Town of Clarence, NY Satellite Antennas, Telecommunication Towers, Small Wireless Facilities and Wind Energy Conversion Systems

AGRICULTURAL OR FARM OPERATION

Editor's Note: This local law supersedes former Ch. 173, Satellite Antennas and Towers, adopted 2-27-1997 by L.L. No. 1-1997.

§ 173-1 Intent.

The intent of this chapter is to promote and protect the public health, safety and welfare of the citizens of the Town of Clarence by regulating the installation of antennas, parabolic dishes, wind energy conversion systems, personal communication services towers, cellular telephone facilities and other wireless telecommunication facilities.

§ 173-2 Title.

This chapter shall hereafter be known as "Satellite Antennas, Telecommunication Towers and Wind Energy Conversion Systems."

§ 173-3 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

ACCESSORY STRUCTURE

An accessory facility or structure serving or being used in conjunction with a communication tower, wind energy conversion system and/or similar facility and located on the same lot as the communication tower or wind energy conversion system. Examples of such structures include but are not limited to utility or transmission equipment storage sheds or cabinets.

In compliance with Agriculture and Markets Law (AML) § 305-a, Subdivision 11, as well as eligible for an agricultural property tax assessment or exemption.

AMATEUR COMMUNICATIONS

The use of radio and television antennas/antenna systems for home, recreational, hobby or noncommercial use by a person holding a valid license issued by the Federal Communications Commission, where applicable.

LOT

A parcel of land used or occupied or capable of being used or occupied by a building, structure or use and the accessory buildings, structures or uses customarily incidental to it, including such yards as are required by Chapter 229, Zoning.

OVERSPEED CONTROL

A mechanism used to limit the speed of blade rotation to below the design limits of the WECS. Also called a "limiter" or "governor."

TELECOMMUNICATION FACILITY

Any commercial equipment used in connection with the provision of wireless communication services, including but not limited to cellular telephone services and personal communication services, which are regulated by the Federal Communications Commission in accordance with the Telecommunications Act of 1996, as it may hereinafter be amended. A telecommunication facility shall include antenna(s), accessory telecommunications structures and supporting masts, support towers or monopoles.

TOWER/ANTENNA

Includes any communications tower, pole or other structure, whether attached to a building, guyed or freestanding, designed to be used for the support of any device for the transmission and/or reception of communications signals, including but not limited to broadcast, shortwave, citizens band, AM FM, television, microwave, cellular, digital, PCS.

WIND ENERGY CONVERSION SYSTEM (WECS)

A machine that converts the kinetic energy of the wind into a usable form (commonly known as a "wind turbine" or "windmill"). The WECS includes all parts of the system, including the tower, blades and rotor assemblies, gearbox, generator and the transmission equipment; the turbine or windmill may be on a horizontal or vertical axis.

§ 173-4 Dimensional restrictions.

The provisions of this section shall apply to all structures in all zoning districts as established by Chapter 229, Zoning.

Size of freestanding antenna dishes. No satellite or parabolic dish-type antenna erected or maintained within the Town of Clarence shall exceed 12 feet in any dimension.

Size of roof-mounted or attached antenna dishes. No satellite or parabolic dish-type roof-mounted or attached antenna erected or maintained within the Town of Clarence shall exceed three feet in any dimension.

Height of telecommunication towers, noncommercial. Amateur communication towers shall not exceed 60 feet in height as measured from the average ground surface surrounding the site of the tower. Measurements of height shall include any extensions above the tower and supporting bases below the tower.

Height of telecommunication towers, commercial. Commercial cellular, PCS and other communication towers shall not exceed 150 feet in height as measured from the average ground surface immediately surrounding the site of the tower in the Industrial and Research-Development Zoning Districts as defined in Chapter 229, Zoning, or on any municipal or government-owned property. Such towers shall not exceed 100 feet in height in all other (nonindustrial/non-research-development) zones as defined in Chapter 229, Zoning. Measurements of height shall include any extensions or other devices above the tower.

See § 173-8 for dimensional restrictions pertaining to WECS.

§ 173-5 Location restrictions and general requirements.

Dish-type, parabolic, satellite antennas, amateur communication antennas.

No more than one antenna shall be located on any dwelling unit.

No freestanding antenna shall be constructed, erected or maintained except as an accessory structure to an existing one-family dwelling on the same lot.

When roof-mounted, a dish-type antenna shall be located on that portion of the roof sloping away from the front of the lot.

All freestanding antennas shall be located in the rear yard at least 10 feet from the side and rear lot line. When measuring side and rear setbacks, all cables, guy wires or other supports shall constitute a part of the antenna.

When not roof-mounted, a dish-type antenna shall be screened from adjoining lots.

Towers, noncommercial.

No more than one tower shall be located on any lot.

All towers shall be located in the rear yard at ground level.

No tower shall be constructed, erected or maintained except as an accessory structure to an existing one-family dwelling on the same lot.

