Town of Ithaca, NY Article XXVI Special Regulations

§ 270-215 Mobile homes and trailers.

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.

§ 270-216 (Reserved) [1]

[1] Editor’s Note: Former § 270-216, Elder cottages, was repealed 12-11-2017 by L.L. No. 20-2017.

§ 270-217 Deposit or removal of fill and related products.

[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:

(a) An area of 30,000 square feet in which the proposed construction is to be located; or

(b) The area contained within the footprint of the proposed structure plus an additional 50 feet adjacent to the perimeter of the proposed structure.

(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.

§ 270-218 Limitations on vehicle repair garages and gasoline sales stations.

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.

§ 270-219 Personal wireless service facilities.

[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; 1-13-2025 by L.L. No. 2-2025]

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. Definitions. As used in this section, the following terms shall have the meanings indicated:

ANTENNA

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).

ANTENNA EQUIPMENT

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.

ANTENNA FACILITY

An antenna and associated antenna equipment.

BASE STATION

Shall have the definition in the FCC's regulations at 47 CFR 1.6100.

CARRIERS

See "wireless carriers."

CO-LOCATION and/or CO-LOCATE

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.

DEPLOYMENT

The placement, construction, or modification of a personal wireless service facility.

DIRECTOR OF CODE ENFORCEMENT

The Town of Ithaca's Director of Code Enforcement, or their designee.

DIRECTOR OF PLANNING

The Town of Ithaca's Director of Planning, or their designee.

EFFECTIVE PROHIBITION

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).

ELIGIBLE FACILITIES REQUEST

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:

(1) Co-location of new transmission equipment;

(2) Removal of transmission equipment; or

(3) Replacement of transmission equipment.

FAA

The Federal Aviation Administration.

FACILITY

See "personal wireless service facility or PWSF."

FCC

The Federal Communications Commission.

GENERAL POPULATION/UNCONTROLLED EXPOSURE LIMITS

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).

HEIGHT

The distance measured from the preexisting grade level to the highest point of a personal wireless service facility.

IN-KIND CALL TESTING

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.

LAST-MINUTE SUBMISSIONS

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.

LEAST INTRUSIVE MEANS

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.

MAINTENANCE

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.

NEPA

The National Environmental Policy Act, 42 U.S.C. § 4321 et seq.

NHPA

The National Historic Preservation Act, 54 U.S.C. § 300101 et seq., and its regulations at 36 CFR Part 800 et seq.

NODE

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.

NON-SMALL WIRELESS FACILITY

A facility that does not meet the definition of a small wireless facility.

OCCUPATIONAL EXPOSURE LIMITS

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).

PERMITTEE

A holder of a personal wireless service facility permit.

PERSONAL WIRELESS SERVICE FACILITY or PWSF

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.

PERSONAL WIRELESS SERVICE FACILITY PERMIT or PWSF PERMIT

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.

PERSONAL WIRELESS SERVICE, PERSONAL WIRELESS SERVICES

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.

PWSF

Personal wireless service facility.

PWSF STRUCTURE

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.

REPAIRS

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.

RF

Radio frequency.

SEQRA

The New York State Environmental Quality Review Act (New York Environmental Conservation Law Article 8), and its implementing regulations at 6 NYCRR Part 617.

SHOT CLOCK PERIOD

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.

SHPO

The New York State Historic Preservation Office.

SMALL WIRELESS FACILITY

A personal wireless service facility that meets all the following criteria:

(1) The facility:

(a) Is mounted on a PWSF structure 50 feet or less in height, including its antennas; or

(b) Is mounted on a PWSF structure no more than 10% taller than other adjacent structures; or

(c) 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;

(2) Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume;

(3) 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;

(4) The facility does not require antenna structure registration under 47 CFR Part 17 — (Construction, Marking, and Lighting of Antenna Structures);

(5) The facility is not located on tribal lands, as defined under 36 CFR 800.16(x); and

(6) 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).

SMALL WIRELESS FACILITY STRUCTURE

A PWSF structure for a small wireless facility.

STEALTH

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.

STRUCTURE

See "PWSF structure."

TCA

The Telecommunications Act of 1996, 47 U.S.C. § 332(c).

TOLLING or TOLLED

The pausing of the running of the time period under the applicable shot clock period.

TOWER

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.

TOWN

The Town of Ithaca.

WIRELESS CARRIERS

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.

(b) For individual non-co-located facilities:

[1] Ninety days for a new small wireless facility.

[2] One hundred fifty days for all other PWSFs.

(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.

(g) An FCC compliance report, as described in Subsection I below.

(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.

(j) All of the information required by Town Code § 125-5 (Building permits), if applicable.

(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.

(g) An FCC compliance report, as described in Subsection I below.

(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.

(j) A visual impact analysis, as described in Subsection J below.

(k) All of the information required by Town Code § 125-5 (Building permits), if applicable.

(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.

(q) Information required by, and proof of compliance with, Subsection H (Co-location) below.

(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:

[a] The date and time for the test;

[b] The location, in longitude and latitude, of each point at which signal strength was recorded; and

[c] Each signal strength recorded, measured in decibel-milliwatts (dBm), for each frequency.

