Town of Ellicott, NY Article XIII Exceptions and Special Provisions

§ 146-69 Swimming pools. [1]

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

OUTDOOR SWIMMING POOLS:

(1) PUBLIC SWIMMING POOL A facility for swimming operated by the Town of Ellicott.

(2) COMMERCIAL SWIMMING POOL A facility for swimming operated for gain or in conjunction with any such commercial enterprise and open to the public.

(3) CLUB SWIMMING POOL A facility for swimming operated for members and their guests.

(4) PRIVATE SWIMMING POOL A facility for swimming which is an accessory use to a residential building. Such pool shall be for the exclusive use of the occupants of the principal residential building and their guests.

B. Limitations. Except for the public swimming pool, all pools are required to meet the following regulations:

(1) A building permit shall be required for all swimming pools over 24 inches in depth (refer to Article XIII). The applicant shall provide the Building Inspector with plans and specifications in detail to be determined by said Building Inspector.

(2) All pools shall be completely enclosed by a chain link fence or approved substitute. Fence height shall be a maximum of six feet for a private pool, seven feet for club or commercial pools, and of suitable type to prevent accidental or unauthorized entry, subject to the approval of the Building Inspector.

(3) Site, lighting and plumbing plans for any pool shall be submitted to the Town of Ellicott Building Inspector for approval. Drainage shall be only into an approved storm sewer or suitable substitute to be approved by the above Department.

(4) No pool wall, paved terrace, fence or related structure may be located within 10 feet of an adjoining residentially zoned lot.

[Amended 3-7-2002 by L.L. No. 1-2002]

(5) Swimming pools and related structures shall comply with the area, yard and other requirements of the Zoning and Planning Code for that district.

[Amended 3-7-2002 by L.L. No. 1-2002]

(6) Club swimming pools shall be permitted only as an accessory structure to a membership club in the zoning district where said club is a permitted use and subject to the area and yard requirements of that district.

(7) Private pools shall not be located within a front yard in any Residential District.

[1] Editor's Note: Original § 13-104, which preceded this section, was repealed 7-6-1977 by L.L. No. 2-1977. Original § 13-105, regarding mobile homes, mobile home courts and trailers, which also preceded this section has been included as Ch. 84, Mobile Homes.

§ 146-70 Fences and walls.

[Amended 3-7-2002 by L.L. No. 1-2002]

A. A building permit is required for all fences or walls constructed in the Town of Ellicott except the following:

(1) Fences constructed in an Agricultural-Residential Zone which are privately used for the separation of lands for agricultural purposes.

(2) Fences constructed primarily for the decoration or protection of home gardens when such fences do not exceed three feet in height.

B. All fences or walls requiring a permit shall conform to the following requirements:

(1) The fence or wall shall have a maximum height of not more than six feet.

(2) The finished side of the fence or wall must face the closest neighboring property.

(3) The fence or wall shall be a minimum of six inches inside the property line, unless a written agreement is made with the adjoining property owner.

(4) The fence shall be fixed permanently in the ground to insure its stability.

(5) The fence or wall shall conform to the general character of the neighborhood.

(6) No fence or wall shall be erected which creates a traffic hazard or endangers public safety, nor shall it be allowed where such fences or wall will create a nuisance to the adjoining property.

§ 146-71 Miscellaneous.

[Amended 9-5-1990 by L.L. No. 2-1990; 2-15-1995 by L.L. No. 3-1995; 3-7-2002 by L.L. No. 1-2002]

A. Home occupations. The Zoning Board of Appeals shall not issue a special use permit for a home occupation unless it first determines that the home occupation is customary and will be conducted exclusively by persons residing in the dwelling unit. Examples of customary home occupations include tailoring, manicuring, hair dressing and in-home computer work. No home occupation may occupy more than 25% of the total dwelling space, or 500 square feet, whichever is less.

B. Occupied mobile living units. No occupied travel trailer, mobile home, tent camper or other mobile living quarters may be parked in any residential district, and they may not be parked and occupied in any other district without a trailer permit having first been obtained from the Code Enforcement Officer. No trailer permit may exceed 30 days in duration or be issued within six months from expiration of a prior permit.

C. Tents. No tent shall be used as living quarters. No tent shall be erected or used for commercial purposes without a permit having first been obtained from the Code Enforcement Officer. No tent permit may exceed 30 days in duration or be issued within six months from the expiration of a prior permit. No tent shall be erected so as to diminish the minimum parking or safety requirements of any business.

D. Can and bottle redemption centers. Can and/or bottle redemption centers are subject to the following restrictions:

[Added 11-19-2012 by L.L. No. 4-2012]

(1) No outside storage permitted.

(2) No outside redemption transactions or sorting permitted.

(3) No inside storage shall be visible from the street.

