[HISTORY: Adopted by the Town Board of the Town of Oyster
Bay 9-12-2017 by L.L. No. 6-2017. Amendments noted where applicable.]
A.
The Town of Oyster Bay finds that wireless telecommunications facilities
may pose significant concerns to its residents, and the character
and environment of its neighborhoods. The Town also recognizes that
facilitating the development of wireless service technology can be
of significant benefit to its residents. In order to ensure that the
placement, construction or modification of wireless telecommunications
facilities will adequately serve the needs of the users of those facilities,
while posing the least possible adverse effect upon the Town and its
residents, the Town is enacting this wireless telecommunications facilities
application and permit process. The process will establish a fair
and efficient process for review and approval of applications; assure
an integrated, comprehensive review of environmental impacts; and
protect the rights of the Town and its residents, to the maximum extent
allowed under the law.
B.
This chapter will seek to promote, wherever possible, the sharing
and/or co-location of wireless telecommunications facilities among
service providers; the use of stealth technology; and employment of
the least visually and physically intrusive facility that is not technologically
or commercially impracticable under the facts and circumstances to
minimize adverse aesthetic and visual impacts on the surrounding areas.
This chapter is enacted as a local law under the Municipal Home
Rule Law, and pursuant to all applicable authority granted by the
state and federal governments.
A.
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.
B.
ACCESSORY FACILITY OR STRUCTURE
APPLICANT
APPLICATION
ANTENNA
BOARD
BUILDING CONSTRUCTION ORDINANCE
CO-LOCATION
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
COMPLETED APPLICATION
FAA
FCC
HEIGHT
MODIFICATION or MODIFY
NIER
NEW WIRELESS TELECOMMUNICATION FACILITY
PERSON
PERSONAL WIRELESS FACILITY
PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS
SERVICE or PCS
REPAIRS AND MAINTENANCE
SPECIAL USE PERMIT
STATE
STEALTH or STEALTH TECHNOLOGY
TELECOMMUNICATIONS
TELECOMMUNICATION SITE
TELECOMMUNICATIONS STRUCTURE
TEMPORARY
TOWER
TOWN
WIRELESS TELECOMMUNICATIONS FACILITY
As used in this chapter, the following terms shall have the meanings
indicated:
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,
or an immediately adjacent lot, including, but not limited to, utility
or transmission equipment storage sheds or cabinets.
Any wireless service provider submitting an application for
a special use permit or other approval for wireless telecommunications
facilities.
A formal request that the Town grant a building permit, special
use permit, or other approval for a wireless telecommunications facility,
including all documentation, information, and communications from
or on behalf of the applicant relating to the request.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
The Zoning Board of Appeals of the Town of Oyster Bay.
The Building Construction Ordinance of the Town of Oyster
Bay.[1]
The use of an existing tower or a structure used as an existing
cell antenna site to support antennas for the provision of wireless
services pursuant to a building permit or special use permit from
the Town. A replacement tower that is constructed on the same site
as an existing tower will be considered a co-location as long as the
new tower is no taller than the old tower, the old tower is removed
in a time frame as determined by the Department of Planning and Development
after the new tower is constructed, and the site remains in compliance
with applicable permits.
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be commercially impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
An application that contains all information and/or data
requested by the Town from the applicant in applications, forms or
otherwise to enable an informed decision to be made with respect to
an application.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
When referring to a tower or structure, the distance measured
from the mean level of the established center-line grade of the street
adjacent to the parcel to the highest point on the tower or structure,
even if said highest point is an antenna or lightning protection device.
The addition, removal or change of any of the physical or
visually discernible components, colors, or other aspects of a wireless
telecommunications facility (such as antennas, cabling, equipment
shelters, landscaping, shrouding, fencing, utility feeds, vehicular
access, or parking, specifically including new transmission equipment,
removal of transmission equipment, replacement of transmission equipment,
or changes of wireless carrier or service provider), which addition,
removal or change that would be inconsistent with an existing permit
for the facility but, in the judgment of the Commissioner of Planning
and Development, will likely qualify for approval under a permit conformed
to reflect such addition, removal or change.
Nonionizing electromagnetic radiation.
A new wireless telecommunications facility which is located
at a site where there are no existing permitted wireless facilities.
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 of "wireless telecommunications facility."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act.
Any matters that involve the normal repair and maintenance
of a wireless facility and are not a modification as defined in this
chapter. Normal repair and maintenance does not change the physical
or visually discernible appearance of the facility or any part thereof
as it was originally permitted. It also means the normal replacement
of any equipment or components of a wireless facility without an increase
in height, and where the replacement is, in the judgment of the Commissioner
of Planning and Development, identical to the existing equipment or
component being replaced. The term "repair and maintenance" shall
not include any matters which the Commissioner of Planning and Development
determines is a modification, as defined herein.
The official document or permit granted by the Zoning Board
of Appeals under which an applicant is allowed to obtain a building
permit from the Department of Planning and Development to construct
a new wireless telecommunications facility.
The State of New York.