No tower shall be located on any lot unless so as to have a rear and side lot setback equal to the height of the tower. Measurements of side and rear lot line setback shall be taken at the base of the tower structure at ground level.

Towers which will be used for energy conversion shall be located on the lot so as to produce a level of noise at any lot line no greater than the ambient nighttime level.

Telecommunication towers, commercial.

The Town of Clarence recognizes the increased demand for wireless communication transmitting facilities and the need for the services they provide. Often these facilities require the construction of a telecommunication tower and/or similar facilities. The intent of this section of the Satellite Antenna and Tower Law is to regulate telecommunication towers/antennas in accordance with the guidelines of the Telecommunications Act of 1996 or as amended by:

Accommodating the need for telecommunication towers/antennas while regulating their location and number in the community.

Minimizing adverse visual impacts of these towers/antennas through proper design, siting and screening.

Preserving and enhancing the positive aesthetic qualities of the built and natural environment in the Town of Clarence.

Avoiding potential damage to adjacent properties from tower failure, falling ice, etc., through engineering and proper siting.

Requiring the joint use of towers when available and encouraging the placement of antennas on existing structures to reduce the number of such structures in the future.

Zoning/permitting requirements.

Colocated/existing structure antennas. An antenna that is to be attached to an existing communication tower, smokestack, water tower or other tall structure is permitted. The colocated antenna is permitted as of right upon issuance of a building permit. The building permit application will include a structural analysis/report verifying the ability of the structure to handle the colocated antenna.

Non-colocated/new tower antennas. An antenna that will not be mounted on an existing structure as defined above and requires the construction of a tower is permitted as follows:

Municipal/government-owned property, research-development and industrially zoned property: site plan review approval by the Town Planning Board and permit approval by the Town Board per permit process for permitted uses.

Commercial, major arterial, neighborhood business and restricted business zoned property: site plan review approval by the Town Planning Board and special exception use permit approval by the Town Board per § 30-71 of Chapter 30 of the Code of the Town of Clarence.[1]

Editor's Note: See now Ch. 229, Zoning.

Residential and agriculture zoned properties: site plan review approval by the Town Planning Board and special exception use permit approval by the Town Board per § 30-71 of Chapter 30 of the Code of the Town of Clarence.[2] Such applications shall be classified as a Type I action under the State Environmental Quality Review Act (SEQRA).

Editor's Note: See now Ch. 229, Zoning.

All telecommunication towers in all zoning districts, including towers on municipal/government-owned lands, must provide and/or meet the following requirements:

Setbacks equal to the height of the tower to all lot lines.

An agreement by the applicant, in writing, to remove the telecommunication facility if such facility becomes technically obsolete or ceases to be used for its originally intended purpose. A demolition bond for the purposes of removing the telecommunication facility shall remain in force for the life of the tower in an amount approved by the Town Board but not less than $20,000.

Traffic, access and safety features:

A road turnaround and one parking space to assure adequate emergency and service access. Maximum use of existing roads, public or private, shall be made. The use of public roadways or road rights-of-way for the siting of a tower's accessory structures is prohibited.

All towers and guy anchors, if applicable, shall be enclosed by a fence not less than eight feet in height or otherwise sufficiently protected from trespassing or vandalism.

Screening, as approved by the Town Landscape Review Committee.

An inspection every two years by a licensed professional engineer and a copy of the inspection report shall be submitted to the Town Engineer. Any work or repair of the tower shall comply with all applicable code requirements, and a permit shall be obtained to conduct such work.

No lighting unless otherwise required by the Federal Aviation Administration or federal, state or local authority.

(g)

No signs or advertising devices.

(h)

Free access shall be coordinated and provided on the proposed tower for local school, government, emergency and amateur communication antennas.

See § 173-8 for location restrictions and general requirements and dimensional restrictions pertaining to WECS.

§ 173-6 Permit application.

All applicants for permits to construct and place satellite or communication antennas, dishes and/or towers within the Town of Clarence shall make written application therefor to the Town on forms available in the Planning and Zoning Office of the Town.

Applications for telecommunication towers shall contain specific site data placed on a map, acceptable in form and content to the Town, which shall be prepared to scale and sufficient detail and accuracy so as to accurately depict the placement of all component parts of the antenna or tower, including guy wires or enclosures, in relation to:

The location of property lines and permanent easements.

The location of all structures on the site and all structures on any adjacent property within 10 feet of the property lines.

The location of all utility poles, above and below ground utility lines, trees or other natural or artificial structures.

The location, nature and extent of any proposed fencing, buffering, plantings or other screening measures, if any proposed.

The names of adjacent landowners.

All information prepared by the manufacturer of the antenna or tower, including but not limited to the following:

The make and model.

The manufacturer's suggested installation instructions.

The manufacturer's suggested maintenance and/or inspection procedures.

The color or colors of the tower.

The type of tower (monopole, guyed, freestanding or other).

See § 173-8 for permit application relating to WECS.

§ 173-7 Special exception use requirements.

