[HISTORY: Adopted by the Common Council of the City of Glens
Falls 3-26-2019 by L.L. No. 2-2019. Amendments noted where applicable.]
A.
The City of Glens Falls finds that wireless telecommunications facilities
may pose significant concerns to its residents, and the character
and environment of its neighborhoods. The City also recognizes that
facilitating the development of wireless service technology can be
of significant benefit to its residents. In order to ensure that the
placement, construction or modification of wireless telecommunications
facilities will adequately serve the needs of the users of those facilities,
and also pose the least possible adverse effect upon the City and
its inhabitants, the City is enacting this wireless telecommunications
facilities application and permit process. It will establish a fair
and efficient process for review and approval of applications; assure
an integrated, comprehensive review of environmental impacts; and
protect the rights of the City and its inhabitants, to the full extent
of the City's ability under the law.
B.
This chapter will seek to promote, wherever possible, the sharing
and/or co-location of wireless telecommunications facilities among
service providers; the use of stealth technology; and employment of
the least visually and physically intrusive facility that is not technologically
or commercially impracticable under the facts and circumstances to
minimize adverse aesthetic and visual impacts on the surrounding areas.
This chapter is enacted as a local law under the Municipal Home
Rule Law, and pursuant to all applicable authority granted by the
state and federal governments.
A.
For purposes of this chapter, and where not inconsistent with the
context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meanings given
in this section.
B.
ACCESSORY FACILITY OR STRUCTURE
ANTENNA
APPLICANT
APPLICATION
CO-LOCATION
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
COMPLETED APPLICATION
FAA
FCC
HEIGHT
MODIFICATION or MODIFY or MODIFIED
NEW WIRELESS TELECOMMUNICATIONS FACILITY
NIER
PERSON
PERSONAL WIRELESS FACILITY
PERSONAL WIRELESS SERVICES OR PWS or PERSONAL TELECOMMUNICATIONS
SERVICE OR PCS
PLANNING BOARD
REPAIRS AND MAINTENANCE
SMALL WIRELESS FACILITIES
SPECIAL USE PERMIT
STATE
STEALTH or STEALTH TECHNOLOGY
TELECOMMUNICATION SITE
TELECOMMUNICATIONS
TELECOMMUNICATIONS STRUCTURE
TEMPORARY
TOWER
WIRELESS TELECOMMUNICATIONS FACILITY
ZONING CODE
When not inconsistent with the context, words in the present tense
include the future tense, words used in the plural number include
words in the singular number and words in the singular number include
the plural number. The word "shall" is always mandatory, and not merely
directory.
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
or an immediately adjacent lot, including, but not limited to, utility
or transmission equipment storage sheds or cabinets.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
Any wireless service provider submitting an application for
a special use permit or other approval for wireless telecommunications
facilities.
A formal request that the City grant a building permit, special
use permit, or other approval for a wireless telecommunications facility,
including all documentation, information, and communications from
or on behalf of the applicant relating to the request.
The use of an existing tower or a structure used as an existing
cell antenna site to support antenna(s) for the provision of wireless
services pursuant to a building permit or special use permit from
the City. A replacement tower that is constructed on the same site
as an existing tower will be considered a co-location as long as the
new tower is no taller than the old tower, the old tower is removed
within 90 days after the new tower is constructed, and the site remains
in compliance with applicable permits and all other provisions of
the City Code.
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be commercially impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
An application that contains all information and/or data
requested by the City from the applicant in application forms or otherwise
to enable an informed decision to be made with respect to an application.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
When referring to a tower or structure, the distance measured
from the mean level of the established center-line grade of the street
adjacent to the parcel to the highest point on the tower or structure,
even if said highest point is an antenna or lightning-protection device.
The addition, removal or change of any of the physical or
visually discernible components, colors, or other aspects of a wireless
telecommunications facility (such as antennas, cabling; equipment
shelters, landscaping, shrouding, fencing, utility feeds, vehicular
access, or parking, specifically including new transmission equipment,
removal of transmission equipment, replacement of transmission equipment,
or changes of wireless carrier or service provider) which addition,
removal or change would be inconsistent with an existing permit for
the facility but, in the judgment of the City Code Enforcement Officer,
will likely qualify for approval under a permit conformed to reflect
such addition, removal or change.
A new wireless telecommunications facility which is located
at a site where there are no existing permitted wireless facilities.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
See definition of "wireless telecommunications facility."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act.
The Planning Board of the City of Glens Falls.
Any matters that involve the normal repair and maintenance
of a wireless facility and that are not a modification as defined
in this chapter. Normal repair and maintenance does not change the
physical or visually discernible appearance of the facility or any
part thereof as it was originally permitted. It also means the normal
replacement of any equipment or components of a wireless facility
without an increase in height, and where the replacement is, in the
judgment of the City Code Enforcement Officer, identical to the existing
equipment or component being replaced. The term "repair and maintenance"
shall not include any matters which the City Code Enforcement Officer
determines is a modification, as defined herein.
A wireless facility or other facility providing communications
service that meets the criteria found in 47 CFR 1.6002.
The official document or permit granted by the Board of Appeals
under which an applicant is allowed to obtain a building permit from
the City Code Enforcement Officer to construct a new wireless telecommunications
facility.
The State of New York.
To minimize adverse aesthetic and visual impacts on the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
See definition of "wireless telecommunications facilities."
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
A building or structure used in the provision of services
described in the definition of "wireless telecommunications facilities."
Temporary in relation to all aspects and components of this
chapter; something intended to or that does not exist for more than
90 days.