(4) No overhead doors may face the street.

§ 146-72 Siting of wireless telecommunications facilities.

[Added 11-19-2018 by L.L. No. 6-2018[1]]

A. Definitions. For purposes of this section, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this subsection. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include the plural number. The word "shall" is always mandatory, and not merely directory.

ACCESSORY FACILITY OR STRUCTURE

An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including, but not limited to, utility or transmission equipment storage sheds or cabinets.

ANTENNA

A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals.

APPLICANT

Any wireless service provider that submitted an application for a special use permit for wireless telecommunications facilities.

APPLICATION

All necessary and appropriate documentation that an applicant submits in order to receive a special use permit for wireless telecommunications facilities.

BOARD

The Zoning Board of Appeals of the Town of Ellicott.

CO-LOCATION

The use of an existing tower or structure used as an existing cell antenna site to support antennas for the provision of wireless services. A replacement tower that is constructed on the same site as an existing tower will be considered a co-location as long as the new tower is not taller than the old tower and the old tower is removed in a reasonably short time frame after the new tower is constructed.

COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE

The inability to perform an act on terms that are reasonable in commerce; the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be "commercially impracticable" and shall not render an act or the terms of an agreement "commercially impracticable."

COMPLETED APPLICATION

An application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.

DISTRIBUTED ANTENNA SYSTEM or DAS

A network of spatially separated antenna nodes connected to a common source via a transport medium that provides wireless service within a geographic area or structure.

ELIGIBLE FACILITY

A facility as defined in FCC 14-153.

ESSENTIAL COMMUNICATIONS

Wireless service provided by telecommunications towers, antennas and related facilities.

FAA

The Federal Aviation Administration, or its duly designated and authorized successor agency.

FCC

The Federal Communications Commission, or its duly designated and authorized successor agency.

HEIGHT

When referring to a tower or structure, the distance measured from the pre-existing grade level to the highest point on the tower or structure, even if said highest point is an antenna or lightning protection device.

MODIFICATION or MODIFY

The addition, removal or change of any of the physical and visually discernible components or aspects of a wireless facility, such as antennas, cabling, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernible components, vehicular access, parking and/or an upgrade or changeout of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site as a co-location is a modification. A modification shall not include the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without adding, removing or changing anything.

NIER

Non-ionizing electromagnetic radiation.

PERSON

Any individual, corporation, estate, trust, partnership, joint stock company, association of two or more persons having a joint common interest, or any other entity.

PERSONAL WIRELESS FACILITY

See definition for "wireless telecommunications facilities."

PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS

Shall have the same meaning as defined and used in the 1996 Telecommunications Act.

REPAIRS AND MAINTENANCE

The replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without the addition, removal or change of any of the physical or visually discernible components or aspects of a wireless facility that will add to the visible appearance of the facility as originally permitted.

SPECIAL USE PERMIT

The official document or permit by which an applicant is allowed to file for a building permit to construct and use wireless telecommunications facilities as granted or issued by the Town.

STATE

The State of New York.

STEALTH or STEALTH TECHNOLOGY

To minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.

TELECOMMUNICATIONS

The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.

TELECOMMUNICATIONS SITE

See definition for "wireless telecommunications facilities."

TELECOMMUNICATIONS STRUCTURE

A structure used in the provision of services described in the definition of "wireless telecommunications facilities."

TEMPORARY

Temporary in relation to all aspects and components of this section; something not intended to, or that does not, exist for more than 90 days.

TOWER

Any structure designed primarily to support an antenna for receiving and/or transmitting a wireless signal.

WIRELESS TELECOMMUNICATIONS FACILITIES

Includes a telecommunications site and personal wireless facility. It means a structure, facility or location designed or intended to be used as, or used to support, antennas or other transmitting or receiving devices. This includes, without limit, towers of all types and kinds and structure, including, but not limited to, buildings, churches, steeples, silos, water towers, signs or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related facilities and equipment such as cabling, equipment shelters and other structures associated with the site. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, SMR, paging, 911, personal communications services (PCS), commercial satellite services, microwave services and any commercial wireless telecommunication service not licensed by the FCC.

B. Overall policy and desired goals for special use permits for wireless telecommunications facilities. In order to ensure that the placement, construction, and modification of wireless telecommunications facilities protects the Town's health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this section, the Town hereby adopts an overall policy with respect to a special use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:

(1) Requiring a special use permit for any new, co-location or modification of a wireless telecommunications facility.

(2) Implementing an application process for persons seeking a special use permit for wireless telecommunications facilities.

(3) Establishing a policy for examining an application for and issuing a special use permit for wireless telecommunications facilities that is both fair and consistent.

(4) Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless telecommunications facilities among service providers.

(5) Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities is such a manner, including but not limited to the use of stealth technology, to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.

