[HISTORY: Adopted by the Town Board of the Town of Binghamton 6-17-2003 by L.L. No. 2-2015. Amendments noted where applicable.]
The Telecommunications Act of 1996 affirmed the Town of Binghamton's
authority concerning the placement, construction, and modification
of wireless telecommunications facilities. The Town Board of the Town
of Binghamton finds that wireless telecommunications facilities may
pose a unique hazard to the health, safety, public welfare, and environment
of the Town of Binghamton and its inhabitants, and that certain areas
of the Town of Binghamton are already overburdened with wireless telecommunications
facilities. The Town also recognizes that facilitating the development
of wireless service technology can be an economic development asset
to the Town and of significant benefit to the Town and its residents.
In order to insure that the placement, construction, or modification
of wireless telecommunications facilities is consistent with the Town's
land use policies, the Town is adopting a single, comprehensive, wireless
telecommunications facilities application and permit process. The
intent of this chapter is to minimize the negative impact of wireless
telecommunications facilities, establish a fair and efficient process
for review and approval of applications, assure an integrated, comprehensive
review of environmental impacts of such facilities, and protect the
health, safety and welfare of the Town of Binghamton.
This chapter may be known and cited as the "Wireless Telecommunications
Facilities Siting Law for the Town of Binghamton."
A.Â
If any word, phrase, sentence, part, section, subsection, or other
portion of this chapter or any application thereof to any person or
circumstance is declared void, unconstitutional, or invalid for any
reason, then such word, phrase, sentence, part, section, subsection,
or other portion, or the proscribed application thereof, shall be
severable and the remaining provisions of this chapter, and all applications
thereof not having been declared void, unconstitutional, or invalid,
shall remain in full force and effect.
B.Â
Any special use permit issued under this chapter shall be comprehensive
and not severable. If part of a permit is deemed or ruled to be invalid
or unenforceable in any material respect by a competent authority,
or is overturned by a competent authority, the permit shall be void
in total, upon determination by the Town Board.
For purposes of this chapter, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meaning given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets.
A system of electrical conductors that transmits or receives
electromagnetic waves or radio frequency signals. Such waves shall
include, but not be limited to, radio, television, cellular, paging,
personal telecommunications services (PCS), and microwave telecommunications.
Any person submitting an application to the Town of Binghamton
for a special use permit for wireless telecommunications facilities.
The form approved by the Board, together with all necessary
and appropriate documentation that an applicant submits in order to
receive a special use permit for wireless telecommunications facilities.
The Town Board of the Town of Binghamton.
The use of the same telecommunications tower or structure
to carry two or more antennas for the provision of wireless services
by two or more persons or entities.
Shall have the meaning in this chapter and any special use
permit granted hereunder as is defined and applied under the New York
Uniform Commercial Code (UCC).
An application that contains all information and/or data
necessary to enable the Board to evaluate the merits of the application,
and to make an informed decision with respect to the effect and impact
of wireless telecommunications facilities on the Town in the context
of the permitted land use for the particular location requested.
Only programming transmitted or broadcast by satellite directly
to subscribers' premises without the use of ground receiving
equipment, except at the subscribers' premises or in the uplink
process to the satellite.
The Environmental Assessment Form approved by the New York
Department of Environmental Conservation Appendix A to 6 NYCRR 617.20)
and includes a visual EAF addendum (Appendix B).
The Federal Environmental Protection Agency or its duly assigned
successor agency and includes the New York State Department of Environmental
Conservation.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
A tower that is not supported by guy wires and ground anchors
or other means of attached or external support.
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest, or any other entity.
See definition for "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act.
The official document or permit by which an applicant is
allowed to construct and use wireless telecommunications facilities
as granted or issued by the Town.
The State of New York.
The transmission and reception of audio, video, data, and
other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
See definition for "wireless telecommunications facilities."
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
In relation to all aspects and components of this chapter,
something intended to, or that does, exist for less than 90 days.
The Town of Binghamton, New York.
A structure, facility or location designed, or intended to
be used as, or used to support, antennas. It includes, without limit,
freestanding towers, guyed towers, monopoles, and similar structures
that employ camouflage technology, including, but not limited to,
structures such as a multistory building, church steeple, silo, water
tower, sign or other similar structures intended to mitigate the visual
impact of an antenna or the functional equivalent of such. It is a
structure intended for transmitting and/or receiving radio, television,
cellular, paging, 911, personal telecommunications services, commercial
satellite services, or microwave telecommunications, but excluding
those used exclusively for the Town's fire, police and other
dispatch telecommunications, or exclusively for private radio and
television reception and private citizen's bands, amateur radio
and other similar telecommunications.
In order to ensure that the placement, construction, and modification
of wireless telecommunications facilities protect the Town's
health, safety, public welfare, environmental features and other aspects
of the quality of life specifically listed elsewhere in this chapter,
the Town Board hereby adopts an overall policy with respect to a special
use permit for wireless telecommunications facilities for the express
purpose of achieving the following goals:
A.Â
Implementing an application process for person(s) seeking a special
use permit for wireless telecommunications facilities.
B.Â
Establishing a policy for examining an application for and issuing
a special use permit for wireless telecommunications facilities that
is both fair and consistent.
C.Â
Establishing reasonable time frames for granting or not granting
a special use permit for wireless telecommunications facilities, or
recertifying or not recertifying, or revoking the special use permit
granted under this chapter.
D.Â
Promoting and encouraging, wherever possible, the sharing and/or
collocation of wireless telecommunications facilities among service
providers.
E.Â
Promoting and encouraging, wherever possible, the placement, height
and quantity of wireless telecommunications facilities in such a manner
as to minimize adverse aesthetic impacts to the land, property, buildings,
and other facilities adjacent to, surrounding, and in generally the
same area as the requested location of such wireless telecommunications
facilities.
