Town of Rochester, NY Article V Supplementary Regulations Applicable to Particular Uses

§ 140-23 Recreational vehicles, campgrounds and RV parks.

A. Annual permit.

(1) No person, partnership, association, limited liability or other company or corporation, being the owner, user, operator or occupant of any land within the Town of Rochester, shall use or allow the use of such land for a campground or RV park or any other form of camping regulated herein unless a permit has been obtained as herein provided.

(2) The Town Code Enforcement Officer of the Town of Rochester shall issue a permit after approval of the application by the Town Planning Board pursuant to special use procedures. Such application shall also be subject to site plan review. Said permit shall be effective from the date of issuance until surrendered by the licensee or revoked by the Code Enforcement Officer.

(3) No permit shall be issued until the Code Enforcement Officer has received a written application from the applicant, the required fee as herein provided and approval of the application, plans and specifications by the Ulster County Department of Health.

(4) All licenses issued hereunder shall be valid until March 31 of the following year. No later than January 1 of each year, applicants shall request or apply for renewal of such licenses. The Town Code Enforcement Officer shall inspect the premises to ensure continued compliance with this section. A finding of such compliance shall entitle the applicant to an automatic renewal subject only to such fees as may be required. However, the Town Planning Board shall, subject to a public hearing, approve, disapprove or approve with modifications any renewal that involves proposed changes in the facilities or major changes in the operations connected with the RV park or campground.

(5) Any person holding a permit for a campground or RV park who desires to add additional lots or spaces to such park shall file an application for a supplemental permit. The application for such supplemental permit must be accompanied by 10 sets of plans and specifications and shall be filed and processed as provided herein for new campgrounds or parks.

(6) Each application for a new or supplemental campground or RV park permit shall be in writing and signed by the applicant. The Code Enforcement Officer shall promptly transmit copies of the application and plans to the Town Planning Board, which shall review the application pursuant to the special use and site plan review requirements herein. The Code Enforcement Officer, within 30 days of the filing of the Planning Board's action with respect to special use and site plan review, shall issue the permit. Each permit application shall be accompanied by site plans and other data as shall be required herein for special use and site plan review applications.

(7) The applicant, for any new permit or transfer, shall pay the Town a fee as shall be established and modified from time to time by resolution of the Town Board.

B. Design standards and general requirements.

(1) A campground or RV park shall have a gross area of at least 15 contiguous acres of land in single ownership or under unified control.

(2) RV park or campground lots shall meet the following standards with respect to lot area, lot width and density:

Campground/RV Park Standards
Standard	Transient Campgrounds/RV Parks	Nontransient Campgrounds/RV Parks
Minimum campground lot area	1,500 square feet	3,000 square feet
Minimum campground lot width	30 feet	50 feet
Maximum density*	8.0	8.0

*	Number of campground lots per acre of land designated for campground use.

(3) Individual campground or RV park lots shall be separated from service building structures by a minimum distance of 50 feet. Also, notwithstanding other requirements, no recreational vehicle or tent platforms shall be located closer than 50 feet to the street right-of-way or any adjacent property line.

(4) No less than one off-street parking space shall be provided on each lot, in addition to the site area provided on each lot for placement of the recreational vehicle or tent.

(5) All campgrounds and RV park streets shall be cleared, graded and improved to a twelve-foot width for one-way traffic and twenty-foot width for two-way traffic. Such streets shall be improved to a year-round passable condition and include periodic speed bumps on each major tangent section to reduce speed.

(6) No individual on-site sewerage or water supply shall be permitted, and all community systems for the common use of campground occupants shall fully comply, as evidenced by approved plans, with standards imposed by the Ulster County Department of Health and the Town of Rochester.

(7) A campground or RV park shall possess a minimum of 200 feet of frontage on a state, county or Town highway.

(8) A minimum of 20% of the gross site area of the campground or RV park shall be set aside and developed as common use areas for open and enclosed recreational facilities. No recreational vehicle site, required buffer strip, street right-of-way, cartway, storage area or utility site shall be counted as meeting this requirement.

(9) Entrances and exits to campgrounds or RV parks shall be designed for safe and convenient movement of traffic into and out of the park and to minimize marginal friction with free movement of traffic on adjacent streets. All traffic into or out of the park shall be through such entrances and exits, which shall be limited to a maximum of two each except where safety demands and the Planning Board has approved the same. The Planning Board may also require emergency entrances and exits where access in the event of emergencies would be otherwise difficult. No entrance or exit shall require a turn at an acute angle for vehicles moving in the direction intended, and the radii of curbs and pavements at intersections shall be such as to facilitate easy turning movement for vehicles with trailer attached. No intersection of an entrance and/or exit with a state, county or Town highway shall be located where less than 500 feet of sight distance exists in either direction along the state, county or Town highway, nor shall such intersection be located within 150 feet of any other intersection.

(10) No parking, loading, or maneuvering incidental to parking or loading shall be permitted in connection with the use of any campground or RV park on any public street, sidewalk, required buffer, right-of-way or any public grounds, nor any private grounds not part of the campground or RV park unless the owner has given written permission for such use. Each campground or RV park operator shall provide off-street parking and loading and shall be responsible for violations of these requirements.

(11) Campground or RV park lots shall be used only for camping purposes, except for a maximum of three lots used for staff or similar special circumstances. No improvement or living unit designed for permanent occupancy shall be erected or placed on any campground or RV park lot. All recreational vehicles in the development shall be maintained in a transportable condition at all times, except for temporary removal of a hitch, and meet all requirements that may be imposed by the State of New York. Any action toward removal of wheels or to attach the recreational vehicle to the ground for stabilization purposes is hereby prohibited. Moreover, no campground or RV park lot shall be occupied for more than 120 days in a transient campground or RV park or 270 days in a nontransient campground or RV park. No campground or RV park lot, except as provided above, shall be the primary and principal residence of the occupant, each campground or RV park lot to be used and occupied (excepting for occasional guests) for camping and recreational purposes only by a single household.

(12) Recordkeeping.

(a) The management of every campground or RV park shall be responsible for maintaining accurate records concerning the occupancy of all campground or RV park lots. The term "management" shall include associations of property owners when such are responsible for maintenance and operation of common facilities. Management shall keep a written record of all persons occupying facilities by date, which records shall be available for a period of at least one year from the date of occupancy and shall include:

[1] The name and mailing address of the occupant of each lot or site.

[2] The name and address of the owner of each recreational vehicle that is not occupied by such owner.

[3] The state in which each recreational vehicle is registered and the registration number of the same.

[4] The name and address of the owner of the motor vehicle that transported said recreational vehicle, the state in which said motor vehicle is registered and the registration number of the same.

(b) The Town Code Enforcement Officer shall have access to, and the right to inspect, records for evidence of permanent residency or lack thereof. The Town Board and/or Code Enforcement Officer shall, in addition, have the authority, when any provision of this chapter is violated, to prohibit the occupancy of any and all campground or RV park lots in a recreational development until the owners and/or management provide evidence of compliance with these provisions.

(13) No owner or occupant of any campground or RV park lot or within such campground or RV park lot shall permit or allow the dumping or placement of any sanitary or other waste anywhere upon any campground or RV park lot or elsewhere within the development, except in places designated therefor. No outside toilets shall be erected or maintained on any campground or RV park lot. Plumbing fixtures within any recreational vehicles placed upon lots in the campground or RV park shall be connected to the sewage disposal system for the development. Sanitary facilities, including toilets, urinals and showers, shall be provided in separate buildings located not less than 100 feet or more than 500 feet from each campground or RV park lot.

(14) All property lines within the development shall be kept free and open; and no fences, except as may be required for screening or as may exist naturally, ledges or walls shall be permitted thereon. This shall not, however, preclude the erection of fences around the perimeter of the development.

(15) No noxious or offensive activities or nuisances shall be permitted on any campground or RV park lot or anywhere within such developments. Such nuisances shall include, but not be limited to; (1) noise which exceeds the limitations set forth herein; (2) uncontrolled fires or repeated burning (except for camp fires) which results in soot, cinders, smoke, noxious fumes, gases or unusual odors emanating beyond the property line of the development; and (3) any other activity that would exceed the limitations of the Town of Rochester Code. Responsibility for meeting such requirements shall extend in all circumstances to individual occupants of campground or RV park lots as well as owners and operators.

(16) No animals shall be kept or maintained on any campground or RV park lot, except the usual household pets (cats, dogs and the like). Pets shall be kept confined so as not to become a nuisance.

(17) No person shall bum trash, garbage or other like refuse on any campground or RV park lot. All such refuse shall be placed and kept in airtight receptacles for the same, which shall be provided by the owners of the campground or RV park lots. No owner or occupant shall permit the accumulation of litter or refuse or junk vehicles on a campground or RV park lot.

(18) Notwithstanding any provisions herein contained to the contrary, picnic tables, benches, storage sheds, fireboxes or fireplaces and similar items of personal property may be placed on a campground or RV park lot. All personal property on a campground or RV park lot shall be maintained in good condition so as not to become unsightly.

(19) No recreation vehicle shall be parked on any street or roadway within the development.

(20) Potable water drinking supplies shall be provided within 300 feet of each campground or RV park lot and be operational during any period of occupancy.

(21) Every campsite shall be accessible by fire and emergency equipment and shall be maintained in such condition, free of obstacles to access.

(22) If the use of all-terrain vehicles or other similar sports equipment (including dirt bikes) is permitted within the campground or RV park, such activity shall be strictly limited to designated internal roads or other controlled designated areas within the campground or RV park and further limited to such time periods as will conform with the noise requirements herein. Campground or RV park management as well as individual campground lot owners/users shall be responsible for enforcing these limitations and be subject to the penalties provided herein if they do not and a nuisance situation is created for adjoining landowners.

(23) The operational standards contained in this section shall be incorporated in the management plan and restrictions for any transient campgrounds or RV parks, which restrictions and/or plan shall be approved by the Planning Board in its review of site development plans for the campground or RV park. A plan or set of restrictions that does not adequately provide for conformance with this section shall not be approved. The plan and/or restrictions shall also provide the Town with the option (but not the obligation) of being a part to their enforcement and include a right for the Town to periodically inspect the development for continued compliance with the plan and/or restrictions.

C. Revocation of permit.

(1) If the Code Enforcement Officer finds that a campground or RV park for which a permit has been issued is not being maintained in a clean and sanitary condition or is not being operated in accordance with the provisions of this chapter, he may service personally or by certified mail upon the holder of the permit a written order which will require the holder of the permit to correct the conditions specified in such order within 10 days after the service of such order.

(2) If the holder of such permit shall refuse or fail to correct the condition or conditions specified in such order, the Code Enforcement Officer shall revoke such permit and the holder of the permit shall thereupon immediately terminate the operation of such campground or RV park and held to be in violation of this chapter.

(3) However, if the owner or operator of such recreational vehicle park shall thereafter correct such conditions and bring the recreational vehicle park into compliance with this chapter, such owner may then apply for issuance of a new permit for such park, and if the application is approved and permit is granted, the applicant shall pay to the Town the fee required by this chapter without any credit for the fee paid for the permit which was revoked.

D. Penalties for offenses; additional remedies. The Code Enforcement Officer may, in the case of violations of the foregoing provisions by any campground or RV park lot occupant, and in addition to other remedies available under this chapter and, regardless of whether or not such campground or RV park has a current permit, remove or cause to be removed all camping facilities and persons associated with such activity. This shall include tents, vehicles, recreational vehicles, personal equipment and other goods. Such person or persons shall also be guilty of a violation and be punished as provided herein. The Code Enforcement Officer shall provide any violator who is not a repeat violator with a warning and order to immediately cease and desist in the violating activity and upon failure of the violator to do so shall institute the actions provided above. He may enter onto the grounds of any property for purposes of determining compliance.

E. Exceptions. None of the provisions of this chapter shall be applicable to the following:

(1) The business of recreational vehicle sales.

(2) The storage of a recreational vehicle not being used on premises occupied as the principal residence by the owner of such recreational vehicle; provided, however, that such unoccupied recreational vehicle shall not be parked or located between the street line and the front building line of such premises or be connected to utilities.

(3) Camping by the owner or renter on his or her own vacant property for a maximum of 30 consecutive days.

(4) Storage yards within any campground or RV park for vehicles and tents when not in use for camping. A campground or RV park may also include a store for sales of camping supplies and other retail goods to campers; areas for musical and similar entertainment events that are also open to the general public, provided such uses are occasional in nature and clearly accessory to the campground or RV park as the principal use of the property; and permanent cabins for camping purposes provided such cabins are limited to 500 square feet footprint size, are owned and managed by the resort owner and constitute no more than 20% of such camping accommodations as are offered at the facility.

§ 140-24 Manufactured housing parks.

A. Manufactured housing parks shall be permitted as special uses in the AR-3 and R-2 Districts.

B. Manufactured housing parks shall also meet the following criteria:

(1) The parcel must have a minimum of 15 acres in total gross area.

(2) The property must have a road frontage of a minimum of 200 feet.

(3) The total density or maximum number of lots per park shall not exceed the permitted density for the zoning district.

C. License requirements. Any person or legal entity, being the owner or occupant of any land within the Town, shall not use or allow the use of such land for a manufactured housing park, unless a license has been obtained as herein provided from the Code Enforcement Officer who shall issue a permit therefor. This license shall be effective from the date of issuance to and including December 31 of that same year. The original license shall not be issued until the Town of Rochester has received:

(1) A completed, written application from the applicant;

(2) The required fee as established by the Town Board;

(3) The listing of a local contact name and telephone number to act as an official representative of the park owner in the event of an emergency situation;

(4) Documentation asserting compliance with the safety requirement of fire extinguishers, smoke detectors, and carbon monoxide detectors for each unit;

(5) Approval of the application by the Ulster County Department of Health and any other required government agency permit or approval;

(6) A resolution from the Planning Board approving issuance of a special use permit for said manufactured home park;

(7) A certificate of occupancy issued based upon a complete inspection of the premises by the Code Enforcement Officer indicating all Town of Rochester requirements have been met.

D. Application and renewal.

(1) Initial application.

(a) The application for license or renewal thereof shall be filed with the Code Enforcement Officer and shall be accompanied by a fee in the amount as established by the Town Board. Said application shall include the name, address, and telephone number of the applicant, the nature and extent of his interest in the business for which a license is desired and whether said applicant is the owner of the property and such legal description of the premises upon which the manufactured housing park is or will be located as will readily identify and definitely locate the premises. If land ownership is vested in some person other than the applicant, a duly verified statement is required by that person stating the applicant is authorized to construct or maintain the park and to make said application.

(b) The application shall state the contact information for a local representative of the owner in the event of an emergency situation.

(c) The application shall state the total acreage of the site, the acreage designated as open space, the acreage designated as recreational or community area, the number of approved lots, and the number of actual units in the manufactured housing park.

(d) A copy of the regulation and rules for residents of the park as imposed by the park owner must accompany the application for a permit.

(e) If said application is for a new manufactured housing park or for the expansion of the same, an application for a special use permit must be made to the Planning Board in accordance with the procedures provided in this chapter for such permits.

(2) License renewal.

(a) An application for the renewal of any manufactured housing park license must be filed with the Code Enforcement Officer on or before October 1 of the year preceding the expiration of the permit.

(b) Upon a satisfactory inspection of the premises and the approval by the Code Enforcement Officer, a renewal license shall be issued to be effective upon the expiration of the previous license and to continue in force for a period of one year.

(c) At the time the license is applied for, the applicant shall pay a fee in the amount established by the Town Board.

(d) Such renewal license shall not be transferable or assignable to any other individual, group, corporation or association.

(e) All required improvements and community utilities within a manufactured housing park shall be continuously maintained in a safe manner, and all required services shall be continuously provided in order to secure the annual permit. The Code Enforcement Officer, County Health Inspector, Fire Inspector, or any other government or safety inspector shall have full access to any public spaces located within the park boundaries at any time for inspection purposes.

E. Application for preexisting manufactured housing parks. A manufactured housing park that is in existence or applied for prior to the effective date of this chapter may continue in existence, provided it complies completely with the standards and requirements of the Ulster County Department of Health and receives a satisfactory, written inspection report with no safety, health, or Town Code violations from the Code Enforcement Officer. However, any additions, extensions, or supplements to such preexisting park must be made pursuant to this chapter, and all regulations hereof apply thereto.

F. Revocation of license.

(1) If the Code Enforcement Officer finds and reports to the Town Board that a manufactured housing park for which a license has been issued is not being maintained in a clean and sanitary condition or is not being operated in accordance with this chapter, the Town Board shall, by resolution, authorize the personal service, upon the holder of the license, of a written order that shall require the holder of said license to correct the conditions specified in such order within 15 days after the service of such order.

(2) If the holder of such license shall refuse to correct the condition or conditions specified in such order within 15 days after the personal service of such order, the Town Board shall hold a hearing to determine whether the holder is in violation of the provisions of this chapter. The holder shall have the opportunity to be heard and defend its position at the hearing. If the Town Board determines the holder is in violation, it shall, by resolution, revoke such license and impose the levy of a daily fine (as set by Town Board schedule), and the holder of the same shall thereupon terminate the operation of such manufactured housing park. All of the enforcement provisions of this chapter shall apply in such case.

(3) However, if the owner or operator of said manufactured housing park shall thereafter correct such conditions and bring the park into compliance with this chapter, said owner may then apply for the issuance of a new license for said park, and if the application is approved and a permit is granted, the applicant shall pay to the Town Clerk the required fee without any credit for the fee paid for the permit which was revoked.

