be tolled beginning the day after the date when
the Town sends the applicant the notice of incompleteness that specifically
identifies any missing documents or information and the specific rule
or regulation creating the obligation to submit such documents or
information. The last day of tolling shall be the date when the applicant
submits all the documents and information identified by the Town to
render the application complete.
(7)
If upon receipt of responsive materials and information from
the applicant, the Director of Planning or the Director of Code Enforcement
determines that the application is still incomplete or otherwise defective,
then the Director of Planning shall, within 10 days of receipt of
such responsive materials, send the applicant another notice of incompleteness
by the Town's digital software program, email, or first-class
mail to the email or mailing address provided by the applicant. Regardless
of the type of PWSF, the Director of Planning's sending of this
second notice of incompleteness shall again toll (but shall not reset)
the relevant shot clock period. The shot clock period shall be tolled
beginning the day after the date when the Town sends the applicant
the second notice of incompleteness. The last day of tolling shall
be the date when the applicant submits all the documents and information
identified by the Town to render the application complete. The same
procedure may continue to be repeated with subsequent applicant submissions
and Notices of Incompleteness.
(8)
Shot clock date. The shot clock date for an application is determined
by counting forward, beginning on the day after the date when the
application was submitted, by the number of calendar days of the relevant
shot clock period. If the date calculated in this manner is a "holiday"
as defined in 47 CFR 1.4(e)(1), or is a legal holiday in New York
State, Tompkins County or the Town, the shot clock date is the next
business day after such date. The term "business day" means any day
as defined in 47 CFR 1.4(e)(2) and any day that is not a legal holiday
as defined by New York State, Tompkins County or the Town.
F.
Extensions and reasonable delay periods.
(1)
Shot clock period extension by mutual agreement. The Planning
Board (if applicable) or Director of Code Enforcement may extend any
applicable shot clock period by mutual agreement with an applicant.
The agreement may either be in writing or stated on the record at
any public meeting.
(2)
Reasonable delay extensions of shot clock periods. Any applicable
shot clock period shall be extended to the extent extension is required
due to circumstances beyond the control of the Planning Board (if
applicable) or Director of Code Enforcement, as follows:
(a)
If the Planning Board and/or Director of Code Enforcement acts
with reasonable diligence to complete its SEQRA review and to ascertain
the applicant's compliance with the National Environmental Policy
Act, and these actions require a period of effort that extends beyond
the expiration of the applicable shot clock period, the delays beyond
such shot clock period attributable to such actions shall be deemed
reasonable.
(b)
If the Planning Board and/or Director of Code Enforcement acts
with reasonable diligence to ascertain the applicant's compliance
with the National Historic Preservation Act, and these actions require
a period of effort that extends beyond the expiration of the applicable
shot clock period, the delays beyond such shot clock period attributable
to such actions shall be deemed reasonable.
(c)
If an applicant tenders last-minute submissions to the Town
in the form of: a) expert reports; b) expert materials; or c) materials
which require a significant period for review due either to their
complexity or their sheer volume, the Planning Board and/or Director
of Code Enforcement shall be afforded a reasonable time to review
such late-submitted materials. If the Planning Board and/or Director
of Code Enforcement acts with reasonable diligence to complete such
review, and the review requires a period of effort that extends beyond
the expiration of the applicable shot clock period, the delays beyond
such shot clock period attributable to such review shall be deemed
reasonable.
(d)
Force majeure. In the event and to the extent that the rendering
of a final decision upon a site plan or special permit application
or a PWSF permit application is delayed due to events and/or forces
which are not within the reasonable control of the Town (including
reasonable control of the Planning Board or Town officers and employees),
including, without limitation, acts of God, flood, fire, earthquake,
explosion, governmental actions, war, invasion or hostilities (whether
war is declared or not), terrorist threats or acts, riot, or other
civil unrest, national emergency, revolution, insurrection, epidemic,
pandemic, lockouts, strikes or other labor disputes (whether or not
relating to the Town's workforce), or power outage, such delays
shall constitute reasonable delays and shall be recognized as acceptable
grounds for extending the period for review and the rendering of final
determinations and permit issuance beyond the period allotted under
the applicable shot clock.
G.
Applications for personal wireless service facilities. Applications
shall be made via the Town's digital software program to the
Director of Planning for site plan approvals and special permits and
to the Director of Code Enforcement for PWSF permits, building permits
and all other Town permits and Town approvals required by local, state,
or federal law or regulation. Each application for a site plan approval,
special permit, PWSF permit and/or building permit shall include the
following materials. An application for any Town permit or approval
is incomplete if it is missing any item listed below, it does not
contain everything required by law or regulation, or the Director
of Planning or Director of Code Enforcement determines that the application
contains inconsistent, contradictory, or unclear information.
(1)
Applications for Section 6409(a)[2] eligible facilities must include:
(a)
Identification of all applicants, site developers and FCC-licensed
wireless carriers on whose behalf the application is being submitted,
as well as the property owner of the proposed site.
(b)
All applicable application and other fees then being charged
by the Town for such applications, and any deposits the Town requires
be submitted with the application.
(c)
An email address and a U.S. mail address to which the Town may
email or mail notices to comply with any notice requirement under
this section, as well as under any local, state and/or federal law
or requirement.
(d)
Copies of the Federal Communications Commission (FCC) license,
if applicable, and of all documents submitted to the FCC or any other
governmental agency having jurisdiction over the proposed eligible
facilities.
(e)
Written documentation sufficient to show that the proposed deployment
is an eligible facilities request. This documentation shall include
a drawn-to-scale depiction containing complete calculations for all
of the proposed eligible facilities to show whether they, when installed,
will meet the physical size limitations and other requirements to
qualify them as Section 6409(a) eligible facilities.
(f)
Written documentation sufficient to show that the proposed deployment
complies with all applicable building, structural, electrical and
safety codes and with all other laws codifying objective standards
reasonably related to health and safety. This documentation shall
include a certification by a professional engineer licensed to practice
in the State of New York that the eligible facilities have been designed
in accordance with generally accepted good engineering practices and
in accordance with generally accepted industry standards [including
but not limited to the most recent applicable standards of the Institute
of Electrical and Electronics Engineers (IEEE) and the American National
Standards Institute (ANSI)], and if constructed, operated and maintained
in accordance with the plans the eligible facilities (including the
PWSF structure), and other PWSFs and FCC-authorized wireless communication
service facilities on the site will be safe, will be in accordance
with all applicable governmental building codes, laws and regulations
and in accordance with generally accepted good engineering practices
and industry standards, including, without limitation, acceptable
standards as to stability, wind and ice loads, and bird protection.
(h)
Written documentation sufficient to show compliance with all
relevant federal requirements, including all applicable FCC, FAA,
NEPA, and NHPA requirements. If NEPA review requirements apply and
the applicant asserts the proposed personal wireless service facility
falls under any categorical exclusions, the applicant shall identify
which categorical exclusion(s) the applicant is asserting applies
and submit proof that the facility falls under the categorical exclusion(s).
(i)
Completed Part 1 of the relevant New York State environmental
assessment form.
(k)
Where an applicant is not the owner of the real property upon which the applicant seeks to co-locate Section 6409(a) eligible facilities, proof of the property owner's consent to the deployment of the eligible facilities on the real property and agreement to comply with this § 270-219. If the applicant is leasing all or a portion of real property upon which it intends to install its new eligible facilities, the applicant shall provide a written copy of its lease with the owner of such property. The applicant may redact any financial terms contained within the lease, but it shall not redact any portion of the lease which details the amount of area leased nor the specific portion of the real property to which the applicant has obtained the right to occupy, access, or preclude others from entering.
(l)
Where an applicant is not the owner of the existing tower or
base station upon which the applicant seeks to co-locate Section 6409(a)
eligible facilities, proof of the tower or base station owner's
consent to the co-location of the eligible facilities onto the existing
tower or base station and agreement to comply with this chapter.
[2]
Editor's Note: See 47 U.S.C. § 1455(a).
(2)
Applications for all other PWSFs must include:
(a)
Completed project application forms in such detail and containing
such information as the Director of Planning or Director of Code Enforcement
may require, including identification of all applicants, site developers
and FCC-licensed wireless carriers on whose behalf the application
is being submitted, as well as the property owner of the proposed
site.
(b)
All applicable application and other fees then being charged
by the Town for such applications, including any right-of-way fees
that the Town Board may set from time to time by resolution, and any
deposits required by the Town for application to the costs of any
consultants retained by the Town as provided below.
(c)
An email address and a U.S. mail address to which the Town may
email or mail notices to comply with any notice requirement under
this section, as well as under any local, state and/or federal law
or requirement.
(d)
Copies of the Federal Communications Commission (FCC) license,
if applicable, and of all documents submitted to the FCC or any other
governmental agency having jurisdiction over the facility.
(e)
If the applicant claims that its proposed installation qualifies
as a small wireless facility within this section, a drawn-to-scale
depiction that includes complete calculations for all of the components
of the facility depicting that, when completed, the facility will
meet the physical size limitations which enable the facility to qualify
as a small wireless facility.
(f)
Written documentation sufficient to show that the proposed facilities
comply with all applicable building, structural, electrical and safety
codes and with all other laws reasonably related to health and safety.
This documentation shall include a certification by a professional
engineer licensed to practice in the State of New York that the facilities
(including any proposed co-locations) have been designed in accordance
with generally accepted good engineering practices and in accordance
with generally accepted industry standards [including but not limited
to the most recent applicable standards of the Institute of Electrical
and Electronics Engineers (IEEE) and the American National Standards
Institute (ANSI)], and if constructed, operated and maintained in
accordance with the plans the facilities will be safe, will be in
accordance with all applicable governmental building codes, laws and
regulations and in accordance with generally accepted good engineering
practices and industry standards, including, without limitation, acceptable
standards as to stability, wind and ice loads, and bird protection.
(h)
Written documentation sufficient to show compliance with all
applicable federal requirements, including all applicable FCC, FAA,
NEPA, and NHPA requirements. If NEPA review requirements apply and
the applicant asserts the proposed personal wireless service facility
falls under any categorical exclusions, the applicant shall identify
which categorical exclusion(s) the applicant is asserting applies
and submit proof that the facility falls under the categorical exclusion(s).
(i)
Completed Part 1 of the relevant New York State environmental
assessment form.
(l)
Where site plan review is required, a site plan and other documentation that complies with Town Code § 270-186 (Site plan requirements) and also contains the following:
[1]
The exact location of the proposed facility, including its geographic
coordinates.
[2]
The maximum height of the proposed facility, including all appurtenances.
[3]
A detail of the antenna facility and PWSF structure, including
engineering drawings from the facility manufacturer for any proposed
towers (monopole, guyed, freestanding, or other).
[4]
The location, type, and intensity of any lighting on the facility.
[5]
Property boundaries and names of all adjacent landowners.
[6]
The location of all other structures on the parcel and all structures
on any adjacent parcels within 100 feet of the property lines, together
with the distance of these structures from any proposed tower.
[7]
The location, nature and extent of any proposed fencing, landscaping,
and screening.
[8]
The location and nature of any proposed utility easements and
access roads or drives.
(m)
Where an applicant is not the owner of the real property upon which the applicant seeks to deploy facilities, proof of the property owner's consent to the deployment of the facilities on the real property and agreement to comply with this § 270-219. If the applicant is leasing all or a portion of real property upon which it intends to install its new facilities, the applicant shall provide a written copy of its lease with the owner of such property. The applicant may redact any financial terms contained within the lease, but it shall not redact any portion of the lease which details the amount of area leased nor the specific portion of the real property to which the applicant has obtained the right to occupy, access, or preclude others from entering.
(n)
Where an applicant seeks to co-locate facilities and is not
the owner of the PWSF structure upon which the applicant seeks to
co-locate the facilities, proof of the PWSF structure owner's
consent to the co-location of the proposed facilities onto the existing
PWSF structure.
(o)
An agreement by the owner and operator (if different from owner) that complies with the requirements set forth in Subsection P below for removal of all personal wireless service facilities and restoration of the site to its original condition if the facility becomes obsolete or ceases to be used for its intended purpose for 120 consecutive days.
(p)
An agreement that the applicant will negotiate in good faith
with any subsequent applicant seeking to co-locate a personal wireless
service facility on the initial applicant's PWSF structures.
This agreement shall commit the initial applicant and landowner and
their respective successors in interest to:
[1]
Respond in a timely, comprehensive manner to a request for information
from a potential shared-use applicant.
[2]
Negotiate in good faith for shared use by third parties where
such shared use is, or may be made, technologically and structurally
feasible.
[3]
Allow shared use if an applicant agrees in writing to pay reasonable
charges for same.
[4]
Make no more than a reasonable charge for shared use, based
upon generally accepted accounting principles. The charge may include
but is not limited to a pro rata share of the cost of site selection,
planning, project administration, land costs, site design, construction
and maintenance, financing, return on equity, and depreciation, and
all of the costs of adapting the tower or equipment to accommodate
a shared user without causing electromagnetic interference or causing
uses on the site to emit electromagnetic radiation in excess of levels
permitted by the FCC.
(r)
If site plan approval and special permit are required, and if
co-location onto an existing structure is not proposed and is not
feasible, an alternative site analysis of all potentially less intrusive
alternative sites not involving co-location which the applicant has
considered. This alternative site analysis shall document each site's
respective location, elevation, and suitability to remedy a significant
gap in the coverage of the applicant's personal wireless services
(the ability of wireless telephones to make and receive voice calls
to and from landlines that are connected to the national telephone
network). For suitable alternative sites that an applicant claims
are unavailable, the applicant shall submit evidence of good-faith
efforts to secure use of each such site from its owner.
(s)
If site plan approval and special permit are required, evidence
of the existence of a significant gap in the coverage of the applicant's
personal wireless services (the ability of wireless telephones to
make and receive voice calls to and from landlines that are connected
to the national telephone network).
[1]
Such evidence shall include the nature of each gap and its geographic
location and boundaries.
[2]
Evidence that a gap exists shall include in-kind call testing
for each frequency at which the applicant provides personal wireless
services. The applicant shall provide the Town with the actual testing
data recorded during such tests, in a simple format which shall include
for each frequency, in table format:
[3]
The applicant shall also submit test maps, depicting the actual
signal strengths recorded during all in-kind call testing, for each
frequency at which the applicant provides personal wireless services.
[4]
The applicant shall also provide dropped call records and denial
of service records evidencing the number, percentage and locations
of voice calls that were unable to be initiated or maintained between
wireless telephones and landlines connected to the national telephone
network.
[5]
The applicant shall also submit evidence of a compelling need
to address any significant gaps in the applicant's personal wireless
services through the proposed facilities and not through any other
solution. The applicant shall submit evidence showing that the applicant
considered other sites and other means of addressing the gaps, and
evidence showing the feasibility of addressing the gaps through the
use of other sites and other means. The applicant shall also submit
evidence that the facility presents a minimal intrusion on the community.
(t)
Where the applicant asserts that a denial would constitute an
effective prohibition, the applicant shall submit evidence that the
proposed facilities are the least intrusive means of addressing a
significant gap in the applicant's personal wireless services
(the ability of wireless telephones to make and receive voice calls
to and from landlines that are connected to the national telephone
network).
(u)
A noise study or written statement, prepared by a professional engineer licensed to practice in the State of New York, assessing the proposed personal wireless service facility's compliance with the noise requirements in Subsection M. The assessment shall include noise from equipment, such as air-conditioning units and backup generators.
(v)
An economic analysis study of the property value impacts that
the construction and operation of the PWSF may have on all adjacent
properties located within 500 feet of the parcel boundaries on which
the PWSF is located.
H.
Co-location.
(1)
The shared use of existing PWSF structures or other structures
shall be preferred to the construction of new PWSF structures. Any
PWSF permit or site plan or special permit application, renewal or
modification thereof shall include proof that reasonable efforts have
been made to co-locate on an existing PWSF structure or upon another
existing structure.
(2)
The application shall include an adequate inventory report specifying
existing PWSF sites and any structures (except one-family dwellings,
two-family dwellings, multiple residences, and accessory structures
associated with such dwellings and multiple residences) within a one-mile
radius of the proposed facility. The inventory report shall contain
an evaluation of opportunities for shared use as an alternative to
the proposed location, along with a map showing the location of each
site inventoried, the heights of the PWSF structures, and the heights
of other structures on the sites of the inventoried locations.
(3)
The applicant must demonstrate that the proposed PWSF cannot
be accommodated on existing PWSFs in the inventory due to one or more
of the following reasons:
(a)
The planned equipment would exceed the structural capacity of
existing and approved PWSFs or other structures, considering existing
and reasonably anticipated future use for those facilities and other
structures.
(b)
The planned equipment would cause radio frequency interference
with other existing or planned equipment which cannot be reasonably
prevented.
(c)
The planned equipment would cause an exceedance of FCC RF exposure
limits which cannot be reasonably prevented.
(d)
Existing or approved PWSFs or other structures do not have space
and cannot be modified to provide space on which proposed equipment
can be placed so it can function effectively and reasonably.
(e)
Other technical reasons make it impracticable to place the equipment
proposed by the applicant on existing PWSFs or other structures.
(f)
The property owner or owner of the existing PWSF or other structure
fails to reach agreement after negotiating in good faith to allow
such co-location.
I.
FCC compliance report.
(1)
The FCC compliance report required by this section shall be
prepared by a professional engineer licensed to practice in the State
of New York and certified under penalties of perjury that the content
thereof is true and accurate, wherein the engineer shall certify that
the proposed facility will be FCC compliant (including compliance
with applicable FCC regulations and bulletins) as of the time of its
installation, including that the facility will comply with the relevant
limits for human exposure to radio frequency (RF) fields adopted by
the FCC.
(2)
If it is anticipated that there will be more than one RF emitter
on the facility, the FCC compliance report shall take into account
anticipated exposure from all emitters and shall indicate whether
or not the combined exposure levels will exceed the permissible general
population exposure limits in locations accessible to the public,
and, where applicable, the occupational exposure limits.
(3)
Such FCC compliance report shall provide the calculation or
calculations which the engineer used to determine the levels of RF
emissions and RF exposure levels.
(4)
On the cover page of the report, the report shall explicitly
specify:
(a)
Whether the applicant and their engineer are claiming that the
applicable FCC limits are the general population exposure limits or
the occupational exposure limits. If the applicant and their engineer
are asserting that only the occupational exposure limits apply to
the proposed installation, they shall provide a factual basis as to
why they claim that only the occupational exposure limits apply; and
(b)
The exact minimum distance factor, measured in feet, which the
applicant's engineer used to calculate the level of radiation
emissions to which the proposed facility will expose members of the
general public or, where applicable, persons in the workplace. The
minimum distance factor is the closest distance (i.e., the minimum
distance) to which a person shall be able to gain access to the antennas
mounted upon, or which shall be a part of, the proposed facility.
J.
Visual impact analysis. Each application shall include a visual impact
analysis that contains an assessment of the proposed facility's
visual impact on abutting properties and streets, taking into consideration
any PWSF structure that is to be constructed, as well as the rest
of the facility. The visual impact analysis shall, at a minimum, include
the following:
(1)
Small wireless facilities:
(a)
Line-of-sight drawings.
(b)
Detailed elevation maps.
(c)
Visual simulations, including photographic images, depicting
the height at which the proposed facility shall stand when completed
(including all portions and attachments to the facility), taken from
the perspectives of the public right-of-way, and of any properties
situated in closest proximity to the location being proposed for the
facility siting. Photos should also be taken from the perspectives
of any properties that would reasonably be expected to sustain significant
adverse aesthetic impacts due to their elevation relative to the site,
or due to the facility location and the property location.
(d)
Before and after renderings.