To minimize adverse aesthetic and visual impacts on 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, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
The transmission and/or reception of audio, video, data,
and any other information by wire, radio frequency, light, and other
electronic or electromagnetic systems.
See definition of "wireless telecommunications facility."
A building or structure used in the provision of services
described in the definition of "wireless telecommunications facility."
Temporary in relation to all aspects and components of this
chapter; something intended to, or that does not, exist for more than
90 days.
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
The Town of Oyster Bay.
Includes a telecommunications site and personal wireless
facility. It means a structure, facility or location designed, or
intended to be used as, or used to support antennas or other transmitting
or receiving devices. This includes, without limit, towers of all
types and kinds and structures, including, but not limited to, buildings,
church steeples, signs or other structures that can be used as a support
structure for antennas or the functional equivalent of such. It further
includes all related facilities and equipment such as cabling, equipment
shelters and other structures associated with the site. It is a structure
and facility intended for transmitting and/or receiving radio, television,
cellular, SMR, paging, 911, personal communications services (PCS),
commercial satellite services, microwave services and any commercial
wireless telecommunication service not licensed by the FCC.
A.
The following wireless telecommunications facilities shall be exempt
from this chapter:
(1)
Any facilities operated by or on behalf of any unit of government
for public or municipal purposes.
(2)
Any facilities expressly or impliedly exempt from the Town's zoning
or permitting authority under law.
(3)
Any facilities exclusively for private, noncommercial radio and television
reception and private citizens bands, licensed amateur radio and other
similar noncommercial telecommunications.
(4)
Any repairs and maintenance of a lawfully existing facility.
B.
The following wireless telecommunications facilities shall be exempt
from this chapter until they are modified:
(1)
Any facilities that are authorized and regulated by or under an unexpired
license agreement or lease with the Town of Oyster Bay, or any district
or agency under the control of the Town of Oyster Bay, which facility
was already lawfully installed on the effective date of this chapter,
except that nothing herein shall exempt any such facility from complying
with any and all provisions or requirements set forth under such agreement
or lease.
(2)
Any facilities that are authorized and regulated by or under a valid
and unexpired building permit or, as the case may be, a decision of
the Zoning Board of Appeals, which was issued prior to the effective
date of this chapter, except that nothing herein shall exempt any
such facility from complying with any and all provisions or requirements
set forth under such permit or decision or other applicable law.
A.
As of the effective date of this chapter, and except as otherwise
expressly provided herein, no person shall be permitted to site, place,
build, construct, modify or prepare any site for the placement or
use of wireless telecommunications facilities without having first
obtained a building permit from the Department of Planning and Development
and any and all other approvals as required herein or under other
applicable law. A new wireless facility must, in addition to a building
permit, obtain a special use permit from the Zoning Board of Appeals.
Applicants may request a waiver of the requirement for a special use
permit from the Commissioner of Planning and Development pursuant
to the provisions of the chapter.
B.
The Zoning Board of Appeals, pursuant to its authority and criteria under Article 16 of the Town Law and Chapter 246 of this Code, and subject to the provisions of the federal Telecommunications Act of 1996, as modified, and any other applicable state or federal law, is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting or revoking special use permits for new wireless telecommunications facilities.
C.
Except as provided herein or otherwise by law, an application for a special use permit or other approval under this chapter shall commence with a building permit application and be administered by the Department of Planning and Development under the requirements of Chapter 93 of this Code, and the Zoning Board of Appeals procedure shall be as provided in Article 16 of the Town Law and Chapter 246 of this Code, and any and all other applicable laws.
D.
If the Commissioner of Planning and Development determines that particular
applications or classes of applications under this chapter may be
considered more fairly, quickly, and inexpensively with the assistance
of third-party agencies or expert consultants, the Department of Planning
and Development shall have discretion to retain such consultants as
may be appropriate to accept, review, analyze, and evaluate applications
and all documentation submitted therewith, advise and provide information
to Town personnel on technical and other issues relating to such applications,
and make recommendations to the Department of Planning and Development,
the Zoning Board of Appeals, and any other involved agency or department
of the Town with respect to the administration of this chapter and
decisions made hereunder.
E.
In the course of considering an application pursuant to this chapter,
the Department of Planning and Development and the Zoning Board of
Appeals may waive submission of information otherwise required in
the application which they deem unnecessary in the circumstances and
may require submission of such additional information as they deem
sufficient to permit a determination that in the circumstances the
proposed work is in compliance with this chapter and all other applicable
local, state, or federal law. The Department of Planning and Development
and the Zoning Board of Appeals may reject applications which fail
to establish compliance with the requirements of this chapter or other
applicable law or which fail to include information required for a
determination of such compliance. If an applicant contends that certain
information which has been requested need not be submitted in its
application, the applicant shall submit a sworn written statement
explaining why such information ought not be required in the circumstances.
The Department of Planning and Development and the Zoning Board of
Appeals may reject any application which fails to include required
information, or they may consider the application on its merits, giving
such weight as they deem appropriate to the applicant's failure to
provide the required information.
F.
