[HISTORY: Adopted by the Town Board of the
Town of Cheektowaga 9-15-2008 by L.L. No. 8-2008.[1] Amendments noted where applicable.]
The telecommunications Act of 1996 affirmed
the Town of Cheektowaga's authority concerning the placement, construction
and modification of wireless telecommunications facilities. The Town
of Cheektowaga finds that wireless telecommunications facilities may
pose significant concerns to the health, safety, public welfare, character
and environment of the Town and its inhabitants. The Town also recognizes
that facilitating the development of wireless service technology can
be an economic development asset to the Town and of significant benefit
to the Town and its residents. In order to insure that the placement,
construction or modification of wireless telecommunications facilities
is consistent with the Town's land use policies, the Town is adopting
a single, comprehensive wireless telecommunications facilities application
and permit process. The intent of this chapter is to minimize impact
of wireless telecommunications facilities, establish a fair and efficient
process for review and approval of applications, assure an integrated,
comprehensive review of environmental impacts of such facilities,
and protect the health, safety and welfare of the Town of Cheektowaga.
This chapter shall be known and cited as the
"Wireless Telecommunications Facilities Siting Local Law for the Town
of Cheektowaga."
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 meaning given in this section. 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,
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 for wireless telecommunications facilities.
All necessary and appropriate documentation that an applicant
submits in order to receive a special use permit for wireless telecommunications
facilities.
The Town Board of the Town of Cheektowaga.
The use of an existing tower or structure to support antennas
for the provision of wireless services. A replacement tower that is
constructed on the same site as an existing tower will be considered
a co-location as long as the new tower is no taller than the old tower
and that the old tower is removed in a reasonably short time frame
after the new tower is constructed.
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 commercial impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
An application that contains all information and/or data
necessary 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 preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna or lightening
protection device.
The addition, removal or change of any of the physical and
visually discernible components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernible
components, vehicular access, parking and/or an upgrade or changeout
of equipment for better or more modern equipment. Adding a new wireless
carrier or service provider to a telecommunications tower or telecommunications
site as a co-location is a modification. "Modification" shall not
include the replacement of any components of a wireless facility where
the replacement is identical to the component being replaced or any
matters that involve the normal repair and maintenance of a wireless
facility without adding, removing or changing anything.
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 the definition for "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the 1996
telecommunications Act.
The replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or for any matters that involve the normal repair and maintenance
of a wireless facility without the addition, removal or change of
any of the physical or visually discernible components or aspects
of a wireless facility that will add to the visible appearance of
the facility as originally permitted.
The official document or permit by which an applicant is
allowed to file for a building permit to construct and use wireless
telecommunications facilities as granted or issued by the Town.
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.
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
See the definition for "wireless telecommunications facilities."
A 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.
Means and includes a telecommunications site and personal
wireless facility. A structure, facility or location designed, intended
to be used as, or used to support antennas or other transmitting or
receiving devices. This includes without limit, towers of all types
and kinds and structures, including, but not limited to, buildings,
church steeples, silos, water towers, signs or other structures that
can be used as a support structure for antennas or the functional
equivalent of such. It further includes all related facilities and
equipment such as cabling, equipment shelters and other structures
associated with the site. It is a structure and facility intended
for transmitting and/or receiving radio, television, cellular, SMR,
paging, 911, personal communications services (PCS), commercial satellite
services, microwave services and any commercial wireless telecommunications
service not licensed by the FCC.
In order to ensure that the placement, construction,
and modification of wireless telecommunications facilities protects
the Town's health, safety, public welfare, environmental features,
the nature and character of the community and neighborhood and other
aspects of the quality of life specifically listed elsewhere in this
chapter, the Town hereby adopts an overall policy with respect to
a special use permit for wireless telecommunications facilities for
the express purpose of achieving the following goals:
A.
Requiring a special use permit for any new co-location
or modification of a wireless telecommunications facility.
B.
Implementing an application process for person(s)
seeking a special use permit for wireless telecommunications facilities.
C.
Establishing a policy for examining an application
for and issuing a special use permit for wireless telecommunications
facilities that is both fair and consistent.
D.
Promoting and encouraging, wherever possible, the
sharing and/or co-location of wireless telecommunications facilities
among service providers.
E.
Promoting and encouraging, wherever possible, the
placement, height and quantity of wireless telecommunications facilities
in such a manner, including but not limited to the use of stealth
technology, to minimize adverse aesthetic and visual impacts on the
land, property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
F.
That in granting a special use permit, the Town has
found that the facility shall be the most appropriate site as regards
being the least visually intrusive among those available in the Town.
A.
No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this chapter without having first obtained a special use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those noncommercial exceptions noted in § 255-6.
B.
All legally permitted wireless telecommunications
facilities, constructed as permitted, existing on or before the effective
date of this chapter shall be allowed to continue as they presently
exist; provided, however, that any visible modification of an existing
wireless telecommunications facility will require the complete facility
and any new installation to comply with this chapter.
C.
Any repair and maintenance of a wireless facility
does not require an application for a special use permit.
The following shall be exempt from this chapter:
A.
The Town's fire, police, Department of Transportation
or other public service facilities owned and operated by the local
government.
B.
Any facilities expressly exempt from the Town's siting,
building and permitting authority.
C.
Over-the-air reception devices, including the reception
antennas for direct broadcast satellites (DBS), multichannel multipoint
distribution (wireless cable) providers (MMDS), television broadcast
stations (TVBS) and other customer-end antennas that receive and transmit
fixed wireless signals that are primarily used for reception.
D.
Facilities exclusively for private, noncommercial
radio and television reception and private citizen's bands, licensed
amateur radio and other similar noncommercial telecommunications.
E.
Facilities exclusively for providing unlicensed spread-spectrum
technologies [such as IEEE 802.11a, b, g (Wi-Fi) and Bluetooth] where
the facility does not require a new tower.
A.
All applicants for a special use permit for wireless
telecommunications facilities or any modification of such facility
shall comply with the requirements set forth in this chapter. The
Town Board is the officially designated agency or body of the Town
to which applications for a special use permit for wireless telecommunications
facilities must be made and that is authorized to review, analyze,
evaluate and make decisions with respect to granting or not granting
or revoking special use permits for wireless telecommunications facilities.
The Town may, at its discretion, delegate or designate other official
agencies or officials of the Town to accept, review, analyze, evaluate
and make recommendations to the Town Board with respect to granting
or not granting or revoking special use permits for wireless telecommunications
facilities.
B.
The Town may reject applications not meeting the requirements
stated herein or which are otherwise incomplete.
C.
No wireless telecommunications facilities shall be
installed, constructed or modified until the application is reviewed
and approved by the Town and the special use permit has been issued.
D.
Any and all representations made by the applicant
to the Town on the record during the application process, whether
written or verbal, shall be deemed a part of the application and may
be relied upon in good faith by the Town
E.
An application for a special use permit for wireless
telecommunications facilities shall be signed on behalf of the applicant
by the person preparing the same and with knowledge of the contents
and representations made therein and attesting to the truth and completeness
of the information.
F.
The applicant must provide documentation to verify
it has the right to proceed as proposed on the site. This would require
an executed copy of the lease with the landowner or landlord or a
signed letter acknowledging authorization. If the applicant owns the
site, a copy of the ownership record is required.
G.
The applicant shall include a statement in writing:
(1)
That the applicant's proposed wireless telecommunications
facilities shall be maintained in a safe manner, and in compliance
with all conditions of the special use permit, without exception,
unless specifically granted relief by the Town in writing, as well
as all applicable and permissible local codes, zoning laws, and regulations,
including any and all applicable Town, state and federal laws, rules,
and regulations;
(2)
That the construction of the wireless telecommunications
facilities is legally permissible, including, but not limited to,
the fact that the applicant is authorized to do business in the State.
