[HISTORY: Adopted by the Town Board of the Town of Lansing 10-21-2015 by L.L. No. 7-2015. Amendments noted where applicable.]
A.
The Town of Lansing recognizes the increased demand for wireless
communications and transmitting facilities and the need for the services
they provide. Often these facilities require the construction of towers
and related telecommunications facilities. The intent of this chapter
is to protect the Town's interest in siting such towers and related
infrastructure in a manner consistent with sound land use planning
by minimizing visual effects through careful design, siting, and vegetative
screening. The Town seeks to avoid potential damage to adjacent properties
from tower failure or falling debris through engineering and the careful
siting of towers, while also maximizing use of any new or existing
tower and encouraging the use of existing buildings and structures
to reduce the number of towers needed, while also allowing wireless
service providers to meet their technological and service objectives
for the benefit of the public.
B.
The purpose of this chapter is to allow for telecommunications installations
in accordance with applicable state and federal law. While acknowledging
the demand for wireless communications, the Town recognizes that the
small-scale residential and commercial districts, agricultural landscapes,
and Cayuga Lake waterfront are primary community resources. The erection
of towers of unusual height or bulk within the Town in some locations
may threaten the historic integrity, damage the aesthetic value, and
reduce residents' opportunities to enjoy these resources.
C.
The intent of this chapter is to regulate the construction and siting
of communications towers in compliance with the Telecommunications
Act of 1996 (TCA) to achieve the following: protection of the health,
safety and general welfare of the residents of the Town of Lansing;
to protect the aesthetic characteristics and historic features of
the Town of Lansing; and to ensure that communications towers planned
for locations within the Town of Lansing are sited and constructed
in a manner consistent with sound land use planning, the Town's
Comprehensive Plan, and other adopted goals of the Town of Lansing.
As well, tower heights are particularly problematic from a public
health and safety perspective in the Town of Lansing given the hilly
terrain and the presence of an international airport.
D.
This chapter supersedes, repeals, and replaces the Town of Lansing
Cellular Tower Ordinance, commonly known as "Appendix II to the Lansing
Land Use Ordinance,"[1] together and along with each other local law or ordinance
which, by its purpose, is intended to regulate cellular or communications
towers and facilities. In the event any other law or regulation may
affect any telecommunications facility, then such law or regulation
shall apply together with this chapter, and any conflict shall be
resolved by applying the most restrictive, non-preempted, enforceable
standard or requirement.
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 any telecommunications facilities or tower and
located on the same lot as the telecommunications facility or tower.
Non-exclusive examples of such structures include utility or transmission
equipment, base stations, antennae, wires, utility appurtenances and
connections, anchors, security fencing, storage sheds or cabinets.
A system of electrical conductors that transmit or receive
radio frequency and other wireless signals. Such signals shall include,
but not be limited to, radio, television, cellular, paging, personal
communication services, and microwave communications.
Telecommunications facilities which utilize existing towers,
buildings, or other structures for placement of antenna(s) and which
do not require the construction of a new tower.
Distributed antenna system(s).
The Federal Aviation Administration.
The Federal Communications Commission.
Non-ionizing electromagnetic radiation.
The "Over the Air Reception Devices" rules and regulations
of the FCC.
Personal communications services.
Any individual, landowner, lessor, licensee, easement holder,
trust, corporation, LLC, partnership, or other entity.
The Planning Board of the Town of Lansing.
Radio frequency interference.
The New York State Environmental Quality Review Act, generally
codified at Environmental Conservation Law Article 8, and including
the regulations pertaining thereto at 6 NYCRR Part 617, each as now
exist or as hereafter amended or re-codified.
Site planning and reviews of site plans per the requirements of Chapter 270, Zoning, of the Code of the Town of Lansing and Article 16 of Town Law, as enhanced by this chapter.
A use which is deemed allowable within a given zoning district,
but which is potentially incompatible with other allowed or existing
uses and, therefore, is subject to special standards and conditions
of use and the approval of the Planning Board.
A form of land use permitting outlined in Chapter 270, Zoning, of the Code of the Town of Lansing and in Town Law Article 16, as enhanced by this chapter, but with the proviso that the Planning Board be and hereby is empowered to review, approve, or issue special use permits for all telecommunications facilities as set forth in and by this chapter, and any requirements of any local laws or ordinance of the Town requiring otherwise are hereby expressly superseded.
The federal Telecommunications Act of 1996, as now exists
and as hereafter amended, supplemented, or re-codified. This includes
all aspects of the TCA, including the codification of its provisions
within Title 47 of the United States Code.
Towers, antennae, and accessory structures used in connection
with the provision of cellular telephone service, DAS, WAN, personal
communications services (PCS), paging services, radio and television
broadcast services, Internet and data processing, SMS, and similar
broadcast and communication services.
A structure not intended for human habitation upon which
antennae are designed to be located or arrayed. It includes, without
limit, freestanding towers, latticework towers, guyed towers, monopoles,
and other similar structures which may employ camouflage technology.