A.Â
All applicants for a special use permit for wireless telecommunications
facilities or any modification of such facility shall comply with
the requirements set forth in this section. The Board is the officially
designated agency or body of the community to whom applications for
a special use permit for wireless telecommunications facilities must
be made, and that is authorized to review, analyze, evaluate and make
decisions with respect to granting or not granting, recertifying or
not recertifying, or revoking special use permits for wireless telecommunications
facilities. The Board may, at its discretion, delegate or designate
other official agencies of the Town to accept, review, analyze, evaluate
and make recommendations to the Board with respect to the granting
or not granting, recertifying or not recertifying or revoking of special
use permits for wireless telecommunications facilities.
B.Â
An application for a special use permit for wireless telecommunications
facilities shall be signed on behalf of the applicant by the person
preparing the same and with knowledge of the contents and representations
made therein and attesting to the truth and completeness of the information.
The landowner, if different than the applicant, shall also sign the
application. At the discretion of the Board, any false or misleading
statement in the application may subject the applicant to denial of
the application without further consideration or opportunity for correction.
C.Â
Applications not meeting the requirements stated herein, or which
are otherwise incomplete, may be rejected by the Board.
D.Â
The applicant shall include a statement in writing that:
(1)Â
The applicant's proposed wireless telecommunications facilities
shall be maintained in a safe manner and in compliance with all conditions
of the special use permit, without exception, unless specifically
granted relief by the Board in writing, as well as all applicable
and permissible local codes, ordinances, and regulations, including
any and all applicable county, state and federal laws, rules, and
regulations;
(2)Â
The construction of the wireless telecommunications facilities is
legally permissible, including, but not limited to, the fact that
the applicant is authorized to do business in New York State.
E.Â
No wireless telecommunications facilities shall be installed or constructed
until the site plan is reviewed and approved by the Board, and the
special use permit has been issued.
F.Â
All applications for the construction or installation of new wireless
telecommunications facilities shall be accompanied by a report containing
the information hereinafter set forth. The report shall be signed
by a licensed professional engineer registered in the state. Where
this section calls for certification, such certification shall be
by a qualified New York State licensed professional engineer acceptable
to the Town, unless otherwise noted, and fully paid for by the applicant.
The application shall include, in addition to the other requirements
for the special use permit, the following information:
(1)Â
Documentation that demonstrates the need for the wireless telecommunications
facility to provide service primarily within the Town;
(2)Â
Name, address, and phone number of the person preparing the report;
(3)Â
Name, address, and phone number of the property owner, operator,
and applicant, to include the legal form of the applicant, and all
adjacent landowners;
(4)Â
Postal address and tax map parcel number of the property;
(5)Â
Zoning district or designation in which the property is situated;
(6)Â
Size of the property stated both in square feet and lot line dimensions,
a diagram and survey showing the location of all lot lines, the boundary
of the property, and any easements, and a topographic map with contour
lines at two-foot intervals;
(7)Â
Location of nearest residential structure;
(8)Â
Location of nearest habitable structure;
(9)Â
Location, size, and height of all existing and proposed structures
on the property that is the subject of the application and on any
adjacent property within 50 feet of the property lines, along with
the distance of these structures to the tower and antennas;
(10)Â
Location, size, and height of all proposed and existing antennas,
tower, and all appurtenant structures, and the building elevations
of all accessory structures or buildings;
(11)Â
Type, location, and dimensions of all proposed and existing
landscaping and fencing and location and nature of proposed utility
easements and access roads, if applicable;
(12)Â
The number, type, and design of the telecommunications tower(s)
antenna(s) proposed and the basis for the calculations of the telecommunications
tower's capacity to accommodate multiple users;
(13)Â
The make, model, and manufacturer of the tower and antenna(s),
including a detail of tower type;
(14)Â
A description of the proposed tower and antenna(s) and all related
fixtures, structures, appurtenances, and apparatus, including height
above preexisting grade, materials, color, and lighting, as well as
the location, type, and intensity of any lighting on the tower and
antennas.
(15)Â
The frequency, modulation, and class of service of radio or
other transmitting equipment;
(16)Â
Transmission and maximum effective radiated power of the antenna(s);
(17)Â
Direction of maximum lobes and associated radiation of the antenna(s);
(18)Â
Applicant's proposed tower maintenance and inspection procedures
and related system of records;
(19)Â
Certification that NIER levels at the proposed site are within
the threshold levels adopted by the FCC;
(20)Â
Certification that the proposed antenna(s) will not cause interference
with existing telecommunications devices, though the certifying engineer
need not be approved by the Town;
(21)Â
A copy of the FCC license applicable for the use of wireless
telecommunications facilities;
(22)Â
Certification that a topographic and geomorphologic study and
analysis has been conducted, and that, taking into account the subsurface
and substrata, and the proposed drainage plan, and grading plan, the
site is adequate to assure the stability of the proposed wireless
telecommunications facilities on the proposed site, though the certifying
engineer need not be approved by the Town.
(23)Â
Propagation studies of the proposed site and all adjoining planned,
proposed, in-service or existing sites;
(24)Â
Applicant shall disclose in writing any agreement in existence
prior to submission of the application that would limit or preclude
the ability of the applicant to share any new telecommunications tower
that it constructs.
G.Â
In the case of a new telecommunications tower, the applicant shall
be required to submit a written report demonstrating its efforts to
secure shared use of existing telecommunications tower(s) or use of
existing buildings or other structures within the Town. Copies of
written requests and responses for shared use shall be provided to
the Board.
H.Â
The applicant shall furnish written certification that the telecommunications
facility, foundation and attachments are designed and will be constructed
("as built") to meet all local, county, state and federal structural
requirements for loads, including wind and ice loads. If the wireless
facility is subsequently approved and constructed, similar "as built"
certification indicating that the facility has been constructed in
accordance with all standards shall be furnished prior to the Town
issuance of any certificate of occupancy or compliance;
I.Â
The applicant shall furnish written certification that the wireless
telecommunications facilities will be grounded and bonded so as to
protect persons and property and installed with appropriate surge
protectors.
