Town of Marion, NY
Wayne County
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Communications towers, communication installations, transmission towers, telecommunications towers, and structure accessory thereto, including antennas and/or poles, shall be permitted in any of the following districts after Town Planning Board review and granting of a special use permit by the Zoning Board of Appeals in accordance with the law and other applicable laws of the Town of Marion:
A. 
Town-owned property.
B. 
Districts:
A-C — Agricultural-Conservation
I-1 — Industrial
The maximum height for communications towers permitted under this chapter, including any antennas, extensions or other devices extending above the structure of the tower, measured from the ground surface immediately surrounding the site, shall be 150 feet.
A. 
In accordance with Chapter 308, Zoning, Article V, § 308-26C, of the Code of the Town of Marion, the owner/applicant shall submit to the Code Enforcement Officer seven copies of the application supplied by the Town of Marion, accompanied by supporting details including the following:
(1) 
The location of the communications tower, together with guy wires and guy anchors, if applicable, and approximate location, size, and height of all poles and existing antennas and all pertinent structures.
(2) 
A side elevation or other sketch of the tower, showing the proposed antennas.
(3) 
The location of all structures on the property and all structures on any adjacent property within 200 feet of the property lines, together with the distance of these structures to the communication tower.
(4) 
The identification of property owners and existing land uses for all sites on properties within 1,500 feet of the applicant's site as shown on the Marion Assessor's records.
(5) 
The location, nature, and extent of any proposed fencing, landscaping, and/or screening.
(6) 
The location and nature of proposed utility easements and access road, if applicable.
(7) 
Inventory of other communications towers within a two-mile radius of the proposed site.
(8) 
A completed environmental assessment form (and visual EAF addendum) and a landscaping plan addressing other standards listed within this section with particular attention to visibility from key viewpoints within and outside of the municipality as identified in the visual EAF. The Board may-require submittal of a more detailed visual analysis based on the results of the visual EAF. A complete environmental assessment form shall include:
(a) 
How the facilities can be blended with the viewshed, including any attempts at camouflage; and
(b) 
Computer-enhanced photos of the proposed tower, both before and after construction, from all adjacent public rights-of-way.
(9) 
A grid or map of all of the owner's/applicant's existing communications tower site areas in the Town of Marion and adjacent towns and site areas proposed or projected by the owner/applicant for installations for a period of five years.
(10) 
Supplemental and special notice requirements. At the time of application for site plan approval or a special use permit, the applicant shall mail notice to the owners of record of property within 1,500 feet of the property line of the parcel on which a new tower is proposed. Notification shall be by certified mail, return receipt requested, and documentation of the mailing of the notification shall be submitted to the Board at the time of the application.
B. 
To facilitate the possibility of shared use or co-location, the applicant shall also provide intermunicipal notification for new towers by notifying in writing the legislative body of towns bordering the Town of Marion. Similar notice shall be given to the Wayne County Planning Board. The intermunicipal notification shall include the proposed location of the new tower and a brief general description of the facility, including the height of the tower and its capacity for future shared use. Documentation of this notification shall be submitted to the Board at the time of the application.
C. 
Special use permit and site plan standards. Prior to review of the application for a special use permit by the Town Planning Board and the granting of a special use permit by the Zoning Board of Appeals, the following requirements shall be complied with.
(1) 
Shared use. At all times, shared use of existing communication towers shall be preferred to the construction of new towers. Additionally, where such shared use is unavailable, location of antenna on preexisting structures shall be considered. An applicant shall be required to present an adequate report inventorying existing towers within reasonable distance of the proposed site and outlining opportunities for shared use of existing facilities and use of other preexisting structures as an alternative to a new construction.
(2) 
An applicant intending to share use of an existing tower shall be required to document intent from an existing tower owner to share use.