H.
Where a certification is called for in this chapter,
such certification shall bear the signature and seal of a registered
professional engineer licensed in the state.
I.
In addition to all other required information as stated
in this chapter, all applications for the construction or installation
of new wireless telecommunications facilities or modification of an
existing facility shall contain the information hereinafter set forth:
(1)
A descriptive statement of the objective(s) for the
new facility or modification including and expanding on a need such
as coverage and/or capacity requirements.
(2)
Documentation that demonstrates and proves the need
for the wireless telecommunications facility to provide service primarily
and essentially within the Town. Such documentation shall include
propagation studies of the proposed site and all adjoining planned,
proposed, in-service or existing sites that demonstrate a significant
gap in coverage and/or if a capacity need, including an analysis of
current and projected usage.
(3)
The name, address and phone number of the person preparing
the report.
(4)
The name, address, and phone number of the property
owner and applicant, and to include the legal name of the applicant.
If the site is a tower and the owner is different from the applicant,
provide the name and address of the tower owner.
(5)
The postal address and Tax Map parcel number of the
property.
(6)
The Zoning District or designation in which the property
is situated.
(7)
Size of the property stated both in square feet and
lot line dimensions, and a survey showing the location of all lot
lines.
(8)
The location of the nearest residential structure.
(9)
The location, size and height of all existing and
proposed structures on the property which is the subject of the application.
(10)
The type, locations and dimensions of all proposed
and existing landscaping, and fencing.
(11)
The azimuth, size and center-line height location
of all proposed and existing antennas on the supporting structure.
(12)
The number, type and model of the antenna(s)
proposed, with a copy of the specification sheet.
(13)
The make, model, type and manufacturer of the
tower and design plan stating the tower's capacity to accommodate
multiple users.
(14)
A site plan describing the proposed tower and
antenna(s) and all related fixtures, structures, appurtenances and
apparatus, including height above preexisting grade, materials, color
and lighting.
(15)
The frequency, modulation and class of service
of radio or other transmitting equipment.
(16)
The actual intended transmission power stated
as the maximum effective radiated power (ERP) in watts.
(17)
Signed documentation such as the "Checklist
to Determine Whether a Facility is Categorically Excluded" to verify
that the wireless telecommunications facility with the proposed installation
will be in full compliance with the current FCC RF emissions guidelines
(NIER). If not categorically excluded, a complete RF emissions study
is required to provide verification.
(18)
A signed statement that the proposed installation
will not cause physical or RF interference with other telecommunications
devices.
(19)
A copy of the FCC license applicable for the
intended use of the wireless telecommunications facilities.
(20)
A copy of the geotechnical subsurface soils
investigation, evaluation report and foundation recommendation for
a proposed or existing tower site, and if an existing tower or water
tank site, a copy of the installed foundation design.
J.
The applicant will provide a written copy of an analysis,
completed by a qualified individual or organization, to determine
if the proposed new tower or existing structure intended to support
wireless facilities is in compliance with 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.
K.
Application for new tower.
(1)
In the case of a new tower, the applicant shall be
required to submit a written report demonstrating its meaningful efforts
to secure shared use of existing tower(s) or the use of alternative
buildings or other structures within the Town. Copies of written requests
and responses for shared use shall be provided to the Town in the
application, along with any letters of rejection stating the reason
for rejection.
(2)
In order to better inform the public, in the case
of a new telecommunications tower, the applicant shall, prior to the
public hearing on the application, hold a "balloon test." The applicant
shall arrange to fly, or raise upon a temporary mast, a minimum of
a three-foot-in-diameter brightly colored balloon at the maximum height
of the proposed new tower. The dates (including a second date, in
case of poor visibility on the initial date), times and location of
this balloon test shall be advertised by the applicant seven days
and 14 days in advance of the first test date in a newspaper with
a general circulation in the Town. The applicant shall inform the
Town, in writing, of the dates and times of the test, at least 14
days in advance. The balloon shall be flown for at least four consecutive
hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen.
The primary date shall be on a weekend, but in case of poor weather
on the initial date, the secondary date may be on a weekday. A report
with pictures from various locations of the balloon shall be provided
with the application.
(3)
The applicant shall examine the feasibility of designing
the proposed tower to accommodate future demand for at least four
additional commercial applications, for example, future co-locations.
The tower shall be structurally designed to accommodate at least four
additional antenna arrays equal to those of the applicant, and located
as close to the applicant's antenna as possible without causing interference.
This requirement may be waived, provided that the applicant, in writing,
demonstrates that the provision of future shared usage of the tower
is not technologically feasible, is commercially impracticable or
creates an unnecessary and unreasonable burden, based upon:
(a)
The foreseeable number of FCC licenses available
for the area.
(b)
The kind of wireless telecommunications facilities
site and structure proposed.
(c)
The number of existing and potential licenses
without wireless telecommunications facilities spaces/sites.
(d)
Available space on existing and approved towers.
(4)
The owner of a proposed new tower, and his/her successors
in interest, shall negotiate in good faith for the shared use of the
proposed tower by other wireless service providers in the future and
shall:
(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.
(d)
Failure to abide by the conditions outlined
above may be grounds for revocation of the special use permit.
L.
The applicant shall provide certification with documentation
(structural analysis) including calculations that the telecommunications
facility tower and foundation and attachments, rooftop support structure,
water tank structure, and any other supporting structure as proposed
to be utilized are designed and will be constructed to meet all local,
Town, state and federal structural requirements for loads, including
wind and ice loads.
M.
If the proposal is 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. The inspection report must be performed every three years
for a guyed tower and five years for monopoles and self-supporting
towers.
N.
All proposed wireless telecommunications facilities
shall contain a demonstration that the facility be sited so as to
be the least visually intrusive reasonably possible, given the facts
and circumstances involved, and thereby have the least adverse visual
effect on the environment and its character, on existing vegetation,
and on the residences in the area of the wireless telecommunications
facility.
O.
If a new tower, proposal for a new antenna attachment
to an existing structure, or modification adding to a visual impact,
the applicant shall furnish a visual impact assessment, which shall
include:
(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 a one-mile radius from the proposed structure, with
and without foliage, shall be provided to illustrate locations from
which the proposed installation may be seen.
(2)
Pictorial representations of "before and after" (photo
simulations) views from key viewpoints both inside and outside of
the Town as may be appropriate, including but not limited to state
highways and other major roads; state and local parks; other public
lands; historic districts; preserves and historic sites normally open
to the public; and from any other location where the site is visible
to a large number of visitors, travelers or residents. Guidance will
be provided concerning the appropriate key sites at the preapplication
meeting. Provide a map showing the locations of where the pictures
were taken and distance from the proposed structure.
(3)
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.
P.
The applicant shall demonstrate and provide in writing
and/or by drawing how it shall effectively screen from view the base
and all related equipment and structures of the proposed wireless
telecommunications facility.
Q.
The wireless telecommunications facility and any and
all accessory or associated facilities shall maximize the use of building
materials, colors and textures designed to blend with the structure
to which it may be affixed and/or to harmonize with the natural surroundings;
this shall include the utilization of stealth or concealment technology
as may be required by the Town.
R.
All utilities at a wireless telecommunications facilities
site shall be installed underground and in compliance with all laws,
ordinances, rules and regulations of the Town, including specifically,
but not limited to, the National Electrical Safety Code and the National
Electrical Code where appropriate.
S.
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.
T.
All wireless telecommunications facilities shall be
constructed, operated, maintained, repaired, provided for removal
of, modified or restored in strict compliance with all current applicable
technical, safety and safety-related codes adopted by the Town, state,
or United States, including but not limited to the most recent editions
of the ANSI Code, National Electrical Safety Code and the National
Electrical Code, as well as accepted and responsible workmanlike industry
practices and recommended practices of the National Association of
tower Erectors. The codes referred to are codes that include, but
are not limited to, construction, building, electrical, fire, safety,
health, and land use codes. In the event of a conflict between or
among any of the preceding, the more stringent shall apply.