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
Includes a telecommunications site and personal wireless
facility. It means a structure, facility or location designed, or
intended to be used as, or used to support antennas or other transmitting
or receiving devices. This includes, without limit, towers of all
types, sizes and kinds, and structures, including, but not limited
to, buildings, church steeples, signs or other structures that can
be used as a support structure for antennas or the functional equivalent
of such. It further includes all related facilities and equipment
such as cabling, equipment shelters and other structures associated
with the site. It is a structure and facility intended for transmitting
and/or receiving radio, television, cellular, SMR, paging, 911, personal
communications services (PCS), commercial satellite services, wireless
Internet services, microwave services and any commercial wireless
telecommunication service, including small wireless facilities.
The Zoning Code of the City of Glens Falls, found in Chapter 220 of the Glens Falls City Code.
A.
The following wireless telecommunications facilities shall be exempt
from this chapter:
(1)
Any facilities operated by or on behalf of any unit of government
for public or municipal purposes;
(2)
Any facilities exclusively for private, noncommercial radio and television
reception and private citizen's bands, licensed amateur radio
and other similar noncommercial telecommunications; and
(3)
Any repairs and maintenance of a lawfully existing facility.
B.
The following wireless telecommunications facilities shall be exempt
from this chapter until they are modified:
(1)
Any facilities that are authorized and regulated by or under an unexpired
license agreement or lease with the City, or any department or agency
under the control of the City, which facility was already lawfully
installed as of the effective date of this chapter, except that nothing
herein shall exempt any such facility from complying with any and
all provisions or requirements set forth under such agreement or lease;
(2)
Any facilities that are authorized and regulated by or under a valid
and unexpired building permit or decision of the Board of Appeals,
which was issued prior to the effective date of this chapter, except
that nothing herein shall exempt any such facility from complying
with any and all provisions or requirements set forth under such permit
or decision or other applicable law.
C.
New towers, or other structures designed primarily to support an antenna or other transmitting or receiving devices, shall not be sited on properties in areas zoned for residential use under Chapter 220, Article III, or on properties in the Park and Recreational District areas under Chapter 220, Article VI.
A.
As of the effective date of this chapter, and except as otherwise
expressly provided herein, no person shall be permitted to site, place,
build, construct, modify or prepare any site for the placement or
use of wireless telecommunications facilities without having first
obtained a building permit from the City Code Enforcement Officer
and any and all other approvals as required herein or under other
applicable law. A new wireless telecommunications facility must, in
addition to a building permit, obtain a special use permit from the
Planning Board, except as otherwise set forth in this Chapter.
B.
The Planning Board is hereby authorized to review, analyze, evaluate
and make decisions with respect to granting or not granting or revoking
special use permits for new wireless telecommunications facilities.
C.
Except as provided herein or otherwise by law, an application for
a special use permit or other approval under this chapter shall commence
with a building permit application to the Building Department. If
the applicant is required to provide the City with any information
or documents that it deems proprietary and confidential, such information
or documents shall be clearly identified and marked as confidential.
The City shall reasonably protect such information from public disclosure,
subject to the requirements of the New York Freedom of Information
Law ("FOIL") or other federal or state laws or requirements.
D.
If the City Code Enforcement Officer determines that a particular
application or classes of applications under this chapter may be considered
more fairly, quickly, and inexpensively with the assistance of third-party
agencies or expert consultants, the Building Department shall have
discretion to retain such consultants as may be appropriate to accept,
review, analyze, and evaluate applications and all documentation submitted
therewith, advise and provide information to City personnel on technical
and other issues relating to such applications, and make recommendations
to the Building Department, the Planning Board, and any other involved
agency or Department of the City with respect to the administration
of this chapter and decisions made hereunder.
E.
In the course of considering an application pursuant to this chapter,
the Planning Board may waive submission of information otherwise required
in the application which the Planning Board deems unnecessary in the
circumstances and may require submission of such additional information
as the Planning Board deems sufficient to permit a determination that
in the circumstances the proposed work is in compliance with this
chapter and all other applicable local, state, or federal law. If
the Planning Board waives submission of information required in the
application pursuant to this Chapter, the Planning Board must state
its reason for doing so, and it must indicate that it has all of the
information necessary to make a decision with respect to granting
or not granting or revoking the special use permit.
F.
The Planning Board may reject applications that fail to establish
compliance with the requirements of this chapter or other applicable
law or which fail to include information required for a determination
of such compliance. If an applicant contends that certain information
which has been requested need not be submitted in its application,
the applicant shall submit a written statement explaining why such
information ought not be required in the circumstances. The Planning
Board may reject, without prejudice to a new application, as incomplete
any application that fails to include required information, or it
may consider the application on its merits giving such weight as it
deems appropriate to the applicant's failure to provide the required
information.
G.
Any and all representations made by the applicant to the Building
Department, the Planning Board, or other governmental agency relating
to the application, whether written or verbal, shall be deemed a part
of the application and may be relied upon in good faith by the Building
Department and Planning Board during the application process and afterwards,
if approval is granted. Where a certification is called for in this
chapter, such certification shall be dated and bear the signature
of a licensed attorney, of the signature and seal of an architect
or engineer in the State of New York.
H.
In addition to all other general requirements for the filing of a
building permit application, the application for a building permit
for a wireless telecommunications facility shall include:
(1)
A written certification by the applicant that the wireless telecommunications
facility which is the subject of the application will be maintained
in compliance with all conditions of the building permit, including
all conditions of any required special use permit or other approval,
without exception, as well as any and all applicable agreements and
City, state and federal laws, rules, and regulations; and that the
work proposed in the application is legally permissible, including,
but not limited to the fact that the applicant is authorized to do
business in the state.
(2)
A descriptive summary statement of the nature and objective(s) for
the work proposed in the application, and the impact(s) of the work
on the surrounding area.
(3)
The name, address and phone number of the person(s) preparing the
application and supporting documentation.