Any and all representations made by the applicant to the Department
of Planning and Development, Zoning Board of Appeals, or other governmental
agency relating to the application, whether written or verbal, shall
be deemed a part of the application and may be relied upon in good
faith by the Department of Planning and Development and Zoning Board
of Appeals. Where a certification is called for in this chapter, such
certification shall be dated and bear the signature of a licensed
attorney, or the signature and seal of an architect or engineer in
the State of New York.
G.
In addition to all other general requirements for the filing of a
building permit application, the application for a building permit
for a wireless telecommunications facility shall include:
(1)
A written certification by the applicant that the wireless telecommunications
facility which is the subject of the application will be maintained
in compliance with all conditions of the building permit, including
all conditions of any required special use permit or other approval,
without exception, as well as any and all applicable agreements and
Town, state and federal laws, rules, and regulations; and that the
work proposed in the application is legally permissible, including,
but not limited to, the fact that the applicant is authorized to do
business in the state.
(2)
A descriptive summary statement of the nature and objective(s) for
the work proposed in the application, and the impact(s) of the work
on the surrounding area.
(3)
The name, address and phone number of the person(s) preparing the
application and supporting documentation.
(4)
A site plan showing the existing and proposed structures on the subject
property, and the type, locations and dimensions of all proposed and
existing landscaping, and fencing on the subject property; the azimuth,
size and center-line height location of all proposed and existing
antennas on the supporting structure; the number, type and model of
the antenna(s) proposed, with a copy of the specification sheet; the
make, model, type and manufacturer of the tower; and a design plan
stating the tower's capacity to accommodate multiple users.
(5)
The frequency, modulation and class of service of radio or other
transmitting equipment.
(6)
The actual intended transmission power stated as the maximum effective
radiated power (ERP) in watts.
(7)
Signed documentation such as the "Checklist to Determine Whether
a Facility is Categorically Excluded" to verify that the wireless
telecommunication facility with the proposed installation will be
in full compliance with the current FCC RF emissions guidelines (VIER).
If not categorically excluded, a complete RF emissions study is required
to provide verification.
(8)
A statement signed by the wireless service provider that it will
expeditiously remedy any physical or RF interference with other telecommunications
devices caused by its equipment or the operation of such.
(9)
A copy of the FCC license is required for a co-location.
(10)
The applicant shall provide certification with documentation
(structural analysis), including calculations that the telecommunication
facility tower and foundation and attachments, rooftop support structure,
water tank structure, and any other supporting structure as proposed
to be utilized are designed and are constructed to meet all local,
city, state and federal structural requirements for loads, including
wind and ice loads.
(11)
A copy of the geotechnical subsurface soils investigation, evaluation
report and foundation recommendation for a proposed or existing tower
site and, if an existing tower, a copy of the installed foundation
design.
(12)
The number, type and model of the antenna(s) proposed, with
a copy of the specification sheet.
(13)
A written copy of an analysis, completed by a qualified individual
or organization, to determine if a proposed new tower or existing
structure intended to support wireless facilities is in compliance
with Federal Aviation Administration Regulation Part 77 and if it
requires lighting. This requirement shall also be for any existing
structure or building where the application increases the height of
the structure or building. If this analysis determines that an FAA
determination is required, then all filings with the FAA, all responses
from the FAA and any related correspondence shall be provided with
the application.
(14)
A radius map showing all properties within 300 feet or 10 times
the height of the proposed new tower or other structure, whichever
is greater.
H.
In addition to all other required information as stated in this chapter,
all applications for a special use permit for the construction or
installation of new wireless telecommunications facilities or modification
of an existing facility shall contain a complete building permit application
and the additional information hereinafter set forth.
(1)
Documentation that demonstrates and proves the need for the wireless
telecommunications facility to provide service primarily and essentially
within the Town. Such documentation shall include propagation studies
of the proposed site and all adjoining planned, proposed, in-service
or existing sites that demonstrate a significant gap in coverage;
and/or if there is a capacity need, such documentation shall include
an analysis of current and projected usage. Drive test or call test
data shall be required as determined to be appropriate by the Building
Department or the Town's wireless consultant;
(2)
The name, address and phone number of the person(s) preparing the documentation referenced in Subsection H(1) above and conducting the studies and analyses;
(3)
An area map showing the location, size, height and usage of all structures
and buildings within 1,500 feet of the subject property;
(4)
The site plan must also show, in addition to all standard information,
a description of any proposed tower and/or antenna(s) and all related
fixtures, structures, appurtenances and apparatus, including height
above the mean level of the established center-line grade of the street
adjacent to the parcel, materials, color and lighting;
(5)
The make, model, type and manufacturer of the tower and a design
plan stating the tower's capacity to accommodate multiple users; and
(6)
A full statement and substantive explanation to show that pursuant
to a study undertaken by the applicant employing due diligence, the
proposed placement site is justified, in that alternate placement
sites, co-location sites, or other alternate methods, which would
have a lesser negative effect on area character, property values and
aesthetics than the selected site would be technically unfeasible,
commercially impracticable, or otherwise inappropriate. Such statement
shall address potential alternatives identified by the Building Department.
The applicant should submit technical, financial or other evidence
to support rejection of any such alternatives as inappropriate.