(e)
Alternate facility designs and color schemes.
(f)
Possible impacts to any important/scenic views listed in the
Tompkins County or Town of Ithaca Scenic Resources Inventories.
(2)
Personal wireless service facilities which do not meet the definition
of a "small wireless facility":
(a)
A visibility map to determine locations from where the facility
will be seen.
(b)
Line-of-sight drawings.
(c)
Detailed elevation maps.
(d)
Visual simulations, including photographic images, depicting
the height at which the proposed facility shall stand when completed,
taken from the perspectives of the public right-of-way, and of any
properties situated in closest proximity to the location being proposed
for the facility siting. Photos should also be taken from the perspectives
of any properties that would reasonably be expected to sustain significant
adverse aesthetic impacts due to their elevation relative to the site,
or due to the facility location and the property location.
(e)
Before-and-after renderings.
(f)
Alternate facility designs and color schemes.
(g)
Possible impacts to any important/scenic views listed in the
Tompkins County or Town of Ithaca Scenic Resources Inventories.
K.
Priority of siting locations. In determining whether a site is appropriate,
and if it is determined a need exists for the facility, the preferential
order of location, to the extent the same may be, or may be made,
technically feasible, is as follows:
(1)
Co-located on existing towers.
(2)
Co-located on any other existing radio or other tower that would
not require any increase in height nor significant noticeable structural
additions to accommodate the facility.
(3)
Within any industrial zones or existing planned development
zones that permit industrial activities.
(4)
Within any light industrial zones or existing planned development
zones that permit light industrial activities.
(5)
Within any existing community commercial zones or existing planned
development zones which permit all of the activities permitted in
a community commercial zone.
(6)
On any other property in the Town.
L.
Design standards. All PWSFs shall be sited, designed, and constructed
in a manner which minimizes to the maximum extent practicable i) visual
impact, and ii) adverse impacts upon migratory and other birds and
other wildlife.
(1)
Aesthetic criteria applicable to small wireless facilities:
(a)
For co-locations [except Section 6409(a)[3] eligible facilities co-locations]:
[1]
There shall be no exposed wires. All cables and wires associated
with the facility leading to and away from the facility must be fully
concealed, and the cable covering or conduit shall match the color
of the PWSF structure on which the facility is located. There shall
be no external cables and wires related to the facility hanging off
or otherwise exposed.
[2]
Each antenna shall be located within a stealth enclosure that
matches the materials, color, and design of the PWSF structure on
which the antenna is located.
[3]
All equipment enclosures shall be as small as possible and undergrounded
when possible. Building-mounted enclosures shall be located within
a stealth enclosure that matches the materials, color, and design
of the PWSF structure on which the enclosure is located. Ground-mounted
enclosures shall have appropriate vegetative buffering to buffer the
view from neighboring residences, recreation areas and public roads.
The Planning Board may require screening adjacent to waterways, landmarks,
refuges, community facilities, or conservation or historic areas within
common view of the public. Co-locations along New-York-State-designated
scenic byways or located within an area listed in the Tompkins County
or Town of Ithaca Scenic Resources Inventory must be as visually inconspicuous
as possible. The views of, and vistas from, such districts and corridors
shall not be impaired or diminished by the placement of PWSFs.
[4]
There shall be no illumination, except in accord with state
or federal regulations.
[5]
No portion of the PWSF structure or other parts of the facility
shall be used for signs or promotional or advertising purposes, including,
but not limited to, company name, phone numbers, banners, streamers,
and balloons.
[6]
Access to the facility shall be achieved by using existing public
or private roads; no new accessway, driveway or parking area shall
be constructed. Equipment or vehicles not used in direct support,
renovations, additions, or repair of any facility shall not be stored
or parked on the facility site.
[7]
The facility shall be located at least 300 feet from any structure
that contains a dwelling unit.
[3]
Editor's Note: See 47 U.S.C. § 1455(a).
(b)
For small wireless facility nodes:
[1]
If the node is located within a public ROW, then the preferable
placement locations are as follows: most preferred is co-location
on existing towers, utility poles or other structures; least preferred
is installing all new poles).
[2]
If co-location is not possible, then all new poles and equipment
must be the same height, color, and finish as surrounding poles.
[3]
There shall be no exposed wires. All cables and wires associated
with the facility leading to and away from the facility shall be installed
underground. If undergrounding is not possible, then all cables, wires
and connectors must be fully concealed on the PWSF structure, and
the cable covering or conduit shall match the color of the PWSF structure.
There shall be no external cables and wires related to the facility
hanging off or otherwise exposed on the PWSF structure.
[4]
Each antenna shall be located entirely within a shroud or canister
type enclosure or a stealth facility. The diameter of an antenna enclosure
at its widest point should not be wider than two times the diameter
of the top of the PWSF structure.
[5]
All antenna enclosures shall either be mounted to the top of
the PWSF structure and aligned with the center line of the PWSF structure
or mounted to the side of the PWSF structure such that the vertical
center line of the antenna enclosure will be parallel with the PWSF
structure. Stealth enclosures shall match the architecture, materials,
color, and design of the PWSF structure on which they are located
(e.g., streetlight pole, building rooftop chimney, cupolas, etc.).
Photo examples of stealth applications include the following (source:
stealthconcealment.com):
 |
[6]
All equipment enclosures shall be as small as possible and undergrounded
when possible. Ground-mounted equipment shall incorporate concealment
elements into the proposed design, matching the color and materials
of the PWSF structure. Concealment may include, but shall not be limited
to, landscaping, strategic placement in less obtrusive locations and
placement within existing or replacement street furniture (see photo
example of stealth pole above).
[7]
Tree topping is prohibited. Any proposed pruning or removal
of trees, shrubs or other landscaping already existing in the right-of-way
must be noted in the site plan application and must be approved by
the Planning Board.
[8]
There shall be no illumination, except in accord with state
or federal regulations, or unless the illumination is integral to
the camouflaging strategy (e.g., design intended to look like a streetlight
pole).
[9]
Guidelines on placement. Node facilities, including their PWSF
structures, shall be located as follows:
[a]
No closer than 1,500 feet away, radially, from
another small wireless facility, unless the wireless carrier can prove
that the facilities need to be closer together to meet a specified
legal standard.
[b]
In alignment with existing trees, utility poles,
and streetlights.
[c]
Equal distance between trees, when possible, with
a minimum of 15 feet separation such that no proposed disturbance
shall occur within the critical root zone of any tree.
[d]
Shall not be located along a parcel's front
lot line where a building on the parcel: is listed on the National
or State Register of Historic Places; is located in an historic district
listed on the National or State Register of Historic Places; or has
been determined by the Commissioner of the NYS Office of Parks, Recreation
and Historic Preservation to be eligible for listing on the State
Register of Historic Places.
[e]
At least 300 feet from any structure that contains
a dwelling unit.
[f]
Facilities along New-York-State-designated scenic
byways or located within an area listed in the Tompkins County or
Town of Ithaca Scenic Resources Inventory must be as visually inconspicuous
as possible. The views of, and vistas from, such districts and corridors
shall not be impaired or diminished by the placement of such PWSFs.
[g]
If a streetlight is present, a combination PWSF
structure and streetlight pole should only be located where an existing
pole can be removed and replaced, or at a location where the Town
has identified that a streetlight is necessary.
[10]
No portion of the PWSF structure or other parts
of the facility shall be used for signs or promotional or advertising
purposes, including, but not limited to, company name, phone numbers,
banners, streamers, and balloons.
(c)
For individual small wireless facility sites:
[1]
There shall be no exposed wires. All cables and wires associated
with the facility leading to and away from the facility shall be installed
underground. If undergrounding is not possible, then all cables, wires
and connectors must be fully concealed, and the cable covering or
conduit shall match the color of the PWSF structure. There shall be
no external cables and wires related to the small wireless facility
hanging off or otherwise exposed.
[2]
Each antenna shall be located within a stealth enclosure that
matches the architecture, materials, color and design of the PWSF
structure on which the antenna is located (e.g., streetlight pole,
building rooftop chimney, cupola, etc.). Photo examples of stealth
applications include the following (source: stealthconcealment.com):
 |
[3]
All equipment enclosures shall be as small as possible and undergrounded
when possible. Building-mounted enclosures shall be located within
a stealth enclosure that matches the architecture, materials, color
and design of the PWSF structure on which the enclosure is located
(see photo examples above). Ground-mounted enclosures shall have appropriate
vegetative buffering to buffer the view from neighboring residences,
recreation areas and public roads. The Planning Board may require
screening adjacent to waterways, landmarks, refuges, community facilities,
or conservation or historic areas within common view of the public.
Co-locations along New-York-State-designated scenic byways or located
within an area listed in the Tompkins County or Town of Ithaca Scenic
Resources Inventory must be as visually inconspicuous as possible.
The views of, and vistas from, such districts and corridors shall
not be impaired or diminished by the placement of such PWSFs.
[4]
There shall be no illumination, except in accord with state
or federal regulations, or unless the illumination is integral to
the camouflaging strategy (e.g., design intended to look like a streetlight
pole).
[5]
No small wireless facility shall be located along a parcel's
front lot line where a building on the parcel: is listed on the National
or State Register of Historic Places; is located in an historic district
listed on the National or State Register of Historic Places; or has
been determined by the Commissioner of the NYS Office of Parks, Recreation
and Historic Preservation to be eligible for listing on the State
Register of Historic Places.
[6]
No portion of the PWSF structure or other parts of the facility
shall be used for signs or promotional or advertising purposes, including,
but not limited to, company name, phone numbers, banners, streamers,
and balloons.
[7]
Access to the small wireless facility shall be achieved by using
existing public or private roads; no new accessway, driveway or parking
area shall be constructed. Equipment or vehicles not used in direct
support, renovations, additions, or repair of any facility shall not
be stored or parked on the facility site.
[8]
The small wireless facility shall be located at least 300 feet
from any structure that contains a dwelling unit.
(2)
Aesthetic criteria applicable to non-small wireless facilities:
(a)
The facility shall have the least practical visual effect on
the environment, as determined by the Planning Board.
(b)
There shall be no exposed wires except for any guy wires. All
cables and wires associated with the facility leading to and away
from the facility must be fully concealed, and the cable covering
or conduit shall match the color of the PWSF structure. There shall
be no external cables and wires related to the facility hanging off
or otherwise exposed.
(c)
There shall be no illumination, except in accord with state or federal regulations and with Subsection O below. Towers shall not be artificially lighted and marked beyond the requirements of the FAA.
(d)
Any tower that is not subject to FAA marking as set forth above
shall otherwise have a galvanized finish or shall be painted gray
above the surrounding tree line and gray or green below the tree line,
as deemed appropriate by the Planning Board, or be disguised or camouflaged
to blend in with the surroundings, to the extent that such alteration
does not impair the ability of the facility to perform its designed
function.
(e)
Accessory structures shall maximize the use of building materials,
colors, and textures designed to blend in with the natural surroundings.
Ground-mounted enclosures and fences shall have appropriate vegetative
buffering to buffer the view from neighboring residences, recreation
areas and public roads. The Planning Board may require screening adjacent
to waterways, landmarks, parkland, community facilities, or conservation
or historic areas within common view of the public.
(f)
No portion of the PWSF structure or other parts of the facility
shall be used for signs or promotional or advertising purposes, including,
but not limited to, company name, phone numbers, banners, streamers,
and balloons.
(g)
Existing on-site vegetation shall be preserved to the maximum
extent possible. Tree topping is prohibited. There shall be no cutting
of trees exceeding four inches in diameter (measured at a height of
four feet off the ground) in connection with the proposed facility
prior to the granting of site plan approval. Any proposed pruning
or removal of trees, shrubs or other existing landscaping must be
noted in the site plan application and must be approved by the Planning
Board.
(h)
Equipment or vehicles not used in direct support, renovations,
additions, or repair of any facility shall not be stored or parked
on the facility site.
(i)
Where permitted, accessways shall make maximum use of existing
public or private roads to the extent practicable. New accessways
constructed solely for PWSFs must be at least 12, but no more than
24, feet wide, and closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion potential.
(j)
Where permitted, parking areas shall be sufficient to accommodate
the usual number of service vehicles expected on the premises at any
one time. Driveways or parking areas shall provide adequate interior
turnaround, such that service vehicles will not have to back out onto
a public thoroughfare.
(k)
The facility shall be located at least 300 feet from any structure
that contains a dwelling unit.
M.
Noise. No personal wireless service facility shall produce noise in violation of Town of Ithaca Code Chapter 184 (Noise). In addition, noise from a personal wireless service facility shall at no time be audible at the property line of any lot i) zoned Residential or Conservation, or ii) on which a dwelling unit exists.
N.
Dimensional standards.
(1)
A fall zone around any tower constructed as part of a non-small
wireless facility must have a radius at least equal to the height
of the facility. The entire fall zone may not include public roads
and must be located on property either owned or leased by the applicant,
or for which the applicant has obtained an easement, and may not,
except as set forth below, contain any structure other than those
associated with the facility. If the tower is attached to an existing
structure, relief may be granted by specific permission of the Planning
Board on a case-by-case basis if it is determined by such Board, after
submission of competent evidence, that the waiver of this requirement
will not endanger the life, health, welfare or property of any person.
In granting any such waiver, the Board may impose any conditions reasonably
necessary to protect the public or other property from potential injury.
(2)
All non-small wireless facilities and their fall zones shall
be located on a single parcel.
(3)
All personal wireless service facilities shall comply with the
height, setback, frontage, minimum lot size, and (except as specified
below) yard standards of the underlying zoning district and the fall
zone requirements of this section. To the extent there is a conflict,
the more restrictive provision shall govern. If the proposed height
of the facility exceeds the permitted height of structures in the
zoning district in which the facility is proposed to be located, notwithstanding
any other provisions of this chapter, a height variance from the Zoning
Board of Appeals shall also be required. Setbacks shall be measured
by the distance between any portion of a personal wireless service
facility and the lot line of the parcel on which the proposed facility
will be placed. Small wireless facilities do not need to meet the
front yard standards of the underlying zoning district, but they must
be located at least 300 feet from any structure that contains a dwelling
unit. The size of the leased or owned lot shall be, at a minimum,
sufficiently large to include the entire fall zone. All lots leased
or owned for the purpose of construction of a tower as part of a personal
wireless service facility shall conform, at a minimum, to the lot
size requirements of the underlying zoning district or the size of
lot necessary to encompass the entire fall zone, whichever requirement
results in a larger lot.
(4)
The front, side, and rear yard requirements of the underlying
zoning district in which a facility is erected shall apply to all
parts of the facility.
O.
Security.
(1)
Non-small wireless facility towers, anchor points of guyed towers,
and their accessory structures shall each be surrounded by fencing
at least eight feet in height, the top foot of which shall be comprised
of three strands of barbed wire to discourage unauthorized access
to the site.
(2)
Motion-activated or staff-activated security lighting around the base of a tower or accessory structure entrance may be provided if such lighting does not project off the site and otherwise complies with Town Code Chapter 173 (Lighting, Outdoor). Such lighting should only occur when the area within the fenced perimeters has been entered.
(3)
There shall be no permanent climbing pegs within 15 feet of
the ground of any tower.
P.
Removal.
(1)
The personal wireless service facility owner and operator (if
different from owner) shall at their expense remove all personal wireless
service facilities and restore the site to its original condition
(including, where applicable, the seeding of exposed soils), and incur
all expenses therefor, if the facility becomes obsolete or ceases
to be used for its intended purpose for 120 consecutive days. Removal
of such obsolete or unused facilities and restoration of the site
to its original condition shall take place within 90 days and shall
comply with all New York State and Town stormwater laws, rules and
regulations. If removal and restoration are not completed within 90
days, the bond or other guaranty secured by the owner and operator
shall be used to perform and complete these actions.
(2)
As security for the performance of the requirements set forth
above, the owner and operator (if different from owner) shall, upon
the granting of required approvals and permits under this section
and prior to the installation of any personal wireless service facilities,
execute and file with the Town Clerk a bond or other form of security
or undertaking which shall be approved as to form, manner of execution,
and sufficiency for surety by the Attorney for the Town and the Town
Engineer. Any bond or guaranty shall be provided by or placed with
a solvent surety corporation duly licensed in the State of New York.
Such bond or undertaking shall be conditioned upon the faithful performance
of the provisions of this section, and in the event of default, the
bond or undertaking shall be forfeited to the Town, which shall be
entitled to maintain an action thereon. The bond or undertaking shall
remain in full force and effect until the removal of all personal
wireless service facilities and all site restoration has been completed.
The value of the bond shall be equal to 125% of the cost of facility
removal and restoration of the site, as determined by the Town Engineer
after evaluation of the applicant's detailed estimate of such
cost. No such decommissioning or removal bond shall be secured by
an indemnity agreement with the owner or operator or any party affiliated
with them.
(3)
At least once every three years after any approval or permit
is issued by the Town, the owner and operator (if different from owner)
of the personal wireless service facility shall provide updated certified
cost estimates for removal of all personal wireless service facilities
and all site restoration. If the resulting 125% cost requirement shows
that the existing security or bond is monetarily insufficient, then
the owner and operator (if different from the owner) shall update
such bond or undertaking or see to its replacement or supplementation
in an amount to equal such updated 125% cost number.
Q.
Town consultants.
(1)
The Town, at the expense of the applicant, may employ its own
consultants to examine the application and related documentation.
The consultants that the Town may retain include, but are not limited
to, professional structural and/or electrical engineers, attorneys,
and other experts reasonably required by the Town to competently and
fully evaluate any application and the resulting construction. Such
consultants may be requested, among other matters, to make recommendations
as to whether the criteria for granting approvals and permits have
been met, including whether the applicant's conclusions regarding
a significant gap in coverage, co-location, safety analysis, visual
analysis, and structural inspection are valid and supported by generally
accepted and reliable engineering and technical data and standards
and whether the personal wireless service facility as constructed
will be in compliance with the approved plans and in accordance with
generally accepted good engineering practices and industry standards.
(2)
To assure sufficient funds are available to the Town to pay for the consultants referred to in the preceding subsection, an applicant shall be required to deposit review fees in escrow, in accordance with the terms of Town Code § 153-2D, as the same may be amended from time to time. The Town Board shall set from time to time by resolution the minimum initial escrow deposit for any personal wireless service facility application which anticipates construction of any type of tower exceeding 50 feet.
R.
Special permit approvals.
(1)
Except as provided in Subsection R(2) below, the Planning Board may approve a special permit or special permit modification relating to a PWSF only if the Planning Board finds:
(a)
Federal law compliance. The PWSFs comply with all relevant federal
statutory and regulatory requirements, including all applicable FCC,
FAA, NEPA, and NHPA requirements;
(c)
All of the following additional standards are met:
[1]
Public utility status. Services provided by the proposed PWSFs
are considered public utility services, and the provider of such services
is considered a public utility, in the State of New York.
[2]
Need. The applicant has proven a compelling need to address
any significant gaps in the applicant's personal wireless services
(the ability of wireless telephones to make and receive voice calls
to and from landlines that are connected to the national telephone
network) through the proposed facilities and not through any other
solution, and the facility presents a minimal intrusion on the community.
[a]
To determine whether a gap is significant, the
Planning Board shall consider, among other things, dropped call and
failure rates, whether a gap is relatively large or small in geographic
size, whether the number of the applicant's customers affected
by the gap is relatively small or large, whether or not the location
of the gap is situated on a lightly or heavily traveled road or in
a sparsely or densely occupied area, and whether the applicant's
customers are affected for only a limited period of time. A significant
gap cannot be established simply because the applicant's personal
wireless services operate on a frequency which is not the frequency
most desired by the applicant. An applicant's claim of need for
future capacity does not constitute evidence of a significant gap.