J.Â
The applicant shall submit a completed long-form EAF and a completed
visual EAF addendum. Based on the results of the visual EAF addendum,
the Board may require submission of a more detailed visual analysis.
The scope of the required environmental and visual assessment will
be reviewed at the preapplication meeting.
K.Â
The applicant shall furnish a visual impact assessment which shall
include:
(1)Â
A "Zone of Visibility Map" which shall be provided in order to determine
locations where the tower may be seen.
(2)Â
Pictorial representations of "before" and "after" views from key
viewpoints both inside and outside of the Town, including but not
limited to state highways and other major roads; state and local parks;
other public lands; historic districts; preserves and historic sites
normally open to the public; and from any other location where the
site is visible to a large number of visitors, travelers or residents.
The Board, acting in consultation with its consultants or experts,
will provide guidance concerning the appropriate key sites at a preapplication
meeting.
(3)Â
An assessment of the visual impact of the tower base, guy wires and
accessory buildings from abutting and adjacent properties and streets.
L.Â
Any and all representations made by the applicant to the Board, on
the record, during the application process, whether written or verbal,
shall be deemed a part of the application and may be relied upon in
good faith by the Board.
M.Â
The applicant shall, in a manner approved by the Board, demonstrate
and provide in writing and/or by drawing how it shall effectively
screen from view its proposed wireless telecommunications facilities
base and all related facilities and structures.
N.Â
All utilities at a wireless telecommunications facilities site shall
be installed underground and in compliance with all laws, rules and
regulations of the Town, including specifically, but not limited to,
the National Electrical Safety Code and the National Electrical Code
where appropriate. The Board may waive or vary the requirements of
underground installation of utilities whenever, in the opinion of
the Board, such variance or waiver shall not be detrimental to the
health, safety, general welfare and environment, including the visual
and scenic characteristics of the area.
O.Â
All wireless telecommunications facilities shall contain a demonstration
that the facility be sited so as to have the least adverse visual
effect on the environment and its character, on existing vegetation,
and on the residences in the area of the wireless telecommunications
facilities sites.
P.Â
Both the wireless telecommunications facility and any and all accessory
or associated facilities shall maximize use of building materials,
colors and textures designed to blend with the structure to which
it may be affixed and/or to harmonize with the natural surroundings;
this shall include the utilization of stealth or concealment technology
as required by the Town.
Q.Â
At a telecommunications site, an access road, road turnaround, and
parking shall be provided to assure adequate emergency and service
access. Maximum use of existing roads, whether public or private,
shall be made to the extent practicable. Road construction shall at
all times minimize ground disturbance and vegetation-cutting. Road
grades shall closely follow natural contours to assure minimal visual
disturbance and reduce soil erosion.
R.Â
A person who holds a special use permit for wireless telecommunications
facilities shall construct, operate, maintain, repair, provide for
removal of, modify or restore the permitted wireless telecommunications
facilities in strict compliance with all current applicable technical,
safety and safety-related codes adopted by the Town, county, state,
or United States, including but not limited to the most recent editions
of the National Electrical Safety Code and the National Electrical
Code, as well as accepted and responsible workmanlike industry practices
and recommended practices of the National Association of tower erectors.
The codes referred to are codes that include, but are not limited
to, construction, building, electrical, fire, safety, health, and
land use codes. In the event of a conflict between or among any of
the preceding, the more stringent shall apply.
S.Â
A holder of a special use permit granted under this chapter shall
obtain, at its own expense, all permits and licenses required by applicable
law, rule, regulation or code, and must maintain the same, in full
force and effect, for as long as required by the Town or other governmental
entity or agency having jurisdiction over the applicant.
T.Â
With respect to this application process, the Board intends to be
the lead agency, pursuant to SEQRA. The Board shall conduct an environmental
review of the proposed project in combination with its review of the
application under this chapter.
U.Â
An applicant shall submit to the Town Clerk the number of completed
applications determined to be needed at the preapplication meeting.
Written notification of the application shall be provided to the legislative
body of all adjacent municipalities and to the County Planning Department.
V.Â
The applicant shall examine the feasibility of designing a proposed
telecommunications tower to accommodate future demand for at least
five additional commercial applications, for example, future collocations.
The scope of this examination shall be determined by the Board. The
telecommunications tower shall be structurally designed to accommodate
at least five additional antenna arrays equal to those of the applicant,
and located as close to the applicant's antenna as possible without
causing interference. This requirement may be waived, provided that
the applicant, in writing, demonstrates that the provisions of future
shared usage of the telecommunications tower is not technologically
feasible, is commercially impracticable or creates an unnecessary
and unreasonable burden, based upon:
(1)Â
The foreseeable number of FCC licenses available for the area;
(2)Â
The kind of wireless telecommunications facilities site and structure
proposed;
(3)Â
The number of existing and potential licenses without wireless telecommunications
facilities spaces/sites;
(4)Â
Available space on existing and approved telecommunications towers.
W.Â
The applicant shall submit to the Board a letter of intent committing
the owner of the proposed new tower, and his/her successors in interest,
to negotiate in good faith for shared use of the proposed tower by
other telecommunications providers in the future. This letter shall
be filed with the Board. Failure to abide by the conditions outlined
in the letter may be grounds for revocation of the special use permit.
The letter shall commit the new tower owner and its successors in
interest to:
(1)Â
Respond within 60 days to a request for information from a potential
shared-use applicant;
(2)Â
Negotiate in good faith concerning future requests for shared use
of the new tower by other telecommunications providers;
(3)Â
Allow shared use of the new tower if another telecommunications provider
agrees in writing to pay reasonable charges. The charges may include,
but are 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, less depreciation, and
all of the costs of adapting the tower or equipment to accommodate
a shared user without causing electromagnetic interference.