G. Prescribed standards.

(1) The manufactured housing park plan shall be drawn to scale on a survey map prepared by a civil engineer or land surveyor duly licensed by the State of New York and shall show the following:

(a) The name and address of the applicant (or the name and address of each partner if the applicant is a partnership; or the name and address of each officer and director if the applicant is an association or corporation).

(b) The location and description of the land that is proposed to be used as a camp or park.

(c) The existing zoning of the site.

(d) Physical features, including topographic contours at two-foot intervals, locations of watercourses, marshes and areas subject to flooding and location of wooded areas.

(e) Existing development, including a location map depicting all land within 200 feet of the proposed park; all structures on the land which abuts the proposed park; the location, names, and widths of all adjacent streets; and the location of all waterlines and utilities within and adjacent to the proposed site.

(f) Proposed development including:

[1] The location and widths of all entrances, exits, streets, and walkways.

[2] The number, location, size, and arrangement of all proposed unit areas within the park.

[3] The method and plan for electric lighting.

[4] The location and plan for all proposed structures and improvements.

[5] The proposed grading.

[6] The proposed stormwater management system.

[7] The proposed utilities.

[8] Any public improvements proposed by the Town in or adjoining the proposed site.

[9] Any proposed zoning.

[10] A landscaping plan, as provided by § 140-15 and § 140-24G(10) hereof, shall be submitted as part of the park plan.

[11] The proposed open space area and any improvements planned for such space.

[12] The proposed recreation areas, specific uses and plans for such areas, and all improvements pertaining to such areas.

[13] The required perimeter fifty-foot buffer zone and the proposed or existing landscaping plans for that zone.

[14] The location and improvements of all community-related infrastructural needs, such as mail collection areas, refuse collection areas, community parking areas, school bus shelters, and the like.

(2) Site requirements.

(a) The site shall be well drained, and have such grades and soil types as to make it suitable for the purposes of residential living.

(b) The site shall be preserved in its natural state insofar as possible, including the preservation of existing trees, soils, and vegetation.

(c) A stormwater pollution prevention plan as required by § 140-22 hereof shall be required.

(d) The site shall not be exposed to excessive or objectionable smoke, dust, noise, odors or other adverse influences.

(e) No portion of the site shall be subject to sudden flooding or erosion, nor shall it be used for any purpose which would expose persons or property to hazards.

(f) Each lot fronting on a named stream depicted on United States Geological Survey maps shall include a setback of 100 feet in depth from the high water mark of such stream. No principal structure shall be located within such setback. The Planning Board shall, however, be authorized to modify this requirement where necessary or to accommodate reasonable use of properties outside the floodplain, provided other mitigating measures such as deed covenants limiting clearing near the stream are employed to protect stream quality.

(3) Buffer zone.

(a) A minimum of a fifty-foot-wide landscaped buffer zone shall be constructed and maintained around the perimeter of the manufactured housing park, provided that this requirement may be modified or waived where the area is already wooded or the park adjoins property that is otherwise naturally buffered.

(b) The area encompassed by this buffer zone shall be landscaped as required by § 140-15 hereof.

(c) The Planning Board may also require a fence or berm for an additional visual screen or noise buffer if deemed appropriate.

(d) Where natural vegetation exists that meets or exceeds the above requirement within the fifty-foot buffer zone, it may be utilized instead of the required plantings at the option of the Planning Board; however, this existing vegetation must be maintained and replaced if it fails to continue to meet the above requirements.

(e) Such buffer zones shall not be required where they would interfere with the vision of motorists at intersections with public or private roadways.

(4) Open space and recreation areas.

(a) An area of not less than 40% of the gross site area shall be maintained as open space. No part of such open space shall be included in any manufactured home site, roadway, wastewater treatment plant, or parking area within the park, nor shall any part of such open space be occupied by manufactured homes.

(b) Recreation area. An area of not less than 25% of the required open space (or 10% of the total gross site area) shall be maintained as active recreational or community areas for the common, equal use of all residents of the park. Active recreational areas may include playgrounds, tennis courts, swimming pools, wading pools, saunas, exercise rooms, clubhouse facilities, specifically constructed outdoor sports fields, picnic areas, walking trails and other similar facilities intended for the exclusive use and participation of all residents within the proposed park. The applicant shall establish that the type and quality of the planned improvements for the active recreation space shall satisfy the needs of the residents of the park. Notwithstanding the above, if a contiguous public facility such as a public park, school playground, or the like already exists, this recreation area requirement may be waived in lieu of a payment, to be determined by the Town Board, to a Town recreation fund, but in no case shall less than 25% remain open space. Only the recreation area may be waived.

(c) All open space and recreation areas shall be accessible to all home lots within the park.

(d) The park owner is responsible for maintaining all recreation areas and open space areas.

(e) The Planning Board shall require a bond and/or escrow account for the construction and maintenance of the community recreation areas in accordance with the guidelines set forth herein.

(f) All common open space, recreational areas, and other common properties shall be preserved for their intended purpose as shown on the approved development plan and shall be established by metes and bounds on the final development plan.

(5) Individual manufactured housing park unit lots.

(a) Each park site shall be marked into unit areas, and all lot dimensions and placement of lots shall be permanently recorded on the survey map.

(b) No manufactured housing lot shall be constructed on a plot which has a slope of 15% or greater, except by application by the applicant to the Zoning Board of Appeals for a variance.

(c) No manufactured housing park lot shall extend into a designated floodplain or wetland.

(d) Every home lot as described on the site plan shall be clearly defined by field survey and indicated on the ground with permanent and visible markers.

(e) Each designated manufactured home lot shall be not less than 12,000 square feet in area; have a minimum of 80 feet of frontage on an interior park roadway; be not closer than 60 feet to a public street or other property line; and otherwise comply with development standards applicable to conservation subdivisions (see Chapter 125 of the Town of Rochester Code). No manufactured home lot shall access a public roadway directly. All lots must front an interior park roadway.

(f) All manufactured homes shall be single-family residences.

(g) No additions may be made to a manufactured home to increase the livable floor space.

(h) Only one manufactured home shall be permitted to occupy each manufactured home lot.

(6) Manufactured homes shall be located no less than 50 feet from any adjacent structure in any direction; 75 feet from an adjacent property line; 75 feet from the right-of-way line of a public road; and 35 feet from the nearest edge of any interior roadway within the park. Each lot shall have 35 feet of rear yard. An accessory building of not more than 144 square feet may be added to the lot for storage. This building must be situated in the rear of the lot, not closer than 10 feet to the lot line.

(7) All manufactured homes and lots within a manufactured home park shall comply with the requirements of Chapter 99, Manufactured Homes.

(8) Street systems.

(a) A manufactured home park shall access a public roadway at a minimum of two and a maximum of four points on a public highway. Such accesses shall be at least 125 feet apart and be at right (90°) angles to the public roadway.

(b) Street lighting shall be provided at manufactured home park entrances and exits. The lighting shall be sufficient for safety purposes but shall be made to have minimal intrusion on individual lots and neighboring properties.

(c) Such entrances and exits shall be designed and strategically located for safe and convenient movement into and out of the park and to minimize conflict with the free movement of traffic on a public highway or street. All entrances and exits shall be free of any material which would impede the visibility of the driver on a public highway or street, providing sight distances of no less than 250 feet in both directions. All entrances and exits shall be of sufficient width to facilitate the turning movements of vehicles with manufactured homes attached.

(d) The Planning Board shall require a designated and marked walkway and may require improved sidewalks, at least four feet in width, to be provided on at least one side of each internal roadway that is used for ingress and egress to a public roadway to provide for the safe pedestrian access of residents and school children to the public road system.

(e) Each park shall have its streets provided with a smooth, hard surface which shall be durable and well drained under normal use and weather conditions to provide for convenient accessibility to all unit areas and other important facilities within the park. The street system shall be designed to permit the safe and convenient vehicular circulation within the park, shall be adapted to the topography, and shall have suitable alignment and gradient for traffic safety.

(f) All interior roadways shall meet Town subdivision requirements for minor streets as provided in Chapter 125, Subdivision of Land. The proposed interior roadways shall have appropriate safety signage and speed limit signage as deemed necessary by the Highway Superintendent. The Planning Board may require speed bumps or other safety devices if deemed appropriate.

(g) If dead-end streets are part of the plan, they shall meet cul-de-sac standards provided in Chapter 125 of the Town of Rochester Code.

(h) All streets shall be named and all intersections marked appropriately with monuments.

(9) Utilities and service facilities.

(a) Utilities and service facilities shall be provided in accordance with the regulations and requirements of the Ulster County Department of Health, the New York State (NYS) Department of Health, and the Sanitary Code of New York State and the New York State Department of Environmental Conservation.

(b) Each manufactured home and community facility that requires such shall have an attachment or water supply with a shutoff relief valve provided. The water source must be approved by the appropriate state, county, or Town agency or agencies and shall conform to all applicable rules, laws, ordinances, and regulations.

(c) Each manufactured home shall be served by a central sewer system or septic system approved by the Ulster County Department of Health or other such health agency as shall have jurisdiction. Connections to unoccupied lots shall be capped to prevent the emission of odors or the creation of a health hazard.

(d) The park owner shall provide for the sanitary disposal of all refuse and recycling generated in the park. The owner shall determine the means of the disposal system, which shall be kept in a sanitary condition at all times. Collection areas shall be required to be landscaped to screen their view from any neighboring street, park lot, or adjoining property.

(e) Each manufactured home lot shall be provided with weatherproof electric service connections and outlets which are a type approved by the New York State Board of Fire Underwriters.

(f) All community utilities shall be carried underground and shall be installed in accordance with all local, county, state, and federal regulations.

(g) Each manufactured home site shall be provided with facilities for the aboveground safe storage of required fuels. All systems shall be installed and maintained in accordance with applicable codes and regulations governing such.

(h) The park owner shall be responsible for the placement and maintenance of onsite mailboxes provided at a common location in the park as determined by the United States Postal Service. All mailboxes shall be easily accessible and be of a consistent style and color.

(10) Landscaping.

(a) Areas of manufactured housing parks not used for the placement of structures, walkways or roads or cleared for recreational facilities shall be landscaped pursuant to the requirements of § 140-15 hereof or shall remain wooded and/or otherwise unimproved to preserve the rural atmosphere and aesthetic characteristics of the Town of Rochester.

(b) Landscaping shall be provided to the extent necessary for the purpose of screening nonresidential structures or uses within the park and to provide shade and suitable settings for the dwellings and other facilities within the park.

(c) The park owner shall be required to maintain all landscaping in buffer zones, community areas, screening areas, and at entrances.

(d) Maintenance of individual lot landscaping may lie with either the resident or the park owner, but the owner of the park may set minimum standards for proper maintenance of this landscaping.

(11) Park records.

(a) The owner or operator of each manufactured housing park shall keep a written record of all persons occupying such park. This record shall include the name and mailing address of the occupant of each manufactured home and the name and address of the owner of each manufactured home that is not occupied by such owner.

(b) The park owner shall be required to provide a copy of the New York State document "Mobile/Manufactured Home Park Tenants' Rights" as explained in § 233 of the New York State Real Property Law to each residence within the park.

(c) The park owner shall be required to provide a written list of all park rules and regulations to each residence within the park.

(12) Parking.

(a) A manufactured home lot shall have two adjacent off-street parking spaces.

(b) No unregistered and/or unlicensed vehicles may be stored on a manufactured housing park lot.

(c) No commercial vehicles, except pickup trucks, passenger vans, or other recognized personal-use vehicles registered commercially, all be permitted to be parked on a manufactured housing park lot.

(d) Visitor parking at the rate of one space per every four manufactured housing lots shall be allowed for. These shall be located as near the individual lots they service as is possible.

(e) No on-street parking or parking in nondesignated parking spaces shall be allowed.

(f) A visually screened, fenced, secured, common area within the park shall be set aside and maintained for residents to park any recreational vehicles such as campers, boats, snowmobiles, ATV vehicles, and the like. An appropriate service fee may be charged for this service by the park owner.

(g) Each off-street parking space and the parking areas shall conform to the residential parking standards of this chapter.

(13) Performance and maintenance bond.

(a) The Planning Board shall require a cash bond or renewable, irrevocable letter of credit for the construction of roads, sewerage system, water system, or any other community needs deemed necessary. The amount of the bond shall be determined by the Planning Board after consultation with a Planner or Engineer for the Town.

(b) The Planning Board shall require a cash bond or irrevocable, renewable letter of credit of the applicant to insure the continued maintenance of any community utility that would impose hardship on the residents if not maintained adequately and properly. The amount of the bond shall be determined by the Planning Board after consultation with a Planner or Engineer for the Town.

(14) Safety.

(a) Each manufactured home shall be equipped with a minimum of one fire extinguisher of proper type in the kitchen as well as one smoke detector in each room used as either sleeping quarters or cooking area. Carbon monoxide detectors shall also be required. The park owner shall be responsible for the mandating of this provision and shall be required to verify the continued operational capacity of these safety items once per year and submit notarized documentation stating compliance for all park units with the annual license application.

(b) These shall be a clear numbering system for all units within a manufactured housing park. The numbers shall be not less than four inches in height, Arabic writing, made of reflective material, and prominently displayed on the manufactured home where it is visible from the interior access roadways.

(c) A copy of the layout map shall be filed with the applicable fire and rescue agencies.

(d) An easily visible, posted layout map showing the location and numbering of each lot in the park shall be also required at each entrance to the park from the public roadway.

(e) Water supplies to aid in fighting fire shall be adequate as determined by the Ulster County or local Fire Commissioners, whether the supply is derived from hydrants connected to an underground water supply system or a reservoir or other water supply system.

(f) No flammable materials may be stored beneath any manufactured home.

(g) The park owner shall be required to provide an adequate area for translucent, Plexiglas-type school bus shelter(s) at the entrance(s) to the park for the purpose of sheltering school children from inclement weather while waiting for school bus transportation. These shelter(s) must be large enough and a minimum number to meet the needs of the school-age population of the park.

(15) Park owner requirements.

(a) The owner or operator of the park shall be required to maintain all landscaping, roadways, public facilities, common grounds, and community recreational equipment in a safe, clean, sanitary condition.

(b) The park owner shall be responsible for the collection of waste material, snow plowing, road maintenance, maintaining lawns, trees, and shrubs, public utilities, and any other public services necessary to preserve a sanitary, safe, clean, and orderly community environment.

(c) The Building Inspector, Code Enforcement Officer, County Health Inspector, Fire Inspector, or any other government or safety inspector shall have full access to any public spaces located within the park boundaries at any time for inspection purposes.

§ 140-25 Planned unit developments.

A. Purposes.

(1) Planned unit developments may, with approval of the Town of Rochester Town Board, be permitted in designated zoning districts for the purposes including but not limited to the following:

(a) Offering choices in types of housing, lot sizes and community facilities available to residents.

(b) Creating more usable open space and recreation areas and preserving natural areas.

(c) Conveniently locating businesses and services with respect to neighborhoods.

(d) Developing commerce, industry and tourism in planned units compatible with other uses.

(e) Facilitating development that allows an orderly transition from rural to urban uses.

(f) Providing for the efficient use of land and the placement of utilities and streets in ways that lower development costs and impacts.

(g) Encouraging innovation not possible under strict application of subdivision and zoning regulations.

(h) Promoting the expansion of existing hamlets and development of new centers.

(i) Promoting traditional neighborhood and mixed-use development patterns.

(2) Generally, planned unit developments are intended to provide landowners who wish to develop functionally integrated communities or complexes with the flexibility to do so, provided sufficient open space will be preserved and the development is designed with safeguards to protect the public health, safety and welfare.

B. Procedures.

(1) The Town Board shall be authorized, at its sole discretion, to designate a property for planned unit development use following a public hearing and within 62 days of receiving a report from the Town of Rochester Planning Board recommending the same. This report shall be based upon review, by the Planning Board, of a sketch plan application. The sketch plan application shall be completed to such detail as provided in § 140-46 and be processed accordingly.

(2) The Town Board shall, in making its determination, assess whether the proposed planned unit development would be consistent with: (1) the sound development, safety, health and welfare of the property on which it is proposed and the surrounding neighborhood, and (2) the purposes of this section. It shall also, where planned unit development is proposed in AR-3, R-2 and R-5 Districts, give preference to applications for projects adjacent to B, H and R-1 Districts, where such development will serve to strengthen centers.

(3) Any designation of a property for planned unit development use by the Town Board shall be conditioned upon Planning Board approval of a detailed site plan complying with the requirements of § 140-46. The Planning Board shall only be authorized to act upon such site plan following Town Board approval. Town Board designation of a property for planned unit development use shall only serve to authorize a full application and shall not be construed as an approval to proceed with development or serve to vest any rights in such development with the applicant.

(4) Town Board action shall be a necessary prerequisite of Planning Board approval but not sufficient in its own right to authorize any disturbance or use of land for purposes of planned unit development. Such authority shall remain with the Planning Board, which shall act as lead agency for purposes of SEQRA compliance.