U.
A holder of a special use permit granted under this
chapter shall obtain, at its own expense, all permits and licenses
required by applicable law, rule, regulation or code and must maintain
the same, in full force and effect, for as long as required by the
Town or other governmental entity or agency having jurisdiction over
the applicant.
V.
There shall be a preapplication meeting. The purpose
of the preapplication meeting will be to address issues that will
help to expedite the review and permitting process. A preapplication
meeting shall also include a site visit if there has not been a prior
site visit for the requested site. Costs of the Town's consultants
to prepare for and attend the preapplication meeting will be borne
by the applicant.
W.
An applicant shall submit to the Town the number of
completed applications determined to be needed at the preapplication
meeting. Written notification of the application shall be provided
to the legislative body of all adjacent municipalities as applicable
and/or requested.
X.
The holder of a special use permit shall notify the
Town of any intended modification of a wireless telecommunication
facility and shall apply to the Town to modify, relocate or rebuild
a wireless telecommunications facility.
Y.
With respect to this application process, the Board
will normally seek to have lead agency status pursuant to SEQRA. The
Board shall conduct an environmental review of the proposed project
pursuant to SEQRA in combination with its review of the application.
A.
Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, Subsection A(1) being the highest priority and seven being the lowest priority.
(1)
On existing towers or other structures on Town-owned
properties.
(2)
On existing towers or other structures on other property
in the Town.
(3)
A new tower on municipal or government-owned properties
(and properties in the CF Community Facilities District).
(4)
A new tower on properties in areas zoned for manufacturing
(M1, M2 Districts) use.
(5)
A new tower on properties in areas zoned for business
(CM, C, NS Districts) use.
(6)
A new tower on properties in areas zoned for residential
use.
B.
If the proposed site is not proposed for the highest
priority listed above, then a detailed explanation must be provided
as to why a site of a higher priority was not selected. The person
seeking such an exception must satisfactorily demonstrate the reason
or reasons why such a permit should be granted for the proposed site
and the hardship that would be incurred by the applicant if the permit
were not granted for the proposed site.
C.
An applicant may not bypass sites of higher priority
by stating the site proposed is the only site leased or selected.
An application shall address co-location as an option. If such option
is not proposed, the applicant must explain to the reasonable satisfaction
of the Town why co-location is commercially or otherwise impracticable.
Agreements between providers limiting or prohibiting co-location shall
not be a valid basis for any claim of commercial impracticability
or hardship.
D.
Notwithstanding the above, the Town may approve any
site located within an area in the above list of priorities, provided
that the Town finds that the proposed site is in the best interest
of the health, safety and welfare of the Town and its inhabitants
and will not have a deleterious effect on the nature and character
of the community and neighborhood.
E.
The applicant shall submit a written report demonstrating
the applicant's review of the above locations in order of priority,
demonstrating the technological reason for the site selection. If
appropriate, based on selecting a site of lower priority, a detailed
written explanation as to why sites of a higher priority were not
selected shall be included with the application.
F.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the
Town may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and
requirements.
(2)
Conflict with the historic nature or character of
a neighborhood or historical district.
(3)
The use or construction of wireless telecommunications
facilities which is contrary to an already stated purpose of a specific
zoning or land use designation.
(4)
The placement and location of wireless telecommunications
facilities which would create an unacceptable risk, or the reasonable
probability of such, to residents, the public, employees and agents
of the Town, or employees of the service provider or other service
providers.
(5)
Conflicts with the provisions of this chapter.
A.
The Town, as opposed to the construction of a new
tower, shall prefer locating on existing towers or others structures
without increasing the height. The applicant shall submit a comprehensive
report inventorying existing towers and other suitable structures
within two miles of the location of any proposed new tower, unless
the applicant can show that some other distance is more reasonable
and demonstrate conclusively why an existing tower or other suitable
structure cannot be used.
B.
An applicant intending to locate on an existing tower
or other suitable structure shall be required to document the intent
of the existing owner to permit its use by the applicant.
C.
Such shared use shall consist only of the minimum
antenna array technologically required to provide service primarily
and essentially within the Town, to the extent practicable, unless
good cause is shown.
A.
The applicant shall submit documentation justifying
the total height of any tower, facility and/or antenna requested and
the basis therefor. Documentation in the form of propagation studies
must include all backup data used to perform at requested height and
a minimum of 10 feet lower height to allow verification of this height
need. Such documentation will be analyzed in the context of the justification
of the height needed to provide service primarily and essentially
within the Town, to the extent practicable, unless good cause is shown.
B.
No tower 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 Town, state, and/or any federal statute,
law,[1] local law, Town zoning law, code, rule or regulation.
A.
Wireless telecommunications facilities shall not be
artificially lighted or marked, except as required by law.
B.
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.
C.
If lighting is required, the applicant shall provide
a detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
that prevents unauthorized access. Specifically:
A.
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
B.
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.
Wireless telecommunications facilities shall
contain a sign no larger than four square feet in order to provide
adequate notification to persons in the immediate area of the presence
of RF radiation or to control exposure to RF radiation within a given
area. A sign of the same size is also to be installed to contain the
name(s) of the owner(s) and operator(s) of the antenna(s) as well
as emergency phone number(s). The sign shall be on the equipment shelter
or cabinet of the applicant and be visible from the access point of
the site and must identify the equipment owner of the shelter or cabinet.
On tower sites, an FCC registration site as applicable is also to
be present. The signs shall not be lighted, unless applicable law,
rule or regulation requires lighting. No other signage, including
advertising, shall be permitted.
All proposed towers and any other proposed wireless
telecommunications facility structures shall be set back from abutting
parcels, recorded rights-of-way and road and street lines by the greater
of the following distances: a distance equal to the height of the
proposed tower or wireless telecommunications facility structure plus
10% of the height of the tower or structure, or the existing setback
requirement of the underlying Zoning District, whichever is greater.
Any accessory structure shall be located so as to comply with the
applicable minimum setback requirements for the property on which
it is situated.
A.
The Town may hire any consultant and/or expert necessary
to assist the Town in reviewing and evaluating the application, including
the construction and modification of the site, once permitted, and
any site inspections.
B.
An applicant shall deposit with the Town funds sufficient
to reimburse the Town for all reasonable costs of consultant and expert
evaluation and consultation to the Town in connection with the review
of any application, including, where applicable, the lease negotiation,
the preapproval evaluation, and the construction and modification
of the site, once permitted. The initial deposit shall be $8,500.
The placement of the $8,500 with the Town shall precede the preapplication
meeting. The Town will maintain a separate escrow account for all
such funds. The Town's consultants/experts shall invoice the Town
for its services related to the application. If at any time during
the process this escrow account has a balance less than $2,500, the
applicant shall immediately, upon notification by the Town, replenish
said escrow account so that it has a balance of at least $5,000. Such
additional escrow funds shall be deposited with the Town before any
further action or consideration is taken on the application. In the
event that the amount held in escrow by the Town is more than the
amount of the actual invoicing at the conclusion of the project, the
remaining balance shall, upon request of the applicant, be promptly
refunded to the applicant.
C.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope (lease negotiations and/or review) and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
A.
Prior to the approval of any application for a special
use permit for wireless telecommunications facilities, a public hearing
shall be held by the Town, notice of which shall be published in the
newspaper in general circulation in of the Town no less than 10 calendar
days prior to the scheduled date of the public hearing. In order that
the Town may notify nearby landowners, the application shall contain
the names and address of all landowners whose property is located
within 500 feet of any property line of the lot or parcel on which
the new wireless telecommunications facilities are proposed to be
located.
B.