(3) 
The applicant shall provide a letter of intent committing the tower owner to negotiate in good faith for shared use by the third parties in the future. This letter, which shall be filed with the Town Zoning Board of Appeals Clerk prior to the issuance of a special use permit by the Zoning Board, shall commit the tower owner and his or her successors in interest to:
(a) 
Respond in a timely manner to a request for information from a potential shared use or co-location antenna;
(b) 
Negotiate in good faith for shared use by third parties;
(c) 
Allow shared use if an applicant agrees in writing to pay reasonable charges;
(d) 
Make no more than a reasonable charge for shared use, based upon generally acceptable accounting principles.
(4) 
An applicant must submit evidence that existing facilities do not have space on which planned equipment can be placed so it can function effectively. This shall include, but not be limited to, the following:
(a) 
The applicant shall contact the owners of all existing or approved towers;
(b) 
The applicant shall provide each contacted owner with the engineer's report required herein;
(c) 
The applicant shall request each contacted owner to assess the following:
[1] 
Whether the existing tower could accommodate the antenna to be attached to the proposed tower without causing structural instability or electromagnetic interference;
[2] 
If the antenna cannot be accommodated, assess whether the existing tower could be structurally strengthened or whether the antennas and related equipment could be protected from interference;
[3] 
Whether the owner is willing to make space available; and,
[4] 
The projected cost of shared use.
(5) 
In the case of new communications towers, the applicant shall be required to submit a report demonstrating good faith efforts to secure shared use from existing towers. Copies of written requests and responses for shared use shall be provided.
(6) 
In the case of new communications towers, the applicant shall be required to design the tower for shared use by two future co-locators. This requirement may be waived by the Zoning Board of Appeals, provided that the applicant demonstrates that the provisions of future shared usage of the facility is not feasible and is an unnecessary burden, based upon:
(a) 
The number of FCC licenses foreseeable available for the area;
(b) 
The kind of tower site and structure proposed;
(c) 
The number of existing and potential licenses without tower spaces/sites;
(d) 
Available spaces on existing and approved towers;
(e) 
Potential adverse visual impact by a tower designed for shared usage; and
(f) 
Such other factors as may be deemed relevant by the Zoning Board of Appeals.
(7) 
Applicants are encouraged to consider and propose the shared use of public emergency communications equipment, at no charge, provided the equipment and antennas to be added to the tower do not interfere with the existing equipment or overload the design for the tower.
D. 
Aesthetics. In order to minimize any adverse aesthetic effect on neighboring properties to the extent possible, a board may impose reasonable conditions on the applicant, including the following:
(1) 
All communications towers and accessory facilities or structures shall be sited to have the least practical adverse visual effect on the environment.
(2) 
A monopole or guyed tower (if sufficient land is available to the applicant) is generally preferred instead of a lattice-type communication tower.
(3) 
Any necessary facilities shall maximize use of building materials, colors, and textures designed to blend with the natural surroundings.
(4) 
Any communication tower in the Town shall be lit according to the FAA specifications for towers over 200 feet; specifically, with an L864 red light by night and an L865 white strobe by day. This lighting requirement shall apply to towers of any height.
(5) 
No communication tower shall contain any signs or advertising devices, except for an appropriately sized sign to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities. The sign shall contain the name of the owner and operator of the antenna as well as emergency phone numbers. No other signage shall be permitted on any antenna, supporting structure, or tower unless required by federal or state law or regulation.
(6) 
All communication cable leading to and away from any new telecommunications tower shall be installed underground and in compliance with all the laws, rules and regulations of the Town. Upon a finding by the Zoning Board of Appeals that due to special conditions particular to the site, underground installation may cause unnecessary hardship, the Zoning Board of Appeals may waive or vary the requirements of underground installation whenever, in the opinion of the Zoning Board of Appeals, such variance or waiver shall not be detrimental to the public health, safety or general welfare. The site plan applicant desiring such a waiver shall file a written request at the time the application is added to the Zoning Board's agenda, setting forth why the waiver should be granted.
(7) 
The applicant shall show that it has made good-faith efforts to co-locate on existing towers or to construct new towers near existing towers in an effort to consolidate and avoid visual disturbances to the extent practical.
(8) 
Reasonable landscaping shall be provided consisting of trees or shrubs to screen the base of the communications tower, accessory buildings, and/or to screen the tower to the extent possible from nearby residential property.