The Town of Lansing, in Tompkins County, New York.
The Town Board of the Town of Lansing.
A.
No telecommunications facilities shall hereafter be used, erected, modified, or reconstructed except after the granting of a special use permit and site planning approval by the Lansing Planning Board and in conformity with Chapter 270, Zoning, of the Code of the Town of Lansing and the provisions of this chapter. To the extent any other law or zoning requirement requires, or purports to require, that special permitting for telecommunications facilities requires approval or issuance thereof by the Town Board, such provisions are expressly hereby superseded and such power be and hereby is vested in the Planning Board.
B.
No existing structure shall be modified to serve as a telecommunications
or telecommunications-related tower unless in conformity with this
chapter.
C.
New towers are and shall only be permitted in a RA, B2, or IR zoning districts upon the issuance of a special use permit and the granting of site plan approval by the Planning Board. Telecommunications facilities and towers are not permitted in R1, R2, R3, L1, and B1 zoned areas per Chapter 270, Zoning, of the Code of the Town of Lansing. These requirements are specifically intended to regulate tower placement and not to preclude or regulate wireless and cellular services in the Town.
D.
Not more than one communication tower shall be permitted on any parcel
of land.
E.
Telecommunications facilities under the exclusive control or ownership of a municipal corporation are exempt from Subsection F of this section, immediately below.
F.
In reviewing any applications for any allowed or new telecommunications
facilities or tower(s), the Planning Board shall, at a minimum, require
that the following application materials and information be submitted
for review and, if appropriate, approved, and that the following review
and approval standards and criteria be met:
(1)
Site location. A proposed location shall receive approval from the
Planning Board following satisfaction of the following requirements:
(a)
Documentation of the need for the use of the site proposed,
including an analysis demonstrating that proposed location is necessary
to meet the needs of the applicant's telecommunications system
and to provide adequate service and coverage to the intended area.
For new towers, it shall also be shown that there is not a technologically
feasible and available location on an existing tower or existing high
structure or municipal or government-owned structure or property.
(b)
"Before" and "after" propagation studies prepared by a qualified
radio frequency engineer (signed and sealed by a professional engineer
registered in the State of New York) demonstrating existing signal
coverage and contrasting such signal coverage against the signal coverage
resulting from the proposed telecommunications facilities, together
with a "search ring" map overlaid upon an appropriate background map
demonstrating the area within which the tower or telecommunications
facilities need to be located in order to provide proper signal strength
and coverage to the target cell.
(c)
Analyses and studies by NYS certified structural engineers showing
adequate design and construction parameters for any proposed telecommunications
facilities, including calculations and a demonstration that the strength
and capacity of the same and all towers are designed to exceed the
loading expected and calculated for such telecommunications facility
or tower at such location and elevation, including static loading,
wind loading, and snow loading.
(d)
The applicant shall explain why it selected the proposed site,
discuss the availability or lack of availability of a suitable structure
within the search ring which would have allowed for co-located antennae
and to what extent the applicant explored locating the proposed tower
in a more intensive use district. Verification of and delivery of
copies of correspondence with other telecommunications companies concerning
co-location is a part of this requirement.
(2)
Location preference.
(a)
Preference shall be given for facilities located in higher-use
districts or in higher-intensity-of-use zones (or areas within a given
zoning district or area), with the classifications of areas and zones
immediately below being arranged from most-preferred applications
and locations (top of list) to least-preferred locations (bottom of
list), as follows:
[1]
Small-site locations on existing structures that are not highly
visible tall structures.
[2]
Small-site locations on existing tall structures.
[3]
Co-location on existing towers or upon property with an existing
tower.
[4]
Siting upon highly visible tall structures.
[5]
Siting upon tall structures.
[6]
Siting within industrial areas and districts (IR zones).
[7]
Siting within commercial or business areas and districts not
in the Town center area (B2 zones).
[8]
Siting in New York State recognized agricultural districts.
[9]
Siting in agricultural zones or areas (RA zones).
[10]
Siting in mixed-use residential districts (R3 zones).
[11]
Siting in the Town center area properties (B1 zone and mapped
surrounding areas).
[12]
Siting in moderate-density residential districts (R2 zones).
[13]
Siting in low-density residential districts (R1 zones).
(b)
The applicant shall provide an explanation as to how this provision
was considered and applied in selecting a site and why a lower-preferred
site was selected over a higher-preferred site (if a lower-preferred
site was selected). "Small-site" refers, generally, to multiple antennae
configurations and arrays that avoid the need for a large tower, such
as certain DAS systems or the utilization of telephone pole-mounted
antennae.
(3)
Site plan and special permit applications. All site plans shall require
the seal of a New York State licensed professional engineer, and all
facilities shall meet applicable NYS code requirements, including
the applicable safety and other requirements of the NFPA, ANSI, IEEE,
and related national code agencies. A fully completed special permit
application and site plan prepared to scale in sufficient detail and
accuracy shall be provided, and such site plan and related application
shall show, at a minimum:
(a)
The exact location of the proposed tower, together with any
guy wires and anchors, if applicable, and a side elevation of the
tower showing the proposed antenna locations or arrays.