(6) That in granting a special use permit, the Town has found that the facility shall be the most appropriate site as regards being the least visually intrusive among those available in the Town.

C. Exceptions from special use permits for wireless telecommunications facilities.

(1) Except as otherwise provided by this section, no person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this section without having first obtained a special use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those noncommercial exclusions noted in Subsection D.

(2) All legally permitted wireless telecommunications facilities, constructed as permitted, existing on or before the effective date of this section shall be allowed to continue as they presently exist; provided, however, that any visible modification of an existing wireless telecommunications facility will require the complete facility and any new installation to comply with this section.

(3) Any repair and maintenance of a wireless facility does not require an application for a special use permit.

D. Exclusions. The following shall be exempt from this section:

(1) The Town's Fire Department, Police Department, Department of Transportation or other public service facilities owned and operated by the Town.

(2) Any facilities expressly exempt from the Town's siting, building and permitting authority.

(3) Over-the-air reception devices, including the reception antennas for direct broadcast satellites (DBS), multichannel multipoint distribution (wireless cable) providers (MMDS), television broadcast stations (TVBS) and other customer-end antennas that receive and transmit fixed wireless signals that are primarily used for reception.

(4) Facilities exclusively for private, noncommercial radio and television reception and private citizens bands, licensed amateur radio and other similar noncommercial telecommunications.

(5) Facilities used exclusively for providing unlicensed spread spectrum technology, i.e., Bluetooth or a hotspot, where the facility does not require a new tower, where the service is not to be used for commercial purposes, where there is no fee or charge for the use of the service and where the service is intended to be usable for less than 200 feet.

E. Special use permit application and other requirements.

(1) All applicants for a special use permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this section. The Town Board is the officially designated agency or body of the Town to whom applications for a special use permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting or revoking special use permits for wireless telecommunications facilities. The Town may, at its discretion, delegate or designate other official agencies or officials of the Town to accept, review, analyze, evaluate and make recommendations to the Town Board with respect to the granting or not granting or revoking special use permits for wireless telecommunications facilities.

(2) The Town Board delegates its authority to the Town Building Inspector, or his/her designee, to accept, review, analyze and make administrative approvals with respect to the granting or not granting or revoking special use permits for those facilities that meet requirements of this section and that do not require a public hearing as defined by Subsection N.

(3) The Town may reject applications not meeting the requirements stated herein or which are otherwise incomplete.

(4) No wireless telecommunications facilities shall be installed, constructed or modified until the application is reviewed and approved by the Town, and the special use permit has been issued.

(5) Any and all representations made by the applicant to the Town on the record during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Town.

(6) An application for a special use permit for wireless telecommunications facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information.

(7) The applicant must provide documentation to verify it has the right to proceed as proposed on the site. This would require an executed copy of the lease with the landowner or landlord or a signed letter acknowledging authorization. If the applicant owns the site, a copy of the ownership record is required.

(8) The applicant shall include a statement in writing:

(a) That the applicant's proposed wireless telecommunications facilities shall be maintained in a safe manner, and in compliance with all conditions of the special use permit, without exception, unless specifically granted relief by the Town in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable Town, state and federal laws, rules, and regulations.

(b) That the construction of the wireless telecommunications facilities is legally permissible, including, but not limited to, the fact that the applicant is authorized to do business in the state.

(9) Where a certification is called for in this section, such certification shall bear the signature and seal of a registered professional licensed in the state.

(10) In addition to all other required information as stated in this section, all applications for construction or installation of new wireless telecommunications facilities or modification of an existing facility shall contain the information hereinafter set forth.

(a) A descriptive statement of the objective(s) for the new facility or modification, including and expanding on a need such as coverage and/or capacity requirements;

(b) Documentation that demonstrates and proves the need for the wireless telecommunications facility to provide service primarily and essentially within the Town. Such documentation shall include propagation studies of the proposed site and all adjoining planned, proposed, in-service or existing sites that demonstrate a significant gap in coverage and/or, if a capacity need, including an analysis of current and projected usage;

(c) The name, address and phone number of the person preparing the report;

(d) The name, address, and phone number of the property owner and applicant, and to include the legal name of the applicant. If the site is a tower and the owner is different than the applicant, provide name and address of the tower owner;

(e) The postal address and tax map parcel number of the property;

(f) The zoning district or designation in which the property is situated;

(g) Size of the property stated both in square feet and lot line dimensions, and a survey showing the location of all lot lines;

(h) The location of nearest residential structure;

(i) The location, size and height of all existing and proposed structures on the property which is the subject of the application;

(j) The type, locations and dimensions of all proposed landscaping and fencing;

(k) The azimuth, size and center-line height location of all proposed and existing antennas on the supporting structure;

(l) The number, type and model of the antenna(s) proposed, with a copy of the specification sheet;