There shall be no public hearing required for an application
to co-locate on an existing tower or other structure, or a modification
at an existing site, as long as there is no proposed increase in the
height of the tower or structure, including attachments thereto.
A.
The Town will undertake a review of an application
pursuant to this chapter in a timely fashion, consistent with its
responsibilities, and shall act within a reasonable period of time
given the relative complexity of the application and the circumstances,
with due regard for the public's interest and need to be involved
and the applicant's desire for a timely resolution.
B.
The Town may refer any application or part thereof
to any advisory, other committee or commission for a nonbinding recommendation.
C.
After the public hearing and after formally considering
the application, the Town may approve, approve with conditions, or
deny a special use permit. Its decision shall be in writing and shall
be supported by substantial evidence contained in a written record.
The burden of proof for the granting of the permit shall always be
upon the applicant.
D.
If the Town approves the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such approval in writing within 10 calendar days of the Town's
action, and the special use permit shall be issued within 30 days
after such approval. Except for necessary building permits, and subsequent
certificates of compliance, once a special use permit has been granted
hereunder, no additional permits or approvals from the Town, such
as site plan or zoning approvals, shall be required by the Town for
the wireless telecommunications facilities covered by the special
use permit.
E.
If the Town denies the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such denial in writing within 10 calendar days of the Town's action.
The extent and parameters of a special use permit
for wireless telecommunications facilities shall be as follows:
A.
Such special use permit shall not be assigned, transferred
or conveyed without the express prior written notification to the
Town.
B.
Such special use permit may, following a hearing upon
due prior notice to the applicant, be revoked, canceled, or terminated
for a violation of the conditions and provisions of the special use
permit or for a material violation of this chapter after prior written
notice to the holder of the special use permit.
At the time that a person submits an application
for a special use permit for a new tower, such person shall pay a
nonrefundable application fee of $5,000 to the Town. If the application
is for a special use permit for co-locating on an existing tower or
other suitable structure, where no increase in height of the tower
or structure is required, the nonrefundable fee shall be $2,500.
The applicant and the owner of record of any
proposed wireless telecommunications facilities property site shall,
at its cost and expense, be jointly required to execute and file with
the Town a bond, or other form of security acceptable to the Town
as to type of security and the form and manner of execution, in an
amount of at least $75,000 for a tower facility and $25,000 for a
co-location on an existing tower or other structure and with such
sureties as are deemed sufficient by the Town to assure the faithful
performance of the terms and conditions of this chapter and conditions
of any special use permit issued pursuant to this chapter. The full
amount of the bond or security shall remain in full force and effect
throughout the term of the special use permit and/or until any necessary
site restoration is completed to restore the site to a condition comparable
to that which existed prior to the issuance of the original special
use permit.
In order to verify that the holder of a special
use permit for wireless telecommunications facilities, and any and
all lessees, renters, and/or licensees of wireless telecommunications
facilities, place and construct such facilities, including towers
and antennas, in accordance with all applicable technical, safety,
fire, building, and zoning codes, laws, zoning laws and regulations
and other applicable requirements, the Town may inspect all facets
of said permit holder's, renter's, lessee's or licensee's placement,
construction, modification and maintenance of such facilities, including,
but not limited to, towers, antennas and buildings or other structures
constructed or located on the permitted site.
A.
A holder of a special use permit for wireless telecommunications
facilities shall secure and at all times maintain public liability
insurance for personal injuries, death and property damage, and umbrella
insurance coverage, for the duration of the special use permit in
amounts as set forth below:
B.
For a wireless telecommunications facility on Town
property, the commercial general liability insurance policy shall
specifically include the Town and its officers, boards, employees,
committee members, attorneys, agents and consultants as additional
insureds.
C.
The insurance policies shall be issued by an agent
or representative of an insurance company licensed to do business
in the state and with a Best's rating of at least A.
D.
The Town of Cheektowaga shall be named as a certificate
holder on any binder of insurance. The insurance policies shall contain
an endorsement obligating the insurance company to furnish the Town
with at least 30 days' prior written notice in advance of the cancellation
of the insurance.
E.
Renewal or replacement policies or certificates shall
be delivered to the Town at least 15 days before the expiration of
the insurance that such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications
facility is initiated, but in no case later than 15 days after the
granting of the special use permit, the holder of the special use
permit shall deliver to the Town a copy of each of the policies or
certificates representing the insurance in the required amounts.
A.
Any application for wireless telecommunications facilities
that is proposed for Town property, pursuant to this chapter, shall
contain a provision with respect to indemnification. Such provision
shall require the applicant, to the extent permitted by the law, to
at all times defend, indemnify, protect, save, hold harmless, and
exempt the Town, and its officers, boards, employees, committee members,
attorneys, agents, and consultants, from any and all penalties, damages,
costs, or charges arising out of any and all claims, suits, demands,
causes of action, or award of damages, whether compensatory or punitive,
or expenses arising therefrom, either at law or in equity, which might
arise out of, or are caused by, the placement, construction, erection,
modification, location, products performance, use, operation, maintenance,
repair, installation, replacement, removal, or restoration of said
facility, excepting, however, any portion of such claims, suits, demands,
causes of action or award of damages as may be attributable to the
negligent or intentional acts or omissions of the Town or its servants
or agents. With respect to the penalties, damages or charges referenced
herein, reasonable attorneys' fees, consultants' fees, and expert
witness fees are included in those costs that are recoverable by the
Town.
A.
In the event of a violation of this chapter or any
special use permit issued pursuant to this chapter, the Town may impose
and collect, and the holder of the special use permit for wireless
telecommunications facilities shall pay to the Town, fines or penalties
as set forth below.
B.
The holder of a special use permit's failure to comply with provisions of this chapter shall constitute a violation of this chapter and shall subject the applicant to the code enforcement provisions and procedures as provided in § 260-72 of the Town of Cheektowaga Code.
C.
Notwithstanding anything in this chapter, the holder
of the special use permit for wireless telecommunications facilities
may not use the payment of fines, liquidated damages or other penalties
to evade or avoid compliance with this chapter or any section of this
chapter. An attempt to do so shall subject the holder of the special
use permit to termination and revocation of the special use permit.
The Town may also seek injunctive relief to prevent the continued
violation of this chapter, without limiting other remedies available
to the Town.
If a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special use permit, then the Town shall notify the holder of the special use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in § 255-24, and if a violation is not corrected to the satisfaction of the Town in a reasonable period of time, the special use permit is subject to revocation.
A.
Under the following circumstances, the Town may determine
that the health, safety, and welfare interests of the Town warrant
and require the removal of wireless telecommunications facilities:
(1)
Wireless telecommunications facilities with a permit
have been abandoned (i.e., not used as wireless telecommunications
facilities) for a period exceeding ninety consecutive 90 days or a
total of 180 days in any three-hundred-sixty-five-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 that it creates 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 may be revoked.
B.
If the Town makes such a determination as noted in Subsection A of this section, then the Town shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed. The Town may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the special use permit, or its successors
or assigns, shall dismantle and remove such wireless telecommunications
facilities, and all associated structures and facilities, from the
site and restore the site to as close to its original condition as
is possible, such restoration being limited only by physical or commercial
impracticability, within 90 days of receipt of written notice from
the Town. However, if the owner of the property upon which the wireless
telecommunications facilities are located wishes to retain any access
roadway to the wireless telecommunications facilities, the owner may
do so with the approval of the Town.
D.
If wireless telecommunications facilities are not
removed or substantial progress has not been made to remove the wireless
telecommunications facilities within 90 days after the permit holder
has received notice, then the Town may notify the appropriate bond
company to demand the bond company remove said facilities or order
officials or representatives of the Town to remove the wireless telecommunications
facilities at the sole expense of the owner or special use permit
holder.
E.