(4)
A site plan showing the existing and proposed structures on the subject
property, and the type, locations and dimensions of all proposed and
existing landscaping, and fencing on the subject property; the azimuth,
size and center-line height location of all proposed and existing
antennas on the supporting structure; the number, type and model of
the antenna(s) proposed with a copy of the specification sheet; the
make, model, type and manufacturer of the tower and design plan stating
the tower's capacity to accommodate multiple users.
(5)
The frequency, modulation and class of service of radio or other
transmitting equipment.
(6)
The actual intended transmission power stated as the maximum effective
radiated power (ERP) in watts.
(7)
Signed documentation such as the "Checklist to Determine Whether
a Facility is Categorically Excluded" to verify that the wireless
telecommunication facility with the proposed installation will be
in full compliance with the current FCC RF emissions guidelines (VIER).
If not categorically excluded, a complete RF emissions study is required
to provide verification.
(8)
A statement signed by the wireless service provider that it will
expeditiously remedy any physical or RF interference with other telecommunications
devices caused by its equipment or the operation of such.
(9)
A copy of the FCC license is required for a co-location.
(10)
The applicant shall provide certification, with documentation
(structural analysis), including calculations, that the telecommunication
facility tower and foundation and attachments, rooftop support structure,
water tank structure, and any other supporting structure as proposed
to be utilized are designed and are constructed to meet all local,
city, state and federal structural requirements for loads, including
wind and ice loads.
(11)
A copy of the geotechnical subsurface soils investigation, evaluation
report and foundation recommendation for a proposed or existing tower
site and, if an existing tower, a copy of the installed foundation
design.
(12)
The number, type and model of the antenna(s) proposed with a
copy of the specification sheet.
(13)
The number and locations of any small wireless facilities that
the applicant has installed or locations that the applicant has considered
in the past year for small wireless facilities within the City and
those submitted or anticipated to be submitted within a one-year period.
(14)
A written copy of an analysis, completed by a qualified individual
or organization, to determine if a proposed new tower or existing
structure intended to support wireless facilities is in compliance
with Federal Aviation Administration Regulation Part 77 and if it
requires lighting. This requirement shall also be for any existing
structure or building where the application increases the height of
the structure or building. If this analysis determines that an FAA
determination is required, then all filings with the FAA, all responses
from the FAA and any related correspondence shall be provided with
the application.
I.
In addition to all other required information as stated in this chapter,
all applications for a special use permit for the construction or
installation of new wireless telecommunications facilities or modification
of an existing facility shall contain a complete building permit application
and the additional information hereinafter set forth:
(1)
Documentation that demonstrates and proves the need for the wireless
telecommunications facility to provide service primarily and essentially
within the City. Such documentation shall include propagation studies
of the proposed site and all adjoining planned, proposed, in-service
or existing sites that demonstrate a significant gap in coverage;
and/or if there is a capacity need, such documentation shall include
an analysis of current and projected usage. Drive test or call test
data shall be required as determined to be appropriate by the Building
Department or the City's wireless consultant;
(2)
The name, address and phone number of the person(s) preparing the documentation referenced in Subsection I(1) above and conducting the studies and analyses;
(3)
An area map showing the location, size, height and usage of all structures
and buildings within 1,500 feet of the subject property;
(4)
The site plan must also show, in addition to all standard information,
a description of any proposed tower and/or antenna(s) and all related
fixtures, structures, appurtenances and apparatus, including height
above the mean level of the established center-line grade of the street
adjacent to the parcel, materials, color and lighting;
(5)
The make, model, type and manufacturer of the tower and design plan
stating the tower's capacity to accommodate multiple users; and
(6)
A full statement and substantive explanation to show that pursuant
to a study undertaken by the applicant employing due diligence, the
proposed placement site is justified, in that alternate placement
sites, co-location sites, or other alternate methods, which would
have a lesser negative effect on area character, property values and
aesthetics than the selected site would be technically unfeasible,
commercially impracticable, or otherwise inappropriate. Such statement
shall address potential alternatives identified by the Building Department.
The applicant should submit technical, financial or other evidence
to support rejection of any such alternatives as inappropriate.
J.
In applications for a new tower, or other structure designed primarily
to support antennas or other transmitting or receiving devices, in
addition to all other pertinent application requirements set forth
above, the Building Department and/or Planning Board shall require
the applicant to submit such additional information and undertake
other activities as may be appropriate in the circumstances, including
the following:
(1)
A written report demonstrating the applicant's meaningful efforts
to secure shared use of existing tower(s) or the use of alternative
buildings or other structures within the City, with copies of written
requests and responses, along with any letters of rejection, stating
the reason for rejection.
(2)
A balloon test prior to the public hearing on the application to
better inform the public regarding the proposed new tower. The applicant
shall arrange to fly, or raise upon a temporary mast, a minimum of
a three-foot-in-diameter brightly colored balloon at the maximum height
of the proposed new tower. (The size of the balloon must be representative
of the size of the antenna configuration proposed.) The dates (including
a second date, in case of poor visibility on the initial date), times
and location of this balloon test shall be advertised by the applicant
between seven and 14 days in advance of the first test date in a newspaper
with a general circulation in the general vicinity. The applicant
shall inform the Building Department, in writing, of the dates and
times of the test, at least 14 days in advance. The balloon shall
be flown for at least four consecutive hours sometime between 7:00
a.m. and 4:00 p.m. on the dates chosen. The primary date shall be
on a weekend, but in case of poor weather on the initial date, the
secondary date may be on a weekday. A report with pictures from various
locations of the balloon shall be provided to the Building Department.
(3)
A study of the feasibility of designing the proposed tower to accommodate
future demand for at least four additional commercial applications,
for example, future co-locations.