No special exception use permit or renewal thereof or modification of the provisions of this chapter relating to a cellular or PCS tower shall be authorized by the Town Board unless, in addition to the other requirements specified in this chapter and Chapter 229, Zoning, it finds that such cellular or PCS tower:

Is necessary to meet current or expected demands for wireless communication service.

Conforms with all applicable regulations promulgated by the Federal Communications Commission.

Is located so as to minimize its visibility from surrounding public streets and adjacent properties.

Is designed and constructed in a manner which minimizes its visual impact.

Is the most appropriate site within the immediate area for the location of the cellular or PCS tower. The applicant shall submit a study as part of the special exception use permit application comparing all potential host sites within an approximate one-half-mile radius of the subject site. This study should include a description of the surrounding sites and a discussion of the ability or inability to host a cellular or PCS tower facility. Reasons for excluding a site from consideration may include but are not limited to:

Unwillingness of the owner to entertain a cellular or PCS tower facility proposal.

Topographic limitations of the site.

Adjacent impediments that would obstruct adequate cellular or PCS transmissions.

Physical site constraints that would preclude the construction of a cellular or PCS facility.

Technical limitations of the cellular or PCS systems.

All special exception use permits and renewals shall include "before" and "after" propagation studies prepared by a qualified radio frequency engineer demonstrating existing signal coverage contrasted with the proposed signal coverage resulting from the proposed telecommunication facility.

All special exception use permits and renewals shall include a search ring prepared by a qualified radio frequency engineer and overlaid on an appropriate background map demonstrating the area within which the telecommunication facility needs to be located in order to provide proper signal strength and coverage to the target cell. The applicant must be prepared to 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 colocated antenna(s) and to what extent the applicant explored locating the proposed tower in a more intensive use district. Correspondence with other telecommunication companies concerning colocation is required.

The shared use of existing towers and antenna facilities shall be preferred to the construction of new such facilities. Any application for a special exception use permit or renewal thereof or modification of the provisions of this chapter shall include proof that reasonable efforts have been made to colocate with an existing cellular or PCS facility, including an adequate inventory report specifying existing towers and antenna sites within a reasonable distance from the proposed site and outlining opportunities for shared use as an alternative to the proposed use. The applicant must demonstrate to the reasonable satisfaction of the Town Board that the proposed tower or antenna cannot be accommodated on an existing approved tower or facility due to one or more of the following reasons:

Unwillingness of the owner to entertain a cellular or PCS facility proposal.

The planned equipment would exceed the structural capacity of existing and approved towers and facilities.

The planned equipment would cause radio frequency interference with other existing or planned equipment which cannot be reasonably prevented.

Existing or approved towers or facilities do not have space on which proposed equipment can be placed so it can function effectively and reasonably.

Other reasons make it impracticable to place the equipment proposed by the applicant on existing and approved towers or facilities.

The proposed colocation of an existing tower or antenna site would be, by virtue of the requirements in this section, considered a prohibited use.

§ 173-8 Wind energy conversion systems (WECS) types, requirements and provisions.

Two types of WECS are addressed herein:

Type 1: A commercial unit designed for the generation of power supplied to the local grid.

Type 2: A unit designed to supply power primarily to a single residence or property owner and can supply power to the grid on a limited basis. WECS associated with agricultural or farm operations and supplying a portion of a farm's electrical needs (not exceeding 110% of the farm's anticipated demand) shall be considered a Type 2 WECS.

Zoning district requirements.

A Type 1 WECS shall not be permitted.

A Type 2 WECS shall be permitted by the following standards:

Residential Single-Family Zone and Traditional Neighborhood District under five acres shall have a maximum allowable tower height of 60 feet.

Residential Single-Family Zone and Traditional Neighborhood District over five acres shall have a maximum allowable tower height of 80 feet.

Agricultural Rural Residential and Agricultural Flood Zone Zones under five acres shall have a maximum allowable tower height of 100 feet.

Agricultural Rural Residential and Agricultural Flood Zone Zones between five to 10 acres shall have a maximum allowable tower height of 120 feet.

Agricultural Rural Residential and Agricultural Flood Zone Zones over 10 acres shall have a maximum allowable tower height of 140 feet.

Industrial Zone shall have a maximum allowable tower height of 140 feet.

(g)

Agricultural operations within an agricultural district and agricultural zone shall have a maximum allowable tower height of 140 feet.

(h)

Commercial/Restricted Business and Community Facility Zones shall have a maximum allowable tower height of 60 feet.

(i)

Municipal/government-owned property shall have a maximum allowable tower height of 140 feet.

(j)

Blade tip may not exceed 15 feet above maximum allowable tower height as listed above, from Subsection B(2)(a) to (h).

(k)

Tower height shall be measured from the average grade immediately surrounding the tower site.

(l)

Overall height shall be defined as the blade length plus the tower height.

General provisions. Approval of all site plans or special use permits for the installation of a WECS shall comply with the following requirements:

No more than a single WECS shall be permitted on a parcel.

Except for agricultural or farm operations, the WECS must be within the parcel on which the power is to be utilized.