C. General requirements.

(1) The following standards shall apply to all planned unit developments:

Planned Unit Development Standards
Category	PCD Planned Commercial Development	PID Planned Industrial Development	PRD Planned Residential Development	PXD Planned Resort Development
Zoning districts	AB-3, H, AR-3, NR, R-5	AB-3, NR, R-5	AR-3, H, R-1, R-2, R-5	AR-3, R-5
Minimum site area	10 acres	20 acres (50 acres in R-5)	20 acres	100 acres
Maximum residential density	N/A	N/A	District density times 2	District density times 2, less 25 acre maximum resort footprint to which no density restrictions shall apply
Permitted uses	All BD principal permitted uses, convenience stores and nurseries and greenhouses	All ID uses	Single-family dwellings (except manufactured homes), two-family dwellings, multifamily dwellings, amenities, convenience retail as accessory use (3,000 square feet maximum)	Hotels, motels, resorts, ranches and other accom-modations plus related accessory uses, including but not limited to on-site retail, dining and recreation uses plus amenities
Utilities	Community water and sewage facilities and underground electric	Community water and sewage facilities and underground electric	Community water and sewage facilities and underground electric	Community water and sewage facilities and underground electric
Minimum open space	10%	10%	40%	50%
Maximum lot coverage	30%	30% (20% in R-5)	20%	50% within resort footprint 20% outside resort footprint
Building setback	75 feet, all lot lines	100 feet, all lot lines (200 feet in R-5)	100 feet, all lot lines	200 feet, all lot lines
Maximum height	45 feet	45 feet	45 feet	60 feet or 4 stories (whichever is less)

(2) With the exception of lot and yard requirements which may be modified by the Planning Board, planned unit developments shall comply with all other provisions of this chapter, including, but not limited to, the parking, landscaping and commercial and industrial performance standards of § 140-20. Interior signs directed only to on-site individuals shall, however, be exempt from sign standards.

(3) The land proposed for a planned unit development may be owned, leased or controlled either by an individual, business entity or by a group of individuals or business entities. Planned unit development applications shall be filed by the owner or jointly by all owners of the property included in the application. In the case of multiple ownership, the approved plan shall be binding on all owners.

(4) A management plan and covenants and restrictions for the planned unit development to ensure long-term maintenance of properties and improvements, address hours of operation and deal with other matters potentially having an impact on adjoining properties shall be submitted for review and approval by the Town Board at the time the planned unit development is proposed.

(5) Continguous parcels or areas of land within multiple zoning districts, including land outside zoning districts where planned unit developments are not permitted, may be included if they do not constitute more than 10% of the project acreage. Density shall be based on the underlying density for the larger portion of the property.

§ 140-26 Multifamily residential uses.

A. Multifamily dwelling projects shall be allowed in the AR-3, AB-3, R-1, R-2, H, and B Zoning Districts. Such projects shall be considered major subdivisions and require both special use and subdivision approval; however, the application fee for subdivision review shall be waived. This "major subdivision" classification shall apply to all subdivisions of property in connection with the development, regardless of whether or not the same are connected with building development, and the approvals required shall be requested and acted upon concurrently as one subdivision.

B. Density requirements.

(1) Multifamily dwelling density in the B, H, and R-1 Zoning Districts shall not exceed twice the number of dwelling units per acre permitted under the Schedule of District Regulations.[1]

[1] Editor's Note: The Schedule of District Regulations is included as an attachment to this chapter.

(2) Multifamily density in the AR-3, AB-3, and R-2 Zoning Districts shall not exceed the number of dwelling units per acre permitted under the Schedule of District Regulations.

C. Application for preliminary approval of multifamily dwelling projects, accordingly, will be made to the Town in the manner provided under the Town Land Subdivision Law.[2] The subdivider shall also submit all information required by such regulations plus the following additional data:

(1) An application for approval on a form to be supplied by the Town or, in the absence of such form, by a letter or brief from the developer or his or her representative indicating how the development will specifically comply with or meet the criteria set forth herein.

(2) A proposed plot plan showing the approximate (generally within five feet) locations of all buildings and improvements including parking areas, planting strips (if any), signs, storm drainage facilities, water supply, sewage treatment and collection systems and the specific areas provided as open space in connection with the requirements of this chapter. Building layouts, floor plans and profiles shall also be provided indicating building dimensions, numbers, and sizes of units, common ownership or use areas (apart from the open space referenced below), lighting and such other information as shall be required to determine compliance with the design standards contained herein and any other building standards which may be applicable in Town of Rochester. Setbacks from property lines, improvements and other buildings shall also be indicated.

(3) A schedule or plan and proposed agreement(s) either with the Town or a property owners' association for the purpose of dedicating, in perpetuity, the use and/or ownership of the recreation area and open space required by this chapter to the prospective dwelling owners or occupants. Such agreement may be incorporated in the applicant's proposed declaration of covenants and restrictions for filing in the County Clerk's office, but shall, in any event, provide to the satisfaction of the Town that maintenance and use of the property, regardless of ownership, be restricted to either (1) activities intended for the sole benefit of the occupants of the particular project proposed, or (2) permanent open space as hereinafter provided.

[2] Editor's Note: See Ch. 125, Subdivision of Land.

D. The Planning Board shall act on the preliminary development plan and special use application concurrently provided an environmental assessment is also conducted pursuant to the New York State Environmental Quality Review Act. No building permit shall be issued to the applicant, however, until all conditions attached to the approval of any preliminary development plan shall have been satisfied, and nothing herein shall be construed as permitting the issuance of a building permit prior to preliminary approval. This requirement notwithstanding, the building permit application shall be made with the preliminary development plan and shall, if granted, be valid for a period equal to that for preliminary development plan approval. If the preliminary development plan shall be rejected, no building permit shall be granted.

E. The developer shall provide for the installation of required or proposed improvements including but not limited to streets, parking areas, storm drainage facilities, recreational facilities and lighting. No certificate of occupancy (where the same is required) shall be issued until such time as (1) final development plan approval shall have been granted in accordance with the procedures and requirements of this chapter and (2) buildings have been completed and inspected by the Town Building Inspector.

F. Complete final building plans shall also be submitted as part of the final development plan application.

G. No person shall sell, transfer, lease or agree or enter into an agreement to sell or lease any land and/or buildings or interests in the individual dwelling units to be created, or erect any building thereon except in accord with the provisions of this chapter, unless and until final development plan approval shall have been granted (unless the improvements shall have been guaranteed), and the plan has been recorded in the Office of the Ulster County Clerk.

H. All areas of a multifamily development not conveyed to individual owners, and not occupied by building and required or proposed improvements, shall remain as permanent open space or be dedicated to recreation area to be used for the benefit and enjoyment of the residents of the particular units being proposed. No less than 50% of the tract shall be used for this purpose and fees in lieu of dedication may not be substituted for such space. Such open space shall be subject to the following regulations:

(1) No less than 50% of the open space to be provided (25% of the total tract) shall be dedicated to recreational area for the benefit and enjoyment of the residents of the particular units proposed. Recreation areas (as distinct from other other open space) shall be immediately adjacent (part of the same parcel and contiguous) to the proposed units and freely and safely accessible to all residents of the development. They shall not be used to fulfill open space requirements or provide recreational areas for residents of other units, excepting as provided for in Subsection H(2) below. They shall be usable for active recreational activities and shall not include wetlands, quarries, slopes over 15% in grade, water bodies or acreage used for improvements such as storm drainage facilities or sewage effluent disposal areas.

(2) Land designated as open space shall be permanently maintained as such and not be separately sold, used to meet open space or recreation area requirements for other developments, subdivided or developed excepting that a holding zone may be reserved for future development pursuant to density and other zoning requirements as they presently exist, provided such lands are specifically defined and indicated as "reserved for future development" on all development plans. Such lands shall not be included in calculating permitted density for the proposed development. These provisions, however shall not be construed as granting or reserving to the developer any rights or privileges to develop on the basis of a preapproved plan if density or other zoning requirements shall have been modified to preclude such development.

(3) Open space areas shall be permanently maintained so that their use and enjoyment as open space are not diminished or destroyed. Such areas may be owned, preserved and maintained by dedication to a property owners' association which assumes full responsibility for maintenance of the open space and/or deed-restricted private ownership which shall prevent development of the open space, provide for its maintenance and protect the rights of owners or occupants of dwelling units to use and enjoy, in perpetuity, such portion of the open space as shall have been dedicated to recreation area for the project. This is intended to allow the owner/developer to retain ownership and use of a portion of the property (for hunting, fishing, etc.) provided the permanence of the open space is guaranteed.

(4) Whichever maintenance mechanism(s) is used, the developer shall provide, to the satisfaction of the Town Attorney and prior to the granting of any final development plan approval, for the perpetual maintenance of the open space and also the use and enjoyment of the recreation area by residents of the units being approved. No lots shall be sold nor shall any building be occupied until and unless such arrangements or agreements have been finalized and recorded.

(5) Developments of 50 units or more shall provide 1/2 acre of playground area per 50 units unless restricted to adult occupancy only, plus such other recreation area as may be required by the Town Subdivision Law.[3]

[3] Editor's Note: See Ch. 125, Subdivision of Land.

I. All multifamily developments shall be served with community wastewater facilities and water supplies. Effluent disposal areas shall also be subject to the setback requirements applicable to other multifamily buildings and structures as a minimum.

J. The following design criteria shall apply to multifamily developments:

(1) Yard requirements for the district shall apply to the development as a whole and not individual units.

(2) Access roads through the development shall comply with minor street requirements as specified in this chapter and no parking space shall be designed such that a vehicle would be backing or driving out onto a through road. Parallel parking may be permitted.

(3) A multifamily development of 50 or more units shall be served by a minimum of two accesses.

(4) Parking spaces of two per unit shall be provided, plus for every two units intended for rental or other transient occupancy, one additional space to accommodate parking needs during sales and other peak visitation periods.

(5) No structure shall be erected within a distance equal to its own height of any other structure.

(6) All electrical and other utilities shall be placed underground and buried to a depth determined by the Town Engineer as sufficient for safety purposes.

(7) All multifamily projects shall comply with landscaping, parking, lighting, stormwater and general design guidelines as set forth in this Code.

K. Maintenance of a multifamily project shall be vested in (1) an association or other legal entity organized prior to the offering of the first unit for occupancy, or (2) a manager, who may be the developer, or a person designated by the developer before the developer offers a unit for occupancy, or (3) the owners or occupants of units themselves if the total number of owners or occupants within the development is not more than five.

L. The association or manager, as the case may be, shall be responsible for maintenance, repair and replacement of the common areas of the development including buildings and, if applicable, the furniture, fixtures and equipment within the units.

M. The developer shall, in filing a preliminary development plan, provide a narrative description of how responsibility for maintenance and care of the units and common areas will be assured and a pro forma operating budget for the maintenance organization including a breakdown of the common expense to be borne by the maintenance organization and a separation of long-term maintenance costs from ongoing routine maintenance costs. There shall also be provided a narrative description of how the developer proposes to assure maintenance of the units and common facilities during any sales program. The Planning Board may require additional temporary facilities to accommodate service demands. Copies of all applicable instruments shall be provided, for purposes of determining that long-term arrangements for maintenance of common facilities have, in fact, been made by the developer.

N. Any developer who proposes to construct multifamily dwellings and convey the common elements of said multifamily dwelling project, including recreation areas, to an association of purchasers of units therein shall submit a maintenance bond or other performance guarantee acceptable to the Town Board and Town Attorney ensuring long-term maintenance and repair of said common elements.

O. If the development shall be subject to the New York State statutes governing the sale of real property used for multifamily occupancy, the developer shall certify as to his or her compliance with said statutes. To the extent the provisions of such statutes conflict with this subsection, such certification shall suffice as to conformance with these requirements.

§ 140-27 Conversions of residential or nonresidential structures.

Any conversion of a residential structure to a more intensive residential use or a nonresidential use shall require a special use permit. Similarly, the conversion of any nonresidential use to multifamily dwellings shall require a special use permit. The following additional review criteria shall apply in both instances:

A. There shall be adequate parking to accommodate the new use in combination with other activities on the property or in the vicinity.

B. There shall be demonstrated sewage treatment and water supply capacity to serve any increased needs connected with the new use.

C. The conversion shall not result in increased residential density exceeding that permitted within the district.

D. Conversion of a residential structure to a nonresidential use shall not be permitted where the new use is not otherwise allowed. Adaptations of any such structure should preserve its architectural integrity and residential character, except for minimal signage, required parking and other features mandated by the nature of the business.

§ 140-28 Sand, gravel and quarrying operations (extractive or mining uses).

A. All excavation for the purposes of soil mining or mineral extraction, such as gravel pits, quarrying or any subsoil removal, shall be classified using the following criteria:

(1) Excavations subject to NYSDEC Mined Land Reclamation Law[1] jurisdiction.

[1] Editor's Note: See Environmental Conservation Law § 23-2701 et seq.

(2) Excavations exempt from NYSDEC Mined Land Reclamation Law jurisdiction.

B. Excavations subject to NYSDEC Mined Land Reclamation Law (MLRL) permit shall be allowed only upon site plan review approval in the NR Zoning District subject to § 140-20 of this chapter and the following provisions.

(1) Site plan review approval shall run coterminous with the NYSDEC permit. The suspension or revocation of any permit issued by the NYSDEC shall also suspend or revoke the Planning Board's site plan review approval.

(2) Renewals for NYSDEC permits shall not require a renewal of site plan review approval by the Town Planning Board. However, changes of the use that are considered modifications of the NYSDEC permit shall require site plan review. A public hearing shall be held.

(3) The Planning Board may, in granting site plan review approval, place conditions on its issuance, provided such conditions are limited to those specified in the New York State Mined Land Reclamation Law.

(4) Upon site plan review approval by the Planning Board, one copy of the approved excavation plan shall be returned to the applicant by said Board, and in the case of permits also approved by the NYSDEC, one copy shall also be sent to the appropriate NYSDEC regional office.

(5) Upon receipt of notice to the Town from the NYSDEC of a completed application for a mined land reclamation permit, such notice shall be referred to the Town Planning Board. The Planning Board shall conduct public hearing(s), either concurrent with or separate from its site plan review approval proceedings, to make determinations and recommendations to the NYSDEC within 30 days of receipt of notice for incorporation in such mining permit with regard to:

(a) Appropriate setbacks from property boundaries and public thoroughfare rights-of-way;

(b) Fabricated or natural barriers designed to restrict access if needed, and, if affirmative, the type, length, height and location thereof;

(c) Dust control;

(d) Hours of operation; and

(e) Whether mining is prohibited at the location.

C. Excavation exempt from NYSDEC Mined Land Reclamation Law permit requirements shall also be permitted as accessory uses in all zoning districts (except R-1, R-2 and H Districts) subject to site plan review. Notwithstanding this, property owners may utilize gravel, stone quarrying or subsoil excavation on their own property for fill or leveling or for other not-for-sale purposes without need of a permit or site plan review. Mining related excavation subject to site plan review under this subsection shall be permitted subject to periodic inspection by the Code Enforcement Officer (minimum of biannually) and the following provisions:

(1) The volume of activity shall not exceed NYSDEC Mined Land Reclamation Law permit requirements and may be conditioned upon a specified volume of excavation annually.

(2) All excavations hereunder shall require 100 feet of setback from property lines.

(3) No commercial rock crushing or processes other than dry screening shall be permitted.

(4) All site plans shall incorporate stormwater management planning and final reclamation, including seeding, consistent with NYSDEC requirements.

(5) The subject activity shall not create any conditions which are injurious or hazardous to the public. The Planning Board may also reasonably restrict the hours of operation to address noise and related issues and subject this to annual review.

(6) The proposed activity shall be such that it will not be detrimental to the character of the surrounding neighborhood.

§ 140-29 Wireless telecommunication facilities.

A. Purpose and intent. The Town of Rochester desires to balance the interests of residents, telecommunications providers, and telecommunications customers in the siting of telecommunications facilities within the Town and is cognizant the concerns and desires of these interests sometimes vary. The Town recognizes wireless telecommunications facilities may pose significant concerns to the health, safety, public welfare, scenic ridgelines and viewsheds, and the character and environment of the Town and its inhabitants and neighborhoods. The Town also recognizes facilitating the development of wireless service technology can be an economic development asset to the Town, is a necessity for emergency management communications, and may provide significant benefit to its residents and businesses. The Town further recognizes wireless telecommunications is an industry which carries a high degree of federal oversight and control and is considered a public utility in New York State. In seeking achievement of this balance, the intent of this section is to:

(1) Ensure that the location, placement, construction, modification, and maintenance of wireless telecommunications facilities will pose the least possible adverse effect upon the Town and its inhabitants, minimize the negative impacts of wireless communications facilities on surrounding land uses, and protect the Town's health, safety, public welfare, scenic, historic, environmental, and natural or man-made resources.

(2) Adequately serve the needs of the users of wireless telecommunications facilities by providing safe, adequate coverage for the Town of Rochester residents and businesses and accommodating the growing desire and demand for wireless telecommunications services.

(3) Provide for a wide range of appropriate locations and options for wireless telecommunications providers and encourage and promote the location of new telecommunications facilities in areas which are not zoned primarily for residential use.

(4) Minimize adverse aesthetic and visual impacts to protect the natural features and aesthetic character of the Town with special attention to the Shawangunk Ridge, Mohonk Preserve and Catskill Preserve.

(5) Encourage creative approaches in location and types of wireless telecommunications facilities which will blend in with the surroundings of such facilities and promote, wherever possible, the reasonable sharing and/or co-location of wireless telecommunications facilities among service providers, and the locating of telecommunications facilities on existing structures.

(6) Establish a fair and efficient process for the review of applications consistent with federal, state and local regulations which assures an integrated, comprehensive review of the health, safety, welfare, and environmental impacts of such facilities.

B. Applicability. This section shall apply to the development activities including installation, construction, and/or modification of all wireless telecommunications facilities including, but not limited to, existing towers; proposed towers (concealed and nonconcealed), public or private, including temporary "cell on wheels" (COW); co-location on existing towers, and attached wireless telecommunications facilities (concealed and nonconcealed).

(1) As of the effective date of this chapter, and except as otherwise expressly provided herein, no person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities without having first obtained a building permit from the Code Enforcement Officer and any and all other approvals as required herein or under other applicable law. No existing structure shall be modified to serve as a telecommunications structure unless in conformity with these regulations. A new wireless facility must, in addition to a building permit, obtain a special use permit from the Planning Board.