I.
Application for new tower or other structure. In the case of an application
for a new tower or other structure, in addition to all other pertinent
application requirements set forth above, the Department of Planning
and Development and/or Zoning Board of Appeals shall require the applicant
to submit such additional information and undertake other activities
as may be appropriate in the circumstances, including the following:
(1)
A written report demonstrating the applicant's meaningful efforts
to secure shared use of existing towers or the use of alternative
buildings or other structures within the Town, with copies of written
requests and responses, along with any letters of rejection, stating
the reason for rejection.
(2)
A "balloon test" prior to the public hearing on the application to
better inform the public regarding the proposed new tower. The applicant
shall arrange to fly, or raise upon a temporary mast, a minimum of
a three-foot-in-diameter brightly colored balloon at the maximum height
of the proposed new tower. (The size of the balloon must be representative
of the size of the antenna configuration proposed.) The dates (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
between seven and 14 days in advance of the first test date in a newspaper
with a general circulation in the general vicinity. The applicant
shall inform the Department of Planning and Development, in writing,
of the dates and times of the test at least 14 days in advance. The
balloon shall be flown for at least four 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 in case of poor weather on the initial
date, the secondary date may be on a weekday. A report with pictures
from various locations of the balloon shall be provided to the Department
of Planning and Development.
(3)
A study of the feasibility of designing the proposed tower to accommodate
future demand for at least four additional commercial applications,
for example, future co-locations.
(4)
A requirement that the tower be structurally designed to accommodate
at least four 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 by the Zoning
Board of Appeals, provided that the applicant, in writing, demonstrates
that the provision of future shared usage of the tower is not technologically
feasible, is commercially impracticable, or creates an unnecessary
and unreasonable burden, based upon:
(5)
Available space on existing and approved towers.
(a)
The owner of a proposed new tower, and his/her successors in
interest, shall provide a written statement in the application from
someone in authority to bind the applicant, stating that the applicant
will negotiate in good faith for the shared use of the proposed tower
by other wireless service providers in the future, and shall:
[1]
Respond within 60 days to a request for information from a potential
shared-use applicant;
[2]
Negotiate in good faith concerning future requests for shared
use of the new tower by other telecommunications providers;
[3]
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.
J.
The owner of a proposed new tower shall provide certification with
documentation (structural analysis) including calculations that the
telecommunication facility tower and foundation and attachments, rooftop
support structure, water tank structure, and any other supporting
structure as proposed to be utilized are designed and will be constructed
to meet all local, Town, state and federal structural requirements
for loads, including wind and ice loads.
K.
In applications for a co-location or modification on an existing
tower, the applicant is to provide signed documentation of the tower
condition such as an ANSI report as per Annex J, Tower Maintenance
and Inspection Procedures, ANSI/TIA/EIA-222G, or most recent version
in effect. If signed documentation of tower inspection provided by
another permit holder for the tower is already on file with and satisfactory
to the Building Department at the time the applicant is required to
file an initial or an updated tower inspection report, the Building
Department shall waive such filing by the applicant. It is the responsibility
of the applicant to confirm any such waiver with the Building Department
whenever it would otherwise have been required to file an initial
or an updated report.
L.
All special use permit applications for a new wireless telecommunications
facility shall contain a demonstration that the facility will be sited
so as to minimize visual intrusion as much as possible, given the
facts and circumstances involved, and will thereby have the least
adverse visual effect on the environment and its character and on
the residences in the area of the new wireless telecommunications
facility.
M.
In an application for a special use permit for a new tower or a building
permit for an existing structure involving a potentially significant
adverse visual impact, the applicant shall furnish a visual impact
assessment, which shall include:
(1)
If a new tower or increasing the height of an existing structure
is proposed, a computer-generated "Zone of Visibility Map" at a minimum
of one-mile radius from the proposed structure, with and without foliage,
to illustrate locations from which the proposed installation may be
seen.
(2)
Pictorial representations of "before and after" (photo simulations)
views from key viewpoints both inside and outside of the Town as may
be appropriate, including but not limited to major roads; 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. In
the case of a co-location or modification, the photo simulation need
show only the effect of the co-location or modification in relation
to other equipment located on the support structure, i.e., the effect
on the profile of the facility, and may be taken at or near the site.
The applicant should consult with the Building Department to ensure
that the selection of key viewpoints for the assessment is appropriate.
(3)
A map showing the locations of where the pictures were taken and
distance from the proposed structure.
(4)
A written description of the visual impact of the proposed facility,
including and as applicable the tower base, guy wires, fencing and
accessory buildings from abutting and adjacent properties and streets
as relates to the need or appropriateness of screening.
(5)
In narrative and/or by drawing, a demonstration of how the applicant
shall effectively screen from view the base and all related equipment
and structures of the proposed wireless telecommunications facility.
N.
Applications for a special use permit or a building permit shall
document that the proposed work will maximize the 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
required by the Town.
O.
All utilities at wireless telecommunications facilities shall be
installed underground whenever possible and in compliance with all
laws, ordinances, rules and regulations of the Town, including specifically,
but not limited to, the National Electrical Safety Code and the National
Electrical Code, where appropriate, as well as Town regulations applicable
to excavations in public streets.