(4)
A requirement that the tower be structurally designed to accommodate
at least four additional antenna arrays equal to those of the applicant,
and located as close to the applicant's antenna as possible without
causing interference. This requirement may be waived by the Planning
Board; provided that the applicant, in writing, demonstrates that
the provision of future shared usage of the tower is not technologically
feasible, is commercially impracticable, or creates an unnecessary
and unreasonable burden, based upon:
(5)
Available space on existing and approved towers.
(6)
The owner of a proposed new tower, and his/her successors in interest,
shall provide a written statement in the application from someone
in authority to bind the applicant, stating that the applicant will
negotiate in good faith for the shared use of the proposed tower by
other wireless service providers in the future, and shall:
(a)
Respond within 60 days to a request for information from a potential
shared-use applicant;
(b)
Negotiate in good faith concerning future requests for shared
use of the new tower by other telecommunications providers;
(c)
Allow shared use of the new tower if another telecommunications
provider agrees in writing to pay reasonable charges. The charges
may include, but are not limited to, a pro-rata share of the cost
of site selection, planning, project administration, land costs, site
design, construction and maintenance financing, return on equity,
less depreciation, and all of the costs of adapting the tower or equipment
to accommodate a shared user without causing electromagnetic interference.
(7)
The owner of a proposed new tower shall provide certification with
documentation (structural analysis) including calculations that the
telecommunication facility tower and foundation and attachments, rooftop
support structure, water tank structure, and any other supporting
structure as proposed to be utilized are designed and will be constructed
to meet all local, City, state and federal structural requirements
for loads, including wind and ice loads.
K.
In applications for a co-location or modification on an existing
tower, the applicant is to provide signed documentation of the tower
condition such as an ANSI report as per Annex E, Tower Maintenance
and Inspection Procedures, ANSI/TIA/EIA-222F, or most recent version
in effect. If signed documentation of tower inspection provided by
another permit holder for the tower is already on file with and satisfactory
to the Building Department at the time the applicant is required to
file an initial or an updated tower inspection report, the Building
Department shall waive such filing by the applicant. It is the responsibility
of the applicant to confirm any such waiver with the Building Department
whenever it would otherwise have been required to file an initial
or an updated report.
L.
All special use permit applications for a new wireless telecommunications
facility shall contain a demonstration that the facility will be sited
so as to minimize visual intrusion as much as possible, given the
facts and circumstances involved, and will thereby have the least
adverse visual effect on the environment and its character and on
the residences in the area of the new wireless telecommunications
facility.
M.
In an application for a special use permit for a new tower or a building
permit for an existing structure involving a potentially significant
adverse visual impact, as determined by the applicant or by the Planning
Board, the applicant shall furnish a visual impact assessment, which
shall include:
(1)
If a new tower or increasing the height of an existing structure
is proposed, a computer-generated Zone of Visibility Map at a minimum
of one-mile radius from the proposed structure, with and without foliage,
to illustrate locations from which the proposed installation may be
seen.
(2)
Pictorial representations of before and after (photo simulations)
views from key viewpoints both inside and outside of the City as may
be appropriate, including but not limited to major roads; parks; other
public lands; historic districts; preserves and historic sites normally
open to the public; and from any other location where the site is
visible to a large number of visitors, travelers or residents. In
the case of a co-location or modification, the photo simulation need
show only the effect of the co-location or modification in relation
to other equipment located on the support structure, i.e., the effect
on the profile of the facility, and may be taken at or near the site.
The applicant should consult with the Building Department to insure
that the selection of key viewpoints for the assessment is appropriate.
(3)
A map showing the locations of where the pictures were taken and
distance from the proposed structure.
(4)
A written description of the visual impact of the proposed facility,
including and as applicable the tower base, guy wires, fencing and
accessory buildings from abutting and adjacent properties and streets
as relates to the need or appropriateness of screening.
(5)
In narrative and/or by drawing, a demonstration of how the applicant
shall effectively screen from view the base and all related equipment
and structures of the proposed wireless telecommunications facility.
N.
Applications for a special use permit or a building permit shall
document that the proposed work will maximize the use of building
materials, colors and textures designed to blend with the structure
to which it may be affixed and/or to harmonize with the natural surroundings;
this shall include the utilization of stealth or concealment technology
required by the Planning Board.
O.
All utilities and accessory equipment at the wireless telecommunication's
facilities shall be installed underground, unless feasibly impractical
due to physical site characteristics, and in compliance with all laws,
ordinances, rules and regulations of the City, including, specifically,
but not limited to, the National Electrical Safety Code and the National
Electrical Code, where appropriate, as well as City regulations applicable
to excavations in public streets.
P.
The application shall show that at a telecommunications site, an
access road, turnaround space and parking shall be provided to assure
adequate emergency and service access. Maximum use of existing roads,
whether public or private, shall be made to the extent practicable.
Road construction shall at all times minimize ground disturbance and
the cutting of vegetation. Road grades shall closely follow natural
contours to assure minimal visual disturbance and reduce soil erosion.
Q.
All wireless telecommunications facilities subject to this chapter
shall be constructed, operated, maintained, repaired, modified, removed
or restored in strict compliance with all current applicable technical,
safety and safety-related codes adopted by the City, state, or United
States, including but not limited to the most recent editions of the
ANSI Code, National Electrical Safety Code and the National Electrical
Code, as well as accepted and responsible workmanlike industry practices
and recommended practices of the National Association of Tower Erectors.
The codes referred to are codes that include, but are not limited
to, construction, building, electrical, fire, safety, and health.
In the event of a conflict between or among any of the preceding,
the more stringent shall apply.
R.