[b]
In making the finding of compelling need, the Planning
Board shall consider the evidence of a significant gap, the applicant's
consideration of other sites and other means of addressing the gaps,
and the feasibility of addressing the gaps through the use of other
sites or other means.
[4]
Co-location on proposed towers. For non-SWFs, when construction
of a tower is proposed, such a tower is designed to accommodate future
shared use by at least two other PWSF providers.
[5]
Aesthetic impacts. The proposed PWSFs will not inflict a significant
adverse aesthetic impact upon properties that are located adjacent
or in close proximity to the proposed site(s) or upon any other properties
situated in a manner that such properties might reasonably be expected
to sustain adverse aesthetic impacts.
[6]
Impacts upon real estate values. The proposed PWSFs will not
inflict a significant adverse impact upon the property values of properties
that are located adjacent or in close proximity to the proposed site(s).
[7]
Impact upon the character of the surrounding community. The
proposed PWSFs will not be incompatible with the use and character
of properties located adjacent or in close proximity to the proposed
site(s), or with any other properties situated in a manner that the
PWSFs might reasonably be expected to be incompatible with such properties.
[8]
Mitigation. The applicant has mitigated the potential adverse
impacts of the proposed PWSFs to the greatest extent reasonably feasible
through siting, location and design.
(2)
If the applicant asserts that a denial would constitute an effective prohibition, and the denial is based on a failure to comply with any of the standards in Subsection R(1)(b) or (c) above, then pursuant to federal law, the Planning Board must consider whether the proposed facilities are the least intrusive means of addressing a significant gap in the applicant's personal wireless services (the ability of wireless telephones to make and receive voice calls to and from landlines that are connected to the national telephone network). A significant gap is not established simply because the applicant's personal wireless services operate on a frequency which is not the frequency most desired by the applicant. An applicant's claim of need for future capacity does not constitute evidence of a significant gap.
(a)
The Planning Board shall consider, among other things, a) whether
the proposed site is the least intrusive location at which a personal
wireless service facility that remedies an identified significant
gap may be located, and the applicant has reasonably established a
lack of potential alternative less intrusive sites and lack of sites
available for co-location, b) whether the specific location on the
proposed portion of the selected site is the least intrusive portion
of the site for the proposed installation, c) whether the height proposed
for the personal wireless service facility is the minimum height necessary
to remedy an established significant gap in service, d) whether a
preexisting structure can be used to camouflage the personal wireless
service facility, e) whether the installation mitigates adverse impacts
to the greatest extent reasonably feasible, through the employ of
stealth design, screening, use of color, and noise mitigation measures,
and f) whether there is a feasible alternative to remedy the gap through
alternative, less intrusive substitute facilities, such as the installation
of more than one shorter facility instead of a single facility.
(b)
If the Planning Board finds that the proposed facilities are
the least intrusive means of addressing a significant gap in the applicant's
personal wireless services, then pursuant to federal law, the Planning
Board must grant site plan and special permit approvals.
S.
PWSF permit issuance, duration and renewals.
(1)
The Director of Code Enforcement shall issue a personal wireless service facility permit upon i) submission of the proof of insurance required by Subsection V, and ii) the Director of Code Enforcement's determination that the following standards are met:
(a)
For PWSFs that require site plan approval and a special permit:
The Planning Board has approved a final site plan and special permit,
and the applicant has received any necessary variances from the Zoning
Board of Appeals.
(c)
For all other PWSFs that do not require site plan approval and
a special permit:
[1]
Federal law compliance. The PWSFs comply with all relevant federal
statutory and regulatory requirements, including all applicable FCC,
FAA, NEPA, and NHPA requirements.
[2]
Public utility status. The services provided by the proposed
PWSFs are considered public utility services, and the provider of
such services is considered a public utility, in the State of New
York.
[4]
If the applicant asserts that a denial would constitute an effective prohibition, and the denial is based on a failure to comply with any of the standards in Subsection S(1)(c)[2] or [3] above, then pursuant to federal law, the Director of Code Enforcement must consider whether the proposed facilities are the least intrusive means of addressing a significant gap in the applicant's personal wireless services (the ability of wireless telephones to make and receive voice calls to and from landlines that are connected to the national telephone network). A significant gap is not established simply because the applicant's personal wireless services operate on a frequency which is not the frequency most desired by the applicant. An applicant's claim of need for future capacity does not constitute evidence of a significant gap.
[a]
The Director of Planning shall make a recommendation
to the Director of Code Enforcement on this determination. The Director
of Code Enforcement shall consider, among other things, a) whether
the height proposed for the personal wireless service facility is
the minimum height necessary to remedy an established significant
gap in service, b) whether the installation mitigates adverse impacts
to the greatest extent reasonably feasible, through the employ of
stealth design, screening, use of color, and noise mitigation measures,
and c) whether there is a feasible alternative to remedy the gap through
alternative, less intrusive substitute facilities.
[b]
If the Director of Code Enforcement finds that
the proposed facilities are the least intrusive means of addressing
a significant gap in the applicant's personal wireless services,
then pursuant to federal law, the Director of Code Enforcement must
issue the personal wireless service facility permit.
(2)
A personal wireless service facility permit shall have a term
of two years and may be renewed for successive two-year terms pursuant
to the terms of this subsection.
(3)
A permittee seeking to renew a personal wireless service facility
permit must file a renewal application with the Director of Code Enforcement
no later than six months prior to the expiration date of the existing
permit. The renewal application shall include a completed Town renewal
application form, the renewal fee then being charged by the Town for
such renewal applications, and the following:
(a)
A certification of compliance with RF exposure limits that meets the requirements of Subsection T below, based on tests and inspections undertaken within six months prior to the certification submission;
(b)
A written report from a professional engineer licensed to practice in the State of New York, based on tests and inspections undertaken within six months prior to the report submission, certifying that the permitted personal wireless service facilities comply with the noise requirements in Subsection M;
(d)
An affidavit from an attorney admitted and registered to practice
law in the State of New York stating that services provided by the
PWSFs covered by the permit are considered public utility services,
and the provider of such services is considered a public utility,
in the State of New York. The affidavit shall also contain information
supporting the statement.
(4)
The Director of Code Enforcement shall renew a PWSF permit for
a two-year term, provided that they find:
(a)
The permittee submitted all required renewal application materials
and fees;
(b)
The permittee is in compliance with all terms of its permit, all requirements of this § 270-219, all other requirements of this Chapter 270 (unless expressly superseded by this § 270-219), all other relevant Ithaca Town Code requirements, and all relevant federal statutory and regulatory requirements; and
(c)
Services provided by the PWSFs covered by the permit are considered
public utility services, and the provider of such services is considered
a public utility, in the State of New York.
(5)
If the applicant is in compliance with its permit, asserts that a denial would constitute an effective prohibition, and the denial is based on a failure to comply with any of the non-federal standards in Subsection S(4)(b) or (c) above, then pursuant to federal law, the Director of Code Enforcement must consider whether the facilities are the least intrusive means of addressing a significant gap in the applicant's personal wireless services (the ability of wireless telephones to make and receive voice calls to and from landlines that are connected to the national telephone network). The process and requirements in Subsection S(1)(c)[4] above shall apply.
(6)
If the Director of Code Enforcement denies a renewal application,
a permittee may request a hearing before the Town Board upon an application
made to the Town Clerk demonstrating that the permittee was entitled
to renewal pursuant to the terms of this subsection. Such hearing
shall be requested, in writing, with the request addressed to and
received by the Town Clerk within five business days of the permittee's
receipt of the denial of the renewal application. Within 30 days of
the permittee's written request, the Town Board shall hold a
hearing to determine whether to reverse the denial. The Town Board
shall issue its written decision within 15 days after the hearing.
(7)
If a permittee does not qualify for renewal, the Director of Code Enforcement denies the renewal application, or upon appeal the Town Board upholds the denial, the permittee may file a new application for a personal wireless service facility permit for the permitted personal wireless service facilities at the same locations. All provisions of this § 270-219 that apply to new applications shall apply to such applications.
(8)
Upon permit expiration (including where renewal is denied),
the owner and operator of the PWSFs covered by the permit shall immediately
cease operation of such PWSFs.
T.
Certification of compliance with RF exposure limits.
(1)
Within 45 days of initial operation or modification of a PWSF,
the owner and operator (if different from the owner) of each antenna
shall submit to the Director of Code Enforcement a written certification
by a professional engineer licensed to practice in the State of New
York, sworn to under penalties of perjury, that the PWSF's radio
frequency emissions comply with the applicable FCC maximum permissible
exposure (MPE) limits for general population/uncontrolled exposure
codified in 47 CFR 1.1310(e)(1), Table 1, or any successor regulation.
(2)
The licensed professional engineer shall measure the emissions
of the approved PWSF as well as (where required by FCC regulation,
bulletin, order or guidance) the cumulative emissions from other nearby
PWSFs and determine if such emissions are within the FCC's MPE
limits referenced above.
(3)
The PWSF owner and operator (if different from the owner) shall
submit to the Director of Code Enforcement a report of these measurements
and the engineer's findings with respect to compliance with the
FCC's MPE limits.
(4)
If the report shows that the PWSF does not comply with applicable
limits, then the owner and operator shall immediately cease operation
of the PWSF until the PWSF is brought into compliance with such limits.
Proof of compliance shall be a written certification by a professional
engineer licensed to practice in the State of New York, sworn to under
penalties of perjury, that the PWSF's radio frequency emissions
comply with the applicable FCC MPE limits. The Town may require, at
the applicant's expense, independent verification of the results
of this analysis.
(5)
After submission of the proof of compliance with the FCC's
MPE limits described above, the PWSF owner and operator (if different
from the owner) shall thereafter provide proofs of compliance with
the applicable FCC MPE limits no less frequently than 12 months after
the date of submission of the last proof of compliance. All of the
provisions applicable to the initial submission shall apply to subsequent
submissions.
(6)
The Town shall have the right to employ a licensed professional
engineer to conduct random and unannounced tests of PWSFs located
within the Town to certify their compliance with the FCC's MPE
limits. The Town may cause such random testing to be conducted as
often as the Town may deem appropriate. However, the Town may not
require the owner and/or operator to pay for more than one Town test
per PWSF per calendar year, unless such testing reveals that one or
more of the owner and/or operator's PWSFs are exceeding the FCC's
MPE limits. In such a case, the owner and operator shall immediately
cease operation of all PWSFs that do not comply with the MPE limits
until the owner or operator submits proof of compliance as described
above. Within 45 days of the Town's receipt of such proof of
compliance, the Town may conduct a follow-up test at the expense of
the owner and the operator (if different from the owner) to verify
compliance.
U.
Structural integrity inspections. Every personal wireless service
facility shall be inspected at least every second year for structural
integrity by a professional engineer licensed to practice in the State
of New York. A copy of the inspection report shall be submitted to
the Director of Code Enforcement. Any unsafe condition revealed by
such report shall be corrected within 10 days of notification of same
to the record landowner on which the facility is constructed. The
time period for correction may, on application of the landowner or
owner of the facility, be extended by the Director of Code Enforcement
if it is impracticable to complete the correction within said 10 days
and if there is no imminent danger to life, limb, or other person's
property. If the unsafe condition is not corrected within the applicable
time period, or if the required inspection is not provided to the
Town, the personal wireless service facility permit for construction
of the facility may, after a hearing by the Town Board on at least
10 days' prior notice to the landowner of record given by overnight
mail, certified mail, return receipt requested, or other equally effective
manner of providing notice, be revoked by the Town Board. Revocation
may occur only if the Town Board finds either a) that the required
inspection has not been provided or b) that there is an unsafe condition
which poses a risk of bodily injury or significant property damage.
Upon such revocation, the facility shall be removed or dismantled
to the point of removing all unsafe conditions.
V.
Insurance.
(1)
Minimum coverages. Each PWSF permittee shall maintain in full
force and effect, throughout the term of a PWSF permit, an insurance
policy or policies. Such policy or policies shall, at a minimum, afford
insurance covering all of the permittee's operations, as follows:
(a)
Commercial general liability insurance with limits of insurance
of not less than $1,000,000 each occurrence and $3,000,000 annual
aggregate for bodily injury and property damage, including contractual
liability, personal injury, products and completed operations.
(b)
Commercial umbrella insurance with limits of not less than $5,000,000.
(c)
Pollution liability insurance, on an occurrence form, with limits
not less than $1,000,000 each occurrence and $3,000,000 annual aggregate,
with any deductible not to exceed $25,000 each occurrence.
(2)
Other insurance requirements.
(a)
Said policy or policies shall include the Town and its officers
and employees as additional insureds.
(b)
Said policy or policies shall be endorsed to provide 30 days'
advance written notice of cancellation or any material change to the
Town.
(c)
Should any of the required insurance be provided under a claims-made
form, a permittee shall maintain such coverage continuously throughout
the term of a personal wireless service facility permit, and, without
lapse, for a period of three years beyond the expiration or termination
of the permit, to the effect that, should occurrences during the term
of the permit give rise to claims made after expiration or termination
of the permit, such claims shall be covered by such claims-made policies.
(3)
Proof of Insurance. Before the Town will issue a personal wireless service facility site permit, a permittee shall furnish to the Town certificates of insurance and additional insured policy endorsements with insurers that are authorized to do business in the State of New York and that are satisfactory to the Town evidencing all coverages set forth in this Subsection V.
W.
Compliance required. A PWSF must comply at all times with:
(1)
All conditions imposed on any site plan approval, special permit
approval, and variances;
(3)
All relevant federal statutory and regulatory requirements,
including but not limited to applicable FCC maximum permissible exposure
(MPE) limits for general population/uncontrolled exposure codified
in 47 CFR 1.1310(e)(1), Table 1, or any successor regulation.
X.
Americans with Disabilities Act accommodations. The Town seeks to
comply with the Americans with Disabilities Act[5], and shall comply with same in the event that any person
who is disabled within the meaning of the Act seeks a reasonable accommodation,
to the extent that they are entitled to same under the Act.
[5]
Editor's Note: 36-26-2023 by L.L. No. 10-2023
Y.
Suspension or revocation of PWSF permit.
(1)
The Code Enforcement Officer may issue a notice of intent to
suspend or revoke a personal wireless service facility permit for
any violation. The notice of intent to suspend or revoke shall describe
the violation and require the permittee to immediately correct the
violation or cause the violation to be corrected.
(2)
The notice of intent shall be provided to the permittee by personal
service or by regular, overnight, certified or registered mail to
the address submitted with the permit application.
(3)
If the permittee fails to immediately correct the violation
or cause the violation to be corrected, the Code Enforcement Officer
shall suspend or revoke the permit.
(4)
A permittee shall be entitled to request a hearing on suspension
or revocation before the Town Board upon application made to the Town
Clerk demonstrating that the permittee was not in violation of the
permit. Such hearing shall be requested, in writing, with the request
addressed to and received by the Town Clerk within five business days
of the permittee's receipt of the notice of intent. Any suspension
or revocation remains in effect unless modified by the Town Board.
Within 30 days of the permittee's written request, the Town Board
shall hold a hearing to determine whether to reverse or modify the
suspension or revocation. The Town Board shall issue its written decision
within 15 days after the hearing.
Z.
Enforcement.
(1)
Whenever the Code Enforcement Officer finds that there has been
a violation of this section, the Code Enforcement Officer is authorized
to issue an order to remedy.
(2)
An order to remedy shall be in writing; identify the facility
at issue; specify the condition or activity that violates this section;
specify the provisions of this section which are violated by the specified
condition or activity; and include a statement that the violations
must be corrected within 30 days after the date of the order to remedy
(or, if the violations are not reasonably capable of cure within 30
days, shall include a statement that the owner or operator must commence
to cure such violations within such thirty-day period and thereafter
diligently and with continuity prosecute such cure to completion in
a period not to exceed 90 days after the Town's notice). The
order may direct the person served with the order to begin to remedy
the violation(s) immediately or within some other stated period of
time that can be less than 30 days after the date of the order; direct
that compliance be achieved within the specified period of time; and
shall state that an action or proceeding to compel compliance and/or
seek penalties, fines and/or imprisonment may be instituted if compliance
is not achieved within the specified period of time.
(3)
The order to remedy, or a copy thereof, may be served by personal
service, by mailing by registered or certified mail sent to the address
set forth in the application for any permit submitted to the Town
or to the property address, or by posting a copy thereof on the premises
that are the subject of the order to remedy and mailing a copy, enclosed
in a prepaid wrapper, addressed to the last known address of the owner
as set forth in the Town of Ithaca records, or if none, in the most
recent tax roll available to the Town of Ithaca. The Code Enforcement
Officer shall be permitted, but not required, to cause the order to
remedy, or a copy thereof, to be served on any property owner, PWSF
operator, or any other person taking part or assisting in the operation
of a PWSF at the affected property personally or by registered mail
or certified mail; provided, however, that failure to serve any person
mentioned in this sentence shall not affect the efficacy of the order
to remedy.
(4)
Civil penalties. In addition to the remedies (including fines, imprisonment and injunctive relief) provided in § 270-239 (Violations and penalties) and in Town Law § 268, any person who violates any provision of this section, any term or condition of any Personal Wireless Facility Service permit, order to remedy, or other notice or order issued by the Code Enforcement Officer pursuant to any provision of this section shall be liable for a civil penalty of not more than $5,000 for each day or part thereof during which such violation continues. The civil penalties provided by this subsection shall be recoverable in an action instituted in the name of the Town of Ithaca.
(5)
An action or proceeding in the name of the Town of Ithaca may
be commenced in any court of competent jurisdiction to prevent, restrain,
enjoin, correct, or abate any violation of, or to enforce, any provision
of this section or any term or condition of any personal wireless
service facility permit, order to remedy, or other notice or order
issued by the Code Enforcement Officer pursuant to any provision of
this section. Such remedy shall be in addition to penalties, fines
and other remedies otherwise prescribed by law.
(6)
Remedies not exclusive. No remedy, fine or penalty specified
in this section shall be the exclusive remedy, fine or penalty available
to address any violation described in this section, and each remedy,
fine or penalty specified in this section shall be in addition to,
and not in substitution for or limitation of, the other remedies,
fines or penalties specified in this section, or in any other applicable
law. Any remedy, fine or penalty specified in this section may be
pursued at any time, whether prior to, simultaneously with, or after
the pursuit of any other remedy, fine or penalty specified in this
section, in any other section of this chapter, or in any other applicable
law.
(7)
Conviction of a violation of this section shall constitute and
effect an immediate forfeiture of any permit hereunder held by the
person or entity so convicted.
AA.
Severability. If any clause, sentence, paragraph, subsection or part of this § 270-219 shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remaining portions hereof, but shall be confined to the clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered.
[Added 10-16-2006 by L.L. No. 11-2006; amended 11-7-2016 by L.L. No.
9-2016; 11-9-2020 by L.L. No. 6-2020; 6-26-2023 by L.L. No. 10-2023]
A.
Purpose. The purpose of this section is to facilitate the development and operation of renewable energy systems based on sunlight because it is in the public interest to provide for and encourage renewable energy systems and sustainability, in accordance with the Town of Ithaca Comprehensive Plan, Ithaca Town Board Resolution No. 2020-049 [Resolution in Support of a Green New Deal (GND)], and Ithaca Town Code Chapters 135 [Community Choice Aggregation (Energy) Program] and 144 (Energy Code Supplement). This section encourages agrivoltaic farming when solar energy and energy storage systems are sited on land that is well suited for agriculture production. Solar energy systems are appropriate in all zoning districts when measures are taken, as provided in this section, to minimize adverse impacts on neighboring properties and protect the public health, safety and welfare
B.
C.
General requirements.
(1)
Building permits are required for all solar energy systems.