P.
Where a special use permit is required, the application shall show
that at a telecommunications site, an access road, turnaround space
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 the cutting of vegetation.
Road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion.
Q.
All wireless telecommunications facilities subject to this chapter
shall be constructed, operated, maintained, repaired, modified, removed
or restored in strict compliance with all current applicable technical,
safety and safety-related codes adopted by the Town, state, or United
States, including but not limited to the most recent editions of the
ANSI Code, 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, and health.
In the event of a conflict between or among any of the preceding,
the more stringent shall apply.
R.
The applicant and owner of the property shall covenant that a holder
of a special use permit or other approval granted under this chapter
shall obtain, at its own expense, all other permits and licenses required
by applicable law, rule, regulation or code, and shall 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.
S.
In the course of any application under this chapter, the applicant
and its representatives may request a meeting with the Town and its
representatives to discuss and identify what documentation and supporting
information is required in the particular circumstances of the permit
application and generally address issues that will help to expedite
the review and permitting process. Applicants who do not meet with
the Town to limit the application materials required should submit
all the documentation and information identified in this chapter as
potentially required for such applications to avoid delay in consideration
of their application. The Building Department may in its discretion
require an inspection of the site by its representatives in connection
with an application. The applicant shall fully cooperate in arranging
access for the inspection and may participate in the inspection.
T.
With respect to any application requiring a special use permit from
the Zoning Board of Appeals, the Board will have lead agency status
pursuant to SEQRA. The Board shall conduct an environmental review
of the proposed project pursuant to SEQRA in combination with its
review of the application.
[Amended 2-23-2021 by L.L. No. 2-2021]
A.
In its review of applications for special use permits, the Zoning
Board of Appeals shall consider the following factors affecting the
suitability of a proposed location for a new wireless facility. These
factors are designed and intended to facilitate the provision of wireless
services in the Town while minimizing the adverse economic, environmental,
and quality of life impacts by encouraging co-location on existing
towers and structures improved with wireless telecommunications facilities
when such co-location is technically feasible and not commercially
impracticable and encouraging the location of new wireless facilities
so as to minimize their impact on historically sensitive areas around
residences, schools, houses of worship, day-care centers, and similar
uses, listed in order from the more preferred to the less preferred.
(1)
On existing towers or other structures already improved with wireless
telecommunications facilities on Town-owned or other publicly owned
property.
(2)
On existing towers or other structures already improved with wireless
telecommunications facilities on other property in the Town.
(3)
On existing towers or other structures without existing wireless
telecommunications facilities on Town-owned or other publicly owned
properties.
(4)
On existing towers or other structures without existing wireless
telecommunications facilities on other property in the Town.
(5)
A new tower or other structure on Town-owned or other publicly owned
properties.
(6)
A new tower or other structure on properties in areas zoned for industrial use (LI Light Industry) under Chapter 246 of this Code.
(7)
A new tower or other structure on properties in areas zoned for primarily any nonresidential, except REC Recreation, NB Neighborhood Business, RO Residence-Office, or Waterfront-A Districts under Chapter 246 of this Code.
(8)
A new tower or other structure on properties in areas zoned for HD-1 Hicksville Downtown Core Subdistrict, HD-II Hicksville Downtown Gateway Transition Subdistrict, HD-III Hicksville Downtown Residential District, GB General Business, or ORD Office, Research and Development use under Chapter 246 of this Code.
B.
The Zoning Board of Appeals may approve any new wireless facility
site located within an area in the above list of priorities if the
site is appropriate, taking into account the totality of the circumstances,
including potential alternatives, under the provisions of this chapter
and other applicable law. An applicant proposing a new wireless facility
should explain in its application why co-location or any higher priority
locations are not feasible or appropriate in the circumstances. Any
technological, financial, or other factors should be identified, and
any quantitative data relating to such factors should be included
in the application. Unilateral or contractual obstacles to co-location
created by the applicant and/or others holding permits for wireless
facilities in the Town are typically contrary to the public interest
and may be given little weight. Notwithstanding that a potential site
may be situated in an area of highest priority or highest available
priority, an application may be denied by the Zoning Board of Appeals
if the applicant has not otherwise satisfied the requisites for a
permit under other provisions of this chapter or other applicable
federal, state, or local laws and regulations.
A.
The applicant for a special use permit for a new wireless facility
shall submit a report inventorying existing towers and other suitable
alternative structures already improved with wireless facilities located
within two miles (or such other distance agreed to by the Department
of Planning and Development) of a proposed new tower, and explaining
why a new tower or wireless facility would be preferable to co-location
on any such alternatives.
B.
An applicant intending to locate on an existing tower or other suitable
structure shall be required to document proof from the owner or person
in control of the existing tower to permit its use by the applicant.
C.
Co-locations and modifications at a permitted wireless facility shall be reviewed and approved administratively by the Building Department as modifications to the existing building permit in accordance with all applicable federal, state and local laws and regulations, specifically including § 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, codified at 47 U.S.C. § 1455. The Commissioner shall use his authority under § 242-24 of this chapter as appropriate to effectuate compliance with all such applicable laws.