The applicant and owner of the property shall covenant that a holder
of a special use permit or other approval granted under this chapter
shall obtain, at its own expense, all other permits and licenses required
by applicable law, rule, regulation or code, and shall maintain the
same, in full force and effect, for as long as required by the City
or other governmental entity or agency having jurisdiction over the
applicant.
S.
In the course of any application under this chapter, the applicant
and its representatives may request a meeting with the Building Department
and its representatives to discuss and identify what documentation
and supporting information is required in the particular circumstances
of the permit application and generally address issues that will help
to expedite the review and permitting process. Applicants who do not
meet with the Building Department to limit the application materials
required should submit all the documentation and information identified
in this chapter as potentially required for such applications to avoid
delay in consideration of their application. The Building Department
may in its discretion require an inspection of the site by its representatives
in connection with an application. The applicant shall fully cooperate
in arranging access for the inspection and may participate in the
inspection.
T.
The Planning Board shall conduct an environmental review of the proposed
project pursuant to the State Environmental Quality Review Act in
combination with its review of the application.
A.
In its review of applications for special use permits, the Planning
Board shall consider the following factors affecting the suitability
of a proposed location for a new wireless facility. These factors
are designed and intended to facilitate the provision of wireless
services in the City while minimizing the adverse economic, environmental,
and quality-of-life impacts by encouraging co-location on existing
towers and structures improved with wireless telecommunications facilities
when such co-location is technically feasible and not commercially
impracticable and encouraging the location of new wireless facilities
so as to minimize their impact on historically sensitive areas around
residences, schools, houses of worship, day-care centers, and similar
uses, listed in order from the more preferred to the less preferred:
(1)
On existing towers or other structures already improved with telecommunications
facilities (e.g., telephone poles) or public utilities (i.e., street
light or traffic light poles) on City-owned or other publicly owned
property.
(2)
On existing towers or other structures already improved with telecommunications
facilities or public utilities on other property in the City.
B.
The Planning Board may approve any new wireless facility site located
within an area in the above list of priorities if the site is appropriate,
taking into account the totality of the circumstances, including potential
alternatives, under the provisions of this chapter and other applicable
law. An applicant proposing a new wireless facility should explain
in its application why co-location or any higher-priority locations
are not feasible or appropriate in the circumstances. Any technological,
financial, or other factors should be identified, and any quantitative
data relating to such factor should be included in the application.
Unilateral or contractual obstacles to co-location created by the
applicant and/or others holding permits for wireless facilities in
the City are typically contrary to the public interest and may be
given little weight. Notwithstanding that a potential site may be
situated in an area of highest priority or highest available priority,
an application may be denied by the Planning Board if the applicant
has not otherwise satisfied the requisites for a permit under other
provisions of this chapter or other applicable federal, state, or
local laws and regulations.
A.
Co-locations and modifications at a permitted wireless facility,
and co-locations of small wireless telecommunications facilities on
existing towers or other structures already improved with telecommunications
facilities or public utilities located on City-owned property, shall
be reviewed and approved administratively by the Building Department
in accordance with all applicable federal, state and local laws and
regulations, specifically including § 6409 of the Middle
Class Tax Relief and Job Creation Act of 2012, codified at 28 U.S.C. § 1455.
Except for the requirement to obtain a special use permit from the
Planning Board, all co-locations and modifications reviewed and approved
administratively by the Building Department must meet and comply with
the other applicable criteria and requirements established in this
Chapter. In addition, all co-locations and modifications, including
replacements that meet the definition of co-location, shall use stealth
technology to the maximum extent practicable.
B.
Repairs and maintenance consistent with the current building permit
of a wireless facility do not require approval of the Building Department
or modification of the existing permit. The City Code Enforcement
Officer may require inspections and reporting of repair and maintenance
work to assure compliance with the requirements of existing permits
and all other requirements of this chapter.
C.
The applicant for a special use permit for a new wireless facility
shall submit a report inventorying existing towers and other suitable
alternative structures already improved with wireless facilities located
within one mile of a proposed new tower, and explaining why a new
tower or wireless facility would be preferable to co-location on any
such alternatives.
D.
An applicant intending to co-locate on an existing tower or other
suitable structure shall be required to document proof from the owner
or person in control of the existing tower to permit its use by the
applicant.
A.
In addition to satisfying all other special use permit criteria,
the applicant for a new wireless telecommunications facility shall
submit documentation justifying the total height of any tower, facility
and/or antenna requested and the basis therefor. Documentation in
the form of propagation studies must include all backup data used
to perform at requested height and a minimum of 10 feet lower height
to allow verification of this height need. Such documentation will
be analyzed in the context of the justification of the height needed
to provide service primarily and essentially within the City, to the
extent practicable, unless good cause is shown.
B.
No tower or wireless telecommunications facility constructed after
the effective date of this chapter, including allowing for all attachments,
shall exceed that height which shall permit operation without required
artificial lighting of any kind in accordance with City, state, and/or
any federal statute, law, local law, City ordinance, code, rule or
regulation. In addition, no tower or wireless telecommunications facility
constructed after the effective date of this chapter, including allowing
for all attachments, shall exceed 45 feet in height above ground level
or 10 feet above the highest point of the existing structure.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law, and shall use stealth
technology to the maximum extent practicable.
B.
Wireless telecommunications facilities located on an existing tower
or other structure shall be painted with a rust-preventive paint of
an appropriate color to harmonize with the color of the existing tower
or structure and shall be maintained in accordance with the requirements
of this chapter.
C.
Towers shall be galvanized and/or painted with a rust-preventive
paint of an appropriate color to harmonize with the surroundings and
shall be maintained in accordance with the requirements of this chapter.
D.