[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;

(b) The applicable standards in Chapter 270 (Zoning), Article XXIV (Special Permits and Special Approvals), § 270-200 (Considerations for approval) are met; and

(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.

[3] Compliance with Chapter 270 (Zoning) and other Town Code requirements. Complies with all requirements of this § 270-219, with all other requirements of this Chapter 270 (unless expressly superseded by this § 270-219), and all other applicable Ithaca Town Code requirements.

[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.

(b) For Section 6409(a)[4] eligible facilities: All fees and required documents for Section 6409(a) eligible facilities applications per § 270-219G have been submitted to the Town.

[4] Editor's Note: See 47 U.S.C. § 1455(a).

(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.

[3] Compliance with Chapter 270 (Zoning) and other Town Code requirements. Complies with all requirements of this § 270-219, with all other requirements of this Chapter 270 (unless expressly superseded by this § 270-219), and all other applicable Ithaca Town Code requirements.

[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;

(c) The documentation listed in Subsection G(1)(f) or G(2)(f) above (whichever is applicable) showing compliance with all applicable building, structural, electrical and safety codes and with all other laws reasonably related to health and safety; and

(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;

(2) Its PWSF permit, all relevant requirements of this § 270-219, all other relevant requirements of this Chapter 270 (unless expressly superseded by this § 270-219), and all other relevant Ithaca Town Code requirements; and

(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. (Reserved)

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.

§ 270-219.1 Solar energy systems.

[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. Applicability.

(1) The requirements of this section shall apply to all solar energy systems modified or installed after the effective date of this section.

(2) Solar energy systems are permitted in all Town zones, including Planned Development Zones, subject to the requirements described below.

(3) Notwithstanding the foregoing, where the solar energy systems provisions of the New Neighborhood Code (Chapter 272) apply and are inconsistent with this § 270-219.1, the provisions of the New Neighborhood Code apply.

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.

(5) For purposes of this § 270-219.1, a solar energy system use is an accessory use on a lot if it is designed for a use primarily on the lot.

(6) In the event of inconsistency between the provisions in this § 270-219.1 and other provisions in Chapter 270 or Chapter 271 (such as setback or height requirements), the provisions in § 270-219.1 shall govern.

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.

(2) Installation of solar energy systems is prohibited in:

(a) Required open space;

(b) Required buffers; or

(c) Park set-aside areas required as a condition of subdivision approval.

(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):

[a] Seventy-five feet minimum from all lot lines.

[b] Roads, landscaping and fencing may occur within the setback.

[c] Multiple lots. The Planning Board may consider a solar facility project that is comprised of several lots to be treated as a single lot for purposes of applying setback standards.

[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.

[g] Signage. All signage shall comply with the Town's Sign Law (Ithaca Town Code Chapter 270, Article XXIX). A sign shall be displayed on or near the main access point identifying the owner and providing a twenty-four-hour emergency contact phone number.

[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.

§ 270-219.2 Limitations on home occupations.

[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.

§ 270-219.3 Amateur radio facilities.

[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.

(8) When required by Chapter 125, Building Construction and Fire Prevention, of the Town of Ithaca Code, a building permit must be obtained for the amateur radio facilities.

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.

§ 270-219.4 Small wind energy facilities.

[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.

(2) All wiring connected with the small wind energy facility shall be underground, except for:

(a) Wiring that runs from the turbine to the base of the facility; and

(b) All wiring associated with building-mounted small wind energy facilities.

(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.

(7) To reduce the possibility of nighttime bird collisions with any part of the small wind energy facility, all on-site lighting shall conform with the Town's Outdoor Lighting Law, Chapter 173 of the Town of Ithaca Code.

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.

§ 270-219.5 Stream setback.

[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:

(a) 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) below, the provisions in § 270-219.5(D)(1), (4), (5), and (12) through (15), E(13)(a) and (b), H and I shall apply.

(b) For parcels that are greater than 0.5 acre as of the effective date of this section and contain at least a portion of a stream setback described in Subsection D below, all of the provisions in § 270-219.5 except § 270-219.5(D)(12) shall apply.

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.

(3) The setback shall be composed of two distinct zones. Specified activities listed in Subsections E and F are prohibited as described in those subsections.

(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.

[4] For streams with upstream drainage areas of 175 or more acres, certain prohibitions apply to the stream as well as to Stream Setback Zone 1. See Subsection F below.

(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:

[1] The new structure's footprint within the setback is in the same location and has the same or smaller dimensions as the replaced, renovated or restored structure's footprint; and

[2] None of the dimensions of the portions of the structure located within the setback increase in size.