Rotor safety. Each WECS shall be equipped with both manual and automatic controls to limit the rotational speed of the blade below the design limits of the rotor. The application must include a statement by a qualified New York State licensed professional engineer(s) certifying that the rotor and overspeed controls have been designed and fabricated for the proposed use in accordance with good engineering practices. The engineer(s) should also certify the structural compatibility of towers with available rotors. This certification would normally be supplied by the manufacturer and include the distance and trajectory of the thrown blade from an exploding turbine or propeller according to the Loss of Blade Theory.

Guy wires. Anchor points for guy wires for the WECS tower shall be located within property lines and not on or across any aboveground electrical transmission or distribution line. Guy wires are strongly discouraged; however, if necessary, the point of ground attachment for the guy wires shall be enclosed by a fence eight feet high.

Tower access. Towers should have either:

Tower-climbing apparatus located no closer than 12 feet to the ground;

A locked anticlimb device installed on the tower; or

The tower shall be completely enclosed by a locked, protective fence of eight feet high.

Noise. The noise of the WECS shall not exceed a maximum of 50 dB(A), as measured at the boundaries of all the closest parcels that are owned by on-site owners and abut the site parcels.

(7)

Electromagnetic interference. The WECS shall be operated such that no disruptive electromagnetic interference is caused. If it has been demonstrated to the Town Code Enforcement Officer that a wind energy conversion system is causing harmful interference, the operator shall promptly mitigate the harmful interference.

(8)

Signs. Signs shall be posted at the base of the tower warning of electrical shock or high voltage. Signs shall be visible from all quadrants.

(9)

Setbacks. WECS shall be set back from any structure or aboveground utility line a distance of 1.5 times its overall height or a minimum of 90 feet, whichever is greater. WECS shall be set back from any property line or right-of-way a distance of two times or greater its overall height. The WECS shall also not be placed in the front yard of any existing structure.

(10)

Abatement. If a WECS poses a potential safety hazard, the owner or operator shall take immediate action to remedy the situation. The Town of Clarence shall have the authority to cause the abatement of any hazardous situation. If the Town of Clarence determines that the WECS poses a safety hazard, a notice of violation shall be issued and the WECS shall be made nonoperational until such hazard has been remedied to the satisfaction of the Town of Clarence. If the WECS has been nonoperational or abandoned for a period of one year, the system shall be removed within 45 days of written notice to the owner or operator of the system.

(11)

Maintenance and repair records. Records of inspections, reports and maintenance activities shall be submitted to the Town of Clarence Building and Engineering Department within 10 days of receipt by owner and/or lessee.

(12)

Lighting of tower. Lighting of the tower for aircraft and helicopters will conform to FAA standards for wattage and color, when required. Additional lighting may also be required at the request of the Town Board.

(13)

Decommissioning and restoration. The applicant shall include the following information regarding decommissioning of the project and restoring the site:

The anticipated life of the project;

The estimated decommissioning costs in current dollars;

The method and schedule for updating the costs of decommissioning and restoration;

A method of ensuring that funds will be available for decommissioning and restoration;

The anticipated manner in which the project will be decommissioned and the site restored; and

Such other and reasonable requirements as the Town of Clarence shall require.

(14)

Accessory structure cabling. All interconnecting cables between the WECS and accessory or servicing structures shall be underground.

(15)

Compliance with Building Code.

Building permit applications shall be accompanied by standard drawings of structural components of the WECS, including support structures, tower, base and footings. Drawings and any necessary calculations shall be certified, in writing, by a New York State registered professional engineer that the system complies with the current building code. This certification would normally be supplied by the manufacturer.

Where the structural components or installation vary from the standard design or specification, the proposed modifications shall be certified by a New York State registered professional engineer for compliance with the seismic and structural design provisions of the building code.

(16)

Compliance with Electrical Code.

Building permit applications shall be accompanied by a line drawing identifying the electrical components of the WECS to be installed in sufficient detail to allow for a determination that the manner of installation conforms to the Electrical Code. The application shall include a statement from a New York State registered professional engineer indicating that the electrical system conforms to good engineering practices and complies with the Electrical Code. This certification would normally be supplied by the manufacturer. All equipment and materials shall be used or installed in accordance with such drawings and diagrams.

Where the electrical components of an installation vary from the standard design or specifications, the proposed modifications shall be reviewed and certified by a New York State registered professional engineer for compliance with the requirements of the Electrical Code and good engineering practices.

Application requirements. All site plan applications for a WECS shall be submitted to the Office of Planning and Zoning, to include the following, to include three copies:

Stamped engineered drawings for tower and foundation.

Site plan, elevations and property survey.

CONCEALED INSTALLATION ON BUILDING

Stamped engineered drawings for tower and foundation.

[4]

Height of the tower conforms to § 173-8(B)(2).

[5]

Setbacks are shown to conform to § 173-8(C)(9).

[6]

Aerial site plan showing relevant utility poles and lines, trees and structures, names of all adjacent property owners.