If lighting is required by law, the applicant shall provide a detailed
plan for sufficient lighting, demonstrating compliance with dark sky
concepts, and demonstrating that the illumination from the lighting
would not be directed or beamed upon a public street, highway, sidewalk
or adjacent premises.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner that prevents
unauthorized access. Specifically, all antennas, towers and other
supporting structures, including guy anchor points and wires, shall
be made inaccessible to individuals and constructed or shielded in
such a manner that they cannot be climbed or collided with; and transmitters
and telecommunications control points shall be installed in such a
manner that they are readily accessible only to persons authorized
to operate or service them.
A.
Wireless telecommunications facilities shall contain a sign no larger
than four square feet in order to provide adequate notification to
persons in the immediate area of the presence of RF radiation or to
control exposure to RF radiation within a given area. A sign of the
same size is also to be installed to contain the name(s) of the owner(s)
and operator(s) of the antenna(s) as well as emergency phone number(s).
The sign shall be on the equipment shelter or cabinet of the applicant
and be visible from the access point of the site and must identify
the equipment owner of the shelter or cabinet.
B.
On tower sites, an FCC registration sign as applicable is also to
be present. The signs shall not be lighted, unless applicable law,
rule or regulation requires lighting. No other signage, including
advertising, shall be permitted.
A.
All proposed towers and any other proposed wireless telecommunications
facility structures may be subject to site plan review, and other
applicable requirements, as provided in the City Code for the zoning
district in which the premises is located.
B.
No part of any new tower or building on which one or more wireless
telecommunications antennas are to be affixed shall be located closer
than 200 feet to a residential building, house of worship, hospital,
day-care center, or school, or similar historically protected uses.
C.
Proposed deviations from any of the above-referenced standards shall
be considered by the Board of Appeals, and subject to the requirements
of the federal Telecommunications Act of 1996.
A.
The City may hire any consultant and/or expert necessary to assist
the City or any of its departments in reviewing and evaluating the
application, including the construction and modification of the site,
once permitted, and any site inspections.
B.
Escrow deposit.
(1)
An applicant shall deposit with the City Comptroller escrow funds
sufficient to reimburse the City for all reasonable costs of the City's
consultant in providing expert evaluation and consultation to any
agency or department of the City in connection with the review of
any application, including any expert consultation services deemed
necessary by the City Code Enforcement Officer or the Planning Board.
(2)
The initial deposit for a new wireless facility shall be $8,500.
The initial deposit for a co-location or modification shall be $5,000.
The placement of the deposit with the City Comptroller shall precede
the preapplication meeting, or shall occur at such later time as the
Code Enforcement Officer may direct. The City Comptroller will maintain
a separate escrow account for all such funds. The City's consultants/experts
shall invoice the City Department employing its services related to
the application.
C.
If at any time during the process this escrow account has a balance
less than $2,500, the applicant shall immediately, upon notification
by the City or consultant, replenish said escrow account so that it
has a balance of at least $5,000. Such additional escrow funds shall
be deposited with the City before any further action or consideration
is taken on the application. In the event that the amount held in
escrow by the City is more than the amount of the actual invoicing
at the conclusion of the project, the remaining balance shall, upon
request of the applicant, be promptly refunded to the applicant.
D.
When notified by the City that additional escrow is required, the
applicant may request copies of invoices paid to consultants and/or
experts. If the applicant finds errors in those invoices, the applicant
may ask the City to audit those specific items for reasonableness,
and may request relief therefrom.
E.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application, and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
F.
Notwithstanding the above, there shall be a fee cap as to the total
consultant fees to be charged to the applicant in a case, which shall
be the greater of $17,000 or 10% of the highest annual lease payment
to be made by the applicant to the owner of the property under the
lease authorizing placement of the wireless telecommunications facilities
at a given site. However, the fee cap shall not apply as to any fees
which the Code Enforcement Officer determines to be attributable to
the dilatory or otherwise bad faith actions of the applicant in providing
a complete application or in proceeding with a public hearing.
A.
Upon receipt of an application, the Building Department or Planning
Board must, within 15 days, notify the applicant if the application
is materially incomplete and clearly and specifically identify the
missing documents or information and the specific provision creating
the obligation to submit such documents or information. If the application
is incomplete, the Planning Board may seek an agreement with the applicant
regarding timing of the review of the application, or the Planning
Board may deny the application, without prejudice to a new application
being submitted by the applicant.
B.
Once the Building Department or Planning Board determines that the
application is complete, with all required submissions having been
received in proper form, the Planning Board shall schedule a public
hearing. The Planning Board may require such additional information
as it deems necessary and relevant to the case or the scheduling of
a public hearing.
C.
In order for a public hearing to be held by the Planning Board, notice
of the hearing shall be published in a newspaper of general circulation
in the vicinity of the premises, no less than 10 calendar days prior
to the scheduled date of the public hearing. In order that nearby
property owners shall be specifically notified of the application,
the applicant shall, no less than 14 calendar days prior to the scheduled
date of the public hearing, mail a written notice of the hearing to
all property owners within 300 feet or 10 times the height of the
proposed new tower or other structure, whichever is greater, of any
property line of the lot or parcel on which the new wireless telecommunications
facilities are proposed to be located, and, for that purpose, the
applicant shall complete and utilize a form provided by the Building
Department, and provide affidavits or such other proof to the Planning
Board as it requires to ensure that such mailing has properly taken
place. The notice of hearing shall be sent by certified mail, return
receipt requested, to all property owners within 300 feet, and by
first-class mail to all other property owners entitled to notice hereunder.
A.
The Planning Board shall consider the merits of the case, based on
the evidence in the record, and subject to the provisions of the federal
Telecommunications Act of 1996, as is required by law. The burden
of proof for showing compliance with applicable standards and criteria
shall always be upon the applicant.
B.