(2) With this section, the Town of Rochester hereby institutes the following classification system for applications concerning wireless telecommunications facilities. Upon receipt of a zoning permit application, the Code Enforcement Officer shall review the action proposed and classify the application in the following manner.

(a) Type A: The action is determined to be replacement of existing transmission equipment with equipment comparable in size and function. No other agency review shall be required.

(b) Type B: The action is determined to be replacement, alteration, or modification of existing transmission equipment or a telecommunications structure or the co-location of transmission equipment on an existing wireless telecommunications facility which constitutes an "eligible facilities request" action, as defined by the FCC. [Note: In accordance with Section 6409 of the "Middle Class Tax Relief and Job Creation Act of 2012," the Planning Board may not deny, and shall approve, any "eligible facilities request" for a modification of an existing wireless tower or base station that does not substantially change, as defined by the FCC, the physical dimensions of such tower or base station.] Such action shall require site plan application and review by the Planning Board. SEQRA review shall require short form EAF unless the Planning Board shall require long form EAF.

(c) Type C: The action is determined to be replacement, alteration, or modification of existing transmission equipment or a telecommunications structure or the co-location of transmission equipment on an existing wireless communications facility which exceeds the criteria of an "eligible facilities request" action, as defined by the FCC. [Note: In accordance with Section 6409 of the "Middle Class Tax Relief and Job Creation Act of 2012," the Planning Board may not deny, and shall approve, any "eligible facilities request" for a modification of an existing wireless tower or base station that does not substantially change, as defined by the FCC, the physical dimensions of such tower or base station.] Such action shall require special use permit application and review by the Planning Board. SEQRA review shall require long form EAF.

(d) Type D: The action is determined to be construction of a new wireless telecommunications facility. Such action shall require special use permit application and review by the Planning Board. SEQRA review shall require long form EAF.

(3) All applications for wireless telecommunications facilities are subject to the standards in this subsection to the extent that they do not violate federal or New York State limitations on local siting standards and are not otherwise inconsistent with federal or State law and, upon notification of complete application, shall be acted upon within a reasonable period of time as required by applicable federal regulations.

(4) The provisions of this subsection are not intended to and shall not be interpreted to prohibit or to have the effect of prohibiting personal wireless services.

(5) This subsection shall not be applied in such a manner as to unreasonably discriminate between providers of functionally equivalent personal wireless services.

(6) The Town may not regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Federal Communication Commission's regulations concerning such emissions.

(7) Any decision to deny a request to place, construct, or modify personal wireless service facilities shall be made in writing and supported by substantial evidence contained in a written record.

C. Exclusions. The following wireless telecommunications facilities shall be exempt from the provisions of this chapter:

(1) Any facilities operated by or on behalf of any unit of government for public or municipal purposes to provide communications for the sole purpose of public health and safety.

(2) Any facilities exclusively for private, noncommercial radio and television reception and private citizen's bands, licensed amateur radio and other similar noncommercial telecommunications.

(3) A temporary wireless telecommunications facility, upon the declaration of a state of emergency by federal, state, or local government; except that such facility must comply with all federal and state requirements. No communications facility shall be exempt from the provisions of this section beyond the duration of the state of emergency.

(4) Any facilities expressly or implicitly exempt from the Town's zoning or permitting authority under law.

(5) Emergency repairs to existing wireless telecommunications facilities for restoration of service, which repairs shall be reported to the Code Enforcement Office no later than the end of the next business day.

D. Definitions. The following definitions shall specifically apply to this section. Where a definition references a specific law, code, or statute; any amendments to that law or code shall apply. Where a definition references a federal agency who has been empowered with the authority to interpret such definition, the most recent definition adopted by that agency shall apply.

ABANDONMENT

Cessation of use of a wireless telecommunications facility for wireless telecommunications activity for at least the minimum period of time specified under this chapter.

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.

ALTERATION

Any construction or renovation to an existing wireless telecommunications facility other than a repair.

ALTERNATE DESIGN TOWER STRUCTURE

Artificial trees, clock towers, bell steeples, light poles, silos and similar alternative design mounting structures that camouflage or conceal the presence of antennas or towers (see also "stealth facility").

ANSI

American National Standards Institute, a nonprofit, privately funded membership organization that coordinates the development of voluntary national standards in the United States.

ANTENNA

A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals. Such shall include, but not be limited to radio, television, cellular, paging, personal telecommunications services (PCS), microwave telecommunications and services not licensed by the FCC, but not expressly exempt from the Town's siting, building, and permitting authority.

(1) DIRECTIONAL ANTENNA (also known as PANEL ANTENNA) Transmits and receives radio frequency signals in a specific directional pattern of less than 360°.

(2) OMNI-DIRECTIONAL ANTENNA (also known as WHIP ANTENNA) Transmits and receives radio frequency signals in a 360° radial pattern. For the purpose of this chapter, an omni-directional antenna is up to 15 feet in height and four inches in diameter.

(3) PARABOLIC ANTENNA (also known as a MICROWAVE ANTENNA or MICROWAVE DISH ANTENNA) A bowl-shaped device used to link communications sites together by wireless transmission of voice or data for the reception and/or transmission of radio frequency communications signals in a specific directional pattern.

(4) REPEATER A small receiver/relay transmitter and antenna of relatively low power output designed to extend personal wireless services to areas which are not able to receive adequate coverage directly from a base or primary station.

ANTENNA ARRAY

One or more antennas used to provide wireless service.

APPURTENANCE

Any object attached to the body of the tower or support structure that would protrude from the edge.

ATTACHMENTS

Wire, fiber optic, telecommunications and/or coaxial cable, nodes, and other wireless communications equipment attached and maintained upon a structure.

BASE STATION

As defined by the FCC, a station at a specified site that enables wireless communication between user equipment and a communications network, including any associated equipment such as, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. It includes a structure that currently supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station. It may encompass such equipment in any technological configuration, including distributed antenna systems and small cells.

BREAKPOINT TECHNOLOGY

The engineering design of a monopole tower wherein a specified point on the monopole is designed to have stresses concentrated so that the point is at least 5% more susceptible to failure than any other point along the monopole so that in the event of a structural failure of the monopole, the failure will occur at the breakpoint rather than at the base plate, anchor bolts, or any other point on the monopole.

CELL ON WHEELS (COW)

A portable self-contained wireless facility that can be moved to a location and set up to provide wireless services on a temporary or emergency basis. A COW is normally vehicle-mounted and contains a telescoping boom as the antenna support structure.

CO-LOCATION

As defined by the FOC, the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

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.

CONCEALED

A tower, accessory structure, or equipment compound that is not readily identifiable as such, and is designed to be aesthetically compatible with existing and proposed building(s) and uses on a site. There are two types of concealed facilities:

(1) Antenna attachments, including painted antenna and feed lines to match the color of a building or structure, faux windows, dormers or other architectural features that blend with an existing or proposed building or structure; and

(2) Freestanding. Freestanding concealed towers usually have a secondary, obvious function, which may include church steeple, windmill, bell tower, clock tower, light stanchion, flagpole with or without a flag, or tree.

COVERAGE AREA

A boundary defined by the lack of cellular service or specific cellular coverage emitted from an identified contained communications facility.

DISTRIBUTED ANTENNA SYSTEM (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 FACILITIES REQUEST

As defined by the FCC, any request for modification of an existing wireless tower or base station that involves co-location, removal or replacement of transmission equipment, provided the request does not "substantially change" the physical dimensions of the tower or base station.

ELIGIBLE SUPPORT STRUCTURE

As defined by the FCC, any structure that meets the definition of a wireless tower or base station.

EQUIPMENT CABINET

Any structure above the base flood elevation including cabinets, shelters, pedestals, and other similar structures and used exclusively to contain radio or other equipment necessary for the transmission or reception of wireless communications signals.

EQUIPMENT COMPOUND

The fenced-in area surrounding the ground-based wireless communications facility including the areas inside or under a tower's framework and accessory structures such as equipment necessary to operate the antenna on the structure that is above the base flood elevation including cabinets, shelters, pedestals, and other similar structures.

FAA

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

FALL ZONE

The adjacent area in which a wireless support structure may be expected to fall in the event of a structural failure, as measured by engineering standards.

FCC

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

GUYED TOWER

A wireless communications support structure, which usually consists of metal crossed strips or bars, and is steadied by wire guys in a radial pattern around the tower.

HEIGHT

When referring to a tower or other structure, the distance measured from the preexisting grade level to the highest point on the tower or structure, even if said highest point is an antenna, lightning protection device or any other apparatus attached to the tower or other structure.

LATTICE TOWER

A wireless communications support structure, which consists of metal crossed strips or bars to support antennas and related equipment.

MICRO CELL

A low-power mobile radio service telecommunications facility used to provide increased capacity in high call-demand areas or to improve coverage in areas of weak coverage.

MINIMUM SIGNAL COVERAGE

Specific signal strength established as a minimum capacity for cellular and PCS coverage.

MODIFICATION or MODIFY

The addition, alteration, removal or change of any of the physical or visually discernible components, colors, or other aspects of a wireless telecommunications facility, including but not limited to antennas, cabling, equipment shelters, landscaping, shrouding, fencing, utility feeds, vehicular access, or parking, specifically including new transmission equipment, removal of transmission equipment, replacement of transmission equipment, adding a new wireless carrier or service, changes of wireless carrier or service provider, and/or upgrade or replacement of the equipment for better or more modern equipment. A modification shall not include the replacement of any existing permitted components of a wireless facility, actions that do not change the physical or visually discernible appearance of the facility or any part thereof as it was originally permitted, or wireless facilities classified as described in Subsection B(2)(a) of this section.

MONOPOLE TOWER

A freestanding tower that is composed of a single shaft usually composed of two or more hollow sections that are in turn attached to a foundation. This type of tower is designed to support itself without the use of guy wires or other stabilization devices. These facilities are mounted to a foundation that rests on or in the ground.

NER

Non-lonizing electromagnetic radiation.

NONCONCEALED

A wireless communications facility that has not been treated, camouflaged, or disguised to blend with the setting and is readily identifiable.

OET BULLETIN 65

Document published by the Federal Communications Commission (FCC) Office of Engineering and Technology specifying radio frequency radiation levels and methods to determine compliance.

PERSONAL WIRELESS FACILITIES

See definition for "wireless telecommunications facilities.

PERSONAL WIRELESS SERVICES (PWS) or PERSONAL TELECOMMUNICATIONS SERVICE (PCS)

As defined by the Telecommunications Act of 1996, commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services. These services include but are not limited to cellular services, personal communications services (PCS), high speed internet services, specialized mobile radio services and paging services.

RADIAL PLOTS

Computer-generated estimates of the signal emanating from antennas or repeaters sited on a specific tower or structure. The height above ground, power input and output, frequency output, type of antenna, antenna gain, topography of the site and its surroundings are all taken into account to create these simulations. They are the primary tool for determining whether a site will provide adequate coverage for the personal wireless telecommunications service facility proposed for that site.

REPAIRS

The restoration to good or sound condition of any part of an existing wireless telecommunications facility for the purpose of its maintenance.

ROOF-MOUNTED and/or BUILDING-MOUNTED

Antennas and/or equipment mounted above the roof ridge line of an existing structure (including rooftop appurtenances) or a building face.

STEALTH FACILITY

A communications facility that is integrated or attached as part of, a structure or is a freestanding monopole incorporating flush-mounted antennas or a transparent shell design to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same areas as the requested location of such wireless telecommunications facilities.

STRUCTURE-MOUNTED

Antennas mounted to, or as part of a structure (e.g., a building, billboard, church steeple, freestanding sign, water tank etc.).

SUBSTANTIALLY CHANGE THE PHYSICAL DIMENSIONS OF A TOWER OR BASE STATION

The test criteria applied to a facility to determine if it may be classified as an "eligible facilities request" as defined in the Nationwide Programmatic Agreement for the Co-location of Wireless Antennas by the FCC. In order to be classified as such, the impact of such facility must be equal to or less than all of the following criteria.

(1) The mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this subsection if necessary to avoid interference with existing antennas; or

(2) The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or

(3) The mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this subsection if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or

(4) The mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.

TELECOMMUNICATION STRUCTURE

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

TELECOMMUNICATIONS

As defined by the Telecommunications Act of 1996, the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

TRANSMISSION EQUIPMENT

As defined by the FCC, any equipment that facilitates transmission for wireless communications, including all the components of a base station, such as, but not limited to, radio transceivers, antennas, coaxial or fiber optic cable, and regular and backup power supply, but not including support structures.

WIRELESS TELECOMMUNICATIONS FACILITY

A structure, facility, or location designed, or intended to be used as, or used to support, antennas or other transmitting or receiving devices. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, paging, 911, personal telecommunications services, commercial satellite services, microwave services and services not licensed by the FCC, but not expressly exempt from the Town's siting, building, and permitting authority. This includes, without limit, towers of all types and kinds and structures that employ stealth technology, including, but not limited to, structures such as a multistory building, church steeple, silo, water tower, sign or other structure that can be used to mitigate the visual impact of an antenna or the functional equivalent of such, including all related facilities such as cabling, guy wires, and associated anchors, equipment shelters and other structures associated with the site.

WIRELESS TELECOMMUNICATIONS SITE

The boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.

WIRELESS TOWER

As defined by the FCC, any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized license-exempt antennas and their associated facilities, including the onsite fencing, equipment, switches, wiring, cabling, power sources, shelters, or cabinets associated with that tower. It includes structures that are constructed solely or primarily for any wireless communications service, such as, but not limited to, private, broadcast, and public safety services, as well as fixed wireless services such as microwave backhaul.

E. Permitted and prohibited locations. Wireless telecommunications facilities, upon determination of the classification of the action as described in § 140-29B by the Code Enforcement Officer, shall be permitted and prohibited in the Town of Rochester in the following zoning districts.

(1) Type A and Type B wireless telecommunications facilities shall be allowed under the Schedule of District Regulations[1] in all zoning districts as a principal permitted use. Type B shall require site plan approval from the Planning Board.

[1] Editor's Note: The Schedule of District Regulations is included as an attachment to this chapter.

(2) Type C wireless telecommunications facilities shall be allowed under the Schedule of District Regulations in all zoning districts upon receipt of a special use approval from the Planning Board.

(3) Type D wireless telecommunications facilities shall be allowed under the Schedule of District Regulations in the AR-3, AB-3, R-5, I, NR, and B Zoning Districts upon receipt of a special use approval from the Planning Board. They shall be prohibited in the R-1, R-2, and H Zoning Districts, except if such existing parcel use is for public utility, municipal or emergency services use.

(4) In all cases, Type D wireless communications facilities shall be prohibited in the FD (Floodplain Overlay) District even through the use may be allowed in the underlying zoning district.

(5) There shall be no wireless telecommunications facilities constructed within a New York State or federal delineated wetland or an area designated as a critical environmental area.

(6) There shall be no wireless telecommunications facilities constructed so as to extend higher than the ridgeline of the Shawangunk Mountain ridgeline.

(7) Exception under public utility regulations.

(a) Should the application propose new wireless telecommunications facilities to be located in a prohibited location or a zoning district where the use is not specifically allowed under the Schedule of District Regulations, such application may proceed and shall require approvals of both a use variance from the Zoning Board of Appeals and a special use permit from the Planning Board. SEQRA application shall be long form EAF with both agencies identified as involved agencies. The Planning Board and Zoning Board of Appeals may, but shall not be required to, convene a joint public hearing for both agencies.

(b) In seeking such use variance, the applicant, under New York State law as a public utility, shall show that there is a need for the proposed facility and that the proposal would benefit the needs of the public and shall submit proof no alternative site, either existing or proposed, is possible in a zoning district where the use is permitted. Commercial impracticability may not be considered in this review. Upon a determination feasible, alternate sites are possible, the use variance shall be denied on this basis. Upon a determination no alternate site is possible, the Zoning Board of Appeals shall grant such use variance and remit the application to the Planning Board to conduct a special use permit review. Such review may occur either consecutively or concurrently, however no special use permit approval shall be granted absent an approved use variance.

(8) Nonconforming use. All wireless telecommunications facilities lawfully existing on or before the effective date of this chapter and located in a prohibited location or zoning district effective with this chapter shall be made nonconforming with this or any subsequent amendment and may be continued in accordance with all provisions of Article VI of Chapter 140 of the Town of Rochester zoning code. Such facilities shall be allowed to continue as they presently exist; provided, however, that an existing wireless telecommunications facility must comply with this chapter in the event of any modification, repair, or maintenance.

F. Application review timeframes. The Town recognizes the authority of federal standards on these actions and establishes this process for determination of a complete application. Upon the determination of the application classification and the review required, the Code Enforcement Officer shall remit such information to the applicant and Planning Board and/or Zoning Board of Appeals along with a signed copy of the zoning permit.

(1) Should Planning Board and/or Zoning Board of Appeals review be determined not to be required, the application shall be considered complete on the date the application material is posted as received by the Code Enforcement Officer unless the CEO notifies the applicant in writing (written responses may be made via electronic notification with hard copy to follow), within 30 calendar days of submission of the application of the specific deficiencies in the application which, if cured, would make the application complete.

(2) Should Planning Board and/or Zoning Board of Appeals review be determined to be required, the applicant shall be directed to file the appropriate application to the agency for review. In such case the application shall be considered complete on the date the application material is posted as received by that board and it shall be scheduled as an agenda item for the next regular meeting of the board unless the board notifies the applicant in writing (written responses may be made via electronic notification with hard copy to follow), within 30 calendar days of submission of the application of the specific deficiencies in the application which, if cured, would make the application complete. Fulfillment of the complete application requirement shall not preclude the board from requesting additional information as it may deem necessary to complete review; however, the board may not delay decision due to the request of additional information.