(m) The make, model, type and manufacturer of the tower and design plan stating the tower's capacity to accommodate multiple users;

(n) A site plan describing the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above pre-existing grade, materials, color and lighting;

(o) The frequency, modulation and class of service of radio or other transmitting equipment;

(p) The actual intended transmission power stated as the maximum effective radiated power (ERP) in watts;

(q) Signed documentation such as the "Checklist to Determine Whether a Facility is Categorically Excluded" to verify that the wireless telecommunications facility with the proposed installation will be in full compliance with the current FCC RF emission guidelines (NIER). If not categorically excluded, a complete RF emissions study is required to provide verification;

(r) A signed statement that the proposed installation will not cause physical or RF interference with other telecommunications devices;

(s) A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities;

(t) A copy of the geotechnical subsurface soils investigation, evaluation report and foundation recommendation for a proposed or existing tower site, and if an existing tower or water tank site, a copy of the installed foundation design.

(11) The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the proposed new tower or existing structure intended to support wireless facilities is in compliance with the Federal Aviation Administration Regulation Part 77[2] and if it requires lighting. This requirement shall also be for any existing structure or building where the application increases the height of the structure or building. If this analysis determines that an FAA determination is required, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided with the application.

[2] Editor's Note: See 14 CFR Part 77.

(12) Application for new tower.

(a) In the case of a new tower, the applicant shall be required to submit a written report demonstrating its meaningful efforts to secure shared use of existing towers or the use of alternative buildings or other structures within the Town. Copies of written requests and responses for shared use shall be provided to the Town in the application, along with any letters of rejection stating the reason for rejection.

(b) In order to better inform the public, in the case of a new telecommunications tower, the applicant shall, prior to the public hearing on the application, hold a "balloon test." The applicant shall arrange to fly, or raise upon a temporary mast, a minimum of three feet in diameter brightly colored balloon at the maximum height of the proposed new tower. The dates (including a second date, in case of poor visibility on the initial date), times and location of this balloon test shall be advertised by the applicant seven days and 14 days in advance of the first test date in a newspaper with a general circulation in the Town. The applicant shall inform the Town, in writing, of the dates and times of the test, at least 14 days in advance. The balloon shall be flown for at least four consecutive hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen. The primary date shall be on a weekend, but in case of poor weather on the initial date, the secondary date may be on a weekday. A report with pictures from various locations of the balloon shall be provided with the application.

(c) The applicant shall examine the feasibility of designing the proposed tower to accommodate future demand for at least four additional commercial applications, for example, future co-locations. The tower shall be structurally designed to accommodate at least four additional antenna arrays equal to those of the applicant, and located as close to the applicant's antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:

[1] The foreseeable number of FCC licenses available for the area;

[2] The kind of wireless telecommunications facilities site and structure proposed;

[3] The number of existing and potential licenses without wireless telecommunications facilities spaces/sites;

[4] Available space on existing and approved towers.

(d) Upon completing construction and before the issuance of the certificate of compliance, to ensure the tower was constructed as permitted, the applicant is to provide signed documentation of the tower's condition, such as an ANSI report as per Annex J, Tower Maintenance and Inspection Procedures, ANSI/TIA/EIA-222-G or most recent version. The inspection report must be performed every three years for a guyed tower and every five years for monopoles and self-supporting towers.

(e) The owner of the proposed new tower, and his/her successors in interest, shall negotiate in good faith for the shared use of the proposed tower by other wireless service providers in the future and shall:

[1] Respond within 60 days to a request for information from a potential shared-use applicant;

[2] Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers;

[3] Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance, financing, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference;

(f) Failure to abide by the conditions outlined above may be grounds for the revocation of the special use permit.

(13) The applicant shall provide certification with documentation (structural analysis), including calculations that the telecommunication facility tower and foundation and attachments, rooftop support structure, water tank structure, and any other supporting structure as proposed to be utilized are designed and will be constructed to meet all local, Town, state and federal structural requirements for loads, including wind and ice loads. All new or modified tower or other vertical support structures containing wireless antennas shall be designed to an ANSI/TIA/EIA-222-G Class III standard or any subsequently adopted more stringent standard.

(14) If proposal is for co-location or modification of an existing tower, the applicant is to provide signed documentation of the tower's condition, such as an ANSI report as per Annex J, Tower Maintenance and Inspection Procedures, ANSI/TIA/EIA-222-G or most recent version. The inspection report must be performed every three years for a guyed tower and every five years for monopoles and self-supporting towers.

(15) All proposed wireless telecommunications facilities shall contain a demonstration that the facility will be sited so as to minimize visual intrusion as much as possible, given the facts and circumstances involved, and will thereby have the least adverse visual effect on the environment and its character and on the residences in the area of the wireless telecommunications facility.