[7]

Manufacturer information provided for tower and turbine with visuals, including noise decibels.

[8]

A maintenance and removal plan made in writing to the Town of Clarence to include an agreement by the applicant and/or owner, in writing, to remove the all components of the WECS, including tower, if such facility becomes nonfunctional or ceases to be used for its originally intended purpose, as determined by the Town of Clarence. The maintenance and removal plan shall remain in force for the life of the WECS. An acceptable bond and/or surety for the purposes of removing the WECS shall be purchased and remain in force for the life of the WECS.

§ 173-9 Fees.

A fee as established by the Town Board shall be paid with the application for every proposed use under this chapter.

§ 173-10 Variances.

The Town of Clarence Zoning Board of Appeals may, in appropriate cases and after public notice and hearing and subject to the appropriate safeguards, vary or modify the application of this chapter in harmony with its general purpose and intent.

§ 173-11 Penalties for offenses.

Failure to obtain a permit for construction of a satellite antenna or tower and to comply with any of the provisions of this chapter shall be deemed a violation and the violator shall be liable to a fine of not more than $250 nor less than $100 or imprisonment for not more than 15 days, or both such fine and imprisonment. Each day such violation continues shall constitute a separate violation.

§ 173-12 Small wireless facilities.

[Added 4-11-2018 by L.L. No. 3-2018]

Definitions. As used in this section, the following terms shall have the meanings indicated:

ANTENNA

Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

APPLICABLE CODES

Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes enacted solely to address imminent threats of destruction of property or injury to persons to the extent consistent with the terms of this section.

APPLICANT

Any person who submits an application.

APPLICATION

A request submitted by an applicant: i) for a permit to co-locate (see definition) small wireless facilities; or ii) to approve the installation or modification of a utility pole or wireless support structure.

APPROVAL AUTHORITY

Any Town entity having approval authority, as identified.

CO-LOCATE

To install, mount, maintain, modify, operate, or replace small wireless facilities on or adjacent to a wireless support structure or utility pole.

Building-mounted small wireless facilities that completely screen all associated equipment and facilities from public view by approved methods that are in keeping with the character of the building, surrounding area and any applicable design guidelines or standards as determined by the Town.

CPCN

A "certificate of public convenience and necessity" granted by the NPUC or its duly appointed successor agency pursuant to New York Codes, Rules and Regulations Title 16 et seq., as may be amended.

NPUC

A New York Public Service Commission, or its duly appointed successor agency.

OTARD

Any over-the-air reception device subject to 47 CFR 1.4000 et seq., as may be amended, and which includes satellite television dishes not greater than one meter in diameter.

Radio frequency.

RIGHT-OF-WAY or ROW

The area on, below, or above a public roadway, highway, street, sidewalk, alley, utility easement, or similar property, but not including a federal interstate highway, in the Town.

SMALL WIRELESS FACILITY (also known as "micro wireless facility")

A wireless facility that meets both of the following qualifications: i) each antenna is located inside an enclosure measuring no more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six cubic feet; and ii) all other wireless equipment associated with the facility measuring no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and other services.

SPECIAL EXCEPTION USE PERMIT

An authorization of a particular land use that is permitted in a specific area subject to the requirements imposed by this section to assure that the proposed use is in harmony with this section and will not adversely affect a neighborhood if such requirements are met.

SUPPORT STRUCTURE

A freestanding structure such as a utility pole, monopole, or other existing or proposed structure designed to support or be capable of supporting wireless facilities.

TOWN-OWNED POLE

A utility pole maintained, owned or operated by the Town in the right-of-way (ROW), including a utility pole that provides lighting or traffic control functions, including light poles, traffic signals, and structures for signage; and

WIRELESS INFRASTRUCTURE PROVIDER

A pole or similar structure owned or operated by the Town in the ROW that supports only wireless facilities.

UTILITY POLE

A pole or similar structure that is used in whole or in part for the purpose of carrying electric distribution lines or cables or wires for telecommunications; cable or electric service; or for lighting, traffic control, signage, or a similar function regardless of ownership, including Town-owned poles. Such term shall not include structures supporting only small wireless facilities.

Any entity, including a person authorized to provide telecommunications service in the state, who builds or installs wireless communication transmission equipment, wireless facilities or wireless support structures, but who is not a wireless services provider.

WIRELESS PROVIDER

A wireless infrastructure provider or a wireless services provider.

WIRELESS SERVICES

Any services provided using and/or utilizing small wireless facilities, whether at a fixed location or mobile.

WIRELESS SERVICES PROVIDER

An entity who provides wireless services.

Legislative intent.

The Town of Clarence intends for this section to establish reasonable and uniform standards and procedures for small wireless facility deployment, construction, installation, co-location, modification, operation relocation and removal within the Town's territorial boundaries. The standards and procedures contained within this section are intended to, and should be applied to, protect and promote public health, safety and welfare, as well as maintain the aesthetic character of the Town, its neighborhoods and community and also balance the benefits that flow from robust, advanced wireless services within the Town.