D.
Repairs and maintenance consistent with the current building permit
of a wireless facility do not require approval of the Building Department
or modification of the existing permit. The Commissioner may require
inspections and reporting of repair and maintenance work to assure
compliance with the requirements of existing permits and all other
requirements of this chapter.
E.
After approval and installation of a permitted wireless facility,
any carrier utilizing such facility shall provide to the Town on a
semiannual basis signed documentation such as the "Checklist to Determine
Whether a Facility is Categorically Excluded" to verify that the wireless
telecommunication facility remains in full compliance with the current
FCC RF emissions guidelines (VIER). If not categorically excluded,
a complete RF emissions study is required to provide verification.
A.
In addition to satisfying all other special use permit criteria,
the applicant for a new wireless telecommunications facility shall
submit documentation justifying the total height of any tower, facility
and/or antenna requested and the basis therefor. Documentation in
the form of propagation studies must include all backup data used
to perform at requested height and a minimum of 10 feet lower height
to allow verification of this height need. Such documentation will
be analyzed in the context of the justification of the height needed
to provide service primarily and essentially within the Town, to the
extent practicable, unless good cause is shown.
B.
No tower constructed after the effective date of this chapter, including
allowing for all attachments, shall exceed that height which shall
permit operation without required artificial lighting of any kind
in accordance with Town, state, and/or any federal statute, law, local
law, Town ordinance, code, rule or regulation.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as otherwise required by law.
B.
Towers shall be galvanized and/or painted with a rust-preventive
paint of an appropriate color to harmonize with the surroundings and
shall be maintained in accordance with the requirements of this chapter.
C.
If lighting is required, the applicant shall provide a detailed plan
for sufficient lighting, demonstrating as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner that prevents
unauthorized access. Specifically, all antennas, towers and other
supporting structures, including guy anchor points and wires, shall
be made inaccessible to individuals and constructed or shielded in
such a manner that they cannot be climbed or collided with; and transmitters
and telecommunications control points shall be installed in such a
manner that they are readily accessible only to persons authorized
to operate or service them.
A.
Wireless telecommunications facilities shall contain a sign no larger
than four square feet in order to provide adequate notification to
persons in the immediate area of the presence of RF radiation or to
control exposure to RF radiation within a given area. A sign of the
same size is also to be installed to contain the name(s) of the owner(s)
and operator(s) of the antenna(s) as well as an emergency phone number(s).
The sign shall be on the equipment shelter or cabinet of the applicant
and be visible from the access point of the site and must identify
the equipment owner of the shelter or cabinet.
B.
On tower sites, an FCC registration sign as applicable is also to
be present. The signs shall not be lighted, unless applicable law,
rule or regulation requires lighting. No other signage, including
advertising, shall be permitted.
A.
In any case in which a special use permit is required, all proposed towers and any other proposed wireless telecommunications facility structures shall be regulated in all aspects of lot size, height, fencing, and all other applicable area specifications, as provided under Chapter 246 of this Code for the zoning district in which the premises is located, except that notwithstanding same, no part of any tower or building on which one or more wireless telecommunications antennas are to be affixed shall be located no closer than technically required for provision of wireless services to any property improved with a residential building, house of worship, day-care center, or school, or similar historically protected uses. Proposed deviations from any of the above-referenced standards shall be considered by the Zoning Board of Appeals in the context of its action upon a special use permit application, and subject to the requirements of the Federal Telecommunications Act of 1996, as amended.
A.
The Town may hire any consultant and/or expert necessary to assist
the Town or any of its Departments in reviewing and evaluating the
application, including the construction and modification of the site,
once permitted, and any site inspections.
B.
An applicant shall deposit with the Town Comptroller escrow funds
sufficient to reimburse the Town for all reasonable costs of the Town's
consultant in providing expert evaluation and consultation to any
agency of the Town in connection with the review of any application,
including any expert consultation services deemed necessary by the
Commissioner of Planning and Development or the Zoning Board of Appeals.
The initial deposit for a new wireless facility shall be $8,500. The
initial deposit for a co-location or modification shall be $6,000.
The placement of the deposit with the Town Comptroller shall precede
the preapplication meeting, or shall occur at such later time as the
Commissioner of Planning and Development may direct. The Town Comptroller
will maintain a separate escrow account for all such funds. The Town's
consultants/experts shall invoice the Town Department employing its
services related to the application.
C.
If at any time during the process this escrow account has a balance
less than $2,500, the applicant shall immediately, upon notification
by the Town or consultant, 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 invoicing
at the conclusion of the project, the remaining balance shall, upon
request of the applicant, be promptly refunded to the applicant.
D.
When notified by the Town that additional escrow is required, the
applicant may request copies of invoices paid to consultants and/or
experts. If the applicant finds errors in those invoices, the applicant
may ask the Town to audit those specific items for reasonableness,
and may request relief therefrom.
E.
The total amount of the funds needed as 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 to complete the necessary review, analysis and inspection of any construction or modification.