(16) If a new tower, proposal for a new antenna attachment to an existing structure, or modification adding to a visual impact, the applicant shall furnish a visual impact assessment, which shall include:

(a) If a new tower or increasing the height of an existing structure is proposed, a computer-generated "Zone of Visibility Map" at a minimum of one mile radius from the proposed structure, with and without foliage, shall be provided to illustrate locations from which the proposed installation may be seen.

(b) Pictorial representations of "before and after" (photo simulations) views from key viewpoints both inside and outside of the Town as may be appropriate, including but not limited to state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers or residents. Guidance will be provided concerning the appropriate key sites at the pre-application meeting. Provide a map showing the locations of where the pictures were taken and distance from the proposed structure.

(c) A written description of the visual impact of the proposed facility, including, and as applicable, the tower base, guy wires, fencing and accessory buildings from abutting and adjacent properties and streets as relates to the need or appropriateness of screening.

(17) The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related equipment and structures of the proposed wireless telecommunications facility.

(18) The wireless telecommunications facility and any and all accessory or associated facilities shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surrounding. This shall include the utilization of stealth or concealment technology as may be required by the Town.

(19) All utilities at a wireless telecommunications facilities site shall be installed underground whenever possible and in compliance with all laws, ordinances, rules and regulations of the Town, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate.

(20) At a telecommunications site, an access road, turnaround space and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.

(21) All wireless telecommunications facilities shall be constructed, operated, maintained, repaired, provided for removal of, modified or restored in strict compliance with all current applicable technical, safety and safety-related codes adopted by the Town, state, or United States, including but not limited to the most recent editions of the ANSI Code, National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health, and land use codes. In the event of a conflict between or among any of the preceding, the more stringent shall apply.

(22) A holder of a special use permit granted under this section shall obtain, at its own expense, all permits and licenses required by applicable laws, rules, regulations or codes, and must maintain the same, in full force and effect, for as long as required by the Town or other governmental entity or agency having jurisdiction over the applicant.

(23) There shall be a pre-application meeting. The purpose of the pre-application meeting will be to address issues that will help to expedite the review and permitting process. A pre-application meeting shall also include a site visit if there has not been a prior site visit for the requested site.

(24) An applicant shall submit to the Town the number of completed applications determined to be needed at the pre-application meeting. Written notification of the application shall be provided to the legislative body of all adjacent municipalities as applicable and/or requested.

(25) The holder of the special use permit shall notify the Town of any intended modification of a wireless telecommunication facility and shall apply to the Town to modify, relocate or rebuild a wireless telecommunication facility.

(26) With respect to this application process, the Board will normally seek to have lead agency status pursuant to SEQRA. The Board shall conduct an environmental review of the proposed project pursuant to SEQRA in combination with its review of the application.

F. Location of wireless telecommunications facilities.

(1) Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, Subsection F(1)(a) being the highest priority and Subsection F(1)(g) being the lowest priority.

(a) On existing towers or other structures on Town-owned properties, including the right-of-way.

(b) On existing towers or other structures on other property in the Town.

(c) A new tower on Town-owned properties, including the right-of-way.

(d) A new tower on properties in areas zoned for heavy industrial use.

(e) A new tower on properties in areas zoned for commercial use.

(f) A new tower on properties in areas zoned for agricultural use.

(g) A new tower on properties in areas zoned for residential use.

(2) If the proposed site is not proposed for the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.

(3) An applicant may not bypass sites of higher priority by stating the site proposed is the only site leased or selected. An application shall address co-location as an option. If such option is not proposed, the applicant must explain to the reasonable satisfaction of the Town why co-location is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting co-location shall not be a valid basis for any claim of commercial impracticability or hardship.

(4) Notwithstanding the above, the Town may approve any site located within an area in the above list of priorities, provided that the Town finds that the proposed site is in the best interest of the health, safety and welfare of the Town and its inhabitants and will not have a deleterious effect on the nature and character of the community and neighborhood.

(5) The applicant shall submit a written report demonstrating the applicant's review of the above locations in order of priority, demonstrating the technological reason for the site selection. If appropriate, based on selecting a site of lower priority, a detailed written explanation as to why sites of a higher priority were not selected shall be included in the application.

(6) Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Town may disapprove an application for any of the following reasons:

(a) Conflict with safety and safety-related codes and requirements;

(b) Conflict with the historic nature or character of a neighborhood or historical district;

(c) The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;

(d) The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the reasonable probability of such, to residents, the public, employees and agents of the Town, or employees of the service provider or other service providers;

(e) Conflicts with the provision of this section.