(9) 
Towers should be designed and sited so as to avoid, whenever possible, application of FAA lighting and painting requirements. Towers shall be painted a galvanized finish or blending color, unless otherwise required by the FAA or as designated by the Zoning Board of Appeals.
E. 
Setbacks.
(1) 
All communication towers and accessory structures shall be set back from abutting residential parcels, public property, or right-of-way lines a distance sufficient to contain on site substantially all ice-fall or debris from tower failure and preserve the privacy of adjoining residential properties.
(2) 
All communication tower bases must be located at a minimum setback from any property line at a distance at least equal to 1 1/2 times the tower height, or a minimum setback at a distance which shall be established at the discretion of the Zoning Board as part of the site plan approval procedures based on the unique characteristics of the site. The minimum setback requirement of the subsection may be increased or decreased at the discretion of the Zoning Board as part of the site plan approval procedures.
(3) 
All accessory structures must comply with the minimum setback requirements of the underlying zoning district.
F. 
Radio-frequency effects. It is recognized that federal laws [Telecommunications Act of 1996, Public Law 104-104, Section 704 (February 8, 1996)] prohibits the regulation of cellular and personal communication services, communications towers based on the environmental effects of radio frequency emissions where those emissions comply with the FCC standards for those emissions. Communications antennas must be operated only at FCC-designated frequencies and power levels.
G. 
Traffic, access and safety.
(1) 
All road and parking will be provided to assure adequate emergency and service access. Maximum use of existing roads, public or private, shall be made. Road construction shall be consistent with standards for private roads, and shall at all times minimize ground disturbance and vegetation cutting to within the toe of fill top of cuts, or not more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential. Public road standards may be waived in meeting the objective of this subsection.
(2) 
All communications towers and guy anchors, if applicable, shall be enclosed to sufficiently protect from trespassing or vandalism.
(3) 
The applicant must comply with all applicable state and federal regulations, including but not limited to FAA and FCC regulations.
(4) 
All communications towers and guy wires or anchors shall be made inaccessible and constructed or shielded in such a manner that they cannot be climbed or run into.
(5) 
Transmitters and control devices shall be installed such that they are readily accessible only to persons authorized to operate or service them, and are to be designed and installed to the maximum extent practicable to prevent the transmitter from deviating from its authorized operating parameters and to prevent unauthorized persons from causing the transmitter to deviate from its authorized operating parameters.
(6) 
The tower shall be designed to withstand one-hundred-mile-per-hour wind gusts.
(7) 
All facilities shall have a backup source of power suitable for sustaining uninterrupted service to the public during periods of power outages. The Zoning Board shall require either a power generator or a battery pack source of energy capable of sustaining 24 hours of service.
H. 
Existing vegetation. Existing on-site vegetation shall be preserved to the maximum extent possible, and no cutting of trees exceeding six inches in diameter (measured at a height of four feet off the ground) shall take place prior to the approval of the special use permit. Clear-cutting of all trees in single contiguous areas exceeding 20,000 square feet shall be prohibited.
I. 
Screening. Deciduous or evergreen tree plantings may be required to screen portions of the tower from nearby residential property as well as from public sites known to include important views or vistas. Where the site abuts residential or public property, including streets, the following vegetation screening shall be required. For all communication towers, at least one row of native evergreen scrubs or trees capable of forming a continuous hedge at least 10 feet in height within two years of planting shall be provided to effectively screen the tower base and accessory facilities. In the case of poor soil conditions, planting may be required on soil berms to assure plant survival. Plant height in these cases shall include the height of any berm.
J. 
Bond/security. The applicant and owner of record of the premises shall be required to execute and file with the Town Clerk of the Town of Marion a bond or other form of security acceptable to the Town Attorney and Town Financial Officer as to form and manner of the execution, in an amount sufficient for the faithful performance of the terms and conditions of this chapter, the conditions of the permit or approval issued hereunder, for the observation of all Town local laws or ordinances, to cover the maintenance of the tower during its lifetime, and provide for its removal. The amount required shall be determined by the Zoning Board of Appeals in its special use permit procedure or site plan approval procedure. In the event of default upon the performance of any of such conditions, the bond or security shall be forfeited to the Town of Marion, which shall be entitled to maintain an action thereon. The bond or security shall remain in full force and effect until the removal of the transmission tower, telecommunications tower, communications installation, accessory facility/structure, and site restoration.