F.
Notwithstanding the above, there shall be a fee cap as to the total
consultant fees to be charged to the applicant in a case, which shall
be the greater of $17,000 or 10% of the highest annual lease payment
to be made by the applicant to the owner of the property under the
lease authorizing placement of the wireless telecommunications facilities
at a given site. However, the fee cap shall not apply as to any fees
which the Commissioner of Planning and Development determines to be
attributable to the dilatory or otherwise bad faith actions of the
applicant in providing a complete application or in proceeding with
a public hearing.
A.
If a special use permit is required, then once the Department of
Planning and Development determines that the application is complete,
with all required submissions having been received in proper form,
it shall refer the file to the Zoning Board of Appeals to schedule
a public hearing. The Zoning Board of Appeals may require such additional
information as it deems necessary and relevant to the case or the
scheduling of a public hearing.
B.
In order for a public hearing to be held by the Zoning Board of Appeals,
notice of the hearing shall be published in a newspaper of general
circulation in the vicinity of the premises, no less than 10 calendar
days prior to the scheduled date of the public hearing. In order that
nearby property owners shall be specifically notified of the application,
the applicant shall, no less than 14 calendar days prior to the scheduled
date of the public hearing, mail a written notice of the hearing to
all property owners within 300 feet or 10 times the height of the
proposed new tower or other structure, whichever is greater, of any
property line of the lot or parcel on which the new wireless telecommunications
facilities are proposed to be located, and, for that purpose, the
applicant shall complete and utilize a form provided by the Board,
and provide affidavits or such other proof to the Board as the Board
requires to ensure that such mailing has properly taken place. The
notice of hearing shall be sent by certified mail, return receipt
requested, to all property owners within 300 feet, and by first-class
mail to all other property owners entitled to notice hereunder.
A.
The Zoning Board of Appeals shall consider the merits of the case, based on the evidence in the record, and under the applicable standards set forth under Chapter 246 of this Code, and subject to the provisions of the Federal Telecommunications Act of 1996, as amended, as is required by law. The burden of proof for showing compliance with applicable standards and criteria shall always be upon the applicant.
B.
After the public hearing is completed, and within the time frame
required by law, the Board may approve, approve with conditions, or
deny a special use permit.
C.
No special use permit shall be assigned, transferred or conveyed
without the express prior written notification to the Zoning Board
of Appeals, received by the Secretary to the Board not less than 10
days prior thereto.
D.
In addition to any other remedy of the Town at law or equity, any
special use permit may, following a hearing upon due prior notice
to the applicant, be revoked, canceled, or terminated by the Zoning
Board of Appeals if the Board determines that there are substantial
violations of the conditions and provisions of the special use permit,
or a substantial violation of the provisions of this chapter.
A.
The building permit fees for a wireless telecommunications facility shall be determined by the Department of Planning and Development pursuant to the provisions of Chapter 93 of this Code.
B.
At the time that the building permit application is filed, the applicant
shall provide a qualified cost of construction affidavit to the Department
of Planning and Development to establish the basis for the cost of
the building permit fees, providing such information therein as the
Department of Planning and Development shall deem sufficient for that
purpose.
C.
Prior to issuance of a building permit, if it appears to the Department
of Planning and Development that the affidavit underestimated the
actual cost, the Department shall require payment of such additional
fees as it shall deem appropriate, at the time that the building permit
is to be issued.
D.
The fee to be paid to the Zoning Board of Appeals for a special use permit herein shall be the fee prescribed under Chapter 246 of this Code. The required fee shall be paid to the Board prior to the time that the Board places the case on a public hearing calendar.
E.
The fee to be paid to the Department of Public Works for any application receiving treatment under § 242-22 of this chapter shall be $2,000 per pole utilized for a wireless antenna, to be paid prior to the time that the Public Works Department conducts its comprehensive site review as set forth therein. On an application to the Zoning Board of Appeals under § 242-22 of this chapter, the Board shall treat each disapproved site as a separate case, and require a fee from the applicant in the amount required by this Code.
[Amended 3-15-2022 by L.L. No. 2-2022]
F.
All fees paid shall be nonrefundable.
Prior to issuance of any building permit, the applicant and
the owner of record of any proposed wireless telecommunications facilities
property site shall, at their cost and expense, be jointly required
to execute and file with the Department of Planning and Development
a bond, or other form of security acceptable to the Town Attorney
as to type of security, and the form and manner of execution, in an
amount of at least $75,000 for a tower facility and $25,000 for a
co-location on an existing tower or other structure, and with such
sureties as are deemed sufficient by the Town Attorney to assure the
faithful performance of the terms and conditions of this chapter and
conditions of any special use permit, including payment of costs of
future demolition of an abandoned tower or other facilities. The full
amount of the bond or security shall remain in full force and effect
while the facility is in existence and until any necessary site restoration
is completed to restore the site to a condition comparable to that
which existed prior to the issuance of the original special use permit
or other approval.
In order to verify that the holder of a special use permit or
other approval 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, and building codes, laws, ordinances and regulations and other
applicable requirements, the Town may designate persons to conduct
an inspection on its behalf of 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.