G. Shared use of wireless telecommunications facilities and other structures.

(1) The Town, as opposed to the construction of a new tower, shall prefer locating on existing towers or other structures without increasing the height. The applicant shall submit a comprehensive report inventorying existing towers and other suitable structures within two miles of the location of any proposed new tower, unless the applicant can show that some other distance is more reasonable and demonstrate conclusively why an existing tower or other suitable structure cannot be used.

(2) An applicant intending to locate on an existing tower or other suitable structure shall be required to document the intent of the existing owner to permit its use by the applicant.

(3) Such shared use shall consist only of the minimum antenna array technologically required to provide service primarily and essentially within the Town, to the extent practicable, unless good cause is shown.

H. Height of telecommunications tower(s).

(1) The applicant shall submit documentation justifying the total height of any tower, facility and/or antenna requested and the basis therefor. Documentation in the form of propagation studies must include all backup data used to perform at requested height and a minimum of 10 feet lower height to allow verification of this height need. Such documentation will be analyzed in the context of the justification of the height needed to provide service primarily and essentially within the Town, to the extent practicable, unless good cause is shown.

(2) No tower constructed after the effective date of this section, including allowing for all attachments, shall exceed the height which shall permit operation without required artificial lighting of any kind in accordance with Town, state, and/or any federal statute, law, local law, Town ordinance, code, rule or regulation.

I. Visibility of wireless telecommunications facilities.

(1) Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.

(2) Towers shall be galvanized and/or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained in accordance with the requirements of this section.

(3) If lighting is required, the applicant shall provide a plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under state and federal regulations.

J. Security of wireless telecommunications facilities. All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner that prevents unauthorized access. Specifically:

(1) All antennas, towers and other supporting structures, including guy anchor points and wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or collided with; and

(2) Transmitters and telecommunications control points shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them.

K. Signage. Wireless telecommunications facilities shall contain a sign no larger than four square feet in order to provide adequate notification to persons in the immediate area of the presence of RF radiation or to control exposure to RF radiation within a given area. A sign of the same size is also to be installed to contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be on the equipment shelter or cabinet of the applicant and be visible from the access point of the site and must identify the equipment owner of the shelter or cabinet. On tower sites, an FCC registration site as applicable is also to be present. The signs shall not be lighted, unless an applicable law, rule or regulation requires lighting. No other signage, including advertising, shall be permitted.

L. Lot size and setbacks. All proposed towers and any other proposed wireless telecommunications facility structures shall be set back from abutting parcels, recorded rights-of-way and road and street lines by the greater of the following distances: a distance equal to the height of the proposed tower or wireless telecommunications facility structure plus 10% of the height of the tower or structure, or the existing setback requirement of the underlying zoning district, whichever is greater. Any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.

M. Retention of expert assistance and reimbursement by applicant.

(1) The Town may hire any consultant and/or expert necessary to assist the Town in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any site inspections.

(2) An applicant shall deposit with the Town escrow funds sufficient to reimburse the Town for all costs of the Town's consultant in providing expert evaluation and consultation to any agency of the Town in connection with the review of any application, including, where applicable, the lease negotiation, the pre-approval evaluation, and the construction and modification of the site, once permitted. The initial deposit shall be $8,500. The placement of the $8,500 with the Town shall precede the pre-application meeting. The Town will maintain a separate escrow account for all such funds. The Town's consultants/experts shall invoice the Town for their services related to the application. If at any time during the process this escrow account has a balance less than $2,500, the applicant shall immediately, upon notification by the Town, replenish said escrow account so that it has a balance of at least $5,000. Such additional escrow funds shall be deposited with the Town before any further action or consideration is taken on the application. In the event that the amount held in escrow by the Town is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall, upon request of the applicant, be promptly refunded to the applicant. If notified by the Town that additional escrow is required, the applicant may request copies of consultants' and/or experts' invoices. If the applicant finds errors in those invoices, the applicant may ask the Town to audit those specific items for reasonableness, and may request relief therefrom if not deemed reasonable by the Town.

(3) Notwithstanding the above, there shall be a fee cap of $17,000 as to the total consultant fees to be charged to the applicant in a case. The foregoing does not prohibit the Town from imposing additional reasonable and cost-based fees for costs incurred should an applicant amend or change its application, and the fee cap shall not apply as to any fees which the Town determines to be attributable to the dilatory or otherwise bad faith actions of applicant in providing a complete application or in proceeding with a public hearing.

(4) The total amount of the funds needed as set forth in Subsection M(2) of this section may vary with the scope (lease negotiations and/or review) and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.

N. Public hearing and notification requirements.

(1) Prior to the approval of any application for a special use permit for wireless telecommunications facilities, a public hearing shall be held by the Town, notice of which shall be published in the newspaper of general circulation in the Town no less than 10 calendar days prior to the scheduled date of the public hearing. In order that the Town may notify nearby landowners, the application shall contain the names and address of all landowners whose property is located within 1,500 feet of any property line of the lot or parcel on which the new wireless telecommunications facilities are proposed to be located.