If the Town removes, or causes to be removed, wireless
telecommunications facilities and the owner of the wireless telecommunications
facilities does not claim and remove it from the site to a lawful
location within 10 days, then the Town may take steps to declare the
wireless telecommunications facilities abandoned and sell them and
their components.
F.
Notwithstanding anything in this section to the contrary,
the Town may approve a temporary use permit/agreement for the wireless
telecommunications facilities, for no more 90 days, during which time
a suitable plan for removal, conversion, or relocation of the affected
wireless telecommunications facilities shall be developed by the holder
of the special use permit, subject to the approval of the Town, and
an agreement to such plan shall be executed by the holder of the special
use permit and the Town. If such a plan is not developed, approved
and executed within the ninety-day time period, then the Town may
take possession of and dispose of the affected wireless telecommunications
facilities in the manner provided in this section.
Any applicant desiring relief, waiver or exemption
from any aspect or requirement of this chapter may request such at
the preapplication meeting, provided that the relief or exemption
is contained in the submitted application for either a special use
permit or, in the case of an existing or previously granted special
use permit, a request for modification of its tower and/or facilities.
Such relief may be temporary or permanent, partial or complete. However,
the burden of proving the need for the requested relief, waiver or
exemption is solely on the applicant to prove. The applicant shall
bear all costs of the Town in considering the request and the relief,
waiver or exemption. No such relief or exemption shall be approved
unless the applicant demonstrates by clear and convincing evidence
that, if granted, the relief, waiver or exemption will have no significant
affect on the health, safety and welfare of the Town, its residents
and other service providers.
A.
To the extent that the holder of a special use permit
for wireless telecommunications facilities has not received relief,
or is otherwise exempt, from appropriate state and/or federal agency
rules or regulations, then the holder of such a special use permit
shall adhere to, and comply with, all applicable rules, regulations,
standards, and provisions of any state or federal agency, including,
but not limited to, the FAA and the FCC. Specifically included in
this requirement are any rules and regulations regarding height, lighting,
security, electrical and RF emission standards.
B.
To the extent that applicable rules, regulations,
standards, and provisions of any state or federal agency, including,
but not limited to, the FAA and the FCC, and specifically including
any rules and regulations regarding height, lighting, and security,
are changed and/or are modified during the duration of a special use
permit for wireless telecommunications facilities, then the holder
of such a special use permit shall conform the permitted wireless
telecommunications facilities to the applicable changed and/or modified
rule, regulation, standard, or provision within a maximum of 24 months
of the effective date of the applicable changed and/or modified rule,
regulation, standard, or provision, or sooner as may be required by
the issuing entity.
A.
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 proscribed 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.
B.
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, upon determination by the Town.
A.
Section 260-48 of the Code of the Town of Cheektowaga Zoning Law, (Communications facilities), shall be repealed.
B.
Where this chapter differs or conflicts with other
Laws, rules and regulations, unless the right to do so is preempted
or prohibited by the Town, state or federal government, this chapter
shall apply.
This chapter shall be effective immediately
upon passage, pursuant to applicable legal and procedural requirements,
and upon filing with the Secretary of State.
This chapter is enacted pursuant to applicable
authority granted by the state and federal government.
[Added 8-27-2019 by L.L.
No. 5-2019]
A.
Conditions applying to all small wireless facilities.
(1)
APPLICANT
CAMOUFLAGE
CO-LOCATE
CONCEALED INSTALLATION ON BUILDING
GROUND-BASED EQUIPMENT or GROUND-BASED ENCLOSURES
LICENSE
LICENSEE
PERMITTEE
POLE
RF
RIGHT-OF-WAY or ROW
SMALL WIRELESS FACILITY or MICRO WIRELESS FACILITY, SMALL CELL,
SWF
SUPPORT STRUCTURE
UTILITY POLE
Definitions. As used in this section, the following terms shall have
the meanings indicated:
A person or entity submitting an application to the Town
for a special use permit under this section.
To use concealment techniques to blend the installation of
the structure into the surrounding area by mimicking its surroundings
or otherwise disguising it in the environment.
For purposes of this section, co-locate or co-location shall
mean mounting or installing a small wireless facility on a preexisting
structure and/or modifying a structure for the purpose of mounting
or installing a small wireless facility on that structure.
Building-mounted small wireless facilities that completely
screen all associated equipment and facilities from public view by
approved methods that are in keeping with the character of the building,
surrounding area and any applicable design guidelines or standards,
as determined by the Town.
Any equipment associated with installation of a small wireless
facility and/or support structure that will be located on the surface
of the ground with some or all of the facility located above grade.
The document granted to an individual under this section,
which permits its holder, the licensee (see definition), to have all
the rights, privileges, and obligations arising under this section.
Any license issued under this section is nonexclusive and is subject
to the limitations provided herein.
Any person having applied for a license under this section
and holding such a license.
An applicant that has received a special use permit under
this section.
A legally constructed pole, such as a utility, lighting,
traffic, or similar pole.
Radio frequency.
The area on, below, or above a public roadway, highway, street,
sidewalk, alley, utility easement, or similar property, under the
jurisdiction of the Town.
A wireless facility that meets both of the following qualifications:
each antenna is located inside an enclosure measuring no more than
six cubic feet in volume or, in the case of an antenna that has exposed
elements, the antenna and all of its exposed elements could fit within
an imaginary enclosure of no more than six cubic feet; and all other
wireless equipment associated with the facility measuring no more
than 28 cubic feet in volume. The following types of associated ancillary
equipment are not included in the calculation of equipment volume:
electric meter, concealment elements, telecommunications demarcation
box, ground-based enclosures, grounding equipment, power transfer
switch, cutoff switch, and vertical cable runs for the connection
of power and other services.
A freestanding structure, such as a utility pole, monopole,
or other existing or proposed structure, designed to support, or be
capable of supporting, wireless facilities.
A pole or similar structure that is used in whole or in part
for the purpose of carrying electric distribution lines or cables
or wires for telecommunications; cable or electric service; or for
lighting, traffic control, signage, or a similar function regardless
of ownership, including Town-owned poles. Such term shall not include
structures supporting only small wireless facilities.
(2)
Purpose and legislative intent.
(a)
The Town desires to encourage small-cell wireless telecommunication
infrastructure investment by providing a fair and predictable process
for the deployment, while enabling the Town to promote the management
of its public ROW in the overall interests of the public health, safety,
and welfare. The Town recognizes that wireless facilities are critical
to delivering wireless access to advanced technology, broadband, and
911 services to homes, businesses, and schools within the Town, and
new technology has increased the need for towers and antennas to serve
the Town. The Town further recognizes that SWF often may be deployed
most effectively in the ROW. The Town desires to enact a legal framework
which will permit the expedited review process for the deployment
of such SWF when specified criteria are met and to permit placement
of towers and antennas in locations which will allow telecommunications
services to be rendered in conformity with both the Federal Telecommunications
Act of 1996 and with the goals of local comprehensive plans and zoning
ordinances.
(b)
In enacting this section, the Town is establishing uniform standards
to address issues presented by SWF, including, without limitation,
to:
[1]
Prevent interference with the use of streets, sidewalks, alleys,
parkways, and other public ways and places;
[2]
Prevent the creation of visual and physical obstructions and
other conditions that are hazardous to vehicular and pedestrian traffic;
[3]
Prevent interference with existing facilities and operations
of facilities presently lawfully located in rights-of-way or public
property;
[4]
Ensure reasonable efforts are made to preserve the character
of neighborhoods in which facilities are installed;
[5]
Protect community aesthetics and visual and historic resources;
[6]
Protect against environmental damage, including damage to trees;
[7]
Facilitate the installation of SWF to provide benefits of reliable
access to wireless telecommunications technology, broadband, and 911
services to homes, business, and schools within the Town.
