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."
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.
ACCESSORY FACILITY or STRUCTURE
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.
ANTENNA
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.
APPLICANT
Any person submitting an application to the Town of Binghamton
for a special use permit for wireless telecommunications facilities.
APPLICATION
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.
BOARD
The Town Board of the Town of Binghamton.
COLLOCATION
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.
COMPLETED APPLICATION
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.
EAF
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).
EPA
The Federal Environmental Protection Agency or its duly assigned
successor agency and includes the New York State Department of Environmental
Conservation.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated
and authorized successor agency.
FREESTANDING TOWER
A tower that is not supported by guy wires and ground anchors
or other means of attached or external support.
HEIGHT
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.
NIER
Nonionizing electromagnetic radiation.
PERSON
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest, or any other entity.
SPECIAL USE PERMIT
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.
STATE
The State of New York.
TELECOMMUNICATIONS
The transmission and reception of audio, video, data, and
other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
TEMPORARY
In relation to all aspects and components of this chapter,
something intended to, or that does, exist for less than 90 days.
TOWN
The Town of Binghamton, New York.
WIRELESS TELECOMMUNICATIONS FACILITIES or TELECOMMUNICATIONS
TOWER or TELECOMMUNICATIONS SITE or PERSONAL WIRELESS FACILITY
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. Implementing an application process for person(s) seeking a special
use permit for wireless telecommunications facilities.
B. 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. 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. Promoting and encouraging, wherever possible, the sharing and/or
collocation of wireless telecommunications facilities among service
providers.
E. 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.
All wireless telecommunications facilities and antennas shall
be located, fenced, or otherwise secured in a manner that prevents
unauthorized access, specifically, as follows:
A. 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. 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.
The extent and parameters of a special use permit for wireless
telecommunications facilities shall be as follows:
A. Such special use permit shall be nonexclusive.
B. 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. 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.
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.
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.
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.
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.