(2)
The setbacks and approval required for each type of solar energy
system are summarized in the table titled "Setback and Yard Requirements
for Ground-Mounted Solar Energy Systems,"[1] and are further described below.
[1]
Editor's Note: Said table is included as an attachment to this chapter.
(3)
Qualified installer. All solar energy installations must be
performed by a qualified solar installer and, prior to issuance of
a certificate of compliance, must be inspected by a Town Code Enforcement
Officer or by an appropriate electrical inspection person or agency,
as determined by the Town. In addition, any connection to the public
utility grid must be approved by the appropriate public utility. No
grid-tied solar energy system may be installed until the applicant
has submitted evidence that the utility company has been informed
of the customer's intent to install an interconnected customer-owned
generator or meter, including the receipt of documentation from said
utility that it will connect the system. Off-grid systems are exempt
from this requirement.
(4)
Battery energy storage systems. When energy storage batteries
are included as part of the solar energy system, they must be placed
in a secure container or enclosure meeting the requirements of the
New York State Building Code when in use and when no longer used shall
be disposed of in accordance with the laws and regulations of Tompkins
County and other applicable laws and regulations. The on-site accumulation,
incineration, disposal, or storage of inoperable or damaged batteries
is expressly prohibited.
D.
Rooftop and building-mounted photovoltaic solar energy systems. The
following standards are applicable to rooftop and building-mounted
photovoltaic solar energy systems:
(1)
Permitted in all zones.
(2)
No size thresholds, except as limited by the New York State
Uniform Fire Prevention and Building Code.
(3)
No site plan approval is required; changes to, or the addition
of, rooftop or building-mounted photovoltaic solar energy systems
will not trigger site plan modification requirements.
(4)
Glare. All solar panels must have antireflective coating(s).
E.
Solar-thermal energy systems (rooftop, building-mounted and ground-mounted). In addition to the standards in Subsection F below, the following standards are applicable to solar-thermal energy systems:
(1)
Permitted in all zones as a principal or an accessory use.
(2)
No size thresholds, except as limited by the New York State
Uniform Fire Prevention and Building Code.
(3)
Setbacks for ground-mounted solar-thermal energy systems shall be the same as those listed in Subsection G below for ground-mounted photovoltaic solar energy systems.
(4)
No lot coverage standards apply.
(5)
No site plan approval is required; changes to, or the addition
of, solar-thermal energy systems will not trigger site plan modification
requirements.
(6)
Safety. No roof-mounted solar-thermal energy system shall be
located in a manner that would cause the shedding of ice or snow from
the roof into an open porch, stairwell or pedestrian travel area.
F.
Standards applicable to all ground-mounted photovoltaic and ground-mounted
solar-thermal energy systems.
(1)
Height. The maximum height for all ground-mounted systems is
20 feet when the system is oriented at maximum tilt. For farms in
the Agricultural and Low Density Residential Zones that utilize agrivoltaic
farming, the Planning Board may approve a greater height if it finds
a greater height is necessary to accommodate continued or new agricultural
activity.
(3)
Maintenance. The owner and operator (if different from the owner)
shall maintain the facility in good condition. Maintenance shall include,
but not be limited to, structural repairs and integrity of security
measures.
(4)
Abandonment. If after a solar energy system becomes operational
it ceases to perform its originally intended function for more than
six continuous months (or for 12 of any 18 months), the solar energy
system is deemed abandoned. The property owner and operator (if different
from the owner) shall remove the collectors, plates, piping, mounts
and associated equipment and facilities by no later than 180 days
after the solar energy system is deemed abandoned. Upon request of
the owner or operator, the Planning Board shall hold a public hearing
and determine whether to extend the time limit before the system is
deemed abandoned. Upon a finding that the applicant could not make
the system function as intended for the required duration because
of circumstances beyond the applicant's control (such as supply
chain issues), the Planning Board may extend the time limit and impose
conditions as it deems appropriate. An application for such extension
must be made by no later than 15 days before the solar energy system
would be deemed abandoned pursuant to the first sentence of this subsection.
(5)
Solar energy systems may be built across common lot lines by
mutual agreement among all property owners. Mutual easements allowing
such systems are required where lot ownership is not identical. Solar
energy systems that are built across common lot lines may be a principal
use on one or more lots, and/or an accessory use on one or more lots,
provided that the use is allowed in the relevant zone.
G.
Additional standards for ground-mounted photovoltaic solar energy
systems.
(1)
Ground-mounted photovoltaic systems are divided into three size
categories, as follows:
(a)
Small-scale ground-mounted photovoltaic systems have a total
solar facility footprint of 2,000 square feet or less.
(b)
Medium-scale ground-mounted photovoltaic systems have a total
solar facility footprint of more than 2,000 square feet up to and
including 7,000 square feet.
(c)
Large-scale ground-mounted photovoltaic systems have a total
solar facility footprint greater than 7,000 square feet up to a maximum
of 35 acres.
(2)
Standards applicable to ground-mounted photovoltaic systems
based on scale size.
(a)
Small-scale photovoltaic solar energy system standards:
[1]
Permitted in all zones as principal and accessory
uses.
[2]
Setbacks (measured from the lot line to the closest
part of the photovoltaic solar energy system):
[a]
Ten feet minimum from side and rear yard lot lines.
[b]
Minimum setback from front lot line equals the
maximum number of feet for required front yards in the zone, except
in Light Industrial, Industrial and Planned Development Zones.
[c]
In Light Industrial, Industrial and Planned Development
Zones, the minimum setback from front lot line is 50 feet.
[3]
Lot coverage. The solar facility footprint of the
system, when combined with all other buildings and structures on the
lot, shall not exceed 120% of the maximum lot coverage, building area,
and yard occupancy requirements for the zone.
[4]
Site plan review: not required, unless the photovoltaic
solar energy system is part of an overall new development plan or
modification of an existing plan that otherwise triggers site plan
review.
(b)
Medium-scale photovoltaic solar energy system standards:
[1]
Permitted use:
[a]
Accessory use in the following zones: Medium Density
Residential, High Density Residential, Mobile Home Park, Multiple
Residence, Conservation, Neighborhood Commercial, Community Commercial,
and Planned Development Zones.
[b]
Principal and accessory uses in the following zones:
Agricultural, Low Density Residential, Light Industrial, Industrial,
and Office Park Commercial Zones.
[2]
Setbacks (measured from the lot line to the closest
part of the photovoltaic solar energy system):
[a]
Sixty feet minimum from a lot line (except from
a front lot line) that abuts property in any zone except a commercial
or industrial zone.
[b]
Thirty feet minimum from a lot line (except from
a front lot line) that abuts property in a commercial or industrial
zone.
[c]
Minimum setback from front lot line equals the
maximum number of feet for required front yards in the zone, except
in Light Industrial and Industrial Zones.
[d]
In Light Industrial and Industrial Zones, minimum
setback from front lot line is 50 feet.
[e]
Roads, landscaping and fencing may occur within
the setback.
[3]
Lot coverage. The solar facility footprint of the
system, when combined with all other buildings and structures on the
lot, shall not exceed 120% of the maximum lot coverage, building area,
and yard occupancy requirements for the zone.
[4]
Site plan review:
[a]
Required in Low Density Residential, Medium Density
Residential, High Density Residential, and Planned Development Zones.
[b]
In other zones, not required unless the photovoltaic
solar energy system is part of an overall new development plan or
modification of an existing plan that would require site plan review
even if the photovoltaic solar energy system was not part of the plan.
[5]
Design standards.
[a]
Fencing. Chain-link, barbed, razor, and concertina
wires, electrically charged wire, railroad ties, concrete masonry
units, scrap metal, tarped, and cloth fences are not permitted as
fencing.
[b]
Glare. Photovoltaic solar energy systems and other
facilities shall be designed and located in order to minimize reflective
glare toward roads or any habitable or occupiable building on adjacent
properties.
(c)
Large-scale photovoltaic solar energy system standards:
[1]
Permitted use:
[a]
Principal and accessory uses in the Large-Scale
Photovoltaic Solar Energy System Overlay District, which is superimposed
on underlying (base) zones.
[b]
Accessory use in Planned Development Zones; principal
use only if the individual Planned Development Zone specifically allows
it as a permitted principal use.
[2]
Setbacks (measured from the lot line to the closest
part of the photovoltaic solar energy system):
[3]
Lot coverage. The maximum solar facility footprint
of a system is 35 acres. The coverage of photovoltaic solar energy
systems shall not count in the computation of lot coverage, building
area, and yard occupancy.
[4]
Site plan review is required prior to construction, installation or modification. In addition to the application requirements for site plan review per Town Code § 270-186, the following additional information is required to be submitted as part of the site plan application:
[a]
Utility notification: submission of documentation
from the utility company that operates the electrical grid where the
installation is to be located confirming that the grid can support
the proposed installation, by delivery of a valid preliminary interconnection
report or Coordinated Electric System Interconnect Review (CESIR)
report issued for the project. Off-grid systems shall be exempt from
this requirement.
[b]
Safety. The owner or operator shall provide evidence
that a copy of the site plan application has been submitted to the
appropriate Fire Chief (Ithaca Fire Department or Cayuga Heights).
All means of shutting down the photovoltaic solar energy system shall
be clearly marked on the site plan and building permit applications.
[c]
Operation and maintenance plan: submission of a
plan for the operation and maintenance of the facility, to include
measures for maintaining safe access, operational maintenance of the
photovoltaic solar energy system, any anticipated agrivoltaic farming
use, and general property upkeep, such as mowing and trimming.
[d]
Utility Plan: location and nature of any proposed
utility easements and infrastructure, including a one- or three-line
electrical diagram detailing the entire solar energy system layout,
including the number of solar panels in each ground-mounted array,
solar collector installation, associated components, inverters, electrical
interconnection methods, and utility meter, with all National Electrical
Code compliant disconnects and overcurrent devices. The diagram must
describe the location and layout of all energy storage system components,
if applicable, and must include applicable setback and other bulk
and area standards.
[e]
Documentation of solar collector type, including
but not limited to equipment specification sheets for all solar panels
and collectors, significant components, mounting systems, and inverters
that are to be installed, as well as proposed solar energy production
nameplate capacity design levels proposed for the solar energy system
and the basis for the calculations of the area of the solar energy
system's nameplate capacity.
[f]
Documentation of energy storage system components
and fire safety compliance plan. Such plans shall document and verify
that the system and its associated controls and safety systems are
in compliance with the applicable Fire Code of New York State, including
procedures for safe shutdown, de-energizing, or isolation of equipment
and systems under emergency conditions and emergency procedures to
be followed in case of fire, explosion, release of liquids or vapors,
damage to critical moving parts, or other potentially dangerous conditions.
[g]
A stormwater pollution prevention plan (SWPPP) as required by Ithaca Town Code Chapter 228 (Stormwater Management and Erosion and Sediment Control).
[h]
Visual assessment of the visual impacts of the
photovoltaic solar energy system. At a minimum, this assessment shall
include:
[i]
Line-of-sight profile analysis;
[ii]
The locations, elevations, height, plant species,
and/or materials that will comprise the structures, landscaping, and/or
grading used to screen and/or mitigate any adverse aesthetic effects
of the system;
[iii]
Visual simulations, including photographic images,
depicting the maximum height of the proposed system components (including
all portions and attachments to the system), taken from the perspectives
of the public right-of-way and of any properties situated in closest
proximity to the location being proposed for the system siting. Photos
should also be taken from the perspectives of any properties that
would reasonably be expected to sustain significant adverse aesthetic
impacts due to their elevation relative to the site, or the system
location and the property location;
[iv]
Before and after renderings; and
[v]
Possible impacts to any important/scenic views
listed in the Tompkins County or Town of Ithaca Scenic Resources Inventories.
[i]
A decommissioning plan to be implemented as specified in this section to ensure that the site will be restored to a useful and nonhazardous condition, with a time frame provided for the completion of the work, and related securitization of such obligation, as further set forth in Subsection G(2)(c)[7] below. The decommissioning plan shall, at a minimum, contain the following elements and meet the following requirements.
[i]
Specify when and what constitutes an event requiring decommissioning, which must include at a minimum the following events requiring decommissioning: the Town notifies the owner and operator (if different from the owner) to implement the decommissioning plan pursuant to Subsection G(2)(c)[8][a] below; the lack of production for six continuous months (or for 12 of any 18 months) after the system becomes operational, unless the Planning Board grants an extension pursuant to Subsection F(4) above; the lack of a current permit; failure to maintain any required decommissioning bond or other security; a violation of any site plan conditions or permit conditions that continues more than 30 days after the Town provides written notice of such violation (or, if the violation is not reasonably capable of cure within 30 days, if the owner or operator fails to commence to cure such violation within such thirty-day period and thereafter diligently and with continuity prosecute such cure to completion in a period not to exceed 90 days after the Town's notice.)
[ii]
Specify the form and type of notice to be provided
to the Town in the event of any decommissioning, sale, transfer, partial
transfer, assignment, or occurrence of any event which may result
in an act or partial order requiring partial or complete decommissioning
of the site.
[iii]
Specify the means and methods by which utility
interconnections will be removed in accordance with the utility provider's
requirements, as well as all electrical and other safety precautions
to be undertaken during removal.
[iv]
Specify the timeline and means and methods for
removal and disposition of all solar panels, battery energy storage
systems, electrical appurtenances, structures, equipment, security
barriers and transmission lines within 180 days of the date decommissioning
is required.
[v]
Specify the means and methods to minimize disruption
to field drains and soils; remediate drains and soils; and avoid or
minimize erosion, including stabilization and revegetation of any
sites with native seed mixes, excluding any invasive species. The
plan shall require decompaction of soils to 18 inches and removal
of any installed materials to four feet, unless the Town Engineer
allows the owner or operator to leave landscaping or designated below-grade
foundations, piers, footers, or other supports in place to minimize
erosion and disruption to vegetation. The plan shall further specify
that underground electric lines shall be abandoned in place, and access
roads in agricultural areas shall be removed unless otherwise specified
by the landowner.
[vi]
Specify disposal of all solid and hazardous wastes
in accordance with local, state, and federal waste disposal regulations,
including the removal of any contaminated soils. To the extent permitted
by law, no designation of any facilities by a beneficial use declaration
shall be permitted to vary this cleanup and remediation/disposal rule.
[vii]
Include an expected timeline for decommissioning
plan execution, together with a cost estimate prepared and sealed
by a licensed engineer detailing the projected cost of executing the
decommissioning plan.
[j]
For applications that do not propose agrivoltaic
farming, a vegetation management plan per the design standards below.
[5]
Design standards.
[a]
Fencing. Chain-link, barbed, razor, and concertina
wires, electrically charged wire, railroad ties, concrete masonry
units, scrap metal, tarped, and cloth fences are not permitted as
fencing.
[i]
When fencing will enclose the perimeter of the
site or facility, wildlife-friendly fencing that allows the passage
of small mammals and reptiles and is designed to minimize wildlife
injury and death due to entanglement or strangulation shall be used
on sites having a solar facility footprint greater than three acres.
Exceptions can be made by the Planning Board for sites that are not
in rural locations and have limited surrounding wildlife habitat.
[ii]
Mechanical equipment, and any structure for energy
storage system components, shall be enclosed by a seven-foot-high
fence, or the height required by the National Electrical Code if it
requires more than seven feet, with a self-locking gate to prevent
unauthorized access.
[b]
Vegetation management plan.
[i]
Removal of trees and other existing vegetation shall be limited to what is necessary for the construction, operation and maintenance of the photovoltaic solar energy system, but in no case may such removal exceed the following. For parcels that are 10 acres or less, clear-cutting (which is defined in § 270-5) shall not occur on more than 20% of the lot. For lots that exceed 10 acres, clear-cutting shall not occur on more than 20% of 10 acres on the lot, and clear-cutting shall not occur on more than 10% of the balance of the acreage on the lot.
[ii]
When siting solar on soils classified by the U.S.
Department of Agriculture's Natural Resources Conservation Service
as prime farmland or farmland of statewide importance, applicants
must utilize agrivoltaic farming where practicable. Applicants that
do not propose agrivoltaic farming on such land shall develop, implement,
and maintain a vegetation management plan by providing native perennial
vegetation and foraging habitat beneficial to game birds, songbirds,
and pollinators. To the extent practicable, when establishing perennial
vegetation and beneficial foraging habitat, the owners shall use native
plant species and seed mixes and seed all appropriate areas within
the solar facility footprint. Any project which is designed to incorporate
agrivoltaic farming or farm or uses within the solar facility footprint
may be excluded from this requirement based on the amount of space
actually occupied by the agricultural activity. This exclusion will
only be allowed based on a Planning Board determination that these
lands are being used for agricultural uses.
[c]
Glare. Photovoltaic solar energy systems and other
facilities shall be designed and located in order to minimize reflective
glare toward roads or any habitable or occupiable building on adjacent
properties.
[d]
Roads. Roadways within the site shall be designed
to minimize the width and extent of roadway construction and soil
compaction.
[e]
Screening/buffering. Based on site-specific conditions,
including topography, adjacent structures, and roadways, practicable
efforts shall be made to minimize visual impacts by preserving natural
vegetation and providing dense landscape year-round screening to abutting
residential properties and roads, but the screening should minimize
shading of photovoltaic solar energy systems.
[f]
Lighting. All lighting on the site related to the photovoltaic solar energy system shall comply with the Town's Outdoor Lighting Law (Ithaca Town Code Chapter 173) and be limited to that required for safety and operational purposes.
[h]
Utility connections. Reasonable efforts shall be
made to place all utility lines from the photovoltaic solar energy
system underground, depending on appropriate soil conditions, shape
and topography of the site, financial feasibility, and any requirements
of the utility provider. When aboveground cables and transmission
lines must cross agricultural fields, utility poles should be located
on field edges to the greatest extent practicable to avoid bisecting
of agricultural lands. Electrical transformers for utility interconnections
may be aboveground if required by the utility provider.
[i]
Noise-generating inverters shall be located as
far away from adjacent property lines as possible.
[j]
The Planning Board may specify freestanding ballast
or racking systems if the Town Engineer recommends such a system.
[6]
Construction standards.
The following standards apply to the construction, restoration,
and follow-up monitoring of solar energy projects impacting soils
classified by the U.S. Department of Agriculture's Natural Resources
Conservation Service as prime farmland or farmland of statewide importance.
An environmental monitor (EM) shall be hired by the applicant, at
the discretion of the Town, to oversee construction, restoration and
follow-up monitoring.
The EM shall be an individual with a confident understanding
of normal agriculture practices [such as cultivation, crop rotation,
nutrient management, drainage (subsurface and/or surface), chemical
application, agricultural equipment operation, fencing, soils, plant
identification, etc.] and able to identify how the project may affect
the site and the applicable agricultural practices. The EM should
also have experience with or understanding of the use of a soil penetrometer
for compaction testing and recordkeeping. The EM may serve dual inspection
roles associated with other project permits and/or construction duties,
if the agricultural workload allows. The EM should be available to
provide site-specific agricultural information as necessary for project
development through field review and direct contact with both the
affected farm operators and the New York State Department of Agriculture
and Markets (NYSDAM). The EM should maintain regular contact with
appropriate on-site project construction supervision and inspectors
throughout the construction phase. The EM should maintain regular
contact with the affected farm operator(s) concerning agricultural
land impacted, management matters pertinent to the agricultural operations
and the site-specific implementation of agricultural resource mitigation
measures. The EM will serve as the agricultural point of contact.
[a]
For projects involving less than 10 acres of prime
farmland or farmland of statewide importance, the construction manager
or some other on-site personnel may serve as the EM. The EM must be
on-site whenever construction or restoration work is occurring on
agricultural land.
