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:
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:
(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.