(3)
Applicability. This section applies to all existing SWF and all applications
and requests for approval to construct, install, modify, co-locate,
relocate, or otherwise deploy SWF.
(4)
Application requirements.
(a)
Special use permit application. All persons wishing to construct,
install, modify (except for in-kind replacements of previously permitted
SWF), co-locate, relocate, or otherwise deploy SWF must submit an
application for a special use permit for approval by the Town Board
of the Town of Cheektowaga. The Town Board shall follow the procedures
set forth in New York Town Law § 274-b for consideration
of the special use permit applications. The SWF special use permit
application shall contain the following, to include nine hard copies
and one digital copy:
[1]
Letter application and applicable application fee(s). The letter
application must contain a detailed description of the proposal, the
number of SWFs involved in the subject application, their proposed
locations, and a description of the proposed locations, including
the zoning districts and nearby land uses. The letter application
must also contain the applicant's name and contact information,
as well as the names and contact information for all consultants acting
on behalf of the applicant, if any.
[2]
Owner's authorization and/or evidence of property rights.
The applicant must demonstrate it has adequate real property rights
for the installation and maintenance of the SWF. This would include,
but not be limited to, owner authorization, an easement, a lease,
and/or a license issued pursuant to this section. The applicant bears
all risk that it has the legal right to construct the SWF in the designated
location.
[3]
Project plans. The applicant must provide a fully dimensioned
site plan and elevation drawings, prepared and sealed by a New York-licensed
engineer, showing any existing wireless facilities with all existing
transmission equipment and other improvements, the proposed SWF with
all proposed transmission equipment and other improvements and the
legal boundaries of the leased, licensed, or owned area in the general
vicinity surrounding the proposed SWF and any associated access or
utility easements.
[4]
Site photos and photo simulations. The applicant must provide
photographs and simulations that show the proposed SWF in context
of the site from reasonable line-of-sight locations from public streets
or other adjacent viewpoints, together with a map that shows the photo
location of each view angle. These simulations must indicate both
location of the proposed SWF, as well as design aesthetics that reflect
compliance with this section.
[5]
RF compliance demonstration. The applicant must provide an RF
exposure compliance report, prepared and certified by a New York licensed
engineer, acceptable to the Town that certifies that the proposed
SWF, as well as any co-located SWF, will comply with applicable federal
RF exposure standards and exposure limits. The RF report must include
the actual frequency and power levels [in watts effective radiated
power ("ERPP")] for all existing and proposed antennas at the site
and exhibits that show the location and orientation of all transmitting
antennas, the boundaries of areas with RF exposures in excess of the
uncontrolled/general population limit (as that term is defined by
the FCC), and also the boundaries of the areas with RF exposures in
excess of the controlled/occupations limit (as that term is defined
by the FCC). Each such boundary shall be clearly marked and identified
for every transmitting antenna at the project site in accordance with
FCC requirements, if applicable.
[6]
Acoustic analysis. The applicant must provide a written report
that analyzes acoustic levels for the proposed SWF and all associated
equipment. The acoustic analysis must be prepared and certified by
an engineer and include an analysis of the manufacturer's specifications
for all noise-emitting equipment and a depiction of the proposed equipment
relative to all adjacent property lines. This requirement may be satisfied
by providing manufacturer's specifications of the SWF demonstrating
that the equipment does not generate noise, or generates noise at
an imperceptible level.
[7]
Project purpose statement/need demonstration. The applicant
must provide a written statement that includes:
[a]
A description of the technical objectives to be
achieved, including the services to be offered and/or improvement
of existing services;
[b]
An annotated topographical map that identifies
the targeted service area to be benefited;
[c]
The estimated number of potentially affected users
in the targeted service area; and
[d]
Full-color signal propagation maps with objective
units of signal strength measurements that show the applicant's
current service coverage levels from all adjacent sites without the
proposed site, predicted service coverage levels from all adjacent
sites with the proposed site, and predicted service coverage levels
from the proposed site without all adjacent sites (or a statement
that the objectives are other than coverage related).
[8]
Alternatives analysis. The applicant must list all existing
structures considered as alternatives to the proposed location, together
with a general description of the site design considered at each location.
The applicant must also provide a written explanation for why the
alternatives considered were unacceptable, not feasible, unavailable,
or not as consistent with the design standards. This explanation must
include a comparative analysis and such technical information and
other factual justification as are necessary to document the reasons
why each alternative is unacceptable, not feasible, unavailable, or
not as consistent with the design standards in this section as the
proposed location. This would include an analysis of the siting preferences
set forth in this section.
[9]
The applicant shall provide manufacturer's information
for the SWF and support structure, if applicable.
[10]
The applicant shall provide technical specifications
of the SWF and support structure, if applicable, and evidence that
such structure is capable of handling the addition of SWF.
[11]
The applicant shall provide a written maintenance
and removal plan, made to and acceptable by the Town, to include an
agreement by the applicant and/or owner to remove all the components
of the SWF in the event the facility becomes nonfunctional, ceases
to be used for its originally intended purposes or is otherwise abandoned,
as determined by the Town. The maintenance and removal plan shall
remain in full force for the life of the SWF. An acceptable bond and/or
surety, for the purposes of removing the SWF, submitted to the Town
for review, shall be purchased and remain in force for the life of
the SWF.
[12]
The applicant shall provide any other items that
the Town shall deem necessary for a thorough and complete review of
the proposal.
(b)
One application required. Although each SWF requires its own
special use permit, the applicant need submit only one application,
regardless of the number of proposed SWFs or locations. The Board
may, in its sole discretion, deny the application, grant the application
in full, or partially grant the application by issuing special use
permits for only some of the SWFs proposed in the application.
(c)
Maintenance. Subject to the requirements for the initial application,
an application shall not be required for routine maintenance or in-kind
replacement, unless otherwise specified within this section. In-kind
replacement shall mean replacement of an existing permitted SWF with
another SWF of the substantially same dimensions, appearance, and
characteristics. Any other modifications or replacements of any portion
of an SWF shall require an amendment to the special use permit, requiring
compliance with all applicable requirements and procedures set forth
in this section.
(d)
Application fees. The applicant shall pay the Town a fee for
review of the special use permit application, in an amount to be determined
by the Town Board by resolution, which may be amended from time to
time by further resolution.
(e)
Third-party professional consultants. The Town, in its sole
discretion, may retain third-party consultant(s) to assist in the
review of a proposed SWF. The cost of such third-party consulting
services shall be reimbursed by the applicant to the Town within 30
days of the Town receiving an invoice for third-party consulting services.
(5)
Exceptions to the special use permit requirement. The following SWFs shall be exempt from the special use permit requirements of § 255-33A and, upon compliance with the substantive requirements of this section, require only an approval determination from the Code Enforcement Officer. The fee for this review by the Code Enforcement Officer shall be in an amount to be determined by the Town Board by resolution, which may be amended from time to time by further resolution.
(6)
Site location guidelines.
(a)
Preferred locations. The Town prefers co-location and siting in manufacturing and/or commercial business districts, as defined in Chapter 260, over residential zoning districts. The Town prefers co-location as opposed to the construction of a new support structure. The Town prefers the siting on existing buildings, provided they are camouflaged or concealed.
(b)
Discouraged locations. The Town discourages new support structures
and the location in residential zoning districts, although siting
in residential districts may be necessary if no alternatives are available
to meet the provider's objectives. Where possible, efforts should
be made to co-locate or to locate in manufacturing or business zoning
districts. If location in a residential zoning district is necessary,
techniques to minimize aesthetic impacts are mandatory, including
camouflage.
(c)
Prohibited locations. The Town prohibits any structures or parts
of structures associated with SWF placement from obstructing access
to above- or underground traffic control infrastructure, public transportation
vehicles, shelters, street furniture, or other improvements, above-
or underground utility infrastructure, fire hydrants, doors, gates,
or other ingress and egress points to any building appurtenant to
the ROW, or any fire escape. Ground-mounted equipment shall not be
closer that 12 feet from any existing lawful encroachment in the ROW
and driveway aprons.