(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:

(a) The new structure's footprint within the setback zone is in the same location and has the same or smaller dimensions as the replaced, renovated or restored structure's footprint; and

(b) None of the dimensions of the portions of the structure located within the setback zone increases in size;

(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:

(a) Grazing of livestock, where livestock are allowed by this chapter, in accordance with a conservation plan approved by the Tompkins County Soil and Water Conservation District; and

(b) Haying, and growing of crops for commercial, educational, research or other purposes;

(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;

[2] The Town approves the relevant stormwater pollution prevention plan (SWPPP) required by Chapter 228, or a simple erosion and sedimentation control plan if no SWPPP is required by Chapter 228;

[3] The property owner complies with the requirements of Chapter 157, Flood Damage Prevention, if the project takes place in an area of special flood hazard; and

[4] The property owner complies with the applicable requirements of § 270-217 regarding the deposit or removal of fill or related products;

(6) Motorized recreational activities, except for:

(a) Use of motorized golf carts on golf courses existing as of the effective date of this section; and

(b) Use of motorized wheelchairs and scooters for the mobility-impaired;

(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:

(a) Selection tree cutting that maintains the protective function of the setback zone;

(b) Disturbance of existing vegetation to:

[1] Remove diseased, damaged or dead trees or shrubs or nonnative invasive vegetation;

[2] Remove vegetation in a proactive effort to minimize the spread of disease; or

[3] Remove vegetation that presents safety or health hazards;

(c) Pruning of trees and vegetation;

(d) Restoration of riparian habitat and native vegetation; and

(e) Development of a narrow permeable (nonpaved) footpath within the stream setback;

(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:

(a) Ordinary household trash temporarily stored in a covered garbage can;

(b) Ordinary household recyclables set out at curbside for pickup; and

(c) Composting of residential materials.

(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:

(1) All uses and activities prohibited by Subsection E above;

(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:

(a) The New York State Department of Environmental Conservation has issued a permit expressly allowing such activities on the parcel; or

(b) Dredging is performed to maintain dam safety or operational effectiveness;

(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;

(b) The Town approves the relevant stormwater pollution prevention plan (SWPPP) required by Chapter 228, or a simple erosion and sedimentation control plan if no SWPPP is required by Chapter 228;

(c) The property owner complies with the requirements of Chapter 157, Flood Damage Prevention, if the project takes place in an area of special flood hazard; and

(d) The property owner complies with the applicable requirements of § 270-217 regarding the deposit or removal of fill or related products;

(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.

G. Prior nonconforming uses and activities. The provisions of § 270-204 relating to nonconforming uses of land shall not apply to uses and activities prohibited by Subsections E and F above.

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.

§ 270-219.6 Accessory dwelling units.

[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.

(a) Operating permits issued pursuant to Town of Ithaca Code Chapter 125 (Building Construction and Fire Prevention), § 125-8, are required throughout the term of rental occupancy for all accessory dwelling units that are rented for terms of at least 30 consecutive days.

(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;

[14] Compliant off-street parking, per Town of Ithaca Code § 270-227;

[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

[16] Exterior property areas are not in violation of Town of Ithaca Code § 205-2.

(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) There is no owner occupancy requirement for:

[1] Properties in the High Density Residential Zone; or

[2] Properties that contain accessory dwelling units that are listed in Town of Ithaca records or Tompkins County's assessment database as of the effective date of this § 270-219.6; or

[3] Properties that contain accessory dwelling units that the owner can prove, to the satisfaction of a Code Enforcement Officer by January 1, 2019, existed as of the effective date of this § 270-219.6.

(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 or sleeping area shall be removed from the area under consideration so complete living facilities for one family no longer exist.

[Amended 7-8-2024 by L.L. No. 6-2024]

(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.

(1) No other accessory dwelling units may be located on the lot;

(2) If the street-facing facade of the building occupied by a detached accessory dwelling unit is visible from the street line, at least 20% of the street-facing facade must have window or door openings; and

(3) For buildings constructed after the effective date of this Subsection C, the minimum required roof pitch of the building occupied by a detached accessory dwelling unit is 4:12.

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]

§ 270-219.7 Short-term rental uses.

[Added 12-29-2021 by L.L. No. 16-2021; amended 1-23-2023 by L.L. No. 2-2023; 8-11-2025 by L.L. No. 11-2025]

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:

(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, and in the Conservation Zone in structures that existed as of September 1, 2025, 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.

(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:

(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:

[1] Natural persons (defined for purposes of this § 270-219.7 as living human beings), or

[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;

[14] Compliant off-street parking, per § 270-227 and this section;

[15] Exterior property areas do not violate Town of Ithaca Code Chapter 205 (Property Maintenance).

(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:

[a] Respond on-site within 60 minutes to complaints regarding a condition or operation of the short-term rental use or the conduct of the renters; and

[b] Take remedial action to resolve any and all complaints.

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:

[1] A rental of 24 hours.

[2] A rental of less than 24 hours that includes an overnight stay.

[3] A rental of less than 24 hours that does not include an overnight stay.

(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:

[1] A rental of 24 hours.

[2] A rental of less than 24 hours that includes an overnight stay.

[3] A rental of less than 24 hours that does not include an overnight stay.

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:

(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:

(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.

(4) The criteria for granting special approval pursuant to Subsection G(3) above shall be as set forth in Subsection G(3) above rather than the normal criteria in Article XXIV for granting a special approval.

(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.

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.