(2) There shall be no public hearing required for an application to co-locate on an existing tower or other structure or a modification at an existing site, as long as there is no proposed increase in the height of the tower or structure, including attachments thereto. In addition, for an eligible facility request, no public hearing shall be required. Rather, an administratively granted special use permit shall be granted by the Town Building Inspector.

(3) The Town shall schedule the public hearing referred to in Subsection N(1) of this section once it finds the application is complete. The Town, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary.

O. Action on application for special use permit for wireless telecommunications facilities.

(1) The Town will undertake a review of an application pursuant to this section in a timely fashion, consistent with its responsibilities, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public's interest and need to be involved, and the applicant's desire for a timely resolution.

(2) The Town may refer any application or part thereof to any advisory or other committee or commission for a nonbinding recommendation.

(3) After the public hearing and after formally considering the application, the Town may approve, approve with conditions, or deny a special use permit. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the granting of the permit shall always be upon the applicant.

(4) If the Town approves the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such approval in writing within 10 calendar days of the Town's action, and the special use permit shall be issued within 30 days after such approval. Except for necessary building permits, and subsequent certificates of compliance, once a special use permit has been granted hereunder, no additional permits or approval from the Town, such as site plan or zoning approvals, shall be required by the Town for the wireless telecommunications facilities covered by the special use permit.

(5) If the Town denies the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within 10 calendar days of the Town's action.

P. Extent and parameters of special use permit for wireless telecommunications facilities. The extent and parameters of a special use permit for wireless telecommunications facilities shall be as follows:

(1) Such special use permit shall not be assigned, transferred or conveyed without the express prior written notification to the Town.

(2) Such special use permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled, or terminated for a violation of the conditions and provisions of the special use permit, or for a material violation of this section, after prior written notice to the holder of the special use permit.

Q. Application fee. At the time that a person submits an application for a special use permit for a new tower, such person shall pay a nonrefundable application fee of $5,000 to the Town. If the application is for a special use permit for modifying or co-locating on an existing tower or other suitable structure, where no increase in height of the tower or structure is required, or for a temporary facility, the nonrefundable fee shall be $2,500.

R. Performance security. The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at its cost and expense, be jointly required to execute and file with the Town a bond, or other form of security acceptable to the Town as to type of security and the form and manner of execution, in an amount of at least $75,000 for a tower facility and $25,000 for a co-location on an existing tower or other structure and with such sureties deemed sufficient by the Town to assure the faithful performance of the terms and conditions of this section and conditions of any special use permit issued pursuant to this section. The full amount of the bond or security shall remain in full force and effect throughout the term of the special use permit and/or until any necessary site restoration is completed to restore the site to a condition comparable to that which existed prior to the issuance of the original special use permit.

S. Reservation of authority to inspect wireless telecommunications facilities. In order to verify that the holder of a special use permit for wireless telecommunications facilities and any and all lessees, renters, and/or licensees of wireless telecommunications facilities, place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building, and zoning codes, laws, ordinances and regulations and other applicable requirements, the Town may inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification and maintenance of such facilities, including, but not limited to, towers, antennas and buildings or other structures constructed or located on the permitted site.

T. Liability insurance.

(1) A holder of a special use permit for wireless telecommunications facilities shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage, for the duration of the special use permit in amounts set forth below:

(a) Commercial general liability covering personal injuries, death and property damage: $1,000,000 per occurrence/$2,000,000 aggregate;

(b) Automobile coverage: $1,000,000 per occurrence/$2,000,000 aggregate;

(c) Workers' compensation and disability: statutory amounts.

(2) For a wireless telecommunications facility on Town property, the commercial general liability insurance policy shall specifically include the Town and its officers, boards, employees, committee members, attorneys, agents and consultants as additional insureds.

(3) The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a Best's rating of at least A.

(4) The insurance policies shall contain an endorsement obligating the insurance company to furnish the Town within at least 30 days prior written notice in advance of the cancellation of the insurance.

(5) Renewal or replacement policies or certificates shall be delivered to the Town at least 15 days before the expiration of the insurance that such policies are to renew or replace.

(6) Before construction of permitted wireless telecommunications facilities is initiated, but in no case later than 15 days after the granting of the special use permit, the holder of the special use permit shall deliver to the Town an copy of each of the policies or certificates representing the insurance in the required amounts.

U. Indemnification.

(1) Any application for wireless telecommunications facilities that is proposed for Town property, pursuant to this section, shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the Town, and its officers, boards, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said facility; excepting, however, any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the Town, or its servants or agents. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included in those costs that are recoverable by the Town.