After the public hearing is completed, and within the time frames
required by law, including 47 CFR 1.6003, the Planning Board may approve,
approve with conditions, or deny a special use permit. The Planning
Board shall issue a written decision setting forth the reasons for
its approval, approval with conditions, or denial. Its decision shall
be supported by substantial evidence contained in a written record.
C.
No special use permit shall be assigned, transferred or conveyed
without the express prior written notification to the Planning Board,
received by the Planning Board not less than 10 days prior thereto.
D.
In addition to any other remedy of the City at law or equity, any
special use permit may, following a hearing upon due prior notice
to the applicant, be revoked, canceled, or terminated by the Planning
Board if it determines that there are substantial violations of the
conditions and provisions of the special use permit, or a substantial
violation of the provisions of this chapter.
E.
Time frames for approval. Unless there is an agreement in place between
the City and the applicant regarding timing of the review of the application,
the following time frames apply:
(1)
Small wireless facilities.
(a)
Within 60 days of receipt of a complete application for co-location
of a small wireless facility, the Building Department shall make a
final decision on whether to approve the application and shall notify
the applicant in writing of such decision.
(b)
Within 90 days of receipt of a complete application for a small
wireless facility on a new pole, tower, or other structure, the Planning
Board shall make a final decision on whether to approve the application
and shall notify the applicant in writing of such decision.
(c)
Within 15 days of receipt of an incomplete application for a
small wireless facility, the City shall notify the applicant in writing
of any supplemental information required to complete the application.
Upon receipt of an applicant's supplemental information in response
to the initial notification of incompleteness by the City, the applicable
shot clock will reset to zero and the City shall have the full 60
or 90 days permitted by law to act on the completed application.
(d)
For any subsequent determinations of incompleteness beyond the
initial, the City shall notify the applicant of any required supplemental
information within 10 days of receipt of the supplemental submission,
and such notice shall toll the applicable shot clock until the applicant
submits the required supplemental information.
(2)
Other wireless facilities.
(a)
Within 30 days of receipt of any application for wireless facilities
which are not small wireless facilities, the City shall notify the
applicant in writing of any supplemental information required to complete
the application. Such notice shall toll the applicable shot clock
until the applicant submits the required supplemental information.
(b)
Upon receipt of an applicant's supplemental information
in response to the initial notification of incompleteness by the City,
the applicable shot clock will reset to zero, and the City shall have
the full amount of time permitted by law to act on the completed application.
F.
Any special use permit or other permit for construction issued under
this chapter shall be valid for a period of 12 months after issuance,
provided that the twelve-month period may be extended for up to an
additional six months upon written request of the applicant (made
prior to the end of the initial twelve-month period if the failure
to complete construction is as a result of circumstances beyond the
reasonable control of the applicant). The permit shall expire at the
end of the initial, or validly extended, period of time.
A.
The building permit fees for a wireless telecommunications facility shall be determined by the Building Department pursuant to the provisions of Chapter 220, the Zoning Code.
B.
The application fee to be paid to the City for a special use permit,
or for an administrative approval from the Building Department, shall
be $500 for up to five small wireless telecommunications facilities
in a single application, plus $100 for each additional small wireless
telecommunications facility included in a single application; $200
for co-locations of other wireless telecommunications facilities on
a permitted wireless facility, existing tower or other structure;
and $1,000 for any other new wireless telecommunications facilities.
The required fee shall be paid to the City at the time the applicant
submits its application.
C.
All fees paid shall be nonrefundable.
A.
Prior to issuance of any building permit, 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 Building Department a bond, or other form of security
acceptable to the City Attorney as to type of security, and the form
and manner of execution, in an amount of at least $75,000 for a tower
facility and $25,000 for a co-location on an existing tower or other
structure, and with such sureties as are deemed sufficient by the
City Attorney to assure the faithful performance of the terms and
conditions of this chapter and conditions of any special use permit,
including payment of costs of future demolition of an abandoned tower
or other facilities. The full amount of the bond or security shall
remain in full force and effect while the facility is in existence
and until any necessary site restoration is completed to restore the
site to a condition comparable to that which existed prior to the
issuance of the original special use permit or other approval.
In order to verify that the holder of a special use permit or
other approval for wireless telecommunications facilities and any
and all lessees, renters, and/or licensees of wireless telecommunications
facilities, place and construct such facilities, including towers
and antennas, in accordance with all applicable technical, safety,
fire, and building codes, laws, ordinances and regulations and other
applicable requirements, the City may designate persons to conduct
an inspection on its behalf of all facets of said permit holder's,
renter's, lessee's or licensee's placement, construction,
modification and maintenance of such facilities, including, but not
limited to, towers, antennas and buildings or other structures constructed
or located on the permitted site.
This chapter shall apply to all applications originally filed
with, or pending but not yet approved by, the City after the filing
of this chapter in the Office of the Secretary of State of the State
of New York,
In the event of a violation of this chapter or any of the terms
and conditions of a special use permit or other approval issued pursuant
to this chapter, and in addition to any other remedy available to
the City at law or equity, the City may impose and collect, and the
holder of the special use permit for wireless telecommunications facilities
shall pay to the City, civil penalties in the amount of $500 per day,
until the violation or violations are abated to the satisfaction of
the City. Additionally, the failure to comply with provisions of this
chapter or the terms and conditions of any special use permit, building
permit, or other approval shall constitute a violation of this chapter
by the owner of the property, the owner of the improvements, and any
lessee or other person or entity in control of the property or facilities,
jointly and severally, and shall subject them or any of them to prosecutions
or injunction actions in any court of competent jurisdiction to compel
compliance. In the case of a prosecution, any person, firm or corporation
which shall construct, alter, repair, move, remove, demolish, equip,
use, occupy or maintain any wireless telecommunications facility or
part thereof in violation of this chapter, or the conditions of any
special use permit or other approval issued hereunder, shall be guilty
of a violation punishable by a fine not exceeding $1,000 or imprisonment
for a period not exceeding 15 days for each such offense, or by both
such fine and imprisonment. Each day that an offense continues shall
be deemed a separate offense. For conviction of a second offense,
both of which were committed within a period of five years, such violation
shall be punishable by a fine of not less than $250 and not more than
$1,000 or by imprisonment for a period not to exceed 15 days, or both.