[b]
For projects involving 10 acres or more of prime
farmland or farmland of statewide importance, the EM shall be on-site
whenever construction or restoration work is occurring on agricultural
land and shall coordinate with the New York State Department of Agriculture
and Markets, Division of Land and Water Resources, to develop an appropriate
schedule for project inspections.
[c]
The EM shall contact the New York State Department
of Agriculture and Markets, Division of Land and Water Resources,
if farm resource concerns or management matters pertinent to the agricultural
operation and site-specific implementation conditions found below
cannot be resolved.
[d]
Construction requirements:
[i]
The surface of access roads constructed through
agricultural fields shall be level with the adjacent field surface.
[ii]
Access roads shall be located along the edge of
agricultural areas, in areas next to hedgerows and field boundaries,
and in nonagricultural areas of the site to the greatest extent practicable.
[iii]
The width of access roads across or along agricultural
fields shall be no wider than 20 feet so as to minimize the loss of
agricultural lands while maintaining compliance with New York State
Uniform Fire Prevention and Building Codes for emergency vehicle access.
[iv]
Culverts and waterbars shall be installed, where
necessary, to maintain natural drainage patterns.
[v]
All topsoil from agricultural areas used for vehicle
and equipment traffic, parking, and equipment laydown and storage
areas shall be stripped and stockpiled. All vehicle and equipment
traffic and parking shall be limited to the access road and/or designated
work areas, such as laydown areas. Vehicles and equipment shall not
be allowed outside the work area without prior approval from the landowner
and, when applicable, the environmental monitor.
[vi]
Topsoil stripped from work areas (parking areas,
electric cable trenches, along access roads) shall be stockpiled separately
from other excavated material (rock and/or subsoil). A minimum of
50 feet of temporary workspace shall be provided along open-cut electric
cable trenches for proper topsoil segregation. All topsoil shall be
stockpiled immediately adjacent to the area where stripped/removed
and shall be used for restoration on that particular site. Topsoil
stockpile areas shall be clearly designated in the field and on construction
drawings.
[vii]
Electric interconnect cables and transmission
lines installed aboveground can create long-term interference with
mechanized farming on agricultural land. Therefore, interconnect cables
shall be buried in agricultural fields wherever practicable. Interconnect
cables and transmission lines installed aboveground shall be located
outside field boundaries wherever possible. When aboveground cables
and transmission lines must cross farmland, minimize agricultural
impacts by using taller structures that provide longer spanning distances
and locate poles on field edges to the greatest extent practicable.
[viii]
All buried electric cables in cropland, hayland
and improved pasture shall have a minimum depth of 48 inches of cover.
In unimproved grazing areas and land permanently devoted to pasture,
the minimum depth of cover shall be 36 inches. In areas where the
depth of soil over bedrock ranges from zero inches to 48 inches, the
electric cables shall be buried entirely below the top of the bedrock
or at the depth specified for the particular land use, whichever is
less. At no time shall the depth of cover be less than 24 inches below
the soil surface.
[ix]
When buried electric cables alter the natural
stratification of soil horizons and natural soil drainage patterns,
the effects shall be rectified with measures such as subsurface intercept
drain lines. The Tompkins County Soil and Water Conservation District
shall be consulted concerning the type of intercept drain lines to
be installed to prevent surface seeps and the seasonally prolonged
saturation of the cable installation zone and adjacent areas. All
drain lines shall be installed in accordance with Natural Resources
Conservation Service standards and specifications. Drain tile shall
meet or exceed the AASHTO M252 specifications.
[x]
Existing drainage and erosion control structures,
such as diversions, ditches, and drain tile, shall remain undamaged
and protected. Where existing drainage and erosion control infrastructure
must be removed, appropriate measures shall be taken to maintain the
design and effectiveness of the originally installed structures. Drainage
and erosion control structures disturbed during construction shall
be repaired or replaced to as close to original condition as possible,
unless said structures are to be eliminated based upon the large-scale
ground-mounted solar PV system site plan approval.
[xi]
All excess subsoil and rock shall be removed from
the site. On-site disposal of such material shall only be allowed
if approved by the landowner, with appropriate consideration given
to any possible agricultural or environmental impacts. Any permits
necessary for disposal under local, state and/or federal laws and
regulations shall be obtained by the contractor, with the cooperation
of the landowner when required.
[xii]
All pieces of unused wire, bolts, and other metal
objects shall be removed and properly disposed of as soon as practical
to prevent mixing with any topsoil.
[xiii]
Excess concrete shall not be buried or left
on the surface in active agricultural areas. Concrete trucks shall
be required to use designated washout stations located outside of
agricultural areas.
[xiv]
In pasture areas, it may be necessary to construct
temporary or permanent fences around work areas to prevent livestock
access, consistent with landowner agreements.
[e]
Restoration requirements. All agricultural areas
temporarily disturbed by construction shall:
[i]
Be decompacted to a depth of 18 inches with a deep
ripper or heavy-duty chisel plow. Soil compaction results should be
no more than 250 pounds per square inch (psi) as measured with a soil
penetrometer. In areas where the topsoil was stripped, soil decompaction
should be conducted prior to topsoil replacement. Following decompaction,
remove all rocks four inches and larger in size from the surface of
the subsoil prior to replacement of topsoil. Replace the topsoil to
original depth and reestablish original contours where possible. Remove
all rocks four inches and larger from the surface of the topsoil.
Subsoil decompaction and topsoil replacement shall be avoided between
the months of October and May unless favorable soil moisture conditions
exist.
[ii]
Regrade all access roads to allow for farm equipment
crossing and to restore original surface drainage patterns, or other
drainage pattern incorporated into site plan design, approved by the
Planning Board.
[iii]
Seed all restored agricultural areas with the
seed mix specified by the landowner, in order to maintain consistency
with the surrounding areas.
[iv]
All surface or subsurface drainage structures
damaged during construction shall be repaired to as close to preconstruction
conditions as possible, unless said structures are to be removed as
part of the site plan approval. All surface or subsurface drainage
problems resulting from construction of the large-scale ground-mounted
solar PV system shall be corrected with the appropriate mitigation
as determined by the EM, Tompkins County Soil and Water Conservation
District and the landowner.
[v]
Restoration practices shall be postponed until
favorable (workable, relatively dry) topsoil/subsoil conditions exist.
Restoration is not to be conducted while soils are in a wet or plastic
state. Stockpiled topsoil shall not be regraded and subsoil shall
not be decompacted until plasticity, as determined by the Atterberg
field test, is adequately reduced. No project restoration activities
shall occur in agricultural fields between the months of October and
May unless favorable soil moisture conditions exist.
[vi]
Following site restoration, all construction debris
shall be removed from the site.
[f]
Monitoring and remediation requirement. Immediately
following site restoration, the applicant shall provide a monitoring
and remediation period of no less than two years. On-site monitoring
shall be conducted seasonally at least three times during the growing
season (spring, summer and fall). The monitoring and remediation period
allows for the effects of climatic cycles such as frost action, precipitation
and growing seasons to occur, from which various monitoring determinations
can be made. The monitoring and remediation phase is used to identify
any remaining agricultural impacts associated with construction that
may be in need of mitigation and to implement the follow-up restoration.
The EM shall consolidate each applicable growing season's observation
into an annual report during the monitoring period and shall be provided
to the Town of Ithaca.
[i]
General conditions to be monitored shall include
topsoil thickness, relative content of rock and large stones, trench
settling, crop production, drainage and repair of severed subsurface
drain lines, fences, and any other conditions the Planning Board shall
deem appropriate.
[ii]
Topsoil deficiency and trench settling shall be
mitigated with imported topsoil that is consistent with the quality
of topsoil on the affected site. All excess rocks and large stones
are to be removed from the site.
[7]
Security.
[a]
As security for the performance of decommissioning
requirements in this section, the owner and operator (if different
from the owner) of a large-scale photovoltaic solar energy system
shall, upon the granting of required approvals and permits under this
section and prior to the installation of any portion of the system,
execute and file with the Town Clerk a bond, letter of credit or other
form of security or undertaking which shall be approved by the Attorney
for the Town and the Town Engineer as to amount, form, manner of execution,
and sufficiency for surety. The security shall remain in full force
and effect until the removal of all system components (including solar
collectors, driveways, structures, lighting, utilities, fencing, gates,
and accessory equipment), and all site restoration have been completed.
The value of the security shall be equal to 125% of the cost of facility
removal and restoration of the site, as determined by the Town Engineer
after evaluation of the applicant's decommissioning cost estimate
submitted as part of its application.
[b]
At least once every three years after any approval
or permit is issued by the Town, the owner and operator (if different
from the owner) of the system shall provide updated cost estimates,
prepared and sealed by a licensed engineer, for removal of all system
components and all site restoration, and if the resulting 125% cost
requirement shows that the existing security is monetarily insufficient,
then the owner and operator (if different from the owner) shall update
such security or see to its replacement or supplementation in an amount
to equal such updated 125% cost number.
[8]
Decommissioning.
[a]
In the event the photovoltaic solar energy system
is not completed and functioning within 18 months of the issuance
of the initial building permit, the Town may notify the owner and
operator (if different from the owner) to complete construction and
installation of the facility within 180 days of the date of notification.
If the owner or operator fails to perform, the Town may notify the
owner and operator to implement the decommissioning plan.
[b]
The owner and operator (if different from the owner) shall implement the decommissioning plan if any of the following occurs: the Town notifies the owner and operator (if different from the owner) to implement the decommissioning plan pursuant to Subsection G(2)(c)[8][a] above; the lack of production for six continuous months (or for 12 of any 18 months) after the system becomes operational, unless the Planning Board grants an extension pursuant to Subsection F(4) above; the lack of a current permit; failure to maintain any required decommissioning bond or other security; a violation of any site plan conditions or permit conditions that continues more than 30 days after the Town provides written notice of such violation (or, if the violation is not reasonably capable of cure within 30 days, if the owner or operator fails to commence to cure such violation within such thirty-day period and thereafter diligently and with continuity prosecute such cure to completion in a period not to exceed 90 days after the Town's notice); any other event occurs that requires decommissioning as stated in the decommissioning plan.
[c]
If the owner and operator (if different from the
owner) fail to fully implement the decommissioning plan within 180
days, then in addition to other remedies provided by this section
or chapter, by New York Town Law § 268, or by law or equity,
the Town may utilize the following procedure to remove a photovoltaic
solar energy system and/or implement a decommissioning plan:
[i]
The Code Enforcement Officer may order removal
of such photovoltaic solar energy system and/or implementation of
the decommissioning plan by written notice to the owner or person,
company or other entity having control of the system, and to the owner
of the lot on which such system is located. The notice shall set forth
a deadline by which such removal and/or plan implementation must be
completed. Said notice shall further advise that, should the violator
fail to so act within the established deadline, the removal and/or
plan implementation may be performed by a designated governmental
agency or a contractor, with the expense thereof to be charged to
the violator and/or to become a lien against the premises.
[ii]
If the photovoltaic solar energy system is not
removed and/or the actions in the decommissioning plan are not completed
within the period set forth in the Town's notice or Town Board's
decision after any appeal thereof pursuant to Subsection G(2)(c)[8][c][iv]
below, the Town may enter the premises to remove the system, cause
the removal to be performed, and/or implement the decommissioning
plan. The Town's entry onto such premises shall be pursuant to
an agreement between the Town and landowner. If no agreement exists
or can be obtained in a timely manner, the Town may seek a warrant
from a court of competent jurisdiction for access to the premises
and/or may seek a court order requiring or authorizing all actions
reasonably necessary to remove the system and/or implement the decommissioning
plan, with the costs of such actions the sole responsibility of the
violator.
[iii]
In the absence of adequate financial surety (because
none is required for small- and medium-scale facilities, or if the
Town does not recover its costs and expenses from financial security
required for large-scale facilities), the Town shall present the landowner
with a bill for all costs and expenses incurred by the Town in connection
with the photovoltaic solar energy system removal and/or decommissioning
plan implementation. If the landowner shall fail to pay such costs
and expenses within 15 days after the demand for same, or within 30
days of the final decision on any administrative or judicial contest
the landowner may pursue, then such unpaid costs, expenses and interest
(at the statutory interest rate for money judgments in New York State
courts) incurred from the date of the system removal and/or completion
of the decommissioning plan shall constitute a lien upon the land
on which such removal was undertaken. A legal action or proceeding
may be brought to collect such costs, expenses, interest, and recoverable
attorney's fees, or to foreclose such lien. As an alternative
to the maintenance of any such action, the Town may file a certificate
with the Tompkins County Department of Assessment stating the costs
and expenses incurred and interest accruing as aforesaid, together
with a statement identifying the property and landowner. The Tompkins
County Department of Assessment shall, in the preparation of the next
assessment roll, assess such unpaid costs, expenses and interest upon
such property. Such amount shall be included as a special ad valorem
levy (administered as a move tax) against such property, shall constitute
a lien, and shall be collected and enforced in the same manner, by
the same proceedings, at the same time, and under the same penalties
as are provided by law for collection and enforcement of real property
taxes in the Town of Ithaca. The assessment of such costs, expenses
and interest shall be effective even if the property would otherwise
be exempt from real estate taxation.
[iv]
Appeals of notices and Town bills. Any person
receiving a notice to remove a photovoltaic solar energy system and/or
implement a decommissioning plan, or a bill for Town costs and expenses,
may appeal to the Town Board by, within 15 days of receipt of such
notice or bill, delivering to the Town Clerk at the Town offices an
appeal requesting a reconsideration and administrative hearing before
the Town Board. Such appeal shall state the basis for the request
for reconsideration and shall be accompanied by any supporting materials.
Failure to serve such an appeal within 15 days shall be deemed a waiver
of any claim or defense that the notice or bill is not justified,
and the violator shall comply with the requirements of the notice
or pay the bill. If the appeal is timely filed, the Town Board shall,
within 40 days of the filing, hold a hearing and, based upon any relevant
materials presented by the Town and the appellant, shall issue a resolution
deciding the appeal within 30 days after the hearing. Such resolution
shall be filed with the Town Clerk, who shall arrange for delivery
of a copy of the decision to the appellant within five days after
such filing, at the address for such person designated in the appeal
or at such other address as the appellant may thereafter designate
in writing to the Town Clerk. The Town Board's decision after
the hearing shall constitute a final agency action.
[Added 2-12-2007 by L.L. No. 1-2007]
Home occupations shall meet all of the following
requirements:
A.
An area of no more than 25% of the floor space of
the dwelling (whether the home occupation is conducted in the dwelling
or in an accessory building) or 500 square feet (whichever is less)
shall be used for the home occupation.
B.
No more than four persons (full- or part-time), including
the household resident, shall be involved in on-site business operations.
C.
The owner and chief operating officer of the business
must be a full-time resident of the property on which the business
is conducted.
D.
No goods shall be offered for sale on the premises
excepting those created, assembled, or reconditioned completely on
the property.
E.
There shall be no exterior display or sign except as permitted by Article XXIX, Signs, no exterior storage of materials, equipment (including commercial vehicles), or other items of commerce, and no other exterior indication of the home occupation or variation from the residential character of the lot, district or surrounding neighborhood.
[Amended 8-7-2017 by L.L. No. 12-2017]
F.
No offensive noise, vibration, smoke, dust, odor,
heat, glare or electronic disturbance shall be produced beyond the
boundary line of the property occupied by the business.
G.
The business shall not generate traffic in any greater
volume than would normally be expected in a residential neighborhood,
and any need for parking generated by the use shall be met off the
street and in accordance with any other regulation of this chapter.
H.
The business or use shall not be detrimental to the
residential character of the lot on which the business is located
nor of the surrounding neighborhood.
I.
The lot on which the business is operated shall be
large enough to allow such business to be conducted with minimal impact
on the neighbors.
J.
All business activities that are conducted within
the bounds of the lot on which the business is located must be conducted
wholly within the dwelling or accessory building.
[Added 8-13-2007 by L.L. No. 7-2007]
A.
Amateur radio facilities located within a building
are permitted in all zoning districts in the Town.
B.
Amateur radio facilities located outside of a building are permitted as specified in Articles V through XX of this chapter and shall meet all of the following requirements:
(1)
The height of each amateur radio facility shall
not exceed 65 feet from the ground elevation, except in an NT-3, NT-4,
NT-4u, or NT-5 zone, requirements for amateur radio facility height
in the New Neighborhood Code apply. (See § 272-603.10.)
[Amended 11-9-2020 by L.L. No. 6-2020]
(2)
Where the amateur radio facilities are an accessory
use, they shall be located on the roof of a building, or in a side
or rear yard only, except feed lines connecting the radio to the antenna
and rotor control wires may also be located in a front yard.
(3)
The location of the amateur radio facilities
shall meet all applicable setback and buffer requirements of the zone
in which they are located.
(4)
A fall zone must exist around any tower constructed
as part of an amateur radio facility and must have a radius at least
equal to the height of the tower and any attached antennas. The fall
zone may not include public roads and must be entirely located on
the property on which the amateur radio facilities are located and/or
on property which the tower user owns or for which the tower user
has obtained an easement.
(5)
Any towers shall not be artificially lighted
or marked beyond the requirements of the Federal Aviation Administration
or any successor agency.
(6)
Co-location of equipment or facilities that
are not used for amateur radio purposes on an amateur radio tower
is prohibited.
(7)
The placement of more than two amateur radio
towers on one lot is permitted only upon receipt of a special permit
for same from the Planning Board in accordance with the procedures
set forth in this chapter.
C.
An accessory building that is part of an amateur radio
facility is subject to all requirements applicable to accessory buildings
other than garages in the zone in which it is located, except such
accessory buildings may be located in side yards as well as rear yards.
D.
Where site plan approval is required elsewhere in this chapter for a development or activity, the site plan review shall include review of the adequacy, location, arrangement, size, design, and general site compatibility of proposed amateur radio facilities. Where a site plan exists, an approved modified site plan shall be required if any of the thresholds specified in § 270-191 of this chapter are met, including but not limited to proposed changes to or additions of amateur radio facilities where such changes or additions meet a § 270-191 threshold.
E.
If a tower that is part of an amateur radio facility
ceases to perform its originally intended function for more than 12
consecutive months, the property owner shall remove the tower, antennas,
mounts and associated equipment and facilities by no later than 90
days after the end of the twelve-month period.
[Added 8-11-2008 by L.L. No. 13-2008]
A.
Findings. The Town of Ithaca finds that wind is an
abundant and renewable source of energy. The conversion of wind energy
into usable forms of energy will reduce dependence on nonrenewable
energy sources such as coal, gas and oil, the use of which not only
releases harmful pollutants into the atmosphere but also contributes
to phenomena such as global warming/climate change. Furthermore, wind
energy facilities also enhance the reliability of the power grid,
reduce peak power demands and help diversify the state's energy portfolio
and will help to insulate residents in the Town of Ithaca from increasing
energy costs associated with the depletion of fossil fuels such as
coal, gas and oil.
B.
Purpose. The purpose of this section is to promote
the public safety and welfare by fostering the small-scale development
of the Town of Ithaca's wind power resources and by providing standards
for the safe provision of small wind energy facilities.
C.
Development standards. Small wind energy facilities
are permitted in all zoning districts in the Town as accessory structures
providing power primarily to structures on the same lot, and as principal
structures providing power primarily to structures on an adjacent
lot, with any excess power net-metered to the public utility system
if the facility is grid-connected, subject to the following requirements:
(1)
Small wind energy facilities are permitted as
a matter of right, except facilities located in or within 500 feet
of public parkland, a natural area (as defined in this chapter), or
nature preserves (as designated by the Town of Ithaca, Cornell Plantations
or a land trust), or within 500 feet of the ordinary high-water line
of the Cayuga Lake shoreline, shall be permitted only upon receipt
of a special permit for same by the Planning Board in accordance with
the procedures set forth in this chapter. Notwithstanding the foregoing,
building-mounted small energy facilities shall not require a special
permit, regardless of location in or proximity to such areas or the
Cayuga Lake shoreline.