(b)
The maximum height of the proposed tower.
(c)
A detail of tower type (monopole, guyed, latticed, freestanding,
or other) including any appendages, and further including design parameters
and mapping for all subsurface improvements.
(d)
The location, type, and intensity of any lighting on the property,
together with a description of all FAA or other lighting requirements,
including verification of such description and disclosure by an appropriate
qualified engineer, or from the FAA or other authority having jurisdiction,
and including a reference to the statute, regulations, or design manuals
(or similar authoritative source of such requirements) that shows
what lighting requirements are required for the particular telecommunications
facilities and towers.
(e)
Property boundaries and names of adjacent landowners.
(f)
Proof of the landowner's consent if the applicant does
not own the property and a map or other document delineating the scope
of any lease or easement allowing or relating to the siting of any
improvements or facilities, together with a depiction and description
of the access provided to the site.
(g)
The location of all other structures on the property and all
structures on any adjacent property within 1,000 feet of the property
lines, together with the distance from those structures to any proposed
tower.
(h)
The location, nature and extent of any proposed fencing, landscaping,
and screening, together with final grading plans for all facilities
and roads, and further including planting plans, access roads, parking
areas, and all proposed buildings or structures and their appurtenances.
(i)
The location and nature of proposed utility easements and access
road, if applicable, including a depiction and description of any
aboveground utilities and mapping for all underground utilities, the
location, size, and operational parameters of any on-site generators,
and the source of any power supplied to the site.
(j)
A grid or map of all of the applicant's existing telecommunications
facilities and related site areas in the Town, or otherwise located
within 50 miles of the proposed tower or telecommunications facilities,
together with mapping of all other telecommunications facilities within
50 miles of the proposed site that specifically notes whether any
such other telecommunications facilities are towers, and which further
describes the height of such towers.
(k)
All information regarding the tower and antenna prepared by
the manufacturer of the tower or antenna or the applicant, including,
but not limited to, the following:
[1]
The make and model of the tower to be erected.
[2]
The manufacturer's design data for installation instructions
and construction plans.
[3]
The applicant's proposed tower maintenance and inspection
procedures and records system.
[4]
Identification of any anti-climb device(s) to be installed.
[5]
Confirmation that the antennae to be mounted on the tower will
be operated only at FCC-designated frequencies and power levels.
[6]
The design parameters of such tower and antennae, including
static, wind, and snow loading capability, together with data describing
the excess capacity and dimensional capabilities capable of supporting
future co-location.
(l)
All proposed signage, provided that no tower or telecommunications
facilities shall contain any advertising signs or advertising devices
except signage identifying a health or general welfare message and
the owner(s) name and contact information, both being solely intended
for identification and the protection of the general public.
(m)
Certification by a licensed New York State structural engineer
confirming the structural integrity of the tower design.
(4)
Height. The Planning Board shall approve the height of each proposed
tower and no tower shall exceed 200 feet tall as measured from the
average elevation of surrounding terrain (and no build-up of a base
or foundation shall increase such allowed height) to the highest point
of the tower or its antennae, extensions, or other devices extending
above the structure of the tower. In reviewing such issue, the Planning
Board shall consider the minimum height necessary for the applicant's
needs. If additional height is requested, the burden shall be upon
the applicant to demonstrate that a waiver of this 200-foot limit
is required or needed based upon applicable engineering, the need
to meet any co-location requirements of this chapter, or to achieve
required coverage. However, nothing herein shall require an approval
merely because the telecommunications or coverage needs of the applicant
are less expensively achieved by one single taller tower as opposed
to multiple smaller towers or the installation of telecommunications
facilities in other elevated locations. In approving or rejecting
such request for any additional height, the Planning Board may take
into consideration any other factor it deems reasonable, including
lighting requirements and location in relation to known hazards, such
as the airport.
(5)
Co-location. The applicant must examine the feasibility of designing
a proposed tower to accommodate future demand for additional facilities
and applicants are encouraged (and where allowed, required) to allow
co-location upon their towers and provide their towers for use by
other providers and carriers at a reasonable fair market value cost
or rate. All towers shall, unless impractical or not possible due
to engineering or other considerations, be designed for and allow
at least two future co-locators to emplace telecommunications facilities
and antennae upon the proposed tower, and thus all engineering and
load capacity date shall delineate the present and future design loading
capabilities of the tower design chosen, including static, wind, and
snow loads. An applicant shall also be required to present an adequate
report inventorying existing towers and telecommunications facilities
within a reasonable distance of the proposed site and outline opportunities
for co-location with such existing facilities and other preexisting
structures as an alternative to new construction. If no such existing
facilities or preexisting structures are viable, then the reasons
therefor shall be delineated, explained, and clearly stated. The applicant
shall be further required to submit a report demonstrating good faith
efforts to secure co-location with or upon existing towers, as well
as to document the capacity for future co-location for the proposed
tower. Written requests for and responses relating to co-location
shall be provided to the Town. One or more of these requirements may
be waived by the Planning Board if the applicant demonstrates that
co-location or future shared usage or co-location upon a proposed
telecommunications facility or tower is not feasible and an unnecessary
burden, based upon:
(a)
The number of FCC licenses foreseeably available for the area.