X.Â
Unless waived by the Board, there shall be a preapplication meeting.
The purpose of the preapplication meeting will be to address issues
which will help to expedite the review and permitting process. A preapplication
meeting may also include a site visit if required. Where the application
is for the shared use of an existing telecommunications tower(s) or
other high structure, the applicant should seek to waive any section
or subsection of this chapter that may not be required. At the preapplication
meeting, the waiver requests, if appropriate, will be decided by the
Board. Costs of the Town's consultants to prepare for and attend
the preapplication meeting will be borne by the applicant.
Y.Â
The holder of a special use permit shall notify the Town of Binghamton
of any intended modification of a wireless telecommunications facility
and shall apply to the Town to modify, relocate, or rebuild a wireless
telecommunications facility.
Z.Â
In order to better inform the public, in the case of a new telecommunications
tower, the applicant shall, prior to the public hearing on the application,
hold a "balloon test" as follows: applicant shall arrange to fly,
or raise upon a temporary mast, a minimum of a three-foot-diameter
brightly colored balloon at the maximum height of the proposed new
tower. The date (including a second date in case of poor visibility
on the initial date), times, and location of this balloon test shall
be advertised by the applicant at seven and 14 days in advance of
the first test date in a newspaper with general circulation in the
Town and as agreed to by the Board. The applicant shall inform the
Board in writing of the dates and times of the test, at least 14 days
in advance. The balloon shall be flown for at least eight consecutive
hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen.
The primary date shall be on a weekend, but the second date, in case
of poor visibility on the initial date, may be on a weekday.
AA.Â
The applicant will provide a written copy of an analysis, completed
by a qualified individual or organization, to determine if the telecommunications
tower or existing structure intended to support wireless facilities
requires lighting under Federal Aviation Regulation Part 77. This
requirement shall be for any new tower or for an existing structure
or building where the application increases the height of the structure
or building. If this analysis determines that the FAA must be contacted,
then all filings with the FAA, all responses from the FAA, and any
related correspondence shall be provided to the Town in a timely manner.
A.Â
Applicants for wireless telecommunications facilities shall locate,
site, and erect said wireless telecommunications facilities in accordance
with the following priorities, one being the highest priority and
four being the lowest priority:
(1)Â
On existing telecommunications towers or other tall structures;
(2)Â
Collocation on a site with existing wireless telecommunications facilities
or structures;
(3)Â
On Town-owned properties, except that no new telecommunications tower,
other than a cellular tower, shall be located within three miles of
any existing telecommunications tower within the Town of Binghamton;
(4)Â
On other property in the Town, except that no new telecommunications
tower, other than a cellular tower, shall be located within three
miles of any existing telecommunications tower within the Town of
Binghamton;
B.Â
If the proposed property site is not the highest priority listed
above, then a detailed explanation must be provided as to why a site
of a higher priority was not selected. The person seeking such an
exception must satisfactorily demonstrate the reason(s) why such a
permit should be granted for the proposed site and the hardship that
would be incurred by the applicant if the permit were not granted
for the proposed site.
C.Â
An applicant may not bypass sites of higher priority by stating the
site presented is the only site leased or selected. An application
shall address collocation as an option, and if such option is not
proposed, the applicant must explain why collocation is commercially
or otherwise impracticable. Agreements between providers limiting
or prohibiting collocation, shall not be a valid basis for any claim
of commercial impracticability or hardship.
D.Â
Notwithstanding the above, the Board may approve any site located
within an area in the above list of priorities, provided that the
Board finds that the proposed site is in the best interest of the
health, safety and welfare of the Town and its inhabitants.
E.Â
The applicant shall submit a written report demonstrating the applicant's
review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If the site selected
is not the highest priority, then a detailed written explanation as
to why sites of a higher priority were not selected shall be included
with the application.
F.Â
The applicant shall, in writing, identify and disclose the number
and locations of any additional sites that the applicant has been,
is, or will be considering, reviewing or planning for wireless telecommunications
facilities in the Town, and all municipalities adjoining the Town,
for a two-year period following the date of the application.
G.Â
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Board may disapprove
an application for any of the following reasons:
(1)Â
Conflict with safety and safety-related codes and requirements;
(2)Â
Conflict with traffic needs or traffic laws, or definitive plans
for changes in traffic flow or traffic laws;
(3)Â
Conflict with the historic nature of a neighborhood or historic district;
(4)Â
The use or construction of wireless telecommunications facilities
which is contrary to an already stated purpose of a specific zoning
or land use designation;
(5)Â
The placement and location of wireless telecommunications facilities
which would create an unacceptable risk, or the probability of such,
to residents, the public, employees and agents of the Town, or employees
of the service provider or other service providers;
(6)Â
Conflicts with the provisions of this chapter.
A.Â
Shared use of existing wireless telecommunications facilities shall
be preferred by the Town, as opposed to the proposed construction
of a new telecommunications tower. Where such shared use is unavailable,
location of antennas on other preexisting structures shall be considered
and preferred. The applicant shall submit a comprehensive report inventorying
existing towers and other appropriate structures within four miles
of any proposed new tower site, unless the applicant can show that
some other distance is more reasonable, and outlining opportunities
for shared use of existing facilities and the use of other preexisting
structures as a preferred alternative to new construction.
B.Â
An applicant intending to share use of an existing telecommunications
tower or other structure shall be required to document the intent
of the existing owner to share use. In the event of an application
to share the use of an existing telecommunications tower which does
not increase the height of the telecommunications tower, the Board
shall waive such requirements of the application required by this
chapter as may be for good cause shown.