(2)
No small wind energy facility shall exceed 145 feet in height as measured from the lowest level or portion of the wind energy facility (slab or base) in contact with the ground surface to the highest point of any part of the facility, with moving parts measured at the highest points of their extension (see Figure 1 below). Building-mounted small wind energy facilities are subject to the height restrictions in § 270-219.4E.
 |
|
Figure 1. Illustration of Maximum Height (Horizontal
and Vertical Axis Facilities)
|
(3)
The fall zone around any ground-mounted tower
constructed as part of a small wind energy facility shall be a circular
area around the tower, the center point of which is marked by the
center of the base of the tower, with a radius at least equal to the
facility's height plus 10 feet. The entire fall zone may not include
public roads, overhead transmission lines, aboveground fuel storage
or pumping facilities, or human-occupied buildings and must be located
on property owned by the tower owner or for which the owner has obtained
an easement or deed restriction. The minimum setback between the center
of the base of the tower and any unoccupied buildings or other structures
is 15 feet.
(4)
No exposed moving part of any small wind energy
facility shall, at the lowest point of its extension, be less than
30 feet above the ground. Notwithstanding the foregoing, the lowest
extension of any blade or other exposed moving component of a building-mounted
small wind energy facility shall be at least 15 feet above the ground
(at grade level) and in addition at least 15 feet above any outdoor
surfaces intended for human occupancy, such as balconies or roof gardens,
that are located directly below the facility.
(5)
For wind speeds in the range of zero miles per
hour to 25 miles per hour, the sound pressure level produced by a
small wind energy facility or a combination of small wind energy facilities
shall not exceed 55 dB(A), measured at any site property line abutting
a property owned by an entity other than the owner of the property
on which the small wind energy facility or facilities are located.
The sound pressure level shall be determined by successively measuring
the sound pressure with the facility or facilities turned on and off
and referring to the accompanying chart (Figure 2). This level, however,
may be exceeded during short-term events such as utility outages or
wind speeds exceeding 25 miles per hour.
|
Figure 2. Noise Measurements
| |||
|---|---|---|---|
|
Sound measured with turbine off (ambient
noise), dB(A)
|
Small wind energy facility(s) sound limit,
dB(A)
|
Maximum allowable combined sound, dB(A)
(ambient + generator)
| |
|
20
|
55
|
55
| |
|
21
|
55
|
55
| |
|
22
|
55
|
55
| |
|
23
|
55
|
55
| |
|
24
|
55
|
55
| |
|
25
|
55
|
55
| |
|
26
|
55
|
55
| |
|
27
|
55
|
55
| |
|
28
|
55
|
55
| |
|
29
|
55
|
55
| |
|
30
|
55
|
55
| |
|
31
|
55
|
55
| |
|
32
|
55
|
55
| |
|
33
|
55
|
55
| |
|
34
|
55
|
55
| |
|
35
|
55
|
55
| |
|
36
|
55
|
55
| |
|
37
|
55
|
55
| |
|
38
|
55
|
55
| |
|
39
|
55
|
55
| |
|
40
|
55
|
55
| |
|
41
|
55
|
55
| |
|
42
|
55
|
55
| |
|
43
|
55
|
55
| |
|
44
|
55
|
55
| |
|
45
|
55
|
55
| |
|
46
|
55
|
56
| |
|
47
|
55
|
56
| |
|
48
|
55
|
56
| |
|
49
|
55
|
56
| |
|
50
|
55
|
56
| |
|
51
|
55
|
56
| |
|
52
|
55
|
57
| |
|
53
|
55
|
57
| |
|
54
|
55
|
58
| |
|
55
|
55
|
58
| |
|
56
|
55
|
59
| |
|
57
|
55
|
59
| |
|
58
|
55
|
60
| |
|
59
|
55
|
60
| |
|
60
|
55
|
61
| |
|
61
|
55
|
62
| |
|
62
|
55
|
63
| |
|
Above 62
|
55
|
Ambient + 1 dB(A)
| |
(6)
The number of wind energy towers per lot shall
be limited to one for lots of less than two acres in size. For lots
of two acres or more, one wind energy tower shall be permitted as
a matter of right, and one additional tower shall be permitted upon
receipt of a special permit for same by the Planning Board in accordance
with the procedures set forth in this chapter. Notwithstanding the
foregoing, there is no limit on the number of building-mounted small
wind energy facilities.
(7)
Where small wind power facilities are an accessory
use, they shall be located on the roof, side or other elevated surface
of a building or in a side or rear yard only.
(8)
The location of a small wind power facility
shall meet all applicable setback and buffer requirements of the zone
in which it is located, but in no event shall the setback from adjacent
property lines be less than 50 feet.
(9)
Co-location of equipment or facilities that are not used for wind power purposes on a wind energy tower is permitted only upon receipt of a special approval for same from the Board of appeals in accordance with the procedures set forth in this chapter. Co-located solar panels shall also be subject to the provisions of § 270-219.1 of this chapter. Notwithstanding the foregoing, co-located telecommunications facilities shall not require special approval from the Board of appeals but shall instead be subject to the requirements of § 270-219 of this chapter.
(10)
When required by Chapter 125 of the Town of Ithaca Code (Building Construction and Fire Prevention), a building permit must be obtained for the small wind energy facility.
(11)
Where site plan approval is required elsewhere in this chapter for a development or activity, the site plan review shall include review of the adequacy, location, arrangement, size, design, and general site compatibility of proposed small wind energy facilities. Where a site plan exists, an approved modified site plan shall be required if any of the thresholds specified in § 270-191 of this chapter are met, including but not limited to proposed changes to or additions of small wind energy facilities where such changes or additions meet a § 270-191 threshold.
D.
Safety standards.
(1)
The small wind energy facility must meet all
applicable New York State Uniform Fire Prevention and Building Code
requirements.
(3)
The small wind energy facility shall be equipped
with an automatic braking or governing system to prevent uncontrolled
rotation, overspeeding, and excessive pressure on the tower structure,
rotor blades and other wind energy components.
(4)
The small wind energy facility shall not interfere
with electromagnetic communications such as radio, telephone or television
or emergency communication systems.
(5)
All small wind energy facilities shall be installed
by a qualified wind energy installer, and, prior to operation, the
electrical connections and structural integrity must be inspected
by a Town Code Enforcement Officer and by appropriate electrical and
structural inspection persons or agencies, as determined by the Town.
[Amended 4-12-2010 by L.L. No. 3-2010]
(6)
The small wind energy facility, if connected
to a public utility system for net-metering purposes, shall meet the
requirements for interconnection and operation as set forth in the
public utility's then-current service regulations applicable to wind
power generation facilities, and the connection shall be inspected
by the appropriate public utility.
E.
Building-mounted small wind energy facility standards.
The following additional requirements apply to building-mounted small
wind energy facilities only:
(1)
The diameter of the building-mounted small wind
energy facility, when measured from the furthest outward extensions
of all moving parts, may not exceed seven feet.
(2)
The height of a building-mounted small wind
energy facility mounted on a roof shall not exceed 15 feet as measured
from the base of the mount (the location at which the mount and exterior
layer of roof meet). The height of all other building-mounted small
wind energy facilities shall not exceed 15 feet above the highest
point of the building's roof, excluding chimneys, antennas and other
similar protuberances.
(3)
If more than one building-mounted small wind
energy facility is installed, a distance equal to the length of the
height of the tallest building-mounted small wind energy facility
must be maintained between the bases of each building-mounted small
wind energy facility.
(4)
A letter or certificate bearing the signature
of a certified New York State professional engineer must be submitted
to the Code Enforcement Officer, indicating that the existing structure
onto which the building-mounted small wind energy facility will be
attached is capable of withstanding the additional load, force, torque,
and vibration imposed by the building-mounted small wind energy facilities
for the foreseeable future; will comply with seismic and structure
provisions set out in state and national building codes; all related
components have been designed in accordance with generally accepted
good engineering practices and in accordance with generally accepted
industry standards; and if constructed in accordance with the plans
the entire facility, including the building onto which the wind energy
facility will be attached, will be safe, will be in accordance with
all applicable governmental building codes, laws, and regulations,
and in accordance with generally accepted good engineering practices
and industry standards, including, without limitation, acceptable
standards for stability, wind and ice loads.
F.
Appearance.
(1)
No small wind energy facilities shall be used
for signage, promotional or advertising purposes, including but not
limited to company names, phone numbers, banners, streamers, and balloons.
Reasonable identification of the manufacturer or owner of the small
wind energy facility is permitted.
(2)
Small wind energy facilities shall be painted
or finished with a nonreflective, unobtrusive color that blends the
system and its components into the surrounding landscape to the greatest
extent possible and shall incorporate nonreflective surfaces to minimize
visual disruption.
(3)
No small wind energy facility shall be artificially
lighted except to the extent required by the Federal Aviation Administration
or other applicable authority.
G.
Removal.
(1)
If a small wind energy facility ceases to perform
its originally intended function for more than 12 consecutive months,
the property owner shall so notify the Town Clerk in writing within
30 days after the end of such twelve-month period, and the property
owner shall remove the tower, rotor, guy wires, and associated equipment
and facilities by no later than 90 days after the end of the twelve-month
period.
(2)
If the property owner fails to remove the small
wind energy facility within the time frame described above, the Town
Code Enforcement Officer may issue the property owner a notice of
violation directing facility removal within a specified time frame.
Said notice of violation shall further advise that, should the violator
fail to meet the established deadline, the work may be done by a designated
governmental agency or a contractor, with the expense thereof to be
charged to the violator and/or to become a lien against the premises.
(3)
If removal of the small wind energy facility is not completed to the satisfaction of the Code Enforcement Officer within the period set forth in the Town's notice of violation or Town Board's decision after any appeal thereof pursuant to Subsection G(5) below, the Town may enter the premises to perform the removal or cause it to be made. The Town's entry onto such premises shall be pursuant to an agreement between the Town and landowner. If no agreement exists or can be obtained in a timely manner, the Town may enter such property to remove an imminent danger to life, property or safety of the public caused by the nonfunctioning small wind energy facility. The Town further may seek a warrant from a court of competent jurisdiction for access to the premises and/or may seek a court order requiring or authorizing all actions reasonably necessary to remove the facility, with the costs of such actions the sole responsibility of the violator.
(4)
The Town shall present the landowner with a
bill for all costs and expenses incurred by the Town in connection
with the removal and disposal of the small wind energy facility. If
the landowner fails to pay such costs and expenses within 15 days
after the demand for same, or within 30 days of the final decision
on any administrative or judicial contest the landowner may pursue,
then such unpaid costs, expenses and interest (at the statutory interest
rate for money judgments in New York State courts) incurred from the
date of the removal activities shall constitute a lien upon the land
on which such measures were undertaken. A legal action or proceeding
may be brought to collect such costs, expenses, interest, and recoverable
attorney's fees or to foreclose such lien. As an alternative to the
maintenance of any such action, the Town may file a certificate with
the Tompkins County Department of Assessment stating the costs and
expenses incurred and interest accruing as aforesaid, together with
a statement identifying the property and landowner. The Tompkins County
Department of Assessment shall, in the preparation of the next assessment
roll, assess such unpaid costs, expenses and interest upon such property.
Such amount shall be included as a special ad valorem levy (administered
as a move tax) against such property, shall constitute a lien, and
shall be collected and enforced in the same manner, by the same proceedings,
at the same time, and under the same penalties as are provided by
law for collection and enforcement of real property taxes in the Town
of Ithaca. The assessment of such costs, expenses and interest shall
be effective even if the property would otherwise be exempt from real
estate taxation.
(5)
Any person receiving a notice of violation or
a bill for Town costs and expenses may appeal to the Town Board by,
within 15 days of receipt of such notice or bill, delivering to the
Town Clerk at the Town offices an appeal requesting a reconsideration
and administrative hearing before the Town Board. Such appeal shall
state the basis for the request for reconsideration and shall be accompanied
by any supporting materials. Failure to serve such an appeal within
15 days shall be deemed a waiver of any claim or defense that the
notice or bill is not justified, and the violator shall comply with
the requirements of the notice or pay the bill. If the appeal is timely
filed, the Town Board shall, within 40 days of the filing, hold a
hearing and, based upon any relevant materials presented by the Town
and the appellant, shall issue a resolution deciding the appeal within
30 days after the hearing. Such resolution shall be filed with the
Town Clerk, who shall arrange for delivery of a copy of the decision
to the appellant within five days after such filing, at the address
for such person designated in the appeal or at such other address
as the appellant may thereafter designate in writing to the Town Clerk.
The Town Board's decision after the hearing shall constitute a final
agency action.
H.
In addition to the enforcement processes and penalties provided in this chapter, any condition caused or permitted to exist in violation of any of the provisions of this § 270-219.4 is hereby deemed and declared to be a threat to public health, safety, and welfare and is declared and deemed a nuisance and may be summarily abated or restored at the violator's expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be undertaken by the Town in its sole discretion.
[Added 5-7-2012 by L.L. No. 8-2012]
A.
Findings. The Town Board of the Town of Ithaca finds that steady
population growth and land disturbance in the Town have resulted in
the continual loss of much of its natural riparian (streamside) vegetation.
Properly vegetated riparian areas provide numerous benefits, including:
(1)
Riparian vegetation lessens the severity of stream bank erosion
because the deep and extensive root systems of the vegetation hold
soil in place;
(2)
The soil-root complex of the vegetation filters and absorbs
various chemicals and particulates, keeping them out of streams;
(3)
At times of heavy rain or flooding, vegetation slows water runoff
velocity to maintain the streambed and stream bank and lessens the
effects of flooding;
(4)
By slowing runoff velocity, riparian vegetation allows recharging
of the groundwater;
(5)
By reducing the amount of particulates and chemicals in streams
that enter Cayuga Lake, vegetated riparian areas are a cost-effective
way to maintain the quality of this important drinking water source
for the Town;
(6)
Undisturbed riparian areas provide the space needed to accommodate
the natural meandering of stream channels;
(7)
Vegetated riparian areas provide important habitat for birds
and other wildlife and they improve the environment for aquatic species
by stabilizing water temperatures and reducing levels of sediment
and pollutants. These benefits are better realized if nonnative invasive
plant species are not present, as these plants tend to crowd out native
plant species, eliminating plant diversity and providing less food,
cover, and shade for those fish and wildlife species that depend on
vegetated riparian areas; and
(8)
Vegetated riparian areas enhance the natural beauty of streams
and preserve scenic values and recreational opportunities.
B.
Purpose and objectives. The purpose of this section is to promote
the public health, safety and general welfare by establishing requirements
for stream setbacks to protect streams, other water resources, property,
and riparian ecosystems within the jurisdiction of the Town of Ithaca.
The objectives of this section are to:
(1)
Regulate activities that harm streams and native riparian vegetation,
so that the benefits provided by such vegetation are not lost;
(2)
Reduce the amount of sediment, organic matter, pesticides, and
pollutants entering streams;
(3)
Protect public and private property from losses due to flood
damage and erosion;
(4)
Ensure land use proposals are compatible with the above purposes
and specify land use in areas where standard zoning practices are
not adequate;
(5)
Allow reasonable use of land that is consistent with responsible
land management and that will conserve and protect streams, riparian,
vegetation, and streamside wetlands to the extent practicable;
(6)
Recognize the legitimate interests of landowners to make reasonable
use of water resources, and otherwise engage in the use of land for
certain agricultural activities;
(7)
Minimize expenditure of public money to reduce stream erosion
and siltation; and
(8)
Protect the right of the public to full enjoyment of the recreational
opportunities offered by the Town's streams and by Cayuga Lake.
C.
Applicability.
(1)
The requirements in this § 270-219.5 apply in all zoning districts in the Town. To the extent they impose more restrictive requirements than those in the underlying districts, the requirements of this section apply.
(2)
This section shall apply as follows:
D.
Stream setback standards.
(1)
Stream setbacks are required for those portions of streams that
have upstream drainage areas equal to, or greater than, 35 acres.
Streams covered by this section are shown on the Stream Setback Map,
copies of which are available for inspection or by distribution to
the public at Town offices and on the Town's website. The size of
stream drainage areas is determined by the Town of Ithaca's Geographical
Information System (GIS).
(2)
The required setback width at any point along a stream is determined
by the size of the upstream drainage area, the slope of the land adjacent
to the stream, and the existence of any streamside wetland.
(4)
Streams covered by this section, with their corresponding setback
widths based on drainage area, are found on the Stream Setback Map.
(5)
Notwithstanding any other provisions in this subsection, if
a road shown on the Official Map of the Town is located within a stream
setback, the setback shall extend from the stream to the edge of the
road right-of-way or to the deeded road property line and not continue
over or past the road right-of-way or deeded road property line, as
applicable.
(6)
Definitions and purposes of Stream Setback Zones 1 and 2 (see
Figures 1a and 1b in Appendix A[1]).
(a)
Stream Setback Zone 1 is the streamside zone.
[1]
The streamside zone is intended to protect the
physical and ecological integrity of the stream.
[2]
To assure proper functioning of this zone, vegetation must remain undisturbed as described in Subsection F.
[3]
For streams with upstream drainage areas less than
175 acres, this zone will begin at the stream center line. For streams
with upstream drainage areas of 175 or more acres, this zone will
begin at the edge of a defined watercourse at the bankfull flow or
level mark. (See Appendix A, Figure 2, for a bankfull depth illustration.[2]) For all streams, this zone will be measured horizontally
landward, along lines perpendicular to the stream bank or stream center
line at the relevant starting points, the required distance as determined
by drainage area, presence of streamside wetlands, and slope, to the
beginning of Stream Setback Zone 2.
[2]
Editor's Note: Appendix A is included at the end of this chapter.
(b)
Stream Setback Zone 2 is the outer setback zone.
[1]
The outer zone is intended to prevent encroachment
into the streamside zone, and to provide distance between certain
developments/activities and the streamside zone.
[2]
Vegetation in this zone may vary, but planting
of nonnative invasive species is not allowed.
[3]
The outer zone will be measured perpendicularly
from the outer edge of Stream Setback Zone 1 and extend horizontally
the remaining distance of the setback as required by drainage area,
presence of streamside wetlands, and slope.
[1]
Editor's Note: Appendix A is included at the end of this chapter.
(7)
Required minimum stream setback widths based on drainage area
are shown in Table 1. For streams with upstream drainage areas less
than 175 acres, this setback measurement will begin at the stream
center line. For streams with upstream drainage areas of 175 or more
acres, the setback measurement will begin at the edge of a defined
watercourse at the bankfull flow or level mark. For all streams, the
setback will be measured horizontally landward, along lines perpendicular
to the stream bank or stream center line at the relevant starting
points, the specified distance required by the drainage area.
|
Table 1
| ||||
|---|---|---|---|---|
|
Minimum Stream Setback Widths
(Feet)
| ||||
|
Drainage Area
(acres)
|
Setback Zone 1
|
Setback Zone 2
|
Total Setback Width
| |
|
> 35 acres and less than 175 acres
|
20
|
15
|
35
| |
|
> 175 acres and less than 1,500 acres
|
30
|
20
|
50
| |
|
> 1,500 acres
|
50
|
50
|
100
| |
(8)
Where a property has overlapping setbacks because of the proximity
of more than one stream, the more restrictive measures shall apply
in the area of overlap (for example, if part of a property is in Zone
1 for one stream, and some of Zone 1 overlaps with Zone 2 for another
stream, the Zone 1 requirements shall apply in the area of overlap).