(b)
The number of existing and potential licensees or co-locators
without tower spaces or sites.
(c)
Available spaces on existing and approved towers.
(d)
Potential adverse visual impacts of a tower designed for co-location.
(e)
Co-location would exceed the structural capacity of such existing
tower and there is no reasonable manner by which the structural capacity
of the existing tower may be improved.
(f)
Co-location would cause unavoidable radio frequency interference
with other equipment or signals.
(g)
The existing tower or telecommunications facility owner refused
to allow co-location despite reasonable and diligent application,
and the co-location refusal is not an implied refusal due to a claim
of a non-market-based, unfair, or steep price, or facility improvement
or study costs as may be necessary to ensure safe co-location, or
similar fiscal factors.
(6)
Fall zones. The applicant must demonstrate a safe fall zone around
the tower showing no impacts upon structures or dwellings and adequate
setbacks from public highways. The radius of such fall zone must be
at least equal to the highest point of the tower and its telecommunications
facilities, as measured from the lowest ground-level grade within
such height radius, plus 40 feet. If the tower or telecommunications
facility is to be attached to an existing structure, then this fall
zone requirement may be waived if, upon a case-by-case analysis, it
is adequately demonstrated that the waiver of this requirement will
not endanger the life, health, safety, or property of any person.
Any conditions that are reasonable with respect to the waiver or non-application
of these fall zone radii requirements shall be permissible.
(7)
Setbacks, yardage. All telecommunications facilities shall comply
with all setback, frontage, minimum lot size, yardage, and bulk requirements
of the underlying zone in which situate. In the event more than one
zone's regulations may apply, the more restrictive requirements
shall be applied upon a standard-by-standard basis. These standards
apply to all major structures of any telecommunications facilities,
as well as their supporting parts and appurtenances, such as guy wires,
anchors, and accessory structures. In order to safeguard the general
public and adjacent properties, all towers shall be set back from
all adjacent property lines a sufficient distance to contain on site
substantially all ice fall or debris from any tower failures.
(8)
Subdivision. No subdivision for the purposes of the present or future siting or emplacement of any telecommunications facilities or tower shall be reviewed as, or classified as, an exempt subdivision under Chapter 235, Subdivision of Land, of the Code of the Town of Lansing (as now exists or as hereafter amended). In the event any subdivision application is submitted or any approval sought for any present, proposed, or future telecommunications facilities, then each and all such lots shall meet minimum lot sizes for the applicable district and all lots upon which any telecommunications facilities are proposed, or upon which such telecommunications facilities shall be sited, shall be sufficiently sized and shaped as to incorporate the entire fall zone within and upon such single lot. In the event this single-lot requirement is impossible to meet, then maximum compliance with this requirement shall be sought and any area of the fall zone not located upon such lot shall be subject to an express easement in a form as approved by the Town.
(9)
Aesthetics. Telecommunications facilities shall be located and their
visual effects minimized through careful design and buffering via
vegetative screening to the maximum extent which is practical and
feasible to help ensure compatibility with surrounding land uses.
The following provisions shall serve as guidelines or examples for
the Planning Board in considering to how to screen towers:
(a)
Native plants and vegetation consistent with surrounding flora
is recommended.
(b)
To screen the base of the tower and accessory structures, a
row of deciduous trees or other plants capable of forming a continuous
hedge at 10 feet in height within two years of planting located within
25 feet of the tower base and accessory structures shall be recommended,
together with other landscaping or buffering as the Planning Board
shall reasonably require.
(c)
Within 50 feet of the property boundaries, at least one row
of evergreen trees, shrubs or other landscaping or buffering as the
Planning Board shall reasonably require, at least four feet high when
planted and spaced not more than 20 feet apart for trees, and a lesser
and species-specific appropriate amount for shrubs or hedges.
(d)
All trees, plantings, and landscaping shall be maintained and
replaced if needed.
(e)
Existing on-site vegetation shall be preserved to the maximum
extent possible.
(f)
The Planning Board may require that the tower be designed and
sited so as to avoid, if possible, application of FAA lighting and
painting requirements, it being generally understood that towers should
not be artificially lighted except as required by the FAA, or when
public safety so requires.
(g)
The tower shall be of a nonreflective galvanized finish or painted
matte grey unless otherwise required by the FAA, and accessory structures
should maximize use of building materials, colors, and textures designed
to blend with the natural surroundings, including by the use of camouflaging,
where appropriate.
(h)
All towers and accessory structures shall be sited to have the
least adverse visual effect on the environment, and having towers
camouflaged as to shape, appearance, or coloration is encouraged.