C.Â
Such shared use shall consist only of the minimum antenna array technologically
required to provide service within the Town, to the extent practicable,
unless good cause is shown.
A.Â
The applicant shall submit documentation justifying to the Board
the total height of any telecommunications tower, facility, and/or
antenna and the basis therefor. Such justification shall be to provide
service within the Town, to the extent practicable, unless good cause
is shown.
B.Â
Telecommunications towers shall be no higher than the minimum height
necessary. Unless waived by the Board upon good cause shown, the maximum
height shall be 140 feet, based on six collocated antenna arrays and
ambient tree height of 80 feet.
C.Â
The maximum height of any telecommunications tower and attached antennas
constructed after the effective date of this chapter shall not exceed
that which shall permit operation without artificial lighting of any
kind, in accordance with municipal, county, state, and/or any federal
statutes, laws, codes, rules, or regulations and/or with local laws
and Town ordinances.
A.Â
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.Â
Telecommunications towers shall be painted with red and white striping
with a rust-preventative paint and shall be maintained in accordance
with the requirements of this chapter.
C.Â
If lighting is required, applicant shall provide a detailed plan
for sufficient lighting of as unobtrusive and inoffensive an effect
as is permissible under state and federal regulations, and an artist's
rendering or other visual representation showing the effect of light
emanating from the site on neighboring habitable structures within
1,500 feet of all property lines of the parcel on which the wireless
telecommunications facilities are located.
D.Â
Lighting on telecommunications towers shall consist only of red nonpulsating
lighting.
All wireless telecommunications facilities and antennas shall
be located, fenced, or otherwise secured in a manner that prevents
unauthorized access, specifically, as follows:
A.Â
All antennas, towers, and other supporting structures, including
guy wires, shall be made inaccessible to individuals and constructed
or shielded in such a manner that they cannot be climbed or run into;
and
B.Â
Transmitters and telecommunications control points must be installed
such that they are readily accessible only to persons authorized to
operate or service them.
All wireless telecommunications facilities must be maintained
at all times in good order and repair. Records of such maintenance
shall be kept by the owner of the wireless telecommunications facility
and be made available for review by the Town upon the Town's
request.
Wireless telecommunications facilities shall contain a sign
no larger than four square feet 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(s) of the
owner(s) and operator(s) of the antenna(s) as well as emergency phone
number(s). The sign shall be located so as to be visible from the
access point of the site. The sign shall not be lighted unless the
Board shall have allowed such lighting or unless such lighting is
required by applicable provisions of law. The sign shall be approved
by the Board before installation. No other signage, including advertising,
shall be permitted on any facilities, antennas, antenna supporting
structures or antenna towers, unless required by law.
All proposed wireless telecommunications facilities, including
all tower parts such as guy wire anchors, and any accessory facilities,
shall be set back from abutting parcels, existing power lines, recorded
rights-of-way, and road and street lines by the greater of the following
distances: a distance equal to 1.5 times the height of the wireless
telecommunications facility or the existing setback requirements of
the underlying zoning district, whichever is greater, to protect the
public against, among other things, falling or blowing ice or debris
and to preserve the privacy and sanctity of adjacent properties. Any
accessory structure shall be located so as to comply with the applicable
minimum setback requirements for the property on which it is situated.
A.Â
The Board may hire any consultant and/or expert necessary to assist
the Board in reviewing and evaluating the application and any requests
for recertification.
B.Â
An applicant shall deposit with the Town funds sufficient to reimburse
the Town for all reasonable costs of consultant and expert evaluation
and consultation to the Board in connection with the review of any
application. The initial deposit shall be $7,500. These funds shall
accompany the filing of an application, and the Town will maintain
a separate escrow account for all such funds. The Town's consultants/experts
shall bill or invoice the Town no more frequently than monthly for
their services in reviewing the application and performing their duties.
If at any time during the review process this escrow account has a
balance less than $2,500, applicant shall immediately, upon notification
by the Town, replenish said escrow account so that it has a balance
of at least $5,000. Such additional escrow funds shall be deposited
with the Town before any further action or consideration is taken
on the application. In the event that the amount held in escrow by
the Town is more than the amount of the actual billing or invoicing
at the conclusion of the review process, the difference shall be promptly
refunded to the applicant.
C.Â
The total amount of the funds set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed by the Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as reasonably required and requested by the Town, shall be paid by the applicant.
A.Â
No person shall be permitted to site, place, build, construct, or
modify, or prepare any site for the placement or use of, wireless
telecommunications facilities as of the effective date of this chapter
without having first obtained a special use permit for wireless telecommunications
facilities. Notwithstanding anything to the contrary in this section,
no special use permit shall be required for those exceptions noted
in the definition of "wireless telecommunications facilities."
B.Â
New construction on existing wireless telecommunications facilities
shall comply with the requirements of this chapter.
C.Â
All wireless telecommunications facilities existing on or before the effective date of this chapter shall be allowed to continue as they presently exist, except as otherwise stated in Subsections D and E herein; provided, however, that any modification to existing wireless telecommunications facilities must comply with this chapter.
D.Â
Notwithstanding the provisions of Subsection C above, all wireless telecommunications facilities existing on or before the effective date of this chapter shall be subject to and made to conform with the requirements of § 202-24, entitled "Annual NIER certification," no later than two years after the effective date of this chapter. Such two-year period shall be deemed sufficient to amortize any cost thereof. Failure to comply with this section shall be deemed a violation of this chapter subject to the provisions of § 202-27, entitled "Fines."
E.Â
Notwithstanding the provisions of Subsection C above, all wireless telecommunications facilities existing on or before the effective date of this chapter shall be subject to and made to conform with the requirements of § 202-10A, B and D, entitled "Visibility of wireless telecommunications facilities," and § 202-13, entitled "Signage," no later than five years after the effective date of this chapter. Such five-year period shall be deemed sufficient to amortize any costs thereof. Failure to comply with this section shall be deemed a violation of this chapter subject to the provisions of § 202-27, entitled "Fines."