This Chapter is not intended to, nor shall it be interpreted or applied to:

Prohibit or effectively prohibit any personal wireless service provider's ability to provide personal wireless servicess;

Prohibit or effectively prohibit any entity's ability to provide any interstate or intrastate communications service, subject to any competitively neutral and nondiscriminatory rules or regulation for right-of-way management;

Unreasonably discriminate among providers of functionally equivalent services;

Deny any request for authorization to place, construct or modify small wireless facilities on the basis of environmental effects of radio frequency emissions to the extent that such facilities comply with the Federal Communication Commission's regulations concerning such emissions;

Prohibit a co-location or modification that the Town may not deny under federal or New York State law; or

Otherwise authorize the Town to preempt any applicable federal or New York State law.

Applicability.

This Chapter applies to all existing small wireless facilities within the Town and all applications and requests for approval to construct, install, modify, co-locate, relocate or otherwise deploy small wireless facilities in the Town, whether located or proposed to be located in the ROW or on private property.

Exempt small wireless facilities. The provisions in this section will not be applicable to:

Small wireless facilities installed on Town property, not including Town-owned ROW;

Amateur radio facilities;

OTARD antennas;

A small wireless facility installed completely indoors and intended to extend signals for wireless services in a personal residence or a business;

Wireless facility or equipment owned and operated by NPUC-regulated electric companies for use in connection with electrical power generation, transmission and distribution facilities.

Applications and fees.

Permit. No person or entity shall install a small wireless facility without first filing a small wireless facility application and obtaining the permit from the Town, except as otherwise provided in this section.

Maintenance. Subject to the requirements for the initial application, an application shall not be required for routine maintenance, unless otherwise specified within this section.

Application requirements. The small wireless facility permit application shall be made by the wireless provider or its duly authorized representative and shall contain the following, to include nine hard copies and one digital copy:

Master application and applicable fee(s). The application must provide the applicable Town-supplied master application form with the applicable application fee(s), including:

The applicant's name, company name, address, telephone number, and e-mail address;

The names, addresses, telephone numbers, and e-mail addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application.

Owner's authorization and deed evidence. For facilities proposed on private property, the applicant must provide a deed evidencing the ownership in order for the Town to verify the property owner's identity. No deed evidencing ownership is required for facilities proposed in the ROW. If the applicant does not own the subject support structure in the ROW that will be utilized for the installation of the small wireless facility, the applicant must include a written authorization signed by the owner that empowers the applicant to file the application and perform all small wireless facility construction, installation perpetration and maintenance to the extent described in the application.

Regulatory authorizations. To the extent that the application claims any regulatory authorization or other right to use the ROW, such as a CPCN, the applicant must provide a true and correct copy of the certificate, license, notice to proceed or other regulatory authorization that supports the applicant's claim.

Project plans. The applicant must provide a fully dimensioned site plan and elevation drawings prepared and sealed by a New York licensed engineer showing any existing wireless facilities with all existing transmission equipment and other improvements, the proposed small wireless facility with all proposed transmission equipment and other improvements and the legal boundaries of the leased or owned area surrounding the proposed small wireless facility and any associated access or utility easements.

Site photos and photo simulations. The applicant must provide photographs and photo simulations that show the proposed wireless facility in context of the site from reasonable line-of-site locations from public streets or other adjacent viewpoints, together with a map that shows the photo location of each view angle.

RF compliance demonstration. The applicant must provide an RF exposure compliance report prepared and certified by a New York licensed engineer acceptable to the Town that certifies that the proposed small wireless facility, as well as any co-located small wireless facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels [(in watts effective radiated power (ERPP)] for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of the areas with RF exposures in excess of the controlled/occupations limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site in accordance with FCC requirements, if applicable.

(g)

Acoustic analysis. The applicant must provide a written report that analyzes acoustic levels for the proposed wireless facility and all associated equipment including without limitation all environmental control units, sump pumps, temporary backup power generators, and permanent backup generators. The acoustic analysis must be prepared and certified by an engineer and include an analysis of the manufacturer's specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines.

(h)

Project purpose statement. The applicant must provide a written statement that includes:

A description of the technical objectives to be achieved;

An annotated topographical map that identifies the targeted service area to be benefited;

The estimated number of potentially affected users in the targeted service area; and

[4]

Full-color signal propagation maps with objective units of signal strength measurements that show the applicant's current service coverage levels from all adjacent sites without the proposed site, predicted service coverage levels from all adjacent sites with the proposed site, and predicted service coverage levels from the proposed site without all adjacent sites.

(i)

Alternatives analysis. The applicant must list all existing structures considered as alternatives to the proposed location, together with a general description of the site design considered at each location. The applicant must also provide a written explanation for why the alternatives considered were unacceptable or infeasible, unavailable or not as consistent with the design standards in this section as the proposed location and design. This explanation must include a comparative analysis and such technical information and other factual justification as are necessary to document the reasons why each alternative is unacceptable, infeasible, unavailable or not as consistent with the design standards in this section as the proposed location.