(i)
All communication cable and utilities, including water, gas,
electric, telephony, fiber optic and data lines, and sewer leading
to and away from any telecommunications facilities or tower shall
be installed underground.
(10)
NIER. Certification that the NIER levels at the proposed site
are within threshold levels adopted by the FCC.
(11)
RFI and general compliance. Certification that the proposed
antenna(s) will not cause interference with existing communication
devices, or existing radio, television, or telephone reception, and
that the tower and attachments meet all state and federal structural
requirements for loads, wind, ice, fall down specifications, etc.
(12)
FCC licensure. Applicant shall provide a copy of the applicant's
FCC license and verification in a form reasonably required by the
Town that the applicant has utility status from New York State and
the Public Service Commission.
(13)
FCC compliance assurances. Verification that the proposed facility will comply with all applicable FCC rules and regulations, and the Town shall impose conditions on the applicant that: the communications antennas be operated only at FCC designated frequencies and power levels [and Environmental Protection Agency (EPA) technical exposure limits]; the applicant and owner submit evidence upon approval, and periodically thereafter (but not less than triennially and at the same time as reports are due under § 119-9 hereof), demonstrating that the proposed use is in compliance with such standards. These requirements shall be enforced to the extent permissible under FCC rules, including those affecting cellular and PCS towers based on the environmental effects of radio-frequency emissions.
(14)
Visual EAF. The applicant shall submit a visual environmental
assessment form (visual EAF) and a landscaping plan addressing other
standards listed within this chapter, paying particular attention
to visibility from key viewpoints within and outside of the municipality
as identified in the visual EAF. The applicant will also be required
to undertake a visual impact assessment which shall include:
(a)
A description of how the facilities can be blended with the
viewshed, including any plans for camouflage, including, but not limited
to, simulating the appearance of a tree or other structure depending
on the particular context of the proposed location.
(b)
A zone of visibility map shall be provided in order to determine
locations where the tower may be seen.
(c)
Pictorial representations of "before and after" views from key
viewpoints both inside and outside the Town, including, but not limited
to, public highways, local parks, identified important viewsheds or
historic properties and sites, other vistas known to be important
to the community, and from any other location where the site is visible
to a large number of visitors or residents. The Planning Board may
determine appropriate key sites at a pre-submission conference with
the applicant or upon and after receipt of an application.
(d)
Assessment of the visual impact of the tower base, guy wires,
accessory buildings, and accessory structures from abutting properties
and streets, and on viewsheds known to be important to the community.
(15)
Intermunicipal notification. In order to keep neighboring municipalities
informed, and to facilitate the possibility of directing that existing
telecommunications facilities or a tower in a neighboring municipality
be considered for shared use or co-location, the Town shall require
that the applicant provide an intermunicipal notification (and proof
of delivery thereof) to all neighboring municipalities, whether villages,
towns, or counties, together with a general description of the project,
a disclosure of the tower height, and all information pertaining to
the tower's (or the telecommunications facilities') capacity
for future co-location.
(16)
Traffic, access and safety.
(a)
Access standards may be imposed or required to ensure adequate
emergency and service access. Maximum use of existing roads, public
or private, shall be made. Construction of pervious roadways (crushed
stone, gravel, etc.) is preferred and shall be permitted notwithstanding
underlying zoning district regulations which may provide otherwise.
Road construction shall, at all times, minimize ground disturbance
and vegetation cutting, and road grades shall closely follow natural
contours to ensure minimal visual disturbance and reduce potential
soil erosion.
(b)
All towers and guy anchors, if applicable, shall be enclosed
by a climb-proof fence not less than eight feet in height and otherwise
sufficiently secured to prevent and protect telecommunications facilities
from trespassing or vandalism. All security measures and devices shall
be identified, including motion sensing lights, camera systems, lock
boxes, and emergency notification systems.
(17)
Agricultural data statement and notice of intent. If required,
an agricultural data statement shall be submitted, and if the tower
or telecommunications facilities are located within, contiguous to,
or within a specified distance of an agricultural district mapped
by Tompkins County and recognized by the State of New York, Department
of Agriculture and Markets, then the applicant shall also be required
to file a notice of intent and to supply the Town with all documents,
communications, and information submitted, together with any replies
received from New York State or the Department of Agriculture and
Markets.
(18)
Emergency response plan and removal. The applicant shall submit
any required emergency response plan, if requested by the Planning
Board. Additionally, the applicant shall be required to identify the
manner in or by which the obligation to remove the tower or telecommunications
facilities will be securitized, whether by letter of credit, bonding,
escrow deposit or otherwise. Any such proposed form of security shall
be subject to review and approval by the Town Board, and in all cases
the applicant shall provide detailed calculations supporting the amount
of removal costs to be secured, taking into account a reasonable rate
of inflation over the proposed useful life of the project. Such calculations
shall be sealed by an engineer licensed in New York State. In no case
may any removal or related performance bond be issued upon, in conjunction
with, or as secured or underwritten upon a direct or indirect indemnity
agreement supplied by the applicant or the present or future owner
of such tower of telecommunications facility, or any lessor or user
thereof. Additional requirements for bonding and removal obligations
appear elsewhere in this chapter.