(3) Upon determination of a complete application, the Building Department, Planning Board, or Zoning Board of Appeals shall render a decision within 90 days on an application determined to be an eligible facilities request and 150 days to render a decision on all other applications, as defined in the Nationwide Programmatic Agreement for the Co-loaction of Wireless Antennas, except upon mutual written agreement between the applicant and board to extend such timeframe.

G. Wireless facility standards.

(1) Support structure. In all cases, structures offering visually the least obtrusive silhouettes such as monopole and stealth facilities shall be required unless the applicant presents written proof of the technological impracticability of such.

(2) Height.

(a) Ground-mounted wireless telecommunications towers shall not exceed the height of the nearest tree line plus 50 feet. No tower shall exceed 150 feet in height in any zoning district.

(b) Structure-mounted wireless telecommunications facilities shall not increase the height of the original structure by more than 15 feet above the highest point of a flat or mansard roof or 15 feet above the height at the midpoint between the peak and the eave of other roof styles, unless the facility is completely camouflaged (for example, a facility within a flag pole, steeple or chimney) and in no event shall the height exceed 35 feet.

(c) The Planning Board may grant a waiver to the height requirements upon written request from the applicant and written justification for the need for such waiver request to achieve meeting mandated coverage requirements. Such waiver shall be adopted by majority resolution.

(3) Setbacks. Any proposed tower and/or other proposed wireless telecommunications facility structure shall be located on a single parcel of land and shall be set back from abutting parcels and road and street lines by the minimum of a distance equal to 110% of the height of the proposed tower or wireless telecommunications facility structure, or the existing setback requirement for the applicable land use designation, whichever is greater. If the wireless facility is shown to employ breakpoint technology, the Planning Board may consider such technology in the determination of the height. Setback distances shall be calculated from the fenced perimeter of the equipment compound.

(4) Color. Structure colors shall be a single color and shall be subject to approval of the Planning Board, except in such case as is determined by the Planning Board to aid in minimizing the visual effect. Accessory facilities shall maximize use of building materials, colors and textures designed to blend with the natural surroundings.

(5) Lighting. Structures shall not be artificially lighted except as may be required by the Federal Aviation Administration (FAA). Lighting of the equipment compound shall be full-cutoff fixtures located so as not to project light onto neighboring properties or roadways.

(6) Security. All wireless telecommunications facilities and antennas shall be located, fenced, or otherwise secured in a manner that prevents unauthorized access. All antennas, towers, utilities, and other supporting structures, including guy wires, shall be completely fenced for security to a height of eight feet and gated in such a manner that they cannot be climbed or collided with and transmitters and telecommunications control points shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them. Use of razor wire is not permitted.

(7) Signage. A sign no greater than two square feet indicating the name of the facility owner(s) and a twenty-four-hour emergency telephone number shall be posted adjacent to the entry gate. In addition, "No Trespassing" or other warning signs may be posted on the fence. All signage shall be maintained in legible condition and contain accurate information. No signage of any kind shall be allowed to be attached to towers or antennas, except any required safety warnings. Signage may be allowed by the Planning Board, upon written petition of the applicant, in instances of stealth facilities where such additional signage would be in character with the alternate design tower structure.

(8) Utilities. Necessary utilities to serve the site shall preferably be underground and in compliance with all local, state, and federal laws, rules, and regulations, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate. Overhead lines shall follow access roads and/or existing tree lines to minimize visual impact upon surrounding properties, critical viewsheds and/or historic properties.

(9) Roadways. An access road from the public road, parking area, and fire access area surrounding the perimeter of the equipment compound area shall be provided to assure adequate emergency and service access and shall conform to the New York State Fire Code. Use of existing roads, public or private, shall be utilized to the maximum extent possible. Road construction shall be consistent with construction standards for private roads and shall at all times minimize ground disturbance and vegetation cutting to within the toe of fill, the top of cuts, or no more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential but may exceed normal standards. Roadways shall be maintained in good and passable condition under all traffic and weather conditions and kept open so that firefighting equipment and other emergency vehicles may access any telecommunications facility structures. Equipment or vehicles may not be stored at the facility site, except during the construction phase.

H. Site plan review requirements, criteria, and standards.

(1) Applications for site plan shall contain the following information and certifications. All certified documents shall be signed by a New-York-State-licensed professional engineer, architect, or surveyor and shall bear the seal of that professional.

(a) The name and address of the applicant, the record landowners and any agents of the landowners or applicants as well as an applicant's registered agent and registered office. If the applicant is not a person, the name and address of the business and the state in which it is incorporated and has its principal office shall be provided. Proof shall be provided the applicant is authorized to do business in the State of New York.

(b) The postal address and tax map parcel number of the property. The land use designation in which the property is situated. The size of the property stated both in acreage or square feet and lot line dimensions.

(c) Authorization from the owner of the property and/or facility indicating knowledge of the application shall be required.

(d) Property deed and/or existing or proposed lease, right-of-way and/or easement agreements shall be provided. Financial terms may be redacted from any documents submitted.

(e) Documentation ensuring the applicant has an agreement with a licensed wireless telecommunications carrier to locate on the telecommunications facility if the applicant is not the licensee.

(f) FCC licensing documentation.

(g) Submission of proof of compliance with the National Environmental Policy Act (NEPA) and compliance with the National Historic Preservation Act (NHPA).

(h) The actual intended transmission power stated as the maximum effective radiated power (ERP) in watts. The frequency, modulation, and class of service of radio or other transmitting equipment.

(i) Certification to the Town that the NIER levels at the proposed site are within the threshold levels adopted by the FCC and the provision of the calculations used to determine the cumulative NIER levels if the application involves co-location.

(j) Certification to the Town that the proposed antenna(s) will not cause interference with other telecommunication devices.

(k) Certification to the Town that the proposed facility is in compliance with Federal Aviation Administration regulations and stating if the FAA 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 the 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.

(l) The number, type and model of the antenna(s) proposed with a copy of the specification sheet; the make, model, type and manufacturer of the tower and design plan stating the tower's capacity to accommodate multiple users.

(m) Certification to the Town that the site is adequate to assure the stability of the proposed wireless telecommunications facilities as designed and that a geotechnical subsurface soils investigation, evaluation report and foundation recommendation for a proposed or existing tower site has been conducted. If co-located on an existing tower, a copy of the installed foundation design shall be supplied.

(n) A structural certification study conducted by a New-York-State-licensed engineer indicating the structure or tower's compliance with current Electronic Industries Association/Telecommunications Industries Association (EIA/TIA) 222 Revision Standard entitled "Structural Standards for Steel Antenna Towers and Antenna Supporting Structures" or its successors. Calculations shall provide proof the telecommunication facility tower and foundation and attachments, rooftop support structure, or any other supporting structure as proposed to be utilized are designed and are constructed to meet all local, city, state and federal structural requirements for loads, including wind and ice loads. In the instance of co-location, such structural study shall reflect the current condition of the structure or tower.

(o) A list of pending permits and/or copies of all permits issued from all other local, state, or federal agencies with jurisdiction over said project, other than the Town Planning Board.

(2) The applicant shall prepare and submit a site plan which shall comply with the regulations set forth in this chapter and the provisions of Article VII of Chapter 140 of the Town of Rochester Code and shall specifically illustrate:

(a) Existing and proposed structures on the subject property, the location of all residential structures within 500 feet of the wireless facility site, the type, locations and dimensions of all proposed and existing landscaping, and fencing on the subject property; the azimuth, size and centerline height location of all proposed and existing antennas on the supporting structure.

(b) All easements/rights-of-way required for access from a public way to the facility.

(c) Setback distances for the existing and proposed wireless telecommunications facility from property boundary lines, rights-of-way, wetlands and waterways, and public and private roadways.

(d) Radius shall be shown indicating the fall zone of the wireless structure.

(3) Location map using the most recent United States Geological Survey Quadrangle map showing the area within a three-mile radius of the proposed facility site indicating facility location and property lines of the facility parcel.

(4) Elevation drawings showing all facades and indicating all exterior materials and color of towers, buildings and associated facilities. The Planning Board may require visual renderings be submitted.

(5) A descriptive summary statement of the nature and objective(s) for the work proposed in the application, and the impact(s) of the work on the surrounding area. Applicant shall state that the work proposed in the application is legally permissible. There shall be provided a sequence and schedule report for completion of each phase of the entire project.

I. Special use review requirements, criteria, and standards.

(1) Applications for special use shall meet the provisions of Article VII of Chapter 140 of the Town of Rochester Code and shall require a site plan submittal as detailed in § 140-29H.

(2) Applications for special use shall require the following additional documentation.

(a) Written report demonstrating the need for such services which shall illustrate gaps in current services and show how the proposal will remedy these gaps. The report shall demonstrate with written documentation that it has analyzed the feasibility of the proposed telecommunications facilities in comparison to opportunities for co-location of existing facilities and/or the use of other preexisting structures as an alternative to a new construction for providing adequate coverage and/or adequate capacity to the Town of Rochester. The report shall inventory and identify existing towers within reasonable distance of the proposal. Proof of attempts to negotiate with the owners of such alternatives shall be made.

(b) A zone of visibility map shall be provided in order to determine locations from which the tower or structure may be seen to provide proof the visual intrusion will be minimal. Pictorial representations of "before" and "after" 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. The Planning Board shall determine the appropriate key sites.

(c) An assessment of the visual impact of the tower or structure, the tower base, guy wires, and accessory buildings from abutting and adjacent properties and streets as relates to the need or appropriateness of screening which shall include a demonstration that the facility will be sited so as to be the least visually intrusive and thereby have a minimal adverse visual effect on the environment and the nature and character of the community, existing vegetation, and on the residences in the area of the wireless telecommunications facility. The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related facilities and structures of the proposed wireless telecommunications facilities.

(d) Documentation shall be submitted justifying the total height of any requested tower, facility, and/or antenna and the basis thereof. Such documentation shall 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.

(e) A land grading and vegetation clearing plan shall be prepared. Clear-cutting of all trees in a single contiguous area shall be limited to the area of the equipment compound plus the area of an emergency access roadway which shall encircle the entire perimeter of the equipment compound as determined by the Planning Board. Existing on-site vegetation designated to be utilized as screening shall be preserved to the maximum extent possible and shall be diligently maintained to protect its vitality.

(f) A stormwater, erosion, and slope analysis of the land shall be required to be assessed by a New-York-State-licensed professional engineer for the site and any road used to access the site. The applicant shall comply with the State Pollutant Discharge Elimination System guidelines. A SWPPP shall be prepared, if determined to be required, and all local stormwater regulations shall be complied with.

(g) An economic analysis study of the property value impacts the construction and the operation of the telecommunications facility may have on all adjacent properties located within 500 feet of the parcel boundaries on which the facility is located.

(3) Balloon test. Prior to any public hearing being held on a new wireless telecommunication facility application, a balloon test shall be conducted by the applicant that will include flying or otherwise raising brightly colored balloons that approximate in diameter the potential build-out of all antennas. The balloon test shall be at minimum four hours in duration between the hours of 10:00 a.m. and 4:00 p.m. on two days from Friday through Monday, one day of which must be a Saturday or Sunday. The dates, times and location of this balloon test shall be advertised, by the applicant, 10 days in advance of the test date in a newspaper with a general circulation in the Town of Rochester and proof of such advertisement provided to the Planning Board. Any and all expense for this test shall be borne by the applicant.

(4) Any application involving construction of a new tower, structure, or facility shall be required and submit written proof as to the offer of co-location opportunities for emergency service transmission equipment to local emergency service agencies at the time of construction.

J. Performance security.

(1) Prior to issuance of Planning Board approval for any new or substantially modified wireless telecommunications facilities, 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 Board a bond, or other form of security acceptable to the Town Board as to type of security and the form and manner of execution, in an amount to be determined by the Town Board sufficient to cover the entire cost of removal of the wireless telecommunications tower and related facilities such as power lines, transformers, etc., and the reclamation of the affected landscape to substantially the same condition as prior to the facilities construction. Said financial surety, bond or similar undertaking shall be in an amount acceptable to the Town Board and substantiated by a qualified and independent engineering expert as designated by the Town Board. The full amount of the bond of security shall remain in full force and effect throughout the term of the approval 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 approval.

(2) Should there be any violation of this section, which remains uncorrected by the applicant and/or owner, after proper notice in accordance with this chapter, the Town Board shall have the right to correct the violation, utilizing the security to pay for same. In the event that the security is insufficient to correct the violation, the Town shall chargeback any additional costs against the owner and/or applicant, and may file a municipal lien against the property to recover the costs and any attorney fees incurred by the Town for the correction of the violation.

K. Registration of wireless communications facilities.

(1) Purpose. The Town of Rochester desires to develop a registration system to ensure all wireless telecommunications facilities are properly maintained and to ensure all owners properly maintain and inspect their facilities.

(2) All owners of wireless telecommunication facilities located in the Town of Rochester shall be required to register the facility upon granting of a certificate of occupancy. Facilities in existence as of the effective adoption date of this chapter shall have 60 days from the filing of this chapter to register.

(3) The local wireless telecommunications facility registration system shall be administered by the Code Enforcement Office. The Town Board shall establish the fees structure for the registration which may be amended by resolution from time to time.

(4) Registration shall be effective for a three-year period, with renewal required prior to expiration date. Recertification shall be required for year two and three as described in this chapter.

(5) Registration requirements. The owner shall provide and certify to the Town the following:

(a) The name, mailing address, phone number, email address, and an emergency contact name for the corporation or owner of the wireless facility.

(b) The name, mailing address, phone number, email address, and an emergency contact name for each entity which leases space from the facility owner.

(c) Copy of FCC license(s) allowing the antenna(s) or other broadcast device to be deployed.

(d) Written certification that the wireless telecommunications facilities are in compliance with the approval and in compliance with all applicable codes, laws, rules, and regulations.

(e) Written certification that the tower or structure and all attachments are designated and constructed and continue to meet all local, state, and federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a State of New York licensed professional engineer, the cost of which shall be borne by the applicant.

(f) Written certification that the cumulative NIER levels at the facility are within the threshold levels adopted by the FCC. Such certification shall include a report of field testing of cumulative NIER levels conducted by a State of New York licensed professional engineer.

(g) Written certification that onsite vegetation has been maintained to ensure the desired screening effect.

(6) Inspection of facilities. The owner and any and all lessees, renters, and/or licensees of wireless telecommunications facilities, place and construction of such facilities, including towers and antennas, shall agree in writing to allow the Code Enforcement Officer access to 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 or structures, antennas, and buildings or other structures constructed or located on the permitted site to verify accordance with any applicable technical, safety, fire, building, and zoning codes, laws, regulations, and other applicable requirements.

(7) Notification of termination of use. The owner shall sign a letter of commitment, which shall commit the wireless telecommunications facility owner and its successors and assigns to notify the Building Inspector, in writing, within 30 days of the discontinuance of use of the facility. Failure to notify and thereafter remove the facility and all appurtenances shall be deemed a violation punishable under applicable provisions of this chapter. Notwithstanding this provision, the Building Inspector shall have the right to independently investigate any discontinuance of the facility and render a written determination setting forth the extent, duration and facts evidencing the violation and the discontinuance of the facility. Upon rendering said written determination, written notice of the determination shall be provided to the owner and the lessees of the facility and the owners of the real property upon which the facility is situate by certified mail, return receipt requested. Upon proven receipt of the notice of the determination by the facility owner, any lessee of the facility and the owners of the real property said facility is situate thereon, the Building Inspector and the Town of Rochester may commence legal proceedings to levy upon the financial surety, bond or similar undertaking and have the facility removed from the site in accordance with all applicable law.

(8) Annual certification. Recertification by the facility owner of the following information shall be required for year two and three of each registration period and be due on the anniversary date of registration.

(a) The name, mailing address, phone number, email address, and an emergency contact name for the corporation or owner of the wireless facility.

(b) The name, mailing address, phone number, email address, and an emergency contact name for each entity which leases space from the facility owner.

(c) The wireless telecommunications facilities are in compliance with the approval and in compliance with all applicable codes, laws, rules, and regulations.

(9) Renewal of registration. Registrations shall be required to be renewed beginning with a period of time 90 days prior to expiration until the anniversary date of the registration.

(a) Application for renewal of registration of permitted facilities shall include a report prepared by a State of New York licensed professional engineer detailing physical inspection(s) conducted within the prior six months to insure structural integrity and to insure paint and other coating is not deteriorated and continues to be consistent with the immediate surroundings of the tower.

(b) The Town Board may review performance security deposits in conjunction with registration renewal to insure the amount of the bond is adequate and may increase the amount of the performance security, if necessary.

(10) Changes in registration information. The owner shall provide notice to the Town of any changes in registration information within 30 days of such change.

L. Abandonment and removal of wireless communications facilities.

(1) Any wireless telecommunications facility which ceases to operate shall be wholly removed from the site. "Ceases to operate" is defined as not performing all normal functions associated with operation of the wireless telecommunications facility and its equipment on a continuous basis for a period in excess of one year.

(2) In the event the wireless telecommunications facility is not so removed, the Town Board, upon notice from the Code Enforcement Officer, shall give written notice to the owner of such facility (i) stating that the wireless facility is considered abandoned, and (ii) setting a time, date and place for a public hearing. Such public hearing shall be on not less than 30 days' notice to such owner. Upon a finding that the wireless facility has been abandoned, the Town Board shall deliver written notice to the facility owner indicating the reasons for its finding, and directing that the wireless facility be removed within 120 days. In the event that the wireless facility is not so removed, the Town Board may commence an action in Supreme Court against the owner of such facility seeking an order requiring the removal.