(9)
If there are no slopes of 25% or greater and no streamside wetlands
present within the setbacks required by Table 1, then the total setback
width will be determined on the basis of drainage area alone as indicated
on Table 1.
(10)
Setback width adjustment when streamside wetlands exist:
(a)
Where streamside wetlands are identified within a stream setback, the streamside wetland is not counted towards the required setback width. In these cases, it will be necessary to extend the setback width beyond that required by Subsection D(7) to make up for the amount of land excluded due to the existence of streamside wetlands (see Appendix A, Figure 3[3]). The adjustment in width of the stream setback shall
apply only to the areas on the parcel where streamside wetlands are
located.
[3]
Editor's Note: Appendix A is included at the end of this chapter.
(b)
Setbacks required by this section may coincide with, and are
to be located and measured without regard to the presence or absence
of, wetland buffers required by federal, state or local law or regulations,
including buffers required by the New York State Environmental Conservation
Law.
(c)
Unless the property owner and Town agree on the streamside wetland delineation, streamside wetlands shall be delineated by a qualified professional under guidelines established by the United States Army Corps of Engineers and New York State Department of Environmental Conservation. Delineation is required under this Subsection D(10) for streamside wetlands that have been previously identified as well as for the areas where streamside wetlands may exist due to the presence of hydric soils or wetland plant indicators.
(11)
Setback width adjustments for steep slopes of 25% (with a run
of four feet for every foot of rise) or greater.
(a)
Where steep slopes (25% or greater) are identified within Stream Setback Zone 1 (as extended, if necessary, due to the presence of streamside wetlands), that portion of the land containing the steep slopes within Setback Zone 1 shall not be counted towards the required setback width. In these cases it will be necessary to extend the setback width in Setback Zone 1 beyond that required by Subsection D(7) and D(10) to make up for the amount of land excluded due to the existence of the steep slopes. Notwithstanding the foregoing, the adjusted width in Setback Zone 1 due to steep slopes shall in no case exceed two times the required minimum stream setback width specified under Setback Zone 1 in Table 1. The adjustment in width of the stream setback due to steep slopes shall apply only to the areas on the parcel where steep slopes exist. Setback widths for Zone 2 will remain the same as specified in Table 1. (See Appendix A, Figure 4.[4])
[4]
Editor's Note: Appendix A is included at the end of this chapter.
(b)
Steep slopes of 25% or greater shall be determined by using
one of the following resources or methods, as appropriate:
[1]
On-site measurement of slopes by registered professional
engineers, surveyors, or landscape architects, using accepted engineering
practices;
[2]
Use of two-foot topographic data created with the
use of Light Detection and Ranging (LIDAR)-derived information;
[3]
United States Geological Survey 7.5-minute quadrangles;
or
[4]
Other resources or methods that Town staff determine
are of similar or greater accuracy than those listed above.
(12)
For parcels that are 0.5 acre or less as of the effective date of this section and contain a stream (or portion thereof) described in Subsection D(1) above:
(a)
Except as concerns the application of herbicides and pesticides, the required setback width is 15 feet regardless of drainage area size, and no setback width adjustments are required for streamside wetlands or steep slopes of 25% or greater. With regard to the application of herbicides and pesticides, the required setback width is 35 feet regardless of drainage area size, and no setback width adjustments are required for streamside wetlands or steep slopes of 25% or greater. Within the thirty-five-foot setback, the application of herbicides and pesticides is prohibited, except as allowed under § 270-219.5E(13)(a) and (b);
(b)
For streams with upstream drainage areas less than 175 acres,
the setback measurement will begin at the stream center line. For
streams with upstream drainage areas of 175 or more acres, the setback
measurement will begin at the edge of a defined watercourse at the
bankfull flow or level mark. For all streams, the setback will be
measured horizontally landward, along lines perpendicular to the stream
bank or stream center line;
(c)
The only prohibition within the fifteen-foot setback (in addition
to that applicable to the application of herbicides and pesticides
as described above) is on the construction of new buildings. This
prohibition does not apply to maintenance or repair of buildings.
The replacement, renovation or restoration of buildings that exist
within the setback as of the effective date of this section is also
permitted, provided that the following conditions are met:
(13)
An applicant will be responsible for identifying the approximate
limits of the stream setback on all subdivision applications. In addition,
an applicant will be responsible for identifying the approximate limits
of the stream setback on all site plan applications, special permit,
special approval and variance applications, building permit applications,
and excavation or fill permit applications where project limits (which
term includes any soil-disturbing activity, staging, or other development-related
activity) are within 100 feet of the outer edge of Zone 2, including
adjustments for slopes and wetlands. This identification shall be
done at the time of submission of any application. The applicant shall
provide evidence satisfactory to the Town, through documentation,
on-site markings, or other means, that the proposed activity is outside
of the stream setback zones (or if not, that a variance will be sought).
This identification shall be subject to review and approval by the
appropriate board or officer.
[Amended 10-29-2018 by L.L. No. 5-2018]
(14)
The Planning Board shall require the identification of the approximate limits of the stream setback on all subdivision plats and site plans for properties to which this § 270-219.5 applies. A note shall be placed on the approved plat and site plan indicating that the property is subject to Town of Ithaca zoning provisions regarding stream setbacks, and that restrictions and setbacks on development, soil disturbance, vegetation removal and other activities apply. The Planning Board and Zoning Board of Appeals shall reference any stream setback zones in any special permits, special approvals or variances they grant. The Planning Board and Zoning Board of Appeals may require stream setback zone restrictions to be incorporated into the deeds for properties that contain such setbacks.
[Amended 10-29-2018 by L.L. No. 5-2018]
(15)
The Planning Board, Zoning Board of Appeals, Public Works staff,
or Code Enforcement staff may require, prior to any soil-disturbing
activity, that the stream setback zones be clearly delineated with
construction fencing, staking, or other suitable material by the applicant
on site, and such delineation be maintained in an undisturbed state,
until Public Works or Code Enforcement staff determine that soil-disturbing
activities are completed within and adjacent to the stream setback
zones.
(16)
Through the subdivision, site plan review, special permit, special approval and variance processes, the Planning Board and Zoning Board of Appeals may require stream setbacks for streams with upstream drainage areas less than 35 acres where environmental conditions warrant the establishment of such setbacks. Such environmental conditions may include, for example, anticipated development impacts on wetlands or vernal pools, or stormwater management, flooding or pollution problems that the proposed development is anticipated to create. Where the Planning Board or Zoning Board of Appeals requires stream setbacks pursuant to this subsection, the size of the setbacks shall be no larger than that specified in Subsection D(7) above for drainage areas from 35 to less than 175 acres, and the prohibited uses in Setback Zones 1 and 2 shall not be any more restrictive than the prohibitions for the respective zones pursuant to Subsections E and F below.
E.
Prohibited activities in Stream Setback Zone 2. Unless otherwise permitted by Subsection H, the following structures and uses are prohibited in Stream Setback Zone 2:
(1)
The construction, installation or erection of buildings or other structures on or after the effective date of this section, except fences and walls that are in compliance with the requirements in § 270-223. This prohibition does not apply to maintenance or repair of buildings or other structures;
(2)
The construction or installation of parking lots, parking spaces, or impervious surfaces on or after the effective date of this section, including impervious terraces, steps, unroofed porches and other similar features regardless of their height and regardless of § 270-223.1;
(3)
Replacement, renovation or restoration of any structure, unless
all of the following conditions are met:
(4)
Agricultural activities that begin on or after the effective
date of this section, and agricultural activities beginning before
and existing as of the effective date of this section that thereafter
cease for a period of more than one year (or the land thereafter lays
fallow for a period of more than five consecutive years, in the case
of land used for agricultural activity that is lying fallow). Notwithstanding
the foregoing, the following agricultural activities are permitted
regardless of when they begin or if they cease for more than a year
and thereafter begin again:
(5)
Land-disturbing activities that begin on or after the effective
date of this section, and land-disturbing activities beginning before
and existing as of the effective date of this section that thereafter
cease for a period of more than one year. Notwithstanding the foregoing,
the following land-disturbing activities are permitted regardless
of when they begin or if they cease for more than a year and thereafter
begin again:
(a)
Mowing and maintenance of lawns and sports fields, landscaping,
and gardening, provided that for activities beginning on or after
the effective date of this section, nonnative invasive species are
not planted and such activities do not harm the riparian area;
(b)
Construction of stormwater ponds and wetlands;
(c)
Demolition of structures;
(d)
Emergency slope stabilization; and
(e)
Nonemergency slope stabilization and restoration, provided that:
[1]
The property owner consults with either a qualified
professional engineer or the Tompkins County Soil and Water Conservation
District about the stabilization project;
(7)
Shelters and blinds associated with hunting, recreational, educational
and agricultural activities that are erected on or after the effective
date of this section, except for temporary blinds that are in place
for a period of no more than 180 days within a twelve-month period
on any parcel;
(8)
Installation of utility lines and connections, such as water,
sewer, electric, gas, telephone and cable lines and connections, on
or after the effective date of this section, except the following
shall be allowed:
(a)
Installation of water wells and connections;
(b)
Utility lines and connections for one-family and two-family
dwellings;
(c)
For uses and structures other than one-family and two-family
dwellings, the installation of utility lines and connections is permitted
only upon receipt of a special permit for same from the Planning Board
in accordance with the procedures set forth in this chapter; and
(d)
Repair and replacement of utility lines and connections;
(9)
Tree cutting and disturbance of vegetation, except for:
(10)
Deicing of impervious and pervious surfaces, if more than the
minimal amount of deicing material necessary to maintain vehicular
and pedestrian safety is applied to the surface;
(11)
Dumping or disposal of snow or ice collected from roadways or
parking lots located wholly outside a stream setback zone;
(12)
Installation of outlets from stormwater management practices
and footer drains on or after the effective date of this section,
except where sheet flow or infiltration is not practical and areas
disturbed by such outlets are revegetated;
(13)
Application of herbicides, pesticides, fertilizers or other
chemicals, except the following applications are allowed:
(a)
The selective application of herbicides to control nonnative
invasive species, and the selective application of pesticides to protect
native plant species; and
(b)
Application of herbicides, pesticides, fertilizers or other
chemicals for the protection of human or animal safety, or for agricultural
purposes for farms, in accordance with product label instructions
and pursuant to applicable New York State laws and regulations;
(14)
Mining or removal of soil, sand and gravel, and quarrying of
raw materials, except where the New York State Department of Environmental
Conservation has issued a permit expressly allowing such activities
on the parcel;
(15)
Outdoor waste storage and outdoor deposition of waste, including
but not limited to garbage, refuse, recyclable materials, tires, rubble,
discarded motor vehicles, discarded appliances and other bulk items,
except:
(16)
Outdoor storage or disposal of hazardous or noxious materials;
(17)
Storage or disposal of manure;
(18)
Installation of septic tanks or septic drain fields on or after
the effective date of this section.
F.
Prohibited activities in Stream Setback Zone 1 and streams. Unless otherwise permitted by Subsection H, the following structures and uses are prohibited in Stream Setback Zone 1 and in streams:
(2)
Mowing and maintenance of lawns and sports fields, landscaping
and gardening, where such activity begins on or after the effective
date of this section, or such activity begins before and exists as
of the effective date of this section and thereafter ceases for a
period of more than one year;
(3)
Grazing of livestock, where grazing begins on or after the effective
date of this section, or grazing begins before and exists as of the
effective date of this section and thereafter ceases for a period
of more than one year;
(4)
Composting of residential materials, unless they are contained
in such a way that does not allow leaching;
(5)
Construction of stormwater ponds and wetlands;
(6)
Installation of water wells and connections;
(7)
Haying, and growing of crops for any purpose, where such activity
begins on or after the effective date of this section, or such activity
begins before and exists as of the effective date of this section
and thereafter ceases for a period of more than one year;
(8)
Dredging, deepening, widening, straightening or any such alteration
of the beds and banks of natural streams, except where:
(9)
Stream bank stabilization, unless all of the following conditions
are met:
(a)
The property owner consults with either a qualified professional
engineer or the Tompkins County Soil and Water Conservation District
about the stabilization project;
(10)
Construction of the following types of crossings on or after
the effective date of this section:
(a)
Crossings of streams through the stream setback by driveways, roadways, vehicles, pathways, bridges, storm sewers, sewer and/or water lines, and other utility lines, except for crossings that are built substantially perpendicular to stream flow, are designed to minimize downstream siltation and negative impacts to the stream and setback zones, and, in the case of utility line crossings, the utility lines are otherwise permitted by Subsections E(8) and F(1);
(b)
Livestock stream crossings, except for crossings that are constructed
and maintained to minimize negative impacts to the stream and setback
zones with fencing substantially perpendicular and through the setback
to direct animal movement.
H.
Transition provisions.
(1)
The prohibitions in Subsections D(12), E and F above against construction of new buildings and structures in setback zones shall not apply to the following buildings and structures:
(a)
For buildings and structures that require site plan approval,
subdivision approval, special approval, and/or special permit, the
prohibitions shall not apply if completed applications for all necessary
approvals for site plan, subdivision, special approval, and special
permit have been submitted before the effective date of this section,
provided such applications are thereafter diligently prosecuted to
completion; and
(b)
For buildings and structures that do not require site plan approval,
subdivision approval, special approval, or special permit, the prohibitions
shall not apply if all necessary building permits and fill permits
have been issued before the effective date of this section.
(2)
For the purposes of this section only, an application shall
be deemed "completed" if it contains all required information, materials,
initial SEQR forms and fees normally and reasonably required by the
appropriate Town official(s) (e.g., Director of Planning with respect
to subdivision, special permit, and site plan approval applications,
and the Director of Code Enforcement with respect to special approval
applications) to commence the review process by the appropriate Town
board. An application shall be deemed "diligently prosecuted to conclusion"
if the applicant promptly responds to any inquiries and promptly supplies
any additional information reasonably required by the reviewing Town
officials and/or boards, appears at all required scheduled public
hearings, and otherwise cooperates so as to permit and enable the
appropriate Town boards to adequately and completely review the application
and render a decision on same within a reasonable period of time of
its submission, and in any event within 12 months of its submission.
I.
Variances. The Zoning Board of Appeals may grant variances from the requirements of this section pursuant to § 270-235 of this chapter. A variance from the requirements of this section is an area variance, provided any use proposed to be located within the stream setback is a permitted use in the relevant zoning district. In addition to the items required by the Town for all variance applications, the applicant shall provide a proposed mitigation plan that offsets the effects of the proposed encroachment into the stream setback, if such a plan is possible for the parcel that is the subject of the variance application. Where a Planning Board approval (such as site plan, subdivision or special permit approval) is also sought pursuant to the provisions of this chapter, the Planning Board shall make a recommendation to the Zoning Board of Appeals on any proposed mitigation plan that is submitted to the Zoning Board of Appeals in connection with a variance application. Failure of the Planning Board to make a recommendation before the Zoning Board of Appeals must act as required by law shall not preclude action by the Zoning Board of Appeals nor otherwise affect the validity of any actions taken by the Zoning Board of Appeals.
[Added 12-11-2017 by L.L.
No. 20-2017]
A.
Purpose and intent. It is the specific purpose and intent of this
section to allow accessory dwelling units in Conservation, Agricultural
and residential zones (as set forth elsewhere in this chapter) to
provide the opportunity for the development of small rental housing
units designed, in particular, to meet the housing needs of persons
of low and moderate income, and of relatives of families residing
in the Town of Ithaca. Furthermore, it is the purpose and intent of
this section to allow for efficient use of the Town's existing stock
of dwellings in economic support of resident families and to protect
and preserve property values while preserving the character and quality
of life in the Town of Ithaca's residential neighborhoods. To help
achieve these and other goals consistent with the Town of Ithaca Comprehensive
Plan, specific requirements are hereby set forth for accessory dwelling
units and their related uses. These requirements are in addition to
any other requirements for accessory dwelling units set forth elsewhere
in this chapter.
B.
Requirements applicable to all accessory dwelling units.
(1)
Floor area. The floor area of the accessory dwelling unit may
not exceed 800 square feet or 70% of the floor area of the principal
dwelling unit, whichever is less.
(2)
Operating permit.
(b)
Owners of accessory dwelling units that require operating permits and that exist as of the effective date of this § 270-219.6 must apply for operating permits for the accessory dwelling units by May 1, 2018. Owners of accessory dwelling units that require operating permits and that are created after the effective date of this § 270-219.6, or that are not rented as of the effective date of this section but are subsequently rented, must apply for operating permits prior to rental occupancy. If an operating permit is granted after an inspection, the operating permit must thereafter be maintained at all times during which the accessory dwelling unit is rented for a term of at least 30 consecutive days. Before the expiration or renewal of the operating permit, it shall be the responsibility of the owner of the accessory dwelling unit(s) to schedule a housing inspection with the Town of Ithaca Code Enforcement Department in order to obtain a new or renewed permit.
(c)
The Code Enforcement Department shall issue an operating permit upon verification by inspection that the items listed in Subsection B(2)(c)[1] through [13] below meet the requirements of the applicable New York State Uniform Fire Prevention and Building Code, the Energy Code Supplement (Town Code Chapter 144), and the items listed in Subsection B(2)(c)[14] through [16] below meet the requirements of the Town of Ithaca Code:
[Amended 6-14-2021 by L.L. No. 8-2021]
[1]
911 address number properly posted (with each unit
posted);
[2]
Exterior structure in good repair;
[3]
Entrances, access areas, parking spaces and similar
areas in good repair;
[4]
Receptacles for proper storage of garbage;
[5]
Compliant pools and decks (if present);
[6]
Working smoke and carbon monoxide detectors;
[7]
Interior structure in good repair;
[8]
Fire separation (where required);
[9]
Electrical, plumbing and heating in good repair;
[10]
Appliances in good repair (if supplied by landlord);
[11]
Proper light and ventilation;
[12]
Proper room sizes;
[13]
Proper egress doors or windows;
[15]
Compliant number of occupants/families, per Town
of Ithaca Code § 270-5's definition of "family" and occupancy
requirements in the relevant zoning district; and
(d)
A Code Enforcement Officer shall seek a search warrant from a court of competent jurisdiction whenever the owner, managing agent or occupant fails to allow inspections of any premises believed to be subject to this § 270-219.6B(2) and where there is a reasonable cause to believe that there is a violation of this section, Town of Ithaca Code Chapter 205 (Property Maintenance), § 205-2, Town of Ithaca Code Zoning Chapter provisions related to parking or number of occupants/families, the New York State Uniform Fire Prevention and Building Code, or the Energy Code Supplement (Town Code Chapter 144).
[Amended 6-14-2021 by L.L. No. 8-2021]
(e)
Failure of an owner of any accessory dwelling unit that is required
to have an operating permit to apply for an operating permit in a
timely manner, to obtain an operating permit after inspection, or
to maintain a valid operating permit after it is granted while the
accessory dwelling unit is rented for a term of at least 30 consecutive
days shall be deemed a violation of this chapter, and, in addition
to the other enforcement mechanisms and remedies set forth in this
chapter, a Code Enforcement Officer may order that such accessory
dwelling unit(s) be vacated within a specified time after notice of
violation, unless the property is brought into compliance within a
reasonable time frame specified in the notice of violation. If a violation
persists beyond the time frame specified in the notice of violation,
and the property is ordered vacated, the property must be kept vacated
until it is brought into compliance.
(f)
Over-occupancy. Verified over-occupancy shall constitute a violation
of the operating permit. After the issuance of an order to remedy,
the property owner shall have 30 days to comply with applicable occupancy
limits.
(g)
Before issuing an operating permit, the Code Enforcement Department
shall secure, as part of the permit application, information related
to the property sufficient enough to allow for enforcement of this
chapter.