A.Â
Prior to approval of any application for special use permit for wireless
telecommunications facilities, a public hearing shall be held by the
Board, notice of which shall be published in the official newspaper
of the Town no less than 10 calendar days prior to the scheduled date
of the public hearing. In order that the Town may notify nearby landowners,
the applicant, at least three weeks prior to the date of said public
hearing, shall be required to provide names and addresses of all landowners
whose property is located within 1,500 feet of any property line of
the lot on which the new wireless telecommunications facilities are
proposed to be located.
A.Â
The Board will undertake a review of an application pursuant to this
chapter in a timely fashion, consistent with its responsibilities
with SEQRA, and shall act within a reasonable period of time given
the relative complexity of the application and the circumstances,
with due regard for the public's interest and need to be involved,
and the applicant's desire for a timely resolution.
B.Â
The Board may refer any application or part thereof to any advisory
or other committee for a nonbinding recommendation.
C.Â
After the public hearing and after formally considering the application,
the Board may approve, approve with conditions, or deny a special
use permit. Its decision shall be in writing and shall be supported
by substantial evidence contained in a written record. The burden
of proof for the grant of the permit shall always be upon the applicant.
D.Â
If the Board approves the special use permit for wireless telecommunications
facilities, then the applicant shall be notified of such approval
in writing within 10 calendar days of the Board's action, and
the special use permit shall be issued within 30 days after such approval.
Except for necessary building permits, and subsequent certificates
of compliance, once a special use permit has been granted hereunder,
no additional permits or approvals from the Town or Board, such as
site plan or zoning approvals, shall be required by the Town or Board
for the wireless telecommunications facilities covered by the special
use permit.
E.Â
If the Board denies the special use permit for wireless telecommunications
facilities, then the applicant shall be notified of such denial in
writing within 10 calendar days of the Board's action.
A.Â
At any time between 12 months and six months prior to the five-year
anniversary date after the effective date of the special use permit
and all subsequent fifth anniversaries of the effective date of the
original special use permit for wireless telecommunications facilities,
the holder of a special use permit for such wireless telecommunications
facilities shall submit a signed written request to the Board for
recertification. In the written request for recertification, the holder
of such special use permit shall note the following:
(1)Â
The name of the holder of the special use permit for the wireless
telecommunications facilities;
(2)Â
If applicable, the number or title of the special use permit;
(3)Â
The date of the original granting of the special use permit;
(4)Â
Whether the wireless telecommunications facilities have been moved,
relocated, rebuilt, or otherwise modified since the issuance of the
special use permit and if so, in what manner;
(5)Â
If the wireless telecommunications facilities have been moved, relocated,
rebuilt, or otherwise modified, then whether the Board approved such
action, and under what terms and conditions, and whether those terms
and conditions were complied with;
(6)Â
Any requests for waivers or relief of any kind whatsoever from the
requirements of this chapter and any requirements for a special use
permit;
(7)Â
That the wireless telecommunications facilities are in compliance
with the special use permit and in compliance with all applicable
codes, laws, rules and regulations;
(8)Â
Recertification that the telecommunications tower and attachments
both are designed and constructed ("as built") and continue to meet
all local, county, state and federal structural requirements for loads,
including wind and ice loads. Such recertification shall be by a qualified
New York State licensed professional engineer acceptable to the Town,
the cost of which shall be borne by the applicant.
B.Â
If, after such review, the Board determines that the permitted wireless
telecommunications facilities are in compliance with the special use
permit and all applicable statutes, laws, local laws, ordinances,
codes, rules and regulations, then the Board shall issue a recertification
special use permit for the wireless telecommunications facilities,
which may include any new provisions or conditions that are mutually
agreed upon, or required by applicable statutes, laws, local laws,
ordinances, codes, rules and regulations. If, after such review, the
Board determines that the permitted wireless telecommunications facilities
are not in compliance with the special use permit and all applicable
statutes, local laws, ordinances, codes, rules and regulations, then
the Board may refuse to issue a recertification special use permit
for the wireless telecommunications facilities, and in such event,
such wireless telecommunications facilities shall not be used after
the date that the applicant receives written notice of such decision
by the Board. Any such decision shall be in writing and supported
by substantial evidence contained in a written record.
C.Â
If the applicant has submitted all of the information requested by the Board and required by this chapter, and if the Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months, in order for the Board to complete its review.
D.Â
If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the time frame noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
The extent and parameters of a special use permit for wireless
telecommunications facilities shall be as follows:
A.Â
Such special use permit shall be nonexclusive.
B.Â
Such special use permit shall not be assigned, transferred or conveyed
without the express prior written consent of the Board, and such consent
shall not be unreasonably withheld or delayed.
C.Â
Such special use permit may, following a hearing upon due prior notice
to the applicant, be revoked, canceled, or terminated for a violation
of the conditions and provisions of the special use permit for wireless
telecommunications facilities, or for a material violation of this
chapter after prior written notice to the applicant and the holder
of the special use permit.
A.Â
At the time that a person submits an application for a special use
permit for a new telecommunications tower, such person shall pay a
nonrefundable application fee of $5,000 to the Town. If the application
is for a special use permit for collocating on an existing telecommunications
tower or high structure, where no increase in height of the tower
or structure is required, the nonrefundable fee shall be $2,000.
B.Â
No application fee is required in order recertify a special use permit for wireless telecommunications facilities, unless there has been a modification of the wireless telecommunications facilities since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in Subsection A shall apply.