Upon conviction of a third offense and any further offenses, all of
which were committed within a period of five years, such violations
shall be punishable by a fine of not less than $500 and not more than
$2,000 or by imprisonment for a period not to exceed 15 days, or both.
Except as provided otherwise by law, such a violation shall not be
a crime, and the penalty or punishment imposed therefor shall not
be deemed for any purpose a penal or criminal penalty or punishment
and shall not impose any disability upon or affect or impair the credibility
as a witness, or otherwise, of any person convicted thereof.
A.
Under the following circumstances, the Building Department may determine
that the health, safety, and welfare interests of the City warrant
and require the removal of wireless telecommunications facilities:
(1)
Wireless telecommunications facilities with a permit have been abandoned
(i.e., not used as wireless telecommunications facilities) for a period
exceeding 90 consecutive days or a total of 180 days in any 365-day
period, except for periods caused by force majeure or acts of God,
in which case, repair or removal shall commence within 90 days;
(2)
Permitted wireless telecommunications facilities fall into such a
state of disrepair as to create a health or safety hazard;
(3)
Wireless telecommunications facilities have been located, constructed,
or modified without first obtaining, or in a manner not authorized
by, the required special use permit or any other necessary authorization,
and the special permit or any approval has been revoked as provided
in this chapter.
(4)
Wireless telecommunications facilities interfere with a public project,
or obstruct the usual travel or impair public safety, on a right-of-way,
or obstruct the legal use of a right-of-way by utilities or authorized
parties.
B.
If the Building Department makes a determination under this section,
then the City shall notify the holder of the special use permit or
other approval within 48 hours that said wireless telecommunications
facilities are to be removed, on such terms and time frames as the
Building Department may direct, within not less than 90 days of receipt
of written notice from the Department. Nothing herein shall prevent
the Building Department from declaring any structure a dangerous structure,
and proceeding in any manner authorized thereunder. In such a case,
the holder of the special use permit or other approval, or its successors
or assigns, shall dismantle and remove such wireless telecommunications
facilities, and all associated structures and facilities, from the
site and restore the site to as close to its original condition as
is possible, such restoration being limited only by physical or commercial
impracticability, within 90 days of receipt of written notice from
the Department. However, if the owner of the property upon which the
wireless telecommunications facilities are located wishes to retain
any access roadway to the wireless telecommunications facilities,
the owner may do so with the approval of the City. If wireless telecommunications
facilities ordered to be removed under this section are not removed
or substantial progress has not been made to remove the wireless telecommunications
facilities within the ninety-day period, then the City may remove
the wireless telecommunications facilities at the sole expense of
the owner or holder of the special use permit or other approval, dispose
of the equipment as it sees fit, and charge a tax lien against the
property on which the structure(s) are situated to cover the City's
cost.
C.
Notwithstanding anything in this section to the contrary, the Building
Department may in its sole discretion approve a temporary use permit/agreement
for the wireless telecommunications facilities, for no more 180 days,
during which time a suitable plan for removal, conversion, or relocation
of the affected wireless telecommunications facilities shall be developed
by the holder of the special use permit or other approval, and an
agreement to such plan shall be executed by the holder of the special
use permit or other approval and the City.
A.
Applications for permits for wireless facilities in public streets
or rights-of-way or on City-owned property in the City shall be determined
under the same procedures and standards applicable to all other applications
under this chapter.
B.
Nothing in this section shall be construed to authorize approval
of a building permit or special use permit in violation of applicable
local, state and federal laws and regulations, including all City
laws applicable to public streets and rights-of-way. The owner of
wireless facilities that are in, upon, above, along, across or over
public streets or rights-of-way or on City-owned property must obtain
a license and/or right-of-way agreement from the City.
C.
The City may charge a fair and reasonable fee to the owner of the
wireless facilities as part of such license or agreement for the use
and occupancy of the public right-of-way or property.
D.
The license or agreement fee for small wireless facilities shall
be $270 per small wireless facility per year. The license or agreement
fee shall be due and payable within 30 days of issuance of the license
or agreement, and annually thereafter. Late payments shall be subject
to an interest rate of 5%.
E.
No license or agreement granted hereunder shall confer any exclusive
right, privilege or license to occupy or use the right-of-way or property.
All licenses and agreements shall be nonexclusive and shall not prohibit
co-location or City use.
The owner or holder of the special use permit or other approval
shall indemnify the City and Planning Board from loss or damage that
may directly or indirectly be occasioned by the installation, operation,
maintenance, and removal of the wireless telecommunications facility.
If any word, phrase, sentence, part, section, subsection, or
other portion of this chapter or any application thereof to any person
or circumstance is declared void, unconstitutional, or invalid for
any reason, then such word, phrase, sentence, part, section, subsection,
or other portion, or the prescribed application thereof, shall be
severable, and the remaining provisions of this chapter, and all applications
thereof, not having been declared void, unconstitutional, or invalid,
shall remain in full force and effect. Any special use permit issued
under this chapter shall be comprehensive and not severable. If part
of a permit is deemed or ruled to be invalid or unenforceable in any
material respect, by a competent authority, or is overturned by a
competent authority, the permit shall be void in total.
This Local Law shall take effect upon the filing in the Office
of the Secretary of State of the State of New York, as provided in
the Municipal Home Rule Law.