(7)
Design standards.
(a)
Construction categories. Each SWF shall comply with the standards
set forth for each location type.
[1]
Existing support structure or replacement support structure
of the same type, size, and height, in the same location.
[a]
Equipment. All equipment must be installed as close to the support structure as technically feasible to minimize its visibility from public view to the greatest extent feasible. All conduits, conduit attachments, cables, wires, and other connectors shall be concealed from the public view to the greatest extent feasible. Ground-mounted equipment is not preferred and shall be minimized to the greatest extent feasible. Where used, ground-mounted equipment must incorporate concealment techniques in compliance with the requirements of Subsection A(7)(c) of this section.
[b]
Minimum clear height. With the exception of any
ground-mounted equipment, no part of the SWF shall be less than 10
feet above grade or the maximum height permitted by the owner of the
utility pole, as confirmed by the utility pole owner in writing.
[c]
Maximum height. No part of the SWF shall exceed
10 feet above the existing support structure. Ground-mounted cabinets
shall be secured to a concrete slab and shall not exceed three feet
in height.
[d]
Maximum volume. The maximum volume of each antenna
shall not exceed six cubic feet.
[e]
Maximum equipment volume. The maximum equipment
volume shall not exceed 28 cubic feet, or 15 cubic feet for ground-mounted
equipment.
[f]
Reservation of rights. The Town reserves its right
to request additional information, analysis, studies, including further
expert opinion, at the applicant's expense, pertaining to the
application and any issues of concern.
[g]
Each SWF shall be on one support structure.
[h]
Each SWF shall be at least 500 feet from another
SWF.
[2]
New support structure.
[a]
Basis. The Town will consider new poles only if
the applicant can demonstrate that replacing or utilizing an existing
pole is not possible or feasible. Any new poles must meet all Town
and other applicable laws.
[b]
Support structure requirements. All applicants
shall propose new support structures that complement the community
character of the area and any applicable design guidelines that may
exist for the area. When existing utility poles exist, new support
structures may feature a similar design and aesthetic. Where no existing
utility poles exist, architecturally significant support structures
shall be proposed, including, but not limited to, flag poles and decorative
light standards.
[c]
Equipment. All equipment must be installed as close to the support structure as technically feasible to minimize its visibility from public view. All conduits, conduit attachments, cables, wires, and other connectors shall be concealed from the public view to the greatest extent feasible. Ground-mounted equipment is not preferred and shall be minimized to the greatest extent feasible. Where used, ground-mounted equipment must incorporate concealment techniques in compliance with the requirements of Subsection A(7)(c) of this section.
[d]
Minimum clear height. With the exception of any
ground-mounted equipment, no part of the SWF shall be less than 10
feet above grade or the maximum height permitted by the owner of the
utility pole, as confirmed by the utility pole owner in writing.
[e]
Maximum height. No part of the SWF shall exceed
50 feet above ground level or 10 feet above the average height of
all utility poles within a 500-foot radius, whichever is greater.
This is the maximum height, and the Town may approve a lesser height
depending on the surrounding structures and character. Ground-mounted
cabinets shall be secured to a concrete slab and shall not exceed
three feet in height.
[f]
Maximum diameter. The maximum diameter of any new
poles not intended for public distribution shall not exceed 24 inches
at the base.
[g]
Maximum volume. The maximum volume of each antenna
shall not exceed six cubic feet.
[h]
Maximum equipment volume. The maximum equipment
volume shall not exceed 28 cubic feet, or 15 cubic feet for ground-mounted
equipment.
[i]
Installation. Any new poles not intended for public
distribution shall:
[i]
Be installed as far as practicable off the traveled
way;
[ii]
Meet the height requirements set forth herein;
[iii]
Not be installed in the ROW, unless fixed objects
exist at the same or closer distance from the roadway;
[iv]
Not be any closer to the roadway than any existing
pole line;
[v]
Be buried with no foundation, unless an exception
is justified and approved by the Town Engineer or designee; and
[vi]
To the extent practicable, be located outside
of residentially zoned neighborhoods.
[j]
Reservation of rights. The Town reserves its right
to:
[i]
Reject new poles for any of the following reasons:
traffic, safety, conflict with existing structure or utilities, conflict
with pedestrian or complete street features, or future planned activities.
Any notice of denial must be in writing, explain the basis for the
denial, and be sent to the applicant and the authority controlling
the ROW, if not controlled by the Town of Cheektowaga.
[ii]
Request additional information, analysis and studies,
including further expert opinion, at the applicant's expense,
pertaining to the application and any issues of concern.
[3]
Concealed installation on building.
[a]
Equipment. All equipment must be installed such that its visual appearance is consistent with other accessory mechanical and/or building service appurtenances. All conduits, conduit attachments, cables, wires, and other connectors shall match the color of existing building mechanicals or the adjacent building material color. Ground-mounted equipment is not preferred and shall be minimized to the greatest extent feasible. Where used, ground-mounted equipment must incorporate concealment techniques in compliance with the requirements of Subsection A(7)(c) of this section.
[b]
Minimum clear height. With the exception of any
ground-mounted equipment, no part of the SWF shall be less than 10
feet above grade.
[c]
Maximum height. No part of the SWF shall exceed
10 feet above the building roof or parapet wall. Ground-mounted cabinets
shall be secured to a concrete slab and shall not exceed three feet
in height.
[d]
Maximum volume. The maximum volume of each antenna
shall not exceed six cubic feet.
[e]
Maximum equipment volume. The maximum equipment
volume shall not exceed 28 cubic feet, or 15 cubic feet for ground-mounted
equipment.
[f]
Applications. Applicants must secure an approved
building permit.
(b)
Engineering requirements. The applicant must provide an installation
design prepared by a professional engineer licensed in New York State
that demonstrates the pole strength of the pole to be used.
(c)
Aesthetic requirements. The character of the neighborhood and
the visual quality of the surroundings must be taken into account
when installing SWFs, whether to new or existing poles. In order to
avoid unnecessary adverse visual impacts and to preserve the area
in which the SWFs are being installed, and in addition to the conditions
set forth above, all SWFs shall meet the following requirements:
[1]
Poles and equipment shall be painted in a neutral color that
is consistent with other new and existing poles in the general geographic
area so as to reduce visual intrusiveness, unless existing surrounding
poles are not painted.
[2]
Poles shall be constructed of the same or similar material as
other new and existing poles in the general geographic area.
[3]
Poles shall be constructed in the same or similar shape as other
new and existing poles in the general geographic area.
[4]
Poles may be camouflaged or disguised as deemed appropriate
by the Town Board.
[5]
No artificial lighting is permitted on the pole unless otherwise
required by law or permitted, e.g., where no existing utility poles
exist and a decorative light pole is used with express permission.
Any permitted lighting must be consistent in design and bulb type
with other lighting fixtures in the general geographic area.
[6]
Commercial signage is not permitted on any pole unless already
existing at the time of the installation.
[7]
Equipment shall be affixed to the pole in a tight, neat, and
orderly fashion. Where possible, equipment shall be flush-mounted
with the pole, and in no case shall offset mounting exceed the greater
of six inches or the minimum distance permitted by the owner of the
pole, as confirmed by the owner of the pole in writing. No wires may
be loose or dangling, with a preference that the wires be enclosed
within the pole where possible.
[8]
Equipment shall be consistent in size with the pole to which
it is being attached and minimally shall be consistent with the suggested
designs shown in the Appendix to this section.[1]
[a]
Maximum volume. The maximum volume of each antenna
shall not exceed six cubic feet.