(19)
Indemnity agreement. The form of the proposed indemnity and
hold harmless agreement shall be submitted for approval and the same
shall be approved by the Town Board as to form and content.
(20)
Other. Within the scope of FCC rules and the TCA, the Planning
Board shall have the authority to require appropriate camouflaging
and to impose such other reasonable conditions and restrictions as
are directly related or incidental to the proposed telecommunications
facilities special use permit or site plan, or to general public health,
safety, or welfare issues implicated by such permit, plan, or application.
A.
Modifications to existing telecommunications facilities are permitted
and shall require a special use permit upon application to the Planning
Board.
B.
The review shall be nondiscretionary and ministerial and the Planning
Board shall issue such special use permit if the applicant meets the
following criteria:
(1)
The proposed modification involves the co-location of new transmission
equipment, or the removal or replacement of transmission equipment.
(2)
The proposed modification does not substantially change the physical
dimensions of any tower or base station, and does not exceed the 200
feet height restrictions set forth in this chapter, or such greater
height limit as may have been set for the tower or communications
facility in question based upon the standards contained in this chapter.
(3)
An applicant intending to co-locate with an existing tower shall
be required to document written permission from an existing tower
owner to co-locate.
(4)
The Planning Board shall have the authority to: require disclosure
of such matters as may be important to public safety or the structural
integrity and capacity of the telecommunications facilities upon which
co-location is proposed; impose only such reasonable conditions as
are directly related to and incidental to the proposed modification;
but in both such and in all other cases, due regard for and compliance
with the rules for an "Eligible Facilities Request," as set forth
in the Middle Class Tax Relief and Job Creation Act of 2012, shall
be adhered to.
In reviewing any application hereunder, the Town may apply site
plan and special permitting rules and standards as set forth in New
York State law and the laws and ordinances of the Town, and the Town
shall also adhere to the requirements of the TCA, including, at a
minimum, the following requirements:
A.
The Town shall not unreasonably discriminate between providers of
equivalent or near equivalent services.
B.
The Town shall not prohibit or "effectively prohibit" the provision
of the service.
C.
The Town shall act on all requests within a reasonable time, taking
into account the nature and scope of the request, including in accord
with applicable FCC "shot clock" rules.
D.
All denials must be in writing and based upon substantial evidence,
fairly applied.
E.
The Town may not regulate radio frequencies or address potential
health effects of radio emissions, but may require verification of
and compliance with FCC and EPA rules and license, permit, or spectrum
allocation rules or conditions.
F.
All co-location rules pertaining to approvals for an "Eligible Facilities
Request" as set forth in the Middle Class Tax Relief and Job Creation
Act of 2012 shall be adhered to by the Town.
A.
The applicant shall agree, in writing, to remove all telecommunications
facilities (including tower or antennas) and restore the site to its
original condition, and shall incur all expenses therefor, if the
facility becomes obsolete or ceases to be used for its intended purpose
for 120 days. Removal of such obsolete or unused facilities and restoration
of the site to its original condition shall take place within 30 days
of receipt of written notice from the Town. Such agreement shall also
include a commitment by the applicant to impose a similar obligation
to remove any unused or obsolete facilities upon any person subsequently
securing rights to co-locate on the tower or in relation to any telecommunications
facility (including the land or lot upon which any of the foregoing
are situated).
B.
As security for the performance of the requirements set forth above,
the applicant shall, upon the granting of approval under this chapter
and prior to the installation of any telecommunications facilities,
execute and file with the Town Clerk a bond or other form of security
or undertaking which shall be approved as to form, manner of execution,
and sufficiency for surety by the Town Board and Town Engineer. Any
bond or guaranty shall be provided by or placed with a solvent surety
corporation duly licensed in the State of New York. Such bond or undertaking
shall be conditioned upon the faithful performance of the provisions
of this chapter, and in the event of default the bond or undertaking
shall be forfeited to the Town, which shall be entitled to maintain
an action thereon. The bond or undertaking shall remain in full force
and effect until the removal of all telecommunications facilities,
including the tower, antennas, and accessory structures, and all site
restoration has been completed. The value of the bond shall be equal
to 125% of the cost of demolition and restoration of the site, as
determined by the Town Engineer, and no such decommissioning or removal
bond shall be secured by an indemnity agreement with the applicant
or any party affiliated with the applicant.
C.
At least once every three years after any approval or permit is issued by the Town and concurrently with the certification or report required by § 119-9 in this chapter, the applicant or then future owner or operator of the telecommunications facility shall provide updated certified cost estimates for removal of all telecommunications facilities and all site restoration, and if the resulting 125% cost requirement shows that the exiting security or bond is monetarily insufficient, then the owner shall update such bond or undertaking, or see to its replacement or supplementation in an amount to equal such updated 125% cost number.