(h)
Pursuant to Public Officers Law Article 6 (also known as the
"Freedom of Information Law"), § 87(2)(b), personal information
identifying tenants may be exempt from disclosure under the Freedom
of Information Law on the grounds that such disclosure would constitute
an unwarranted invasion of personal privacy. The Town of Ithaca will
not collect the identities of tenants as part of the operating permit
application process. The identities of tenants may be collected in
connection with specific enforcement actions, but the identities may
be exempt from disclosure under the Freedom of Information Law.
(3)
Owner occupancy.
(a)
(b)
For all other properties, one of the dwelling units on a lot
containing an accessory dwelling unit must be the principal residence
of at least one of the property owners, except as provided below.
No other owner(s) shall own a larger percentage, collectively or individually,
than the owner-occupant(s), who must reside in the dwelling unit for
a minimum of 185 days per year. Once every five years, the owner-occupancy
requirement shall not apply for up to 12 consecutive months. An operating
permit is required for the dwelling unit vacated by the owner during
any period that the dwelling unit is rented for a term of at least
30 consecutive days.
(4)
Reversion to classification without accessory dwelling unit.
To establish that a property that contained an accessory dwelling
unit no longer contains such unit, the following procedures shall
be followed:
(a)
Any evidence of a kitchen facility or, in the alternative, any
evidence of a bathroom shall be removed from the area under consideration
so complete living facilities for one family no longer exist.
(b)
The owner of the property shall sign an affidavit and certification,
in a form satisfactory to the Code Enforcement Officer, to the effect
that:
[1]
The facilities referred to above have been removed;
[2]
Said facilities will not be reinstalled without
a building permit or other approval from the Code Enforcement Department;
and
[3]
The area from which the facilities were removed
will not be used as a separate dwelling unit until the Code Enforcement
Department is notified and any required approvals, permits or other
certificates, including a certificate of occupancy, are obtained.
(c)
Such affidavit shall be recorded, at the expense of the property
owner, in the Tompkins County Clerk's office and indexed against the
property and the name of the then-owner of the property.
(d)
A Code Enforcement Officer may inspect the premises to confirm
compliance with this subsection.
(e)
The Code Enforcement Officer shall have the discretion to deviate,
in whole or in part, from the procedure set forth above in those circumstances
where the officer is satisfied that compliance may be assured in some
other manner.
C.
Additional requirements applicable to detached accessory dwelling
units.
D.
Traditional neighborhood development. In an NT-3 or NT-4 zone, New Neighborhood Code requirements for accessory housing units apply. (Detached house building type only, use in § 272-603.10; accessory building setbacks for a detached house in § 272-403.3.) Floor area, operating permit, owner occupancy, and reversion requirements in § 270-219.6B above also apply.
[Added 11-9-2020 by L.L.
No. 6-2020]
[Added 12-29-2021 by L.L.
No. 16-2021]
A.
Purpose and legislative intent.
(1)
The purpose of this section is to establish appropriate regulations
for short-term rental uses in the Town. While the Town recognizes
that some property owners wish to rent to others on a short-term basis
all or part of dwelling units they own, the Town also recognizes that
it has an obligation to protect the public health, safety and welfare
and minimize the adverse effects of such short-term rental uses.
(2)
By enacting this section, the Town intends to:
(a)
Protect the health, safety and welfare of the community and
of persons occupying short-term rentals;
(b)
Prevent to the greatest extent practicable public safety risks
and other impacts, including, but not limited to, increased noise,
trash, traffic, and parking impacts associated with short-term rental
uses;
(c)
Protect neighborhood character and minimize the impact of short-term
rental uses on neighbors and residential properties;
(d)
Protect property values of the community;
(e)
Protect housing affordability within the community for long-term
residents, whether owners or renters;
(f)
Assist homeowners to stay in their homes by allowing some short-term
rental use of their homes to generate income to defray their cost
of homeownership;
(g)
Enable property owners to provide lodging for visitors to the
Town during periods of peak visitor and tourist demand, such as university
and college graduation weekends and holiday weekends; and
(h)
Promote the efficient use of housing stock.
B.
Applicability. This section applies to all short-term rental uses
except:
[Amended 1-23-2023 by L.L. No. 2-2023]
(1)
Rentals of dwelling units that meet all of the following: the
dwelling unit is owned by a cooperative corporation and is subject
to a proprietary lease under the Cooperative Corporations Law, and
the dwelling unit is the principal residence of the proprietary lease
holder.
(2)
House sitting arrangements where a house sitter occupies a principal
residence while the owner or proprietary lease holder is away, the
house sitter provides security, maintenance and/or pet care, and the
house sitter pays no money or other financial consideration to the
owner or proprietary lease holder in exchange for the occupancy.
(3)
For short-term rental uses that were previously allowed by or exempt from this § 270-219.7 and that are subject to termination on April 1, 2023 pursuant to amendments to this § 270-219.7 that become effective on April 1, 2023, this section shall not apply to any short-term rental use for which a written rental agreement exists as of April 1, 2023, provided that the rental concludes by September 30, 2023.
(4)
For the purposes of this § 270-219.7, for a dwelling unit to be considered an owner's or proprietary lease holder's principal residence, the owner or proprietary lease holder must reside in the dwelling unit for a minimum of 185 days per year. For trusts, principal residence requirements are met if all of the criteria in Subsection E(1)(b)[2] are met.
C.
Except as prohibited by the New York Multiple Dwelling Law, a short-term
rental use is permitted, subject to this section's provisions, in
a principal dwelling unit or an accessory dwelling unit in all zoning
districts that allow a short-term rental use as a permitted accessory
use.
D.
(1)
Except in the Lakefront Residential Zone, short-term rental
uses may occur only in a dwelling unit that is the principal residence
of at least one of the property owners, in another dwelling unit on
the same tax parcel as the principal residence, or in a dwelling unit
on no more than one adjacent tax parcel that is owned by the same
owner(s). No other owner(s), collectively or individually, shall own
a larger percentage of the tax parcel(s) than the owner-occupant(s)
who reside in the principal residence for a minimum of 185 days per
year.
[Amended 1-23-2023 by L.L. No. 2-2023]
(2)
An owner may obtain up to two operating permits at any one time
from the Town for dwelling units used for short-term rental uses,
with no more than one of the two permits being for an unhosted short-term
rental use.
E.
Provisions applicable to hosted and unhosted short-term rental uses.
The following requirements apply to both hosted and unhosted short-term
rental uses:
[Amended 1-23-2023 by L.L. No. 2-2023]
(1)
Operating permit required.
(a)
Each dwelling unit used or offered for a short term rental use shall require a valid operating permit issued pursuant to Town of Ithaca Code Chapter 125 (Building Construction and Fire Prevention), § 125-8. Each operating permit shall specify whether it is for a hosted or an unhosted short-term rental use, only one such use being allowed per unit. Before the expiration or renewal of an existing operating permit, it shall be the responsibility of the owner of such unit to schedule an inspection with the Town of Ithaca Code Enforcement Department in order to obtain a new or renewed permit.
(b)
Owners eligible to receive short-term rental operating permits must
be either:
[2]
Trusts that meet all of the following criteria: the dwelling
unit is the principal residence of at least one natural person who
is a trust grantor, a trustee, or a beneficiary of the trust that
owns the dwelling unit, and said trust grantor, trustee or beneficiary
resides in the dwelling unit for a minimum of 185 days per year.
(c)
Owners of dwelling units used or offered for short-term rental
uses as of April 1, 2022, must apply by July 1, 2022, for operating
permits. Owners of dwelling units that are not used or offered for
short-term rental uses as of April 1, 2022, but that are subsequently
used or offered for short-term rental uses, must apply for operating
permits prior to such use or offer for a short-term rental use. After
an operating permit is obtained, it must be maintained throughout
the period that such unit is used or offered for a short-term rental
use.
(d)
The Code Enforcement Department shall issue an operating permit
upon verification by inspection that the items listed in Subsection
E(1)(a)[1] through [13] below meet the requirements of the applicable
New York State Uniform Fire Prevention and Building Code and the items
listed in Subsection E(1)(c)[14] and [15] below meet the requirements
of the Town of Ithaca Code:
[1]
911 address number properly posted (with each unit
posted);
[2]
Exterior structure in good repair;
[3]
Entrances, access areas, parking spaces and similar
areas in good repair;
[4]
Receptacles for proper storage of garbage;
[5]
Compliant pools and decks (if present);
[6]
Working smoke and carbon monoxide detectors;
[7]
Interior structure in good repair;
[8]
Fire separation (where required);
[9]
Electrical, plumbing and heating in good repair;
[10]
Appliances in good repair (if supplied by landlord);
[11]
Proper light and ventilation;
[12]
Proper room sizes;
[13]
Proper egress doors or windows;
(e)
A Code Enforcement Officer shall seek a search warrant from a court of competent jurisdiction whenever the owner, managing agent or occupant fails to allow inspections of any premises believed to be subject to this section and where there is a reasonable cause to believe that there is a violation of this section, Town of Ithaca Code Chapter 205 (Property Maintenance), or the New York State Uniform Fire Prevention and Building Code.
(f)
Failure of an owner of any unit that is required to have an
operating permit to apply for an operating permit in a timely manner,
to obtain an operating permit after inspection, or to maintain a valid
operating permit after it is granted throughout the period that such
unit is used or offered for short-term rental use, shall be deemed
a violation of this section.
(g)
Over-occupancy. Verified over-occupancy shall constitute a violation
of the operating permit.
(2)
Additional hosted and unhosted short-term rental use requirements.
(a)
The following provisions in this Subsection E(2)(a) apply in all zones where short-term rental uses are allowed, except in the Lakefront Residential Zone. The owner of any unit used for a short-term rental use shall provide enough driveway parking spaces on the parcel containing such unit so that all vehicles belonging to the short-term renters are parked on-site. Such vehicles may not park on the street.
(b)
The following provisions in this Subsection E(2)(b) apply in all zones where short-term rental uses are allowed, except in the Lakefront Residential Zone. No unit except a principal residence with a hosted short-term rental shall be subject to more than one short-term rental agreement at any one time. If the owner offers more than one unit on a parcel and/or adjacent parcel, only one unit may be rented as a short-term rental use at any one time.
(c)
No unit used for a short-term rental use shall be rented for
the accommodation of more individuals than two times the number of
legal bedrooms in such unit.
(d)
All units used for short-term rental uses shall have prominently
posted in all bedrooms in such unit a copy of the valid operating
permit for such unit and a notice in a form approved by the Code Enforcement
Department containing safety and legal compliance information including,
but not limited to, the following: location of the nearest exit in
case of a fire; limitations contained in the Town's laws regarding
short-term rental uses and noise; and cell phone numbers of the owner
and any manager, if there is one.
(e)
Collection of rental information and actions to address complaints.
[1]
Every time an owner rents a unit for an unhosted
short-term rental use, prior to the beginning of the rental stay,
the owner shall notify the Code Enforcement Department of the dates
of the rental agreement by electronic methods established by such
Department.
[2]
Local contact person. Owners shall provide the
Code Enforcement Department, all short-term renters and all occupants
of adjacent properties with the name and contact information of a
local individual who shall be available 24 hours per day, seven days
per week, during the term of the unhosted stay. Once this notification
is given to the Code Enforcement Department and adjacent property
occupants, it does not need to be given to them again until the name
and/or contact information changes. The owner or designated local
contact person shall:
F.
Limitations on number of days allowed for short-term rental use.
(1)
Hosted short-term rental uses. There is no limit on the number
of days per year that a dwelling unit may be used for a hosted short-term
rental use.
(2)
Unhosted short-term rental uses.
(a)
Unless allowed a greater number of days below, no unit shall be used for an unhosted short-term rental use for more than 29 days in any calendar year in the Conservation, Agricultural, Low Density Residential, Medium Density Residential and High Density Residential Zones. This limitation of 29 days shall not apply to any written rental agreement that existed as of July 1, 2022, provided that the rental concludes by September 30, 2022. For the purposes of this § 270-219.7, each of the following shall count as one day:
(b)
An owner of a unit that satisfies at least one of the following
criteria may rent such unit for unhosted short-term rental uses for
up to 90 days in the aggregate in any calendar year:
[1]
A unit that is (a) located in a Conservation, Agricultural,
Low Density Residential or Medium Density Residential Zone on a parcel
that is larger than three acres, and (b) located more than 40 feet
from the side property lines.
[2]
A unit that is located in a Conservation, Agricultural,
Low Density Residential or Medium Density Residential Zone on a parcel
that is not adjacent to any parcels that contain a dwelling.
(c)
No unit shall be used for an unhosted short-term rental use for more than 245 days in any calendar year in the Lakefront Residential Zone. This limitation of 245 days shall not apply to any written rental agreement that existed as of July 1, 2022, provided that the rental concludes by September 30, 2022. For the purposes of this § 270-219.7, each of the following shall count as one day:
G.
Termination of certain legal nonconforming uses after amortization.
(1)
Except as provided in Subsection G(3) below, The Zoning Board of Appeals may grant special approval for a short-term rental use subject to termination or a limitation on days under this § 270-219.7 to continue for a stated period of time after the termination or limitation takes effect, provided that the owner applies to the Zoning Board of Appeals by October 1, 2022, for such special approval, and further provided that the Zoning Board of Appeals finds that:
[Amended 1-23-2023 by L.L. No. 2-2023]
(a)
The owner demonstrates that the short-term rental use is a legal
nonconforming use; and
(b)
The owner demonstrates through competent dollars-and-cents proof
that prior to April 1, 2022, they made substantial financial expenditures
unique to the short-term rental use; and
(c)
The owner provides documentation of their total receipts from
short-term rentals and expected revenue through the date of termination
or limitation; and
(d)
The owner demonstrates that they have not recovered substantially
all of the financial expenditures related to the short-term rental
use; and
(e)
The owner demonstrates that they cannot obtain a reasonable
return on their investment unique to the short-term rental use if
the property is used for any other purpose permitted within the zoning
district, and that the lack of a reasonable return is due solely to
the termination or limitation on short-term rental days and not other
market forces; and
(f)
The extension period granted by the Zoning Board of Appeals
is the minimum extension period necessary to mitigate the demonstrated
loss of a reasonable return.
(2)
The criteria for granting such special approval shall be as set forth above rather than the normal criteria in Article XXIV for granting a special approval.
(3)
For a short-term rental use that was previously allowed by or exempt from this § 270-219.7 and that is subject to termination on April 1, 2023 pursuant to amendments to this § 270-219.7 that become effective on April 1, 2023, the Zoning Board of Appeals may grant special approval for such short-term rental use to continue for a stated period of time after the termination takes effect, provided that the owner applies to the Zoning Board of Appeals by May 15, 2023, for such special approval, and further provided that the Zoning Board of Appeals finds that:
[Added 1-23-2023 by L.L. No. 2-2023]
(a)
The owner demonstrates that the short-term rental use is a legal
nonconforming use; and
(b)
The owner demonstrates through competent dollars-and-cents proof
that prior to April 1, 2023, they made substantial financial expenditures
unique to the short-term rental use; and
(c)
The owner provides documentation of their total receipts from short-term
rentals and expected revenue through the date of termination; and
(d)
The owner demonstrates that they have not recovered substantially
all of the financial expenditures related to the short-term rental
use; and
(e)
The owner demonstrates that they cannot obtain a reasonable return
on their investment unique to the short-term rental use if the property
is used for any other purpose permitted within the zoning district,
and that the lack of a reasonable return is due solely to the termination
on short-term rental days and not other market forces; and
(f)
The extension period granted by the Zoning Board of Appeals is the
minimum extension period necessary to mitigate the demonstrated loss
of a reasonable return.
(5)
Owners of dwelling units that were previously exempt from this section and receive special approval pursuant to Subsection G(3) above must apply for an operating permit within five days of the grant of special approval. Upon the grant of special approval, all provisions of this § 270-219.7 apply during the duration of the special approval, except the Town may grant an operating permit to such owner even though it is not a natural person or trust.
[Added 1-23-2023 by L.L. No. 2-2023]
H.
Order to remedy; operating permit suspension and revocation.
(1)
Whenever the Code Enforcement Officer finds that there has been
a violation of this section, the Code Enforcement Officer is authorized
to order in writing the remedying of any condition or activity in
violation of this section.
(2)
An order to remedy shall be in writing; identify the property
or premises; specify the condition or activity that violates this
section; shall specify the provisions of this section which are violated
by the specified condition or activity; shall include a statement
that the violations must be corrected within 30 days after the date
of the order to remedy; may direct the person served with the order
to begin to remedy the violation(s) immediately or within some other
stated period of time that can be less than 30 days after the date
of the order; direct that compliance be achieved within the specified
period of time; and shall state that an action or proceeding to compel
compliance and/or seek penalties, fines and/or imprisonment may be
instituted if compliance is not achieved within the specified period
of time.
(3)
The order to remedy, or a copy thereof, may be served within
five days after the date of the order to remedy by personal service,
by mailing by registered or certified mail sent to the address set
forth in the application for any permit submitted to the Town or to
the property address, or by posting a copy thereof on the premises
that are the subject of the order to remedy and mailing a copy, enclosed
in a prepaid wrapper, addressed to the last known address of the owner
as set forth in the Town of Ithaca records, or if none, in the most
recent tax roll available to the Town of Ithaca.
(4)
In case the owner, operator, or the agent of any of them shall
fail, neglect or refuse to remove, eliminate or abate the violation
within the time specified in the order to remedy, a request to take
appropriate legal action may be made to the Attorney for the Town
of Ithaca, and/or the Code Enforcement Officer may initiate the process
to suspend or revoke an operating permit, if the suspension/revocation
process has not already been instituted.
(5)
Suspension and revocation of operating permit.
(a)
An operating permit may be suspended or revoked pursuant to Town of Ithaca Code Chapter 125 (Building Construction and Fire Prevention), § 125-8. In addition to the reasons for suspension and revocation in that section, an operating permit may be suspended or revoked if the owner of a dwelling unit used or offered for short-term rental use fails to apply for an operating permit in a timely manner, to obtain an operating permit after inspection, to maintain a valid operating permit after it is granted throughout the period that such unit is used or offered for a short-term rental use, or to otherwise comply with this section.
(b)
To initiate the process to suspend or revoke an operating permit,
the Code Enforcement Officer shall issue a notice of intent to suspend
or revoke the operating permit. The notice of intent to suspend or
revoke shall describe the violation and require the operating permit
holder to immediately correct the violation or cause the violation
to be corrected.
(c)
The notice of intent shall be provided to the operating permit
holder by personal service, by registered or certified mail to the
address submitted with the permit application, or by posting on the
premises at issue.
(d)
If the operating permit holder fails to immediately correct
the violation or cause the violation to be corrected, the Code Enforcement
Officer shall suspend or revoke the permit.
(e)
An operating permit holder shall be entitled to request a hearing
on suspension or revocation before the Town Board, upon application
made to the Town Clerk demonstrating that the operating permit holder
was not in violation. Such hearing shall be requested, in writing,
with the request addressed to and received by the Town Clerk within
five business days of the permit holder's receipt of the notice of
intent or of posting, whichever occurs earlier. Any suspension or
revocation remains in effect unless modified by the Town Board. Within
30 days of the permit holder's written request, the Town Board shall
hold a hearing to determine whether to reverse the suspension or revocation.
The Town Board shall issue its written decision within 15 days after
the hearing.
(f)
The owner of a dwelling unit for which a short-term rental operating
permit has been revoked for the first time may not reapply for a new
operating permit until one year after such revocation.
(g)
The owner of a dwelling unit for which a short-term rental operating
permit has been revoked at least once before may not reapply for a
new operating permit until five years after such revocation.