This chapter shall apply to all applications originally filed
with the Town of Oyster Bay after the filing of this chapter in the
office of the Secretary of State of the State of New York.
A.
In the event of a violation of this chapter or any of the terms and
conditions of a special use permit or other approval issued pursuant
to this chapter, and in addition to any other remedy available to
the Town at law or equity, the Town may impose and collect, and the
holder of the special use permit for wireless telecommunications facilities
shall pay to the Town, civil penalties in the amount of $2,000 per
day, until the violation or violations are abated to the satisfaction
of the Town.
B.
Additionally, the failure to comply with provisions of this chapter
or the terms and conditions of any special use permit, building permit,
or other approval shall constitute a violation of this chapter by
the owner of the property, the owner of the improvements, and any
lessee or other person or entity in control of the property or facilities,
jointly and severally, and shall subject them or any of them to prosecutions
in the District Court of Nassau County, or injunction actions in any
court of competent jurisdiction to compel compliance.
C.
In the case of a District Court prosecution, any person, firm or
corporation which shall construct, alter, repair, move, remove, demolish,
equip, use, occupy or maintain any wireless telecommunications facility
or part thereof in violation of this chapter, or the conditions of
any special use permit or other approval issued hereunder, shall be
guilty of a violation punishable by a fine not exceeding $1,000 or
imprisonment for a period not exceeding 15 days for each such offense,
or by both such fine and imprisonment. Each day that an offense continues
shall be deemed a separate offense. For conviction of a second offense,
both of which were committed within a period of five years, such violation
shall be punishable by a fine of not less than $250 and not more than
$1,000 or by imprisonment for a period not to exceed 15 days, or both.
Upon conviction of a third offense and any further offenses, all of
which were committed within a period of five years, such violations
shall be punishable by a fine of not less than $500 and not more than
$2,000 or by imprisonment for a period not to exceed 15 days, or both.
Except as provided otherwise by law, such a violation shall not be
a crime, and the penalty or punishment imposed therefor shall not
be deemed for any purpose a penal or criminal penalty or punishment
and shall not impose any disability upon or affect or impair the credibility
as a witness, or otherwise, of any person convicted thereof.
A.
Under the following circumstances, the Department of Planning and
Development may determine that the health, safety, and welfare interests
of the Town warrant and require the removal of wireless telecommunications
facilities:
(1)
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)
Permitted wireless telecommunications facilities fall into such a
state of disrepair as to create a health or safety hazard;
(3)
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,
and the special permit or any approval has been revoked as provided
in this chapter.
B.
If the Department of Planning and Development makes a determination under this section, then the Town shall notify the holder of the special use permit or other approval within 48 hours that said wireless telecommunications facilities are to be removed, on such terms and time frames as the Department may direct, within not less than 90 days of receipt of written notice from the Department. Nothing herein shall prevent the Department of Planning and Development from declaring any structure a dangerous structure under Chapter 96 of this Code, and proceeding in any manner authorized thereunder.
C.
In such a case, the holder of the special use permit or other approval,
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 Department. 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 Town.
D.
If wireless telecommunications facilities ordered to be removed under
this section are not removed or substantial progress has not been
made to remove the wireless telecommunications facilities within the
ninety-day period, then the Town may remove the wireless telecommunications
facilities at the sole expense of the owner or holder of the special
use permit or other approval, dispose of the equipment as it sees
fit, and charge a tax lien against the property on which the structures
are situated to cover the Town's cost.
E.
Notwithstanding anything in this section to the contrary, the Department
of Planning and Development may in its sole discretion approve a temporary
use permit/agreement for the wireless telecommunications facilities,
for no more 180 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
or other approval, and an agreement to such plan shall be executed
by the holder of the special use permit or other approval and the
Town.
Applications for permits for wireless facilities in public streets
or rights-of-way in the Town shall be determined under the same procedures
and standards applicable all other applications under this chapter.
Nothing in this section shall be construed to authorize approval of
a building permit or special use permit in violation of applicable
local, state and federal laws and regulations, including all Town
laws applicable to public streets and rights-of-way.
A.
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 prescribed 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.
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.
The Department of Planning and Development in an administrative
capacity, and the Zoning Board of Appeals in accord with the special
use permit process, are authorized to grant relief from the provisions
of this chapter under the criteria hereof and to ensure compliance
with all applicable laws, including the Federal Telecommunications
Act of 1996.
It is hereby determined pursuant to the provisions of the State
Environmental Quality Review Act, Environmental Conservation Law § 8-0101
et seq. and its implementing regulations, 6 NYCRR Part 617, that the
adoption of this chapter is a "Type II" action within the meaning
of 6 NYCRR § 617.5(c)(20) and (27), pertaining to "routine
or continuing agency administration and management, not including
new programs or major reordering of priorities that may affect the
environment" and pertaining to the "adoption of regulations, policies,
procedures and local legislative decisions in connection with any
action on this list" and, accordingly, the adoption of this chapter
is of a class of actions which do not have a significant effect on
the environment and no further review is required.