K. 
Expiration. The special use permit and site plan approval shall expire upon:
(1) 
The failure to commence active operation of the communication tower, communication installation, telecommunications tower, accessory facility/structure within 12 months of the issuance of a special use permit by the Zoning Board or final site plan approval by the Zoning Board; or
(2) 
The discontinuance of the active and continuous operation of the communications tower, telecommunications tower, communications installation, or accessory facility/structure for a continuous period of 12 months, regardless of any reservation of an intent not to abandon or discontinue the use or an intent to resume active operations.
L. 
Removal of obsolete/unused facilities.
(1) 
Approval of a new commercial communications tower facility or the expansion or modification of any existing commercial tower facility shall be conditioned upon the owner's and applicant's agreement to remove such facility when it has ceased to be used for a period of 12 months.
(2) 
Failure to dismantle and remove a facility and restore the site to its natural state within 90 days after said facility has been declared abandoned by the Town Board will result in forfeiture of said letter of credit or cash bond posted by owner or user of said facility.
M. 
Periodic review. From time to time, the Town Board or the Zoning Board or Code Enforcement Officer, at the Town Board's direction, may review the special use permit or site plan approval to ascertain if the requirements, conditions and restrictions of this chapter are being substantially complied with in good faith. In the event that, upon review, the Town Board or its said agent finds that the site is not in accordance with the approved building and site plans, and the requirements, conditions and/or restrictions of this chapter or of the special use permit are not being substantially complied with, the enforcement procedures under Chapter 308, Zoning, Article V, § 308-24F, of the Code of the Town of Marion, shall be invoked and/or the special use permit shall be canceled or terminated within a specified period of time unless the requirements, conditions and restrictions are complied with after reasonable notice.
N. 
Conditions. The Zoning Board may impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed transmission tower, telecommunication tower, communications installation, special use permit, or site plan.
O. 
Additional prerequisites for the Zoning Board of Appeals to consider prior to taking action to issue a special use permit for personal wireless telecommunications facilities:
(1) 
A report from a professional engineer, to be included in the application for the special use permit, which shall:
(a) 
Describe the need in the Town for the proposed structure, its installation and use.
(b) 
Describe the appropriateness of the proposed site including factors such as the following:
[1] 
Availability of alternative, less intrusive sites, or opportunities for co-location;
[2] 
Physical features and the general character, present a probable future use and density of development in the neighborhood;
[3] 
Distance from existing and planned residential development and public rights-of-way;
[4] 
Suitability and adaptability of the site for the proposed structure; considering, for example, the topography, natural buffers, screening and fencing;
[5] 
Size of the site chosen for the proposed facilities, keeping in mind a parcel with an unoccupied area of sufficient size so that all portions of the site could accommodate a toppled tower;
[6] 
Noise, glare, vibration, electrical disturbance, or other objectionable consequences of the proposed installation.
(c) 
Describe the effect of the proposed facilities and use on the other properties in the neighborhood, whether such installation or use will materially affect the value, use, or enjoyment of neighboring properties.
(d) 
Describe the geographic coordinates of the facilities as further defined on the applicant's FCC License Application (NAD-27 and NAD-83).
(e) 
Demonstrate that the tower is structurally sound.
(f) 
Describe how many and what kind of antennas are proposed and how many and what kind of antennas are possible on the tower.
(g) 
Demonstrate that the site can contain on site substantially all ice-fall or debris from tower failure.
(h) 
Include a copy of the applicant's FCC construction permit, including any requirements from the FAA.
P. 
Additional counsel. In considering any application for a special use permit or site plan approval for a telecommunications facility, the Zoning Board of Appeals shall have the authority to obtain the services of an independent engineer, attorney, and/or other experts such as the Zoning Board deems necessary, at the expense of the applicant.