(2) Notwithstanding the requirements noted in Subsection U(1) of this section, an indemnification provision will not be required in those instances where the Town itself applies for and secures a special use permit for wireless telecommunications facilities.

V. Fines.

(1) In the event of a violation of this section or any special use permit issued pursuant to this section, the Town may impose and collect, and the holder of the special use permit for wireless telecommunications facilities shall pay to the Town, fines or penalties as set forth below.

(2) The holder of a special use permit's failure to comply with the provisions of this section shall constitute a violation of this section and shall subject the applicant to the code enforcement provisions and procedures as provided in Code of the Town of Ellicott § 146-76F(1) and (2) and § 146-76G.

(3) Notwithstanding anything in this section, the holder of the special use permit for wireless telecommunications facilities may not use the payment of fines, liquidated damages, or other penalties to evade or avoid compliance with this section or any subsection of this section. An attempt to do so shall subject the holder of the special use permit to termination and revocation of the special use permit. The Town may also seek injunctive relief to prevent the continued violation of this section, without limiting other remedies available to the Town.

W. Default and/or revocation. If a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this section or of the special use permit, then the Town shall notify the holder of the special use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in Subsection V, and if a violation is not corrected to the satisfaction of the Town in a reasonable period of time the special use permit is subject to revocation.

X. Removal of wireless telecommunications facilities.

(1) Under the following circumstances, the Town may determine that the health, safety, and welfare interests of the Town warrant and require the removal of wireless telecommunications facilities.

(a) Wireless telecommunications facilities with a permit have been abandoned (i.e., not used as wireless telecommunications facilities) for a period exceeding 90 consecutive days or a total of 180 days in any 365-day period, except for periods caused by force majeure or acts of God, in which case, repair or removal shall commence within 90 days;

(b) Permitted wireless telecommunications facilities fall into such a state of disrepair that they create a health or safety hazard;

(c) Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required special use permit, or any other necessary authorization, and the special use permit may be revoked.

(2) If the Town makes such a determination as noted in Subsection X(1) of this section, then the Town shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed. The Town may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.

(3) The holder of the special use permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within 90 days of receipt of written notice from the Town. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the Town.

(4) If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the permit holder has received notice, then the Town may order officials or representatives of the Town to remove the wireless telecommunications facilities at the sole expense of the owner or special use permit holder.

(5) If the Town removes, or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications facilities does not claim and remove them from the site to a lawful location within 10 days, then the Town may take steps to declare the wireless telecommunications facilities abandoned, and sell them and their components.

(6) Notwithstanding anything in this section to the contrary, the Town may approve a temporary use permit/agreement for the wireless telecommunications facilities, for no more 90 days, during which time a suitable plan for removal, conversion, or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the special use permit, subject to the approval of the Town, and an agreement to such plan shall be executed by the holder of the special use permit and the Town. If such a plan is not developed, approved and executed within the ninety-day time period, then the Town may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.

Y. Relief. Any applicant desiring relief, waiver or exemption from any aspect or requirement of this section may request such, provided that the relief or exemption is contained in the submitted application for either a special use permit, or in the case of an existing or previously granted special use permit, a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete. However, the burden of proving the need for the requested relief, waiver or exemption is solely on the applicant to prove. The applicant shall bear all costs of the Town in considering the request and the relief, waiver or exemption. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that if granted, the relief, waiver or exemption will have no significant effect on the health, safety and welfare of the Town, its residents and other service providers.

Z. Periodic regulatory review by Town.

(1) The Town may at any time conduct a review and examination of this entire section.

(2) If after such a periodic review and examination of this section, the Town determines that one or more provisions of this section should be amended, repealed, revised, clarified, or deleted, then the Town may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the Town, the Town may repeal this entire section at any time.

(3) Notwithstanding the provisions of Subsections Z(1) and (2) of this section, the Town may at any time and in any manner (to the extent permitted by federal, state, or local law) amend, add, repeal, and/or delete one or more provisions of this section.

AA. Adherence to state and/or federal rules and regulations.

(1) To the extent that the holder of a special use permit for wireless telecommunications facilities has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules and regulations, then the holder of such special use permit shall adhere to, and comply with, all applicable rules, regulations, standards, and provisions of any state and federal agency, including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical and RF emission standards.

(2) To the extent that applicable rules, regulations, standards, and provisions of any state or federal agency, including but not limited to the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting, and security, are changed and/or are modified during the duration of a special use permit for wireless telecommunications facilities, then the holder of such a special use permit shall conform the permitted wireless telecommunications facilities to the applicable changed and/or modified rule, regulation, standard, or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard, or provision, or sooner as may be required by the issuing entity.

[1] Editor's Note: This local law also repealed former § 146-72, Radio/Communications towers, added 3-7-2002 by L.L. No. 1-2002.