(3) Upon recommendation of the Building Inspector, the Town Board may waive or defer the requirement that a wireless telecommunications facility be removed if it determines that retention of such facility is in the best interest of the Town.

(4) Should the Town remove the tower, structure, or facility pursuant to this subsection, the Town shall utilize the security provided for in § 140-29J to pay for same. In the event that the security is insufficient to correct the violation, the Town shall chargeback any additional costs against the owner and/or applicant, and may file a municipal lien against the property to recover the costs and any attorney fees incurred by the Town for the correction of the violation.

M. Penalties. Section 268(1) of New York State Town Law is hereby superseded to allow the Town Board to set penalties higher than those specified in Town Law § 268(1). A violation of this § 140-29 is hereby declared to be an offense punishable by a fine not exceeding $1,000 for a conviction of a first offense; punishable by a fine of not less than $1,000 and not more than $1,500 for conviction of a second offense; and no less than $1,500 and no more than $2,500 upon conviction for a third or subsequent offense. Each week's continued violation shall constitute a separate additional violation.

§ 140-30 Affordable housing.

A. This section is enacted pursuant to the authority of the Municipal Home Rule Law authorizing towns to adopt a local law which amends or supersedes any provision of the Town Law in relation to property, affairs or government of the Town. The Town Board of the Town of Rochester hereby enacts this section superseding § 261(b) of the Town Law so as to grant authority to the Town of Rochester Planning Board to waive certain and limited dimensional requirements of this chapter with respect to lots in residential subdivisions.

B. The Town of Rochester Planning Board is hereby authorized to modify, when reasonable, the density, lot area, lot width and/or lot depth requirements provided in this chapter for the purposes of encouraging the provision of affordable housing. Such authority shall be limited to a maximum of 20% of the residential lots/units created and be further limited to those lots/units restricted to development for affordable housing, which shall be of the same type and general quality as the remainder of the development. Modifications shall be limited to 25% of the applicable standard. Affordable housing shall consist of lots/units marketed at a net affordable purchase/rental price (NAPP) per square foot of individual unit floor area, including all fees. Applicants must demonstrate, in writing, a basis for the NAPP based on affordability to Town of Rochester residents earning 80% of median family income in the case of owner units and 60% of median family income in the case of rental units. Such NAPP shall also be approved by the Planning Board and be the basis of any modifications granted. A developer taking advantage of this provision shall provide evidence of compliance with this standard throughout the sales period subject to a program approved by the Town of Rochester Planning Board at the time of preliminary plan approval.

C. Any modification granted by the Planning Board may be subject to such conditions as the Planning Board may determine reasonably necessary to promote public health, safety and general welfare. Such waiver shall also be limited to the minimum necessary to achieve the purpose of creating affordable housing supplies within the Town. The Town of Rochester Planning Board shall be under no obligation to approve any modification that, in its judgment, based on evidence presented by the subdivider, does not establish need.

§ 140-31 Conservation subdivisions.

Conservation subdivisions shall be permitted in all zoning districts. Such subdivisions shall be subject to the provisions of Chapter 125 of the Town of Rochester Code. The Town of Rochester Planning Board shall be authorized to modify minimum lot area, yard and other development standards of this Chapter 140 so as to accommodate such projects, including the granting of additional density for purposes of additional open space preservation or the creation of affordable housing as provided herein and in Chapter 125.

§ 140-32 Adult uses.

A. Findings. Based upon recent studies evaluating the nature and extent of adverse secondary effects caused by adult uses in residential and commercial areas, including a 1996 study by the City of Newburgh, a 1994 study by the City of New York, and a 1980 study by the City of Islip, the Town Board hereby finds that adult uses have negative secondary impacts such as a deterioration of community character and quality of life, depreciation of property values, increase in crime rates, and the blighting or downgrading of surrounding neighborhoods and commercial uses.

B. Purpose. In the development and execution of this section, it is recognized that there are some adult uses which, because of their very nature, are recognized as having serious objectionable characteristics. The objectionable characteristics of these uses are further heightened by their concentration in any one area, thereby having deleterious effects on adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of surrounding neighborhoods or land uses, increase crime or police calls, contribute to the spread of prostitution and AIDS, increase the quantity of transients in residential and commercial areas, cause a deterioration in the quality of life in residential neighborhoods, increase the accessibility of adult-oriented material and entertainment to minors, and encourage residents and businesses to locate elsewhere.

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

ADULT USE

A use of a building or property for a business which has adult material as a significant portion of its stock-in-trade or involves the sale, lease, trade, gift or display of drug paraphernalia. Adult materials include any literature, book, magazine, pamphlet, newspaper, paper, comic book, drawing, computer or other image, motion picture, sound recording, article, instrument, display or any other written or recorded material which depicts or describes: a) any nudity; or b) the specific sexual activities listed herein. The Town shall also rely upon the general meaning given to these two terms by the State of New York and in the various decisions of the U.S. Supreme Court referenced herein, should further clarification be required. For purposes of this chapter, adult-oriented businesses shall also mean any nightclub, bar, tavern, restaurant, eating and drinking establishment, arcade, theater, motel, hotel, or any other establishment that regularly features, for economic gain or other consideration, entertainment in any form which is characterized by nudity or the depiction or display of specified sexual activities. This shall not exempt such a business from any requirements of this chapter or limitations on public displays of personal nudity. Nothing in this definition shall be construed to incorporate breastfeeding, single-sex rest rooms and showers or items and displays of recognized artistic merit as previously interpreted by the U.S. Supreme Court or activities in a private residence by the occupants thereof.

NUDITY

The showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.

SPECIFIED ANATOMICAL AREAS

Includes the following:

(1) Less than completely and opaquely covered human genitals, pubic region, buttock and female breast below a point immediately about the top of the areola; or

(2) Human male genitals in a discernible turgid state even if completely and opaquely covered.

SPECIFIED SEXUAL ACTIVITIES

Includes the following:

(1) Human genitals in a state of sexual stimulation or arousal; or

(2) Acts of human masturbation, sexual intercourse or sodomy; or

(3) Fonding or other erotic touching of human genitals, pubic region, buttocks or female breast.

D. Separation requirements applicable to adult uses. Adult uses shall be limited to I Industrial Districts. They shall be considered special uses subject to site plan review. Because adult uses can lend themselves to ancillary unlawful and unhealthy activities, they shall also be separated from other uses that could be severely impacted by their presence or that, in combination with the adult uses, accentuate the negative impacts on the area. These distances shall be measured in a straight line, without regard to intervening obstacles, from the nearest portion of the structure incorporating any aspect of the adult use to the nearest property line of the premises incorporating any of the above listed uses.

(1) No adult use shall be located within a two-hundred-foot radius of any other residential or commercial zoning district or another adult use.

(2) No adult use shall be located within a five-hundred-foot radius of the property of any residence, residential facility, institution, health facility, child-care center, church, synagogue, other place of religious worship, school, public or semipublic use, public park or recreation facility, youth-oriented center, playground or playing field, cemetery or any establishment that sells alcoholic beverages.

E. Exterior display prohibited. No adult use shall be conducted in any manner that allows the observation of any material depicting, describing or relating to specified sexual activities or specified anatomical areas from any public way. This provision shall apply to any display, decoration, sign, show window or other opening.

F. Signage. Adult use signage shall be limited to one approved ground sign not to exceed a surface area of 36 square feet for both sides combined.

G. Nonconforming buildings. No nonconforming building or lot shall be used for an adult use.

H. Activities. Because they are known to encourage prostitution, increase sexual assaults and attract criminal activity, the following activities shall not be permitted in any adult oriented or other business or any other public place within the Town of Rochester:

(1) Public appearance by a person knowingly or intentionally engaged in specified sexual activities.

(2) The knowing and intentional public appearance of a person in a state of nudity.

(3) Touching of patrons or the performance by any entertainer in an adult use facility within six feet of the nearest patron.

(4) Sale of alcoholic beverages in adult use facilities as defined herein.

I. Loudspeakers. No loudspeaker or similar audio equipment used to describe or discuss specified anatomical areas or specified sexual activities shall be audible beyond the exterior of the structure in which it is located.

§ 140-33 Resource recovery, vehicle junkyard and wrecking facilities.

A. Purposes. These regulations are enacted for the purpose of establishing minimum health and safety standards for junkyards in the Town of Rochester as well as controlling their location. They are enacted pursuant to the authority granted towns by § 136 of the General Municipal Law and § 136.1 of the Town Law.

B. Scope. These regulations shall apply to all junkyards now existing or hereafter proposed in the Town of Rochester. No junkyard shall be created except in conformance with the standards herein, and all junkyards shall be required to conform to said standards or be removed at the owner's expense.

C. Exemptions.

(1) The following land uses shall be exempt from these requirements provided they are not maintained in the manner of a junkyard and do not include a junkyard operation:

(a) Storage areas for officially recognized and operable antique or classic automobiles or other operable special purpose vehicles.

(b) Agricultural equipment which is utilized as part of an active farming operation or contractors' construction equipment which is part of an active contracting business.

(c) Automobile repair businesses or automobile, vehicle and equipment sales operations managed by state-licensed dealers.

(2) No right to establish or continue a junkyard operation shall be conveyed by the existence of a New York State license or the presence of any of the above activities on a site.

D. Definition. The term "junkyard" shall mean:

(1) An area of land, with or without buildings, used for the storage of metal, glass, building materials, machines, wire, pipe, appliances, equipment, automotive, recreational or other vehicles or parts thereof, with or without the dismantling, processing, salvage, sale or other disposition of the same.

(2) Any place where three or more old, secondhand, abandoned, partially disassembled, dilapidated or unlicensed vehicles or parts of vehicles, no longer in condition for legal operation on the public highways, are stored outside for any purpose for a period of one year or more. The Town of Rochester Building Inspector(s) shall determine when a vehicle or part thereof shall meet these conditions and it shall be the burden of the landowner in such instance to demonstrate conclusively, within a period of seven days after notice, that a vehicle is legally operable at the present time if he or she shall disagree with the Building Inspector's determination.

(3) Ancillary businesses located on a junkyard lot or lots that are part of the same site and site plan if one is a matter of record, including but not limited to vehicle and equipment sales, rental operations, repair operations, other sales activities, services and processing operations; whether or not directly related to the primary junkyard function.

E. License required. No person, partnership, association or corporation, being the owner or occupant of any land within the Town of Rochester, shall use or allow the use of such land for a junkyard unless a license has been obtained and maintained as herein provided, which license shall be applied for concurrently with application for site plan review and special use approval hereunder. The Building Inspector shall issue a license within 10 days after approval of the application by the Town Planning Board pursuant to these criteria. Said license shall be effective from the date of issuance until surrendered by the licensee or revoked by the Building Inspector and shall be renewed annually based on inspection by the Building Inspector and approval by the Town Board as to continued compliance with these standards. No license shall be issued until the Building Inspector has received:

(1) A written application from the applicant on the form provided by the Town Building Inspector.

(2) The required fee as herein provided. Such fees shall be set by resolution of the Town Board.

F. Transfers of license. The license may be transferred to a new owner of a junkyard provided all of the requirements of this chapter pertaining to new junkyards are met and a new application is submitted.

G. Disapprovals. Any disapprovals shall be in writing and include the reasons therefor. The Building Inspector shall not issue a license in any instance where the Planning Board has not approved the site plan and given special use approval.

H. Right to enter and inspect. The Building Inspector shall enforce all of the provisions of this chapter and shall have the right, at all reasonable times, to enter and inspect any junkyard. The Town Board shall specify the frequency of such inspections, but no less than four times per year, and set fees by resolution to cover costs involved.

I. Orders to correct. If the Building Inspector finds that a junkyard for which a license has been issued is not being operated in accordance with the provisions of this chapter, he may serve, personally or by certified mail to the holder of the license, a written order which will require the holder of the license to correct the conditions specified in such order within 10 days after the service of such order.

J. Suspension of license. If the holder of such license shall refuse or fail to correct the condition or conditions specified in such order within 10 days after the service of such order, the Building Inspector may suspend such license and the holder of the license shall thereupon terminate the operation of such junkyard.

K. Expiration of license. Any license which is not used for the purpose intended within 12 months of the date of issuance shall automatically expire and the junkyard shall be removed in its entirety.

L. Standards applicable to new junkyards. All new junkyards shall conform to the following standards:

(1) No part of any junkyard shall be located closer than 500 feet to an existing public right-of-way or adjoining property line, or 1,000 feet to a church, school, health care facility, public building or place of public assembly.

(2) New junkyards shall, moreover, be permitted only in the NR Natural Resources and I Industrial Districts.

(3) All new junkyards must erect and maintain an eight-foot fence or dense natural screening along the boundaries of the property adequate to discourage the entrance of children or others into the area and to contain, within such fence, all materials in which the owner or operator deals. Such fence or screening shall also substantially screen the junkyard from public view at all times of the year and otherwise comply with the requirements of § 136 of the General Municipal Law. The fencing or screening shall, in the case of properties that are upslope or downslope from the grade level of the adjoining highway, be adjusted in height and density so as to accomplish the purpose of screening the junkyard from view. Any material within the junkyard shall be screened from view from adjoining highway(s) and properties.

(4) No junkyard shall be used as a dumping area for refuse or as a place for the burning or disposal of trash.

(5) All dismantling operations shall take place inside an enclosed structure and any parts of vehicles or equipment shall similarly be stored inside an enclosed structure. All vehicles awaiting dismantling or retained for sale or use intact shall be stored in paved surface parking areas specifically designated for this purpose, which areas shall be buffered as required in this section for the junkyard as a whole.

(6) The Planning Board, in acting upon the special use application for any new junkyard, shall consider aesthetics and the impact on surrounding property consistent with the demands of § 136, Subsections 7 and 8 of the General Municipal Law.

(7) All waste oils and similar waste products shall be stored and/or disposed of consistent with local and state requirements and best industry practices.

M. Standards applicable to existing junkyards. All existing junkyards shall conform to the following standards to be administered by the Town Building Department based on the inspection and report as to compliance with the standards of this chapter:

(1) Existing nonconforming junkyards shall, within a period of one year following the effective date of this chapter, be removed unless a license shall have been obtained for continued operation and the facility has been made to conform to the regulations provided below.

(2) Applications for licenses to continue operating existing nonconforming junkyards shall, unless the owners thereof have indicated in writing their intention to discontinue operations as provided above, be made within one year following the effective date of this chapter. All licenses shall, thereafter, be renewed by April 1 of each calendar year.

(3) Applications for licenses to continue operation of existing nonconforming junkyards shall include a site plan depicting the existing operation and any planned improvements as may be required by this chapter.

(4) Yard requirements applicable to new junkyards shall not be further violated. All existing junkyards proposing to expand shall include an eight-foot-high fence or screen along the side and rear boundaries of the property adequate to discourage the entrance of children or others into the area and to contain, within such fence, all materials in which the owner or operator deals.

(5) All fencing or screening must be approved by the Town Building Department and produce a screen through which one generally cannot see. Various materials, including evergreen screening or existing forest cover, may be used. The Town Building Department may also take measures, such as securing injunctive relief, to ensure maintenance of such fencing or screening.

N. Existing junkyards shall not be expanded except in conformance with the regulations contained herein for new junkyards, and in no case will any change in an existing junkyard that would lessen its conformity with these regulations be permitted. Any person or persons proposing to establish or expand a junkyard in the Town of Rochester shall prepare site plans of the same to be submitted to the Planning Board under special use/site plan review procedures.

§ 140-34 Transfers of density rights (TDR).

A. Purposes. This section is intended to:

(1) Encourage the permanent preservation of important farmland and environmentally sensitive areas;

(2) Direct growth to locations where central sewage disposal services are available; and

(3) Provide a voluntary method for landowners to be compensated by the free market to preserve their land.

B. Special definitions. As used in this section, the following terms shall have the meanings indicated:

RECEIVING PROPERTY

A lot(s) that is approved to permit a higher density than would otherwise be permitted as a condition of the restriction of development on the sending property through a conservation easement.

SENDING PROPERTY

A lot(s) or portion of a lot that is restricted by a conservation easement or farmland preservation easement as a condition of approval of a higher density on the receiving property than would otherwise be permitted.

C. Applicability.

(1) Owners of sending and receiving properties may voluntarily commit to transfer residential density rights under this chapter. Although the transfer of density rights shall only officially occur at the time of final approval of a subdivision or site plan, the process shall be initiated during the preliminary planning process. The approval of a preliminary plan shall then be conditioned upon compliance with this section. As part of a preliminary and final plan application, the applicant shall present a draft conservation easement on the sending property and a written, signed and notarized agreement by the owner of the sending property acknowledging and agreeing to the application.

(2) The conservation easement shall be drafted so that it is binding if the receiving property is granted final plan approval. The conservation easement shall be recorded in the County Clerk's office at the same time as, or prior to, the final plan for the receiving property. If a final plan is recorded in phases, then the conservation easement may be recorded in corresponding phases.

(3) The form of the conservation easement shall be acceptable to the Town Board based upon review by the Town Attorney and Planning Board and/or New York State DEC if applicable. The term "conservation easement" shall include, but not be limited to, an agricultural conservation easement. In the case of agricultural land, the standard language for an agricultural conservation easement used by the Ulster County Agricultural and Farmland Protection Board may be utilized. The easement shall limit the development of the sending property to agricultural and open space uses and associated accessory activities and any residual residential density not transferred to the receiving property.