(j)

The applicant shall provide manufacturer's information for the small wireless facility and support structure, if applicable.

(k)

The applicant shall provide technical specifications of the small wireless facility and support structure, if applicable.

(l)

The applicant shall provide a written maintenance and removal plan, made to and acceptable by the Town of Clarence, to include an agreement by the applicant and/or owner to remove all the components of the small wireless facility in the event the facility becomes nonfunctional, ceases to be used for its originally intended purposes or is otherwise abandoned, as determined by the Town. The maintenance and removal plan shall remain in full force for the life of the small wireless facility. An acceptable bond and/or surety, for the purposes of removing the small wireless facility, submitted to the Town for review, shall be purchased and remain in force for the life of the small wireless facility.

(m)

The applicant shall provide any other items that the Office of Planning and Zoning shall deem necessary for a thorough and complete review of the proposal.

Application fees. Unless otherwise provided by law, all applications for permits pursuant to this section shall be accompanied by a fee for actual, direct, and reasonable costs incurred by the Town related to processing the application, but shall not exceed the fee as determined within the Town's fee schedule.

Third-party professional consultants. The Town, in its sole discretion, may retain third-party consultant(s) to assist in the review of a proposed small wireless facility. The cost of such third-party consulting services shall be reimbursed by the applicant to the Town of Clarence within 30 days of the Town receiving an invoice for third-party consulting services.

Site location guidelines.

Preferred locations. All application must, to the extent feasible, propose a new small wireless facility in locations according to the following preferences, ordered from the most preferred to the least preferred.

Town-owned property, not including ROW in all zoning districts; approval authority by Town Attorney and Town Board.

Concealed installation on a building located on private property within the following zoning districts, listed from most preferred to least preferred; approval authority by Office of Planning and Zoning:

Industrial Business Park.

Major Arterial.

Commercial.

Restricted Business.

Community Facility.

Traditional neighborhood.

Existing support structure in the ROW exclusively adjacent to the following zoning districts, listed from most preferred to least preferred; approval authority by Office of Planning and Zoning:

Industrial Business Park.

Major Arterial.

Commercial.

Restricted Business.

Community Facility.

Traditional Neighborhood.

New support structures in the ROW exclusively adjacent to the following zoning districts, listed from most preferred to least preferred; approval authority by Planning Board:

Industrial Business Park.

Major Arterial.

Commercial.

Restricted Business.

Community Ffacility.

Traditional Neighborhood.

Discouraged locations. The Town discourages new wireless facilities in the following locations, ordered from most discouraged to least discouraged, and the Town will take into account whether any less discouraged (or more preferred) locations are technically feasible and potentially available.

New support structure in the Town ROW adjacent to the following zoning classification(s), listed from most discouraged to least discouraged; approval authority by Town Board through special exception use permit:

Residential Single-Family.

Agricultural Rural-Residential.

Agricultural-Floodzone.

Existing support structure in the Town ROW adjacent to the following zoning classification(s), listed from most discouraged to least discouraged; approval authority by Town Board:

Residential Single-Family.

Agricultural Rural-Residential.

Agricultural-Floodzone.

Existing support structure in the state or county ROW adjacent to the following zoning classification(s), listed from most discouraged to least discouraged; approval authority by Town Board:

Residential Single-Family.

Agricultural Rural-Residential.

Agricultural-Floodzone.

Concealed installation on a building located on private property within the following zoning districts, listed from most discouraged to least discouraged; approval authority by Planning Board:

Residential Single-Family.

Agricultural Rural-Residential.

Agricultural-Floodzone.

Existing support structure in the state or county ROW adjacent to the following zoning classification(s), listed from most discouraged to least discouraged; approval authority by Office of Planning and Zoning:

Residential Single-Family.

Agricultural Rural-Residential.

Agricultural-Ffloodzone.

Design standards.

Construction categories. Each small wireless facility shall comply with the standards set forth for each location type.

Existing support structure.

Equipment. All equipment must be installed as close to the support structure as technically feasible to minimize its visibility from public view to the greatest extent feasible. All conduits, conduit attachments, cables, wires and other connectors shall be concealed from the public view to the greatest extent feasible.

Maximum height. No part of the small wireless facility shall exceed 10 feet above the existing support structure.

New support structure.

Support structure requirements. All applicants shall propose new support structures that complement the community character of the area, and any applicable design guidelines that may exist for the area. When existing utility poles exist, new support structures may feature a similar design and aesthetic. Where no existing utility poles exist, architecturally significant support structures shall be proposed, including, but not limited to, flag poles and decorative light standards.

Equipment. All equipment must be installed as close to the support structure as technically feasible to minimize its visibility from public view. All conduits, conduit attachments, cables, wires and other connectors shall be concealed from the public view to the greatest extent feasible.

Maximum height. No part of the small wireless facility shall exceed 40 feet above ground level, or 10 feet above the average height of all utility poles within a five-hundred-foot radius, whichever is less.