The applicant and the owner of record of any proposed wireless
telecommunications facilities property site shall, at its cost and
expense, be jointly required to execute and file with the Town a bond,
or other form of security acceptable to the Town as to type of security
and the form and manner of execution, in an amount of at least $75,000
and with such sureties as are deemed sufficient by the Board to assure
the faithful performance of the terms and conditions of this chapter
and conditions of any special use permit issued pursuant to this chapter.
The full amount of the bond or security shall remain in full force
and effect throughout the term of the special use permit and/or until
the removal of the wireless telecommunications facilities, and any
necessary site restoration is completed. The failure to pay any annual
premium for the renewal of any such security shall be a violation
of the provisions of the special use permit and shall entitle the
Board to revoke the special use permit after prior written notice
to the applicant and holder of the permit and after a hearing upon
due prior notice to the applicant and holder of the special use permit.
A.Â
In order to verify that the holder of a special use permit for wireless
telecommunications facilities and any and all lessees, renters, and/or
licensees of wireless telecommunications facilities, place and construct
such facilities, including towers and antennas, in accordance with
all applicable technical, safety, fire, building, and zoning codes,
laws, ordinances and regulations and other applicable requirements,
the Town may inspect all facets of said permit holder's, renter's,
lessee's or licensee's placement, construction, modification
and maintenance of such facilities, including, but not limited to,
towers, antennas and buildings or other structures constructed or
located on the permitted site.
B.Â
The Town shall pay for costs associated with such an inspection,
except for those circumstances occasioned by said holder's, lessee's
or licensee's refusal to provide necessary information, or necessary
access to such facilities, including towers, antennas, and appurtenant
or associated facilities, or refusal to otherwise cooperate with the
Town with respect to an inspection, or if violations of this chapter
are found to exist, in which case the holder, lessee or licensee shall
reimburse the Town for the cost of the inspection.
C.Â
Payment of such costs shall be made to the Town within 30 days from
the date of the invoice or other demand for reimbursement. In the
event that the finding(s) of violation is/are appealed in accordance
with the procedures set forth in this chapter, said reimbursement
payment must still be paid to the Town, and the reimbursement shall
be placed in an escrow account established by the Town specifically
for this purpose, pending the final decision on appeal.
The holder of the special use permit shall, annually, certify
in writing to the Town that NIER levels at the site are within the
threshold levels adopted by the FCC. The certifying engineer must
be licensed to practice engineering in the State of New York; however,
the engineer need not be approved by the Town.
A.Â
A holder of a special use permit for wireless telecommunications
facilities shall secure and at all times maintain public liability
insurance for personal injuries, death and property damage, and umbrella
insurance coverage, for the duration of the special use permit in
amounts as set forth below:
B.Â
The commercial general liability insurance policy shall specifically
include the Town and its officers, boards, employees, committee members,
attorneys, agents and consultants as additional named insureds.
C.Â
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the state and with
a Best's rating of at least A.
D.Â
The insurance policies shall contain an endorsement obligating the
insurance company to furnish the Town with at least 30 days'
prior written notice in advance of the cancellation of the insurance.
E.Â
Renewal or replacement policies or certificates shall be delivered
to the Town at least 15 days before the expiration of the insurance
that such policies are to renew or replace.
F.Â
Before construction of a permitted wireless telecommunications facilities
is initiated, but in no case later than 15 days after the grant of
the special use permit, the holder of the special use permit shall
deliver to the Town a copy of each of the policies or certificates
representing the insurance in the required amounts.
A.Â
Any application for wireless telecommunications facilities that is
proposed for Town property, pursuant to this chapter, shall contain
a provision with respect to indemnification. Such provision shall
require the applicant, to the extent permitted by the law, to at all
times defend, indemnify, protect, save, hold harmless, and exempt
the Town, and its officers, boards, employees, committee members,
attorneys, agents, and consultants from any and all penalties, damages,
costs, or charges arising out of any and all claims, suits, demands,
causes of action, or award of damages, whether compensatory or punitive,
or expenses arising therefrom, either at law or in equity, which might
arise out of, or are caused by, the placement, construction, erection,
modification, location, products performance, use, operation, maintenance,
repair, installation, replacement, removal, or restoration of said
wireless telecommunications facilities. With respect to the penalties,
damages or charges referenced herein, reasonable attorneys' fees,
consultants' fees, and expert witness fees are included in those
costs that are recoverable by the Town.
A.Â
In the event of a violation of this chapter or any special use permit
issued pursuant to this chapter, the Board may impose and collect,
and the holder of the special use permit for wireless telecommunications
facilities shall pay to the Town, fines or penalties as set forth
below.
B.Â
A violation of this chapter is hereby declared to be an offense,
punishable by a fine not exceeding $350 or imprisonment for a period
not to exceed six months, or both, for conviction of a first offense;
for conviction of a second offense, both of which were committed within
a period of five years, punishable by a fine not less than $350 nor
more than $700 or imprisonment for a period not to exceed six months,
or both; and, upon conviction for a third or subsequent offense, all
of which were committed within a period of five years, punishable
by a fine not less than $700 nor more than $1,000 or imprisonment
for a period not to exceed six months, or both. However, for the purpose
of conferring jurisdiction upon courts and judicial officers generally,
violations of this chapter or of such ordinance or regulation shall
be deemed misdemeanors, and for such purpose only all provisions of
law relating to misdemeanors shall apply to such violations. Each
week's continued violation shall constitute a separate additional
violation.
C.Â
Notwithstanding anything in this chapter, the holder of the special
use permit for wireless telecommunications facilities may not use
the payment of fines, liquidated damages or other penalties to evade
or avoid compliance with this chapter or any section of this chapter.
An attempt to do so shall subject the holder of the special use permit
to termination and revocation of the special use permit. The Town
may also seek injunctive relief to prevent the continued violation
of this chapter, without limiting other remedies available to the
Town.