(4) A sending property shall be within the AB-3, AR-3, NR or R-5 District. A sending property shall have a minimum lot area of 10 acres.

(5) A receiving property shall be within the AB-3, AR-3, B, H, R-1, R-2 or R-5 Districts. Preference shall, in the case of AR-3 and R-5 Districts, be given to applications for projects adjacent to B, H and R-1 Districts, where such development will serve to strengthen centers.

(6) Once a conservation easement is established, it shall be binding upon all current and future owners of the sending property. The applicant for the receiving property is responsible to negotiate with, and pay compensation to, the owner of the sending property for the conservation easement. Such transaction shall occur privately, and the value shall be determined by the private market. The Town shall be under no obligation to pay the owner of the sending property.

(7) The right to develop a sending property may also be purchased by or donated to an established incorporated nonprofit conservancy organization whose mission includes preservation of agricultural land or natural features. A permanent conservation easement shall, in such case, be established on the sending property at the time of such purchase or donation. The right to develop such dwelling units may be held for a maximum of five years, before being used on a receiving property(ies).

D. Determination of density.

(1) Yield plans shall be presented by the applicant. One yield plan shall be presented for the receiving property and one for the sending property. Such yield plans shall be a level of detail typically found in a sketch plan, including potential lots and roads, steep slopes, 100-year floodplains and suspected wetlands. Such yield plans shall estimate the number of new dwelling units that could be lawfully constructed on each property under Town regulations without any transfer of development rights. Detailed percolation tests are not required on all potential lots but deep pit soil testing may be required in areas of suspected marginal soil types for subsurface sewage disposal.

(2) Such yield plans shall be reviewed by the Town Planning Board, with advice by the Town Engineer, to determine whether each represents a reasonably accurate estimate of the number of dwelling units possible on each site, both physically and legally. If such estimates are determined to not be accurate, the applicant shall be required by the Planning Board to revise such yield plan.

(3) Based upon the yield plans, permission to develop a number of dwelling units may be transferred from the sending property to the receiving property. The potential to develop some or all of the dwelling units may be transferred from the sending property, depending upon the amount of land affected by the permanent conservation easement.

(4) If, for example, the yield plan determines that 10 new dwelling units would be allowed under current zoning on the sending property, and the sending property will be preserved by a conservation easement, then the right to develop 10 additional dwelling units shall be transferred to the receiving property. The development of the receiving property shall still comply with all other requirements of this chapter, except for the maximum density, which shall be regulated by this section.

(5) The receiving property shall be permitted to include the increased total number of dwelling units above the number that would otherwise be permitted, as approved by the Town Planning Board based upon the yield plan, provided that density shall not be increased by more than 50% under any circumstance (including any other incentives). Yard requirements may also be reduced, but in no instance to less than 20 feet for the front yard and 10 feet for the side and rear yards, except in instances where zero-lot line development is proposed with compensating yards on the opposite side. Also, no more than 35% of any acre outside an R-1 District shall be covered with impervious surface in the form of access drives, parking areas or structures.

(6) Utilities. To receive a transfer of density rights, all lots of less than one acre on the receiving property shall be served by a central or communal sewage system.

(7) The transfer of density rights shall not be combined with incentives concerning conservation subdivision development, nor shall any transfer increase the density of a manufactured home park.

E. Once a conservation easement is established under a transfer of density rights, it shall be permanent, regardless of whether the receiving property is developed. The approval to develop the receiving property in a higher density shall be treated in the same manner as any other final subdivision or site plan approval. The Planning Board may extend time limits to complete the development of the receiving property in response to a written request.

F. As part of a transfer of density rights, the development of the receiving property shall comply with all Town of Rochester zoning requirements, except for provisions specifically modified by this section.

§ 140-35 Commercial events facilities.

A. Findings. The Town of Rochester, in an effort to encourage economic development and tourism activities, recognizes that permitted business uses such as inns, bed-and-breakfasts, spas, and similar enterprises may desire to derive income from the occasional use of their facilities for events.

B. Purpose. This section of law is to ensure facilities which may not have been designed to service such special events meet the standards of health, safety, and welfare while allowing for such use upon satisfaction of specific standards.

C. Scope. Where such facilities are permitted either by right or permit, commercial on-site events such as conferences, banquets, festivals, weddings and other celebratory or educational activities shall be permitted as a special use subject to the standards of § 140-16 and below. The use shall be a separate use considered a multiple use, as defined herein, and shall be required to meet the sum of all development standards for the zoning district.

D. Exemptions. Upon review of a zoning permit application by the Code Enforcement Officer where commercial event use is determined to be "regularly occuming and usually associated with such use," approved uses such as agricultural tourism enterprises, hotels/motels, nonprofit clubs, places of worship, public buildings and parks, resorts, restaurants, taverns, or other such use shall be exempt from the requirement of a special use permit and these standards but, in all cases, shall be required to meet the additional parking and health and safety requirements. In such cases, the Code Enforcement Officer is empowered by the Town Board to determine if the requirements have been satisfied and may determine site plan review and approval by the Planning Board to be required. A nonconforming use shall not be eligible for exemption and shall require a special use permit in all cases.

E. The facility shall submit a plan subject to site plan review standards for the conduct of such events.

F. The number of events shall be limited to a maximum of 12 events per calendar year, each day of activities open to persons other than lodging guests counting as a separate event. The facility operator shall be required to notify the Code Enforcement Office of any event scheduled a minimum of three business days prior to the event by either e-mail or written letter.

G. Event hours shall be limited to between 9:00 a.m. and 11:00 p.m. Setup and dismantling hours shall be limited to between 8:00 a.m. and 12:00 midnight.

H. The designated portions of the property to be used for such events, including but not limited to temporary parking areas, temporary structures and sanitation facilities, shall be clearly identified on the site plan and meet applicable yard requirements.

I. All parking for events shall be off-street and may consist of temporary parking within required yards or, by agreement, on other properties.

J. All temporary structures and equipment must be removed within four days after each event and shall remain in place a maximum of seven days altogether, except by Code Enforcement Officer approval when the next event is scheduled within seven days of the preceding event.

K. Applicants shall document compliance with Uster County Board of Health and other applicable health and safety regulations.

§ 140-36 Vehicle and equipment sales, service, and repair.

A. Whenever a vehicle and equipment sales, mechanical and body repair use is proposed as a special use, or as an expansion of an existing nonconforming use, the following additional performance standards shall apply:

(1) All automobile or vehicle parts, new or used, shall be stored within buildings or screened.

(2) Vehicles that are temporarily on the property awaiting repair shall be stored in an area which meets the minimum yard requirements applicable for the district and the use.

(3) Vehicle and equipment sales shall be limited to those districts specified on the Schedule of District Regulations[1] and be subject to the following additional regulations:

(a) A site plan designated and improved parking space meeting the standards contained herein shall be provided for each vehicle or piece of equipment displayed.

(b) Display areas for vehicles and pieces of equipment shall comply with front and side yard setbacks applicable to principal structures.

(c) Signs connected with vehicle and equipment displays shall be limited to permanent or temporary signs otherwise permitted hereunder.

(d) Additional off-street parking areas shall be provided for the use of customers at the rate of one space for each 10 vehicles or pieces of equipment displayed outdoors. No on-street parking shall be permitted.

(e) Lighting of outdoor vehicle and equipment sales areas shall be limited to pole or wall lighting meeting the standards contained herein for commercial lighting.

(f) The Planning Board may require landscaping of vehicle and equipment sales operations, as provided herein, to separate and buffer them from the public right-of-way and adjoining properties.

(g) All vehicle and equipment sales operations shall provide a permanent (suitable for year-round use), heated sales office of no less than 150 square feet in size and restroom facilities.

[1] Editor's Note: The Schedule of District Regulations is included as an attachment to this chapter.

§ 140-37 Solar energy.

[Added 10-14-2016 by L.L. No. 3-2016]

A. Purpose. The Town of Rochester recognizes that solar energy is a clean, readily available, and renewable energy source. Development of solar energy systems for residential, agricultural, and nonresidential parcels use of solar energy provides an excellent opportunity for the reuse of land throughout the Town and offers an energy resource that can act to attract and promote green business development. The Town of Rochester has determined that comprehensive regulations regarding the development of solar energy systems is necessary to protect the interests of the Town, its residents, and its businesses. This section is intended to promote the effective and efficient use of solar energy resources; set provisions for the placement, design, construction, and operation of such systems to uphold the public health, safety, and welfare; and to ensure that such systems will not have a significant adverse impact on the aesthetic qualities and character of the Town. To the extent practicable, and in accordance with Town of Rochester law, the accommodation of solar energy systems and equipment and the protection of access to sunlight for such equipment shall be encouraged in the application of the various review and approval provisions of the Town of Rochester Code. It is therefore the intent of this section to provide adequate safeguards for the location, siting and operation of solar energy facilities.

B. Definitions. The following definitions shall apply specifically to this subsection. Any words defined in § 140-3 of this Code shall retain such definition. Usage of these words in other sections of this Code shall utilize such definition as well.

ALTERNATIVE ENERGY SYSTEMS

Structures, equipment, devices or construction techniques used for the production of heat, light, cooling, electricity or other forms of energy on site and may be attached to or separate from the principal structure.

AREA OF USE

The area within the parcel measured from the outer edge(s) of the arrays, inverters, batteries, storage cells and all other mechanical equipment used to create solar energy, exclusive of fencing and access roadways.

BUILDING-INTEGRATED PHOTOVOLTAIC (BIPV) SYSTEMS

A combination of photovoltaic building components integrated into any building envelope system such as vertical facades including glass and other facade material, semitransparent skylight systems, roofing materials, and shading over windows.

COLLECTIVE SOLAR

Solar installations owned collectively through subdivision homeowner associations, college student groups, "adopt-a-solar-panel" programs, or other similar arrangements.

COMMUNITY NET METERING

As provided for by the New York State Public Service Commission.

FLUSH-MOUNTED SOLAR PANEL

Photovoltaic panels and tiles or other solar collectors that are installed flush to the surface of a building roof and which cannot be angled or raised.

GROUND-MOUNTED, FREESTANDING, OR POLE-MOUNTED SOLAR ENERGY SYSTEM

A solar energy system that is anchored to the ground and attached to a frame, pole or other mounting system, detached from any other structure for the purpose of producing electricity for onsite or offsite consumption.

KILOWATT (kW)

Equal to 1,000 watts; a measure of the use of electrical power.

MEGAWATT (MW)

Equal to 1,000 kilowatts; a measure of the use of electrical power.

NET-METERING

A billing arrangement that allows solar customers to get credit for excess electricity that they generate and deliver back to the grid so that they only pay for their net electricity usage.

OFFSITE USE

A solar energy system designed to be used primarily for export of solar energy to be used primarily by parcels other than the parcel it is located on.

ONSITE USE

A solar energy system designed to be used primarily by the building and/or parcel on which it is located.

PHOTOVOLTAIC (PV) SYSTEMS

A solar energy system that produces electricity by the use of semiconductor devices, called photovoltaic cells, that generate electricity whenever light strikes them.

QUALIFIED SOLAR INSTALLER

A person who has skills and knowledge related to the construction and operation of solar electrical equipment and installations and has received safety training on the hazards involved. Persons who are on the list of eligible photovoltaic installers maintained by the New York State Energy Research and Development Authority (NYSERDA), or who are certified as a solar installer by the North American Board of Certified Energy Practitioners (NABCEP), shall be deemed to be qualified solar installers for the purposes of this definition. Persons who are not on NYSERDA's list of eligible installers or NABCEP's list of certified installers may be deemed to be qualified solar installers if the Town determines such persons have had adequate training to determine the degree and extent of the hazard and the personal protective equipment and job planning necessary to perform the installation safely. Such training shall include the proper use of special precautionary techniques and personal protective equipment, as well as the skills and techniques necessary to distinguish exposed energized parts from other parts of electrical equipment and to determine the nominal voltage of exposed live parts.

REMOTE NET METERING

As provided for by the New York State Public Service Commission.

ROOFTOP OR BUILDING-MOUNTED SOLAR SYSTEM

A solar panel system located on the roof of any legally permitted and/or constructed building or structure for the purpose of producing electricity for onsite or offsite use.

SOLAR ACCESS

Space open to the sun and clear of overhangs or shade including the orientation of streets and lots to the sun so as to permit the use of active and/or passive solar energy systems on individual properties.

SOLAR COLLECTOR

A solar photovoltaic cell, panel, or array, or solar hot air or water collector device, which relies upon solar radiation as an energy source for the generation of electricity or transfer of stored heat.

SOLAR EASEMENT

An easement recorded pursuant to New York Real Property Law § 335-b.

SOLAR ELECTRIC GENERATING EQUIPMENT

Electrical energy storage devices, material, hardware, inverters, or other electrical equipment and conduit of photovoltaic devices associated with the production of electrical energy.

SOLAR ENERGY FACILITY/SYSTEM

An electrical generating system composed of a combination of both solar panels and solar energy equipment.

SOLAR ENERGY SYSTEM, LARGE SCALE

A solar energy system that is ground-mounted and produces energy primarily for the purpose of offsite use, sale, or consumption.

SOLAR ENERGY SYSTEM, SMALL SCALE

Solar photovoltaic systems which generate power exclusively for onsite use and consumption by the owners, lessees, tenants, residents, or other occupants of the premises of the building or lot to which they are attached and do not provide energy for any other lots, except as may be allowable under New York State or federal regulation.

SOLAR ENERGY SYSTEM, SUBDIVISION USE

A collective solar energy system occupying less than or equal to two acres area of use consisting of ground-mounted solar arrays or roof panels, and associated control or conversion electronics and that will be used to produce utility power to provide energy only for the onsite use and consumption of the specific lots associated with a particular major or minor subdivision.

SOLAR GARDEN

Groupings of solar photovoltaic solar panels connected to an electric circuit served by an electric utility company. Multiple users may subscribe to receive the output from one or more panels, receive the benefits of PV technology and the efficiencies associated with a larger-scale project without having to own, host or maintain the equipment on their own property.

SOLAR INVERTER

Converts the variable direct current (DC) output of a photovoltaic (PV) solar panel into a utility frequency alternating current (AC) that can be fed into a commercial electrical grid or used by a local, off-grid electrical network.

SOLAR PANEL

A photovoltaic device capable of collecting and converting solar energy into electrical energy.

SOLAR STORAGE BATTERY

A device that stores energy from the sun and makes it available in an electrical form.

SOLAR-THERMAL SYSTEMS

Solar-thermal systems directly heat water or other liquid using sunlight. The heated liquid is used for such purposes as space heating and cooling, domestic hot water, and heating pool water.

TILT

The angle of the solar panels and/or solar collector relative to their latitude. The optimal tilt to maximize solar production is perpendicular, or 90°, to the sun's rays at true solar noon.

TRUE SOLAR NOON

When the sun is at its highest during its daily east-west path across the sky.

C. Applicability. The requirements of this section shall apply to all solar energy systems installed or modified after its effective date, excluding general maintenance and repair. Solar-thermal systems and building-integrated photovoltaic (BIPV) systems are permitted outright in all zoning districts, subject to building permits if determined required.

D. Permit requirements.

(1) All solar energy system installations shall be performed by a qualified solar installer.

(2) A solar energy system connected to the utility grid shall provide written proof from the local utility company acknowledging the solar energy facility will be interconnected to the utility grid. Any connection to the public utility grid must be inspected by the appropriate public utility.

(3) Solar energy systems shall meet New York's Uniform Fire Prevention and Building Code and National Electrical Code standards.

(4) A plan showing location of major components of solar system and other equipment on roof or legal accessory structure. This plan should represent relative location of components at site, including, but not limited to, location of array, existing electrical service location, utility meter, inverter location, system orientation and tilt angle shall be provided. This plan shall show access and pathways that are compliant with New York State Fire Code, if applicable.

(5) Specification sheets for all manufactured components.

(6) All diagrams and plans must include the following:

(a) Project address, section, block and lot number of the property;

(b) Owner's name, address and phone number;

(c) Name, address and phone number of the person preparing the plans; and

(d) System capacity in kW-DC.

(7) Prior to operation proof of electrical connections being inspected and approved by an appropriate electrical inspection person or agency, as determined by the Town of Rochester, must be provided.

E. Safety.

(1) Solar energy systems shall be maintained in good working order.

(2) All solar energy systems shall be designed and located in order to prevent reflective glare from impacting roadways and contiguous properties to the maximum extent practicable.

(3) If solar storage batteries are included as part of the solar collector system, they must be placed in a secure container or enclosure meeting the requirements of the New York State Building Code when in use and when no longer used shall be disposed of in accordance with the laws and regulations of the Town of Rochester and other applicable laws and regulations.

(4) Information required in Subsection D(4) and (6) must be provided to the fire department that is obligated to respond to a call from that location.

F. Exceptions.

(1) The Planning Board, in conjunction with the review of a specific subdivision, site plan, or special use application, may also appropriately modify other development standards, including but not limited to building height, to accommodate solar and other energy efficient systems.

(2) No homeowner or property owner association shall prohibit solar energy systems. Covenants and restrictions connected with projects requiring special use permits, site plan review or subdivision approval shall be reviewed for purposes of ensuring there are no such prohibitions.

G. Small-scale solar energy system as an accessory use or structure.

(1) Applicability.

(a) For purposes of this section, the term "small-scale solar" refers to solar photovoltaic systems which generate power exclusively for onsite use by the building or lot to which they are attached, and do not provide energy for any other lots. The use and/or structure shall be accessory to the main use and/or structure and shall be incidental, related, appropriate and clearly subordinate.