All essential emergency services will be given access to obtain
necessary space or service on the tower at no cost (other than installation
and maintenance). This provision shall be enforceable only to the
maximum extent permitted by applicable law and in all cases this provision
shall be presumed valid and the burden of proof shall be to establish
the contrary by clear and convincing evidence.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Each application shall include application fees, engineering
review fees and legal fees in the amount as set by resolution of the
Town Board from time to time or as outlined in (or updated by) the
Town's fee schedules.[1] The Town may also retain such technical consultants as
it deems necessary to provide assistance in the review of the site
location alternative analyses, the environmental review of the project,
and any engineering reviews pertaining to building permits or structural
designs, structural integrity, and the feasibility of any modifications
or the carrying capacity of any tower for co-location of any antennas
or other appurtenances. The applicant shall bear the reasonable costs
associated with such consultations, which costs shall be assessed
as an additional application fee. In no case shall the total fees
and charges payable by an applicant be more than 5% of the total project
cost as determined for building permit fee assessment purposes, but
SEQRA costs shall not count towards such 5% limit and shall be separately
assessable pursuant to the statutes and regulations of SEQRA.
[1]
Editor's Note: Fee schedules are on file in the Town office.
The applicant or its successors or assigns shall file with the
Town on the second day of January of the third year following approval
of the telecommunications facility, and upon every third anniversary
thereafter, a written report certifying that the applicant or its
successors or assigns are complying with maintenance and inspection
procedures; recordkeeping systems, and that the subject telecommunications
facility is not a hazard or a threatened hazard to the health and
safety of the public. Such report and conclusions must be provided
and sealed by a New York State licensed professional engineer. Any
unsafe condition revealed by such report shall be immediately remedied.
If no report is provided and such failure to provide a report continues
unabated for any three-hundred-sixty-day period, then such fact shall
be and be deemed an abandonment of the telecommunications facilities
in question, and the Town may require the dismantling and removal
of such telecommunications facilities, including under the terms of
any removal or related bonds. Further, any failure to provide such
written report within 30 days of request therefor by the Town is and
shall be deemed and construed as a violation of this chapter.
The following types of telecommunications facilities are not
subject to the provisions of this chapter:
A.
Satellite dishes and antennas, and similar devices, used solely for
on-site residential household television and radio reception and involving
a structure with a size or height not exceeding the minimum exemptions
listed in OTARD rules.
B.
Satellite antennas measuring two meters or less in diameter and located
in commercial districts.
C.
Radio antennas and related apparatus for noncommercial personal use
regulated by the FCC for licensed amateur radio operation, so long
as:
D.
Lawful or approved uses existing prior to the effective date of this chapter; however, no telecommunications facility shall be modified unless in conformity with this chapter, and no nonconforming use may be expanded except in accord with Chapter 270, Zoning, of the Code of the Town of Lansing and applicable law.
E.
Telecommunications facilities may be repaired and maintained without
restrictions.
A Full "Long Form" Environmental Assessment Form (FEAF) shall
be completed and submitted with all applications under this chapter,
pursuant to the provisions of the State Environmental Quality Review
Act and its implementing regulations found at 6 NYCRR Part 617. All
applications for siting any tower or ground station shall be and be
deemed Type I Actions. If the environmental review of the FEAF indicates
that the proposed activity may produce actual or potential moderate
or significant environmental impacts or consequences, then the Town
Board shall require that a Draft Environmental Impact Statement be
submitted by the applicant. Notwithstanding the foregoing, if a co-location
or related application meets the standards for qualifying as an "Eligible
Facilities Request," as set forth in the Middle Class Tax Relief and
Job Creation Act of 2012, then the matter may be classified as a Type
I, Unlisted, or Type II Action, per the requirements of SEQRA and
its implementing regulations.
A.
The Town's Code Enforcement Officer is authorized to investigate
any noncompliance (or complaints of such violation of noncompliance)
with the requirements of this chapter, to issue appearance tickets
for any violation of this chapter or any permit or approval requirements
or conditions, to recommend the commencement of civil enforcement
or related proceedings to the Town Board, and to order, in writing,
the remedying of any condition or activity found to exist in, on,
or about any telecommunications facility, tower, building, structure,
or premises in violation of this chapter. Upon finding that any such
violation exists, the Code Enforcement Officer may issue a compliance
order, which compliance order shall comply with the requirements of
Executive Law § 382 and served accordingly. The person so
served shall come into compliance with this chapter within the specified
period of time as set forth in the compliance order, and any failure
to do so shall be a violation of this chapter. Any failure to comply
with the terms and requirements of this chapter, or the requirements
and conditions of any permit or approval issued hereunder, is hereby
also declared to be a violation of this chapter. All violations of
this chapter are hereby declared to be illegal and subject to civil
penalties and criminal sanctions as herein set forth.
B.