A.Â
If wireless telecommunications facilities are repaired, rebuilt,
placed, moved, relocated, modified or maintained in a way that is
inconsistent or not in compliance with the provisions of this chapter
or of the special use permit, then the Board shall notify the holder
of the special use permit in writing of such violation. Such notice
shall specify the nature of the violation or noncompliance and that
the violations must be corrected within seven days of the date of
the postmark of the notice, or of the date of personal service of
the notice, whichever is earlier. Notwithstanding anything to the
contrary in this subsection or any other section of this chapter,
if the violation causes, creates or presents an imminent danger or
threat to the health or safety of lives or property, the Board may,
at its sole discretion, order the violation remedied within 24 hours.
B.Â
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this chapter, or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Board may revoke such special use permit for wireless telecommunications facilities, and shall notify the holder of the special use permit within 48 hours of such action.
A.Â
Under the following circumstances, the Board may determine that the
health, safety, and welfare interests of the Town warrant and require
the removal of wireless telecommunications facilities:
(1)Â
Wireless telecommunications facilities with a permit have been abandoned
(i.e., not used as wireless telecommunications facilities) for a period
exceeding 90 consecutive days or a total of 180 days in any three-hundred-sixty-five-day
period, except for periods caused by force majeure or Acts of God,
in which case repair or removal shall commence within 90 days;
(2)Â
Permitted wireless telecommunications facilities fall into such a
state of disrepair that they create a health or safety hazard;
(3)Â
Wireless telecommunications facilities have been located, constructed,
or modified without first obtaining, or in a manner not authorized
by, the required special use permit, or any other necessary authorization.
B.Â
If the Board makes such a determination as noted in Subsection A of this section, then the Board shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed; the Board may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.Â
The holder of the special use permit, or its successors or assigns,
shall dismantle and remove such wireless telecommunications facilities,
and all associated structures and facilities, from the site and restore
the site to as close to its original condition as is possible, such
restoration being limited only by physical or commercial impracticability,
within 90 days of receipt of written notice from the Board. However,
if the owner of the property upon which the wireless telecommunications
facilities are located wishes to retain any access roadway to the
wireless telecommunications facilities, the owner may do so with the
approval of the Board.
D.Â
If wireless telecommunications facilities are not removed or substantial
progress has not been made to remove the wireless telecommunications
facilities within 90 days after the permit holder has received notice,
then the Board may order officials or representatives of the Town
to remove the wireless telecommunications facilities at the sole expense
of the owner or special use permit holder.
E.Â
If the Town removes, or causes to be removed, wireless telecommunications
facilities, and the owner of the wireless telecommunications facilities
does not claim and remove it from the site to a lawful location within
10 days, then the Town may take steps to declare the wireless telecommunications
facilities abandoned, and sell them and their components.
F.Â
Notwithstanding anything in this section to the contrary, the Board
may approve a temporary use permit/agreement for the wireless telecommunications
facilities, for no more 90 days, during which time a suitable plan
for removal, conversion, or relocation of the affected wireless telecommunications
facilities shall be developed by the holder of the special use permit,
subject to the approval of the Board, and an agreement to such plan
shall be executed by the holder of the special use permit and the
Town. If such a plan is not developed, approved and executed within
the ninety-day time period, then the Town may take possession of and
dispose of the affected wireless telecommunications facilities in
the manner provided in this section.
Any applicant desiring relief or exemption from any aspect or
requirement of this chapter may request such from the Board at a preapplication
meeting, provided that the relief or exemption is contained in the
original application for either a special use permit, or, in the case
of an existing or previously granted special use permit, a request
for modification of its tower and/or facilities. Such relief may be
temporary or permanent, partial or complete, at the sole discretion
of the Board. However, the burden of proving the need for the requested
relief or exemption is solely on the applicant to prove to the satisfaction
of the Board. The applicant shall bear all costs of the Board or the
Town in considering the request, and the relief shall not be transferable
to a new or different holder of the permit or owner of the tower or
facilities without the specific written permission of the Board. Such
permission shall not be unreasonably withheld or delayed. No such
relief or exemption shall be approved unless the applicant demonstrates
by clear and convincing evidence that, if granted, the relief or exemption
will have no significant effect on the health, safety and welfare
of the Town, its residents and other service providers.
A.Â
The Board may at any time conduct a review and examination of this
entire chapter.
B.Â
If, after such a periodic review and examination of this chapter,
the Board determines that one or more provisions of this chapter should
be amended, repealed, revised, clarified, or deleted, then the Board
may take whatever measures are necessary in accordance with applicable
law in order to accomplish the same. It is noted that, where warranted,
and in the best interests of the Town, the Board may repeal this entire
chapter at any time.
A.Â
To the extent that the holder of a special use permit for wireless
telecommunications facilities has not received relief, or is otherwise
exempt, from appropriate state and/or federal agency rules or regulations,
then the holder of such a special use permit shall adhere to, and
comply with, all applicable rules, regulations, standards, and provisions
of any state or federal agency, including, but not limited to, the
FAA and the FCC. Specifically included in this requirement are any
rules and regulations regarding height, lighting, security, electrical
and RF emission standards.
B.Â
To the extent that applicable rules, regulations, standards, and
provisions of any state or federal agency, including, but not limited
to, the FAA and the FCC, and specifically including any rules and
regulations regarding height, lighting, and security, are changed
and/or are modified during the duration of a special use permit for
wireless telecommunications facilities, then the holder of such a
special use permit shall conform the permitted wireless telecommunications
facilities to the applicable changed and/or modified rule, regulation,
standard, or provision within a maximum of 24 months of the effective
date of the applicable changed and/or modified rule, regulation, standard,
or provision, or sooner as may be required by the issuing entity.
Where this chapter differs or conflicts with other laws, rules
and regulations, unless the right to do so is preempted or prohibited
by the county, state or federal government, the more restrictive or
protective of the Town and the public shall apply.