(b) Solar energy collectors shall be permitted only to provide power for use by owners, lessees, tenants, residents, or other occupants of the lot on which they are erected, but nothing contained in this provision shall be construed to prohibit collective solar installations or the sale of excess power through a net billing or net-metering arrangement in accordance with New York Public Service Law § 66-j or similar state or federal statute.

(c) No small-scale solar energy system or device shall be installed or operated in the Town of Rochester except in compliance with this section.

(2) Roof-mounted solar energy systems.

(a) Roof-mounted solar energy systems that use the electricity onsite or offsite are permitted as an accessory use in all zoning districts when attached to any lawfully permitted and constructed building or structure, subject to building permits.

(b) Height. Solar energy systems shall not exceed maximum height restrictions within the zoning district it is located in, as illustrated in the Schedule of District Regulations[1] of this Code, and are provided the same height exemptions granted to building-mounted mechanical devices or equipment. See also § 140-11, Height restrictions.

[1] Editor's Note: The Schedule of District Regulations is included as an attachment to this chapter.

(c) Aesthetics. Roof-mounted solar energy system installations shall incorporate, when feasible, the following design requirements: Panels facing the front yard must be mounted at the same angle as the roof's surface with a maximum distance of 18 inches between the roof and highest edge of the system.

(d) Roof-mounted solar energy systems that use the energy onsite or offsite shall be exempt from site plan review under the local zoning code or other land use regulations.

(3) Ground-mounted solar energy systems.

(a) Ground-mounted solar energy systems that use the electricity primarily onsite are permitted as accessory structures in all zoning districts, subject to building permits.

(b) Height and setback. The height of the solar energy system shall not exceed 15 feet when oriented at maximum tilt. Setback requirements shall be as stated for accessory uses for the underlying zoning district.

(c) System capacity. Ground-mounted solar energy systems designed for onsite use shall not be sized greater than the energy usage necessary to serve the parcel. Documentation of energy use or energy use expansion necessity may be required.

(d) Lot coverage. Ground-mounted solar energy systems shall be granted an additional 10% bonus lot coverage of the lot on which it is to be installed for a specific zoning district as listed from the Schedule of District Regulations. The surface area covered by solar panels shall be included in total lot coverage.

(e) Small-scale ground-mounted solar energy systems in the R-1, R-2, or H Zoning Districts shall be installed in the side or rear yards or be located greater than 100 feet from the front lot line.

(f) Ground-mounted solar energy systems that use the electricity primarily onsite shall be exempt from site plan review under the local zoning code or other land use regulations.

H. Standards for solar energy system, subdivision use.

(1) When an application for subdivision is presented to the Planning Board, which plans include incorporation of a solar energy system as a community energy source, the following criteria for the review and use shall be considered.

(a) Solar energy systems shall be permitted only to provide power for use by owners, lessees, tenants, residents, or other occupants of the subdivision on which they are erected, but nothing contained in this provision shall be construed to prohibit collective solar installations or the sale of excess power through a net billing or net-metering arrangement in accordance with New York Public Service Law § 66-j or similar state or federal statute.

(b) Solar energy systems shall be permitted under the Schedule of District Regulations[2] when authorized by site plan approval from the Planning Board in conjunction with minor or major subdivision review subject to the following terms and conditions in the AR-3, R-1, R-2, R-5, and H Zoning Districts so long as the solar energy system meets the criteria set forth in this subsection and Chapter 140, subject to obtaining all other necessary approvals.

[2] Editor's Note: The Schedule of District Regulations is included as an attachment to this chapter.

(c) The solar energy system shall be located on one or more lots of the subdivision.

(d) All solar energy systems shall be designed, erected and installed in accordance with all applicable codes, regulations and standards.

(e) A homeowners' association shall be established for the operation and maintenance of the solar energy system.

(2) Site plan requirements. A solar energy system designed for use in conjunction with a specific subdivision use shall comply with all the site plan requirements of Chapter 140 in addition to the subdivision requirements of Chapter 125. Additional requirements for the use shall include but not be limited to the following:

(a) Maximum area. The maximum area of use for a solar energy system designed for a specific subdivision use shall occupy less than or equal to two acres of land area of use.

(b) Height and setback. The height of the solar energy system shall not exceed 15 feet when oriented at maximum tilt. Setback requirements shall be as stated for the underlying zoning district.

(c) Lot coverage. A subdivision solar energy system shall be granted an additional 10% bonus lot coverage of the lot on which it is to be installed for a specific zoning district as listed from the Schedule of District Regulations. The surface area covered by solar panels shall be included in total lot coverage.

(d) The solar energy system shall be preferably located on an interior lot of the subdivision and placed away from contiguous residential use. Where a solar energy system designed for a specific subdivision use will abut other residential uses outside the boundaries of the subdivision, there shall be increased consideration for mitigating visual impact to the residential use. For example, increased setbacks, visual screening that does not impair solar access, or sound buffering may be required by the Planning Board.

(e) All solar energy production facilities shall be designed and located in order to prevent reflective glare onto roadways or adjacent structures.

(f) A minimum twenty-five-foot perimeter buffer, except for the area of roadway access, which may be partially or totally within the subdivision perimeter lot line setback, consisting of natural and undisturbed vegetation, supplemented with evergreen plantings in accordance with Town of Rochester Zoning Code standards, as may be required by the Planning Board, shall be provided around all mechanical equipment and solar panel arrays to provide screening from adjacent properties and Town, county and state roads. Landscape screening shall be provided in accordance with the landscaping provisions of this chapter. Existing on-site vegetation designated to be utilized as screening shall be preserved to the maximum extent possible and shall be diligently maintained to protect its vitality.

(g) Site plans shall be developed that provide for the preservation of natural vegetation in large unbroken blocks that also allow contiguous open spaces to be established when adjacent parcels are developed.

(h) A land grading and vegetation clearing plan shall be prepared. Clear-cutting of all trees in a single contiguous area shall be limited to the area of the equipment compound plus the area of an emergency access roadway and the area required for solar access.

(i) Debris, materials and/or mulch generated by site clearing or construction shall not be stockpiled onsite.

(j) Non-invasive ground cover under and between the rows of solar panels shall be low-maintenance, drought-resistant, and non-fertilizer-dependent.

(k) All local stormwater regulations shall be complied with. The applicant shall comply with the State Pollutant Discharge Elimination System guidelines. If determined to be required, a SWPPP (stormwater pollution prevention plan) shall be prepared and a stormwater, erosion, and slope analysis of the land shall be required to be assessed by a New-York-State-licensed professional engineer for the site and any road used to access the site.

(l) Conveyance of energy to subdivision lots. The site plan shall show the pathways of utility service lines which will be put into place to convey energy to each lot of the subdivision. Necessary utilities to serve the site shall preferably be underground and in compliance with all local, state, and federal laws, rules, and regulations, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate. Overhead lines shall follow access roads and/or existing tree lines to minimize visual impact upon surrounding properties.

(m) The applicant shall provide the means of restricting access by the public to the solar collector and indicate such on the site plan.

(n) Signs. A sign no greater than two square feet indicating the name of the facility owner(s) and a twenty-four-hour emergency telephone number shall be posted. In addition, "No Trespassing" or other warning signs may be posted. All signage shall be maintained in legible condition and contain accurate information. A clearly visible warning sign concerning voltage shall be placed at the base of all pad-mounted transformers and substations. No signage of any kind shall be allowed to be attached to solar panels or support structures, except any required safety warnings.

(o) Property operation and maintenance plan. Such plan shall describe continuing photovoltaic maintenance and property upkeep, such as mowing and trimming.

(p) Proposed covenants and restrictions and a management plan for the proposed homeowners' association (HOA).

(q) A decommissioning plan, as detailed in § 140-37K, shall be prepared. Compliance with this plan shall be made a condition of the issuance of site plan approval under this section.

I. Standards for large-scale solar systems as a special use.

(1) Large-scale solar energy systems are permitted through the issuance of a special use permit within AR-3, AB-3, R-5, NR, I, and H Zoning Districts, subject to the requirements set forth in this section, including site plan approval. Large-scale solar energy systems shall not be permitted to be constructed on areas of prime farmland as designated by the United States Department of Agriculture.

(2) Special use permit application requirements. For a special permit application, the site plan application is to be used as supplemented by the following provisions.

(a) If the property of the proposed project is to be leased, legal consent between all parties, specifying the use(s) of the land for the duration of the project, including easements and other agreements, shall be submitted.

(b) Blueprints showing the layout of the solar energy system signed by a professional engineer or registered architect shall be required.

(c) The equipment specification sheets shall be documented and submitted for all photovoltaic panels, significant components, mounting systems, and inverters that are to be installed.

(3) Special use permit standards.

(a) Height and setback. The height of the large-scale energy systems shall not exceed 15 feet when oriented at maximum tilt. Setback requirements shall be as stated for the underlying zoning district, except all inverters shall be set back the lesser of 100 feet or until electromagnetic field (EMF) meets background level, as determined by the World Health Organization (WHO).

(b) Area of use. The area of use for a large-scale solar energy system shall be a maximum of 20 acres.

(c) Lot coverage. A large-scale solar energy system located in the AR-3, AB-3, NR, I, or H Zoning District shall be granted an additional 10% bonus lot coverage of the lot on which it is to be installed as listed for nonresidential use from the Schedule of District Regulations.[3] A large-scale solar energy system located in the R-5 Zoning District shall be granted an additional 25% bonus lot coverage of the lot on which it is to be installed as listed for nonresidential use from the Schedule of District Regulations. The surface area covered by solar panels shall be included in total lot coverage.

[3] Editor's Note: The Schedule of District Regulations is included as an attachment to this chapter.

(d) All solar energy production facilities shall be designed and located in order to prevent reflective glare onto roadways or adjacent structures.

(e) A minimum twenty-five-foot perimeter buffer, except for the area of roadway access which may be partially or totally within the perimeter lot line setback, consisting of natural and undisturbed vegetation, supplemented with evergreen plantings in accordance with Town of Rochester zoning code standards, as may be required by the Planning Board, shall be provided around all mechanical equipment and solar panel arrays to provide screening from adjacent properties and Town, county and state roads. Landscape screening shall be provided in accordance with the landscaping provisions of this chapter.

(f) A land grading and vegetation clearing plan shall be prepared. Clear-cutting of all trees in a single contiguous area shall be limited to the area of the equipment compound plus the area of an emergency access roadway and the area required for solar access.

(g) Noninvasive ground cover under and between the rows of solar panels shall be low- maintenance, drought-resistant, and non-fertilizer-dependent.

(h) Debris, materials and/or mulch generated by site clearing or construction shall not be stockpiled onsite.

(i) All local stormwater regulations shall be complied with. The applicant shall comply with the State Pollutant Discharge Elimination System guidelines. If determined to be required, a SWPPP (stormwater pollution prevention plan) shall be prepared and a stormwater, erosion, and slope analysis of the land shall be required to be assessed by a New-York-State-licensed professional engineer for the site and any road used to access the site.

(j) All large-scale solar energy systems shall be enclosed by fencing to prevent unauthorized access. Warning signs with the owner's contact information shall be placed on the entrance and perimeter of the fencing. The type of fencing shall be determined by the Town of Rochester Planning Board. The fencing and the system may be further screened by any landscaping needed to avoid adverse aesthetic impacts.

(k) Signs. A sign no greater than two square feet indicating the name of the facility owner(s) and a twenty-four-hour emergency telephone number shall be posted. In addition, "No Trespassing" or other warning signs may be posted. All signage shall be maintained in legible condition and contain accurate information. A clearly visible warning sign concerning voltage shall be placed at the base of all pad-mounted transformers and substations. No signage of any kind shall be allowed to be attached to solar panels or support structures, except any required safety warnings.

(l) Property operation and maintenance plan. Such plan shall describe continuing photovoltaic maintenance and property upkeep, such as mowing and trimming.

(m) A decommissioning plan, as detailed in § 140-37K, shall be prepared. Compliance with this plan shall be made a condition of the issuance of a special use permit under this section.

(n) The solar energy production facility shall comply with § 140-20, General commercial and industrial standards.

J. Registration of large-scale solar energy production facilities.

(1) Purpose. The Town of Rochester desires to develop a registration system to ensure all large-scale solar energy production facilities are properly maintained and to ensure all owners properly maintain and inspect their facilities.

(2) All owners of large-scale solar energy production facilities located in the Town of Rochester shall be required to register the facility upon granting of a certificate of occupancy. Facilities in existence as of the effective adoption date of this chapter shall have 60 days from the filing of this chapter to register.

(3) The local large-scale solar energy production facility registration system shall be administered by the Code Enforcement Office. The Town Board shall establish the fees structure for the registration which may be amended by resolution from time to time.

(4) Registration shall be effective for a three-year period, with renewal required prior to expiration date. Recertification shall be required for year two and three as described in this chapter.

(5) Registration requirements. The owner shall provide and certify to the Town the following:

(a) The name, mailing address, phone number, email address, and an emergency contact name for the corporation or owner of the solar energy production facility.

(b) The name, mailing address, phone number, email address, and an emergency contact name for each entity which leases space from the facility owner.

(c) Written certification the large-scale solar energy production facility is in compliance with the approval and in compliance with all applicable codes, laws, rules, and regulations.

(d) Written certification onsite vegetation has been maintained to ensure the desired screening effect.

(6) Inspection of facilities. The owner and any and all lessees, renters, and/or licensees of large-scale solar energy production facilities shall agree in writing to allow the Code Enforcement Officer access to 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, solar panels, support structures, and buildings or other structures constructed or located on the permitted site to verify accordance with any applicable technical, safety, fire, building, and zoning codes, laws, regulations, and other applicable requirements.

(7) Notification of termination of use. The owner shall sign a letter of commitment, which shall commit the large-scale solar energy production facility owner and its successors and assigns to notify the Building Inspector, in writing, within 30 days of the discontinuance of use of the facility. Failure to notify and thereafter remove the facility and all appurtenances shall be deemed a violation punishable under applicable provisions of the Town of Rochester Zoning Chapter. Notwithstanding this provision, the Building Inspector shall have the right to independently investigate any discontinuance of the facility and render a written determination setting forth the extent, duration and facts evidencing the violation and the discontinuance of the facility. Upon rendering said written determination, written notice of the determination shall be provided to the owner and the lessees of the facility and the owners of the real property upon which the facility is situate by certified mail, return receipt requested. Sixty days after proven receipt of the notice of the determination by the facility owner, any lessee of the facility and the owners of the real property said facility is situate thereon, the Building Inspector and the Town of Rochester may commence legal proceedings and have the facility removed from the site in accordance with all applicable law.

(8) Annual certification. Recertification by the facility owner of the following information shall be required for year two and three of each registration period and be due on the anniversary date of registration.

(a) The name, mailing address, phone number, email address, and an emergency contact name for the corporation or owner of the solar energy production facility.

(b) The name, mailing address, phone number, email address, and an emergency contact name for each entity which leases space from the facility owner.

(c) The large-scale solar energy production facilities are in compliance with the approval and in compliance with all applicable codes, laws, rules, and regulations.

(9) Renewal of registration. Registrations shall be required to be renewed beginning with a period of time 90 days prior to expiration until the anniversary date of the registration.

(10) Changes in registration information. The owner shall provide notice to the Town of any changes in registration information within 30 days of such change.

K. Decommissioning plan for solar energy systems.

(1) Any use which requires approval by the Planning Board shall include a decommissioning plan approved by the Planning Board.

(2) The decommissioning plan shall specify that after the solar energy system will no longer be used, it shall be removed by the applicant or any subsequent owner and shall include a signed statement from the party responsible for completing the decommissioning plan acknowledging such responsibility.

(3) The plan shall demonstrate how the removal of all infrastructure and the remediation of soil and vegetation shall be conducted to return the parcel to its original state prior to construction.

(4) The plan shall state disposal of all solid and hazardous waste shall be in accordance with local, state, and federal waste disposal regulations.

(5) The plan shall include an expected timeline for execution.

(6) The plan shall include a cost estimate detailing the projected cost of executing the decommissioning plan prepared by a professional engineer or contractor. Cost estimations shall take into account inflation.

(7) Removal of solar energy systems must be completed in accordance with the decommissioning plan. If the solar energy system is not decommissioned after being considered abandoned, the municipality may remove the system and restore the property and impose a lien on the property to cover these costs to the municipality.

L. Abandonment and removal of energy systems.

(1) Any solar energy facility which ceases to operate shall be wholly removed from the site. "Ceases to operate" is defined as not performing all normal functions associated with operation of the solar energy facility and its equipment on a continuous basis for a period of one year.

(2) In the event the solar energy facility is not so removed, the Town Board, upon notice from the Code Enforcement Officer shall give written notice to the owner of such facility (i) stating that the solar energy facility is considered abandoned, and (ii) setting a time, date and place for a public hearing. Such public hearing shall be on not less than 30 days' notice to such owner. Upon a finding that the solar energy facility has been abandoned, the Town Board shall deliver written notice to the facility owner indicating the reasons for its finding, and directing that the solar energy facility be removed within 120 days. In the event that the solar energy facility is not so removed, the Town Board may commence an action in Supreme Court against the owner of such facility seeking an order requiring the removal.

(3) Upon recommendation of the Building Inspector, the Town Board may waive or defer the requirement that a solar energy facility be removed if it determines that retention of such facility is in the best interest of the Town.

(4) Should the Town remove the solar energy facility pursuant to this subsection, the Town shall chargeback any costs against the owner and/or applicant. If the owner of said property does not pay said charges, they shall be included as a part of the next Town tax bill, and said charge shall be due and payable by said owner at the time of payment of said bill.

§ 140-38 (Reserved)