[b]
Maximum equipment volume. The maximum equipment
volume shall not exceed 28 cubic feet.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
[9]
Ground-mounted equipment shall be minimized to the greatest
extent feasible. Where used, ground equipment shall incorporate camouflage
techniques matching color and materials of the wireless support structure,
unless other materials or colors are approved by the Town. Applications
shall include proposed camouflage techniques for ground-mounted equipment,
which may include, but are not limited to: strategic choice of color,
paint, and/or materials, landscaping, placement in less visible locations,
and placement within existing or replacement street furniture.
(8)
Waiver. For good cause shown, the Town Board may grant a waiver of
any of the provisions of this section. The burden of demonstrating
good cause is on the applicant.
(9)
Standard conditions of approval. In addition to any other conditions
imposed by the Town Board or the Code Enforcement Officer in the case
of applications exempt from the special use permit requirement, special
use permits and approvals by the Code Enforcement Officer for the
installation of SWFs shall be automatically subject to the conditions
set forth herein. The Town Board and/or the Code Enforcement Officer
shall have discretion to modify or amend these conditions on a case-by-case
basis as may be necessary or appropriate under the circumstances to
allow for the proper operation of the approved facility, consistent
with the goals of this section.
(a)
Approved plans. Before the permittee submits any applications
to the Building Department, the permittee must incorporate the permit,
all conditions associated with this permit and the approved photo
simulations into the project plans. The permittee must construct,
install and operate the SWF in strict compliance with the approved
plans. Any alterations, modifications or other changes to the approved
plans, whether requested by the permittee or required by other departments
or public agencies with, must be submitted in a written request subject
to the Building Department prior to review and approval, who may refer
the request to the Town Board if it is found that the requested alteration,
modification or other change implicates a significant or substantial
land use concern.
(b)
Build-out period. The permit will automatically expire one year
from the issuance date unless the permittee obtains all other permits
and approvals required to install, construct, and/or operate the approved
SWFs and commences the installation and construction, which includes,
without limitation, any permits or approvals required by any federal,
state, or local public agencies with jurisdiction over the subject
property, the SWF, or its use. The Town may grant extensions to a
date certain when the permittee shows good cause to extend the limitations
period in a written request for an extension, submitted at least 30
days prior to the automatic expiration date in this condition.
(c)
Maintenance obligations: vandalism. The permittee shall keep
the site, which includes, without limitation, any and all improvements,
equipment, structures, and access routes, in a neat, clean, and safe
condition in accordance with the approved plans and all conditions
in the permit. The permittee shall keep the site area free from all
litter and debris at all times. The permittee, at no cost to the Town,
shall remove and remediate any graffiti or other vandalism at the
site within 48 hours after the permittee receives notice or otherwise
becomes aware that such graffiti or other vandalism occurred.
(d)
Compliance with laws. The permittee shall maintain compliance
at all times with all federal, state, and local statutes, regulations,
orders or other rules that carry the force of law applicable to the
permittee, the subject property, the SWF or any use or activities
in connection with the use authorized in the permit. The permittee
expressly acknowledges and agrees that this obligation is intended
to be broadly construed and that no other specific requirements in
these conditions are intended to reduce, relieve, or otherwise lessen
the permittee's obligations to maintain compliance with all applicable
laws, regulations, orders, and rules.
(e)
Inspections. The permittee expressly acknowledges and agrees
that the Town or its designee may enter onto the site and inspect
the improvements and equipment upon reasonable prior notice to the
permittee; provided, however, that the Town may, but will not be obligated
to, enter onto the site area without prior notice to support, repair,
disable, or remove any improvements or equipment in emergencies or
when such improvements or equipment threatens actual, imminent harm
to property or persons. The permittee will be permitted to supervise
the Town or its designee while such inspection or emergency access
occurs.
(f)
Contact information. The permittee shall furnish the Town with
accurate and up-to-date contact information for a person responsible
for the SWF, which includes, without limitation, such person's
full name, title, direct telephone number, facsimile number, mailing
address, and email address. The permittee shall keep such contact
information up-to-date at all times.
(g)
Rescission of permit for noncompliance. The Town Board may rescind
any permit issued under this section for review at any time due to
noncompliance with applicable law or any approval conditions. At a
duly noticed hearing and in accordance with all applicable laws, the
Town Board may revoke any such permit or amend these conditions as
the approval authority deems necessary or appropriate to correct any
such noncompliance.
(h)
Record retention. The permittee shall retain full and complete
copies of all licenses, permits, and other regulatory approvals issued
in connection with the SWF, which includes, without limitation, all
conditions of approval, approved plans, resolutions, and other documentation
associated with the license, permit, or regulatory approval.
B.
Conditions applying to small wireless facilities located in the Town
ROW.
(1)
Applicability. The contents of this subsection are applied in addition to the contents of Subsection A for applicants proposing SWFs located in the Town ROW.
(2)
License. Where the proposed SWF is in the Town ROW, before any application
may be submitted, a nonexclusive license to place the SWF is required.
No SWF is allowed in the Town ROW unless first a nonexclusive license
is obtained from the Town by the applicant.
(a)
No exclusive, irrevocable property right or any other interest
is created by the license. There is no right to convey, express or
implied, with the license.
(b)
The license may not be assigned, except upon written consent
of the Town, which shall not be unreasonably withheld, provided the
assignee assumes all obligations of the license, agrees to abide by
its terms, in writing, and meets all other criteria as set forth in
this section.
(c)
A general license will be granted per applicant for all Town
ROWs, provided that the applicant meets the requirements for such
a license.
(d)
An applicant shall demonstrate the entitlement to use the land
for the designated purpose, e.g., through demonstration that the Town
owns the fee of the highway at issue, through the grant of an easement
or a pole attachment agreement, and/or other legal mechanism that
may be applicable. The applicant bears any and all risk that it has
the legal right to construct the SWF in the location that it has chosen.
(e)
The license agreement shall be in the general form as developed
by the Town.
(f)
Each license agreement is subject to approval by the Town Board.
(g)
By issuance of a license, the Town does not represent or warrant
title or ownership of the ROW. The applicant proceeds at its own risk.
(h)
Indemnification. Any license agreement shall contain indemnification
provisions, indemnifying the Town for the licensee's use of the
Town ROW and related activities, to the maximum extent permitted by
law.
(i)
Performance bond/surety. Any license agreement shall contain
the requirements that the licensee provide a performance bond or other
appropriate surety, as approved by the Town Board, in an amount equal
to or greater than a written estimate from a New York licensed engineer
with experience in SWF removal. The written estimate must include
the cost to remove all equipment and other improvements, which includes
without imitation all antennas, radios, batteries, generators, utilities,
cabinets, mounts, brackets, hardware, cables, wires, conduits, structures,
shelters, towers, poles, footings, and foundations, whether aboveground
or belowground, constructed or installed, in connection with the SWF.
In establishing or adjusting the bond amount required under this condition,
and in accordance with New York Code, the Town shall take into consideration
information provided by the licensee regarding the cost to remove
the wireless facility.
(j)
The license shall require compliance with this section, as may
be amended by the Town Board.
(k)
Insurance. Without limiting the indemnification provision herein,
and in addition to the performance bond/surety required herein, the
license agreement shall contain a requirement that the licensee procure,
at the licensee's expense, insurance in an amount sufficient
as determined by the Town Board, with the Town named as an additional
insured.
(3)
Rates and fees. In addition to the fees outlined in Subsection A of this section, the following fees apply for SWFs to be located in the Town ROW:
(a)
License review fee. The applicant shall pay the Town a license
review fee upon execution of the license, in the amount to be determined
by the Town Board by resolution, which may be amended from time to
time by further resolution.
(b)
Annual license fee. A wireless provider authorized to place
an SWF in the ROW shall pay to the Town an annual license fee in an
amount to be determined by the Town Board by resolution, which may
be amended from time to time by further resolution.