All provisions of New York law generally applicable to misdemeanors
shall apply to any criminal proceeding brought under this chapter,
and each such misdemeanor shall be an unclassified misdemeanor. The
following civil penalties and criminal fines and sanctions shall apply
violations of this chapter:
(1)
First violation. Any person that violates any of the provisions of
this chapter shall be: i) guilty of an unclassified misdemeanor and
subject to a fine of not more than $1,500, or ii) subject to a civil
penalty of not more than $2,500 to be recovered by the Town in a civil
action. Every such person shall be deemed guilty of a separate offense
for each week that such violation, disobedience, omission, neglect
or refusal shall continue. Similarly, a separate civil penalty shall
apply and be assessable for each week that such violation, disobedience,
omission, neglect or refusal shall continue.
(2)
Second violation. Any violation that is found to have occurred within
two years of any prior civil or criminal determination of any other
violation of this chapter shall be deemed a second violation. Any
person that commits or permits any second violation shall be: i) guilty
of an unclassified misdemeanor and subject to a fine of not more than
$2,500, or ii) subject to a civil penalty of not more than $5,000
to be recovered by the Town in a civil action. Every such person shall
be deemed guilty of a separate unclassified misdemeanor for each week
that such violation, disobedience, omission, neglect, or refusal shall
continue. Similarly, a separate civil penalty shall apply and be assessable
for each week that such violation, disobedience, omission, neglect,
or refusal shall continue.
(3)
Third and subsequent violations. Any violation that is found to have
occurred within two years of any prior civil or criminal determination
of any second violation of this chapter shall be deemed a third or
subsequent violation, as applicable. Any person who commits or permits
a third or subsequent violation shall be: i) guilty of an unclassified
misdemeanor and subject to a fine not more than $5,000 and a period
of incarceration not to exceed 60 days, or ii) subject to a civil
penalty of not more than $10,000 to be recovered by the Town in a
civil action. Every such person shall be deemed guilty of a separate
unclassified misdemeanor for each week that such violation, disobedience,
omission, neglect or refusal shall continue. Similarly a separate
civil penalty shall apply and be assessable for each week that such
violation, disobedience, omission, neglect, or refusal shall continue.
C.
An action or proceeding may be instituted in the name of the Town
in any court of competent jurisdiction to prevent, restrain, enjoin,
correct, enforce, or abate any violation of, or nonconformance with
any provision or requirement of this chapter or the terms and conditions
set forth in any permit or approval issued hereunder. In any such
proceeding the Town shall not be required to: i) prove the lack of
an adequate remedy at law; or ii) post a bond or other undertaking
as a condition or requirement for any preliminary, interim, or permanent
restraining order or injunction. No such action or proceeding shall
be commenced without the appropriate authorization from the Town Board.
D.
For purposes of this chapter, the Justice Court of the Town is hereby
vested and imbued with jurisdiction to: i) issue administrative or
other warrants in compliance with the New York Criminal Procedure
Law and administrative codes of the State of New York; and ii) hear
and adjudicate allegations relating to the criminal or civil violation
of this chapter and to thereafter, if appropriate, impose any fine,
penalty, or sanction. All criminal matters arising under this chapter
shall be and be deemed unclassified misdemeanors, including for purposes
of jurisdiction.
E.
No remedy or penalty specified in this chapter shall be the exclusive
remedy available to the Town to address any violation of, or noncompliance
with, the requirements of this chapter. The rights and remedies of
the Town are independent of each other and cumulative. The grant of
any right or remedy in this chapter is in addition to, and not in
limitation of or substitution for, any other right or remedy of the
Town, whether sounding in law, equity, or admiralty. Further, the
election by the Town of any one right or remedy does not forestall
or prevent the simultaneous or future election of any other right
or remedy.
To the maximum extent permitted by law, the applicant shall
execute an agreement indemnifying and holding the Town harmless from
any and all liabilities, claims of personal injury, or property damage
arising out of or in any way related to the installation and operation
of the tower and its accessory structures and facilities. Further,
the Town, and its officers and agents shall not be liable or responsible
for any injuries to persons or damages to property due to the Town's
actions, or failures to act, under or pursuant to this chapter unless
it is proven to a reasonable degree of certainty that such injury
or damage was solely caused by a willful or intentional act of the
Town or its officers and agents. This provision shall be construed
and applied to the maximum extent permitted by law, and does not create
any theory or claim of liability where none exists at law or in equity.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
All nouns and pronouns shall be construed in the singular, plural,
masculine, feminine, or neutered context when the provisions hereof
so demand or admit. Words shall have their defined meanings and all
words shall have standard meanings as applied within the context of
the clause in which such terms appear. Subject headings are for convenience
and shall not be construed or applied to limit or restrict the subject
matter and terms appearing under such subject heading. Whenever any
reference is made to any section of law or regulations, such reference
shall be interpreted to include such law or regulation as later amended,
renumbered, or re-codified, and a mere typographical citation error
shall not be given effect.
In the event any existing or hereafter adopted federal or state
law restricts the ability of the Town to review or regulate any telecommunications
facility or tower, then the provisions hereof shall be read in harmony
with such restrictions or limitations and applied to the maximum extent
permitted under applicable law or in the face of preemption by a superior
sovereign.