Concealed installation on building.

Required concealment techniques. All applicants shall propose small wireless facilities that are completely concealed and architecturally integrated into the existing facade or rooftop features with no visible impacts from any publicly accessible areas at ground level. When integration with existing building features is not possible, the applicant shall propose completely concealed new structures or apparatuses designed to mimic the original architectural style of the building and community character of the area (cupolas, steeples, chimneys, etc).

Maximum height. No part of the small wireless facility or concealment techniques shall exceed the overall allowable height of the underlying zoning district.

Standard conditions of approval. In addition to all other conditions adopted by the approval authority, permits for the installation of small wireless facilities, whether approved by the approval authority or deemed approved by the operation of law, shall be automatically subject to the conditions set forth herein. The approval authority shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances to allow for the proper operation of the approved facility consistent with the goals of this section.

Approved plans. Before the permittee submits any applications to the Building Department, the permittee must incorporate this permit, all conditions associated with this permit and the approved photo simulations into the project plans. The permittee must construct, install and operate the wireless facility in strict compliance with the approved plans. Any alterations, modifications or other changes to the approved plans, whether requested by the permittee or required by other departments or public agencies with jurisdiction over the wireless facility, must be submitted in a written request subject to the Office of Planning and Zoning prior to review and approval, who may refer the request to the original approval authority if it is found that the requested alteration, modification or other change implicates a significant or substantial land use concern.

Build-out period. This permit will automatically expire one year from the issuance date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved wireless facility and commences the installation and construction, which includes without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, the wireless facility or its use. The Office of Planning and Zoning may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least 30 days prior to the automatic expiration date in this condition.

Maintenance obligations; vandalism. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures and access routes, in a neat, clean and safe condition in accordance with the approved plans and all conditions in this permit. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the Town, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee received notice or otherwise becomes aware that such graffiti or other vandalism occurred.

Compliance with laws. The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law ("laws") applicable to the permittee, the subject property, the wireless facility or any use or activities in connection with the use authorized in this permit. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee's obligations to maintain compliance with all applicable laws.

Inspections; emergencies. The permittee expressly acknowledges and agrees that the Town or its designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the Town may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee will be permitted to supervise the Town or its designee while such inspection or emergency access occurs.

Contact information. The permittee shall furnish the Building Department with accurate and up-to-date contact information for a person responsible for the wireless facility, which includes without limitation such person's full name, title, direct telephone number, facsimile number, mailing address and email address. The permittee shall keep such contact information up to date at all times.

(7)

Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility is installed, shall defend, indemnify and hold harmless the Town, its agents, officers, officials, employees and volunteers from any and all: 1) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, lawsuits, writs and other actions or proceedings ("claims") brought against the Town or its agents, officers, officials, employees or volunteers to challenge, attach, seek to modify, set aside, void or annul the Town's approval of this permit; and 2) other claims of any kind or form, whether for personal injury, death or property damage, that arise from or in connection with the permittee's or its agents', directors', officers', employees', contractors', subcontractors', licensees', or customers' acts or omissions in connection with this permit or the wireless facility. In the event the Town becomes aware of any claims, the Town will use best efforts to promptly notify the permittee and the private property owner and shall reasonably cooperate in the defense. The permittee expressly acknowledges and agrees that the Town shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the Town's defense, and the property owner and/or permittee incurred by the Town in the course of the defense. The permittee expressly acknowledges and agrees that the permittee's indemnification obligations under this condition are a material consideration that motivates the Town to approve this permit, and that such indemnification obligations will survive the expiration or revocation of this permit.

(8)

Performance bond. Before the Building Official issues any construction permit in connection with the wireless facility, the permittee shall post a performance bond from a surety and in a form acceptable to the Town Attorney in an amount equal to or greater than a written estimate from a New York licensed engineer with experience in wireless facilities removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without imitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether aboveground or below-ground, constructed or installed in connection with the wireless facility. In establishing or adjusting the bond amount required under this condition, and in accordance with New York Code, the Town Supervisor shall take into consideration information provided by the permittee regarding the cost to remove the wireless facility.

(9)

Recall to the approval authority. The original approval authority may recall this permit for review at any time due to complaints about noncompliance with the Town Code or any approval conditions. At a duly noticed public hearing and in accordance with all applicable laws, the approval authority may revoke this permit or amend these conditions as the approval authority deems necessary or appropriate to correct any such noncompliance.

(10)

Record retention. The permittee shall retain full and complete copies of all permits and other regulatory approvals issued in connection with the wireless facility, which includes without limitation all conditions of approval, approved plans, resolutions and other documentation associated with the permit or regulatory approval.

Rates and fees.

Permit fee. The applicant shall pay the Town applicable application fee(s), as determined by the Town's fee schedule, at the time of initial submittal.

Certificate of compliance fee. A wireless provider authorized to place small wireless facilities in the ROW shall pay the Town an authorization fee, as determined by the Town's fee schedule.