Village of Dryden, NY Communication Transmission Towers and Telecommunication Facilities

Editor's Note: See 47 U.S.C.A. § 251 et seq.

Special permit required. No telecommunications facility shall be erected, moved, reconstructed, altered or used in any district unless and until the person seeking to do so shall have obtained a special permit from the Planning Board in accordance with this section and the other provisions of this chapter governing the issuance of special permits.

General criteria. No special permit or renewal thereof or amendment of current special permit relating to a telecommunications facility shall be granted by the Planning Board unless it finds that such telecommunications facility:

(1)

Is necessary to meet current or reasonably expected needs for the applicant's system and demands for service and coverage within the intended area.

(2)

Conforms with all federal and state laws and all applicable rules or regulations promulgated by the Federal Communications Commission (the FCC), Federal Aviation Administration (the FAA), or any other federal agencies having jurisdiction.

(3)

Is designed and constructed in a manner which minimizes visual impact to the extent practical.

(4)

Complies with all other requirements of Chapter 350, Zoning, unless expressly superseded herein.

(5)

Is the most appropriate site among those available within the technically feasible area for the location of a telecommunications facility.

(6)

When including the construction of a tower, such tower is designed to accommodate future shared use by at least two other telecommunication service providers. Any subsequent location of telecommunication equipment by other service providers on existing towers technically and structurally capable of accommodating a shared use shall require the amendment of the special permit for such tower, in accordance with the provisions hereof for initial issuance of such special permit.

Co-location and alternative sites.

(1)

The shared use of existing telecommunications facilities or other structure shall be preferred to the construction of new facilities. Any special permit application, renewal or amendment thereof shall include proof that reasonable efforts have been made to co-locate within an existing telecommunications facility or upon an existing structure. The application shall include an adequate inventory report, including an area map identifying relevant locations, specifically describing the nature, size and location of existing telecommunications facility sites and structures exceeding 75% of the height of the proposed tower within the area intended to be serviced by the proposed tower as well as describing alternative sites for the proposed tower. The inventory report shall contain an evaluation of opportunities for shared use as an alternative to the proposed location as well as an evaluation of opportunities for development of alternative sites.

(2)

The applicant must demonstrate that the proposed telecommunications facility cannot be accommodated on existing telecommunications facility sites or other existing structures or other sites in the inventory due to one or more of the following reasons, which reasons shall be provided to the Planning Board in written form:

(a)

The planned equipment would exceed the structural capacity of existing and approved telecommunications facilities or other structures, considering existing and reasonably anticipated future use for those facilities;

(b)

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

(c)

Existing or approved telecommunications facilities or other structures do not have space on which proposed equipment can be placed so it can function effectively and reasonably;

(d)

Other technical reasons make it impracticable to place the equipment proposed by the applicant on existing facilities or structures or alternative sites;

(e)

The property owner or owner of the existing telecommunication facility or other structure or alternative site refuses to allow such co-location.

Dimensional standards.

(1)

A fall zone around any tower constructed as part of a telecommunications facility must have a radius at least equal to 1 1/2 times the height of the tower and any antenna(s) attached upon its zenith. The entire fall zone must not include public roads and must be located on property either owned or leased by the applicant or for which the applicant has obtained an easement, and may not, except as set forth below, contain any structure other than those associated with the telecommunications facility. If the facility is attached to an existing structure, relief from the requirements of this Subsection D(1) may be granted by the Planning Board on a case-by-case basis if it is determined by such Board, after submission of competent evidence, that modification of this requirement will not endanger the life, health, welfare or property of any person. In granting any such waiver, the Board may impose any conditions reasonably necessary to protect the public or other property from potential injury.

(2)

Any telecommunication facility must be located on a single lot.

(3)

Any telecommunications facility, and the lot on which it is located, shall comply with the setback, frontage, minimum lot size, and yard standards of the underlying zoning district and the fall zone requirements of this article. To the extent there is a conflict, the more restrictive provision shall govern.

(4)

Notwithstanding provisions to the contrary of any other section of this Chapter 350, Zoning, the front, side and rear yard setback requirements of the underlying zoning district in which a telecommunications facility is erected shall apply not only to a tower, but also to all tower parts including guy wires and anchors, and to any accessory buildings that constitute a part of the telecommunications facility.

Lighting and marking.

(1)

Any lighting and marking on a telecommunications facility, and any tower constituting a part thereof, shall, at a minimum, satisfy the requirements of the FCC and FAA.

(2)

In addition to the requirements of Subsection E(1), an applicant may be compelled to add FAA-acceptable lighting and marking, if in the judgment of the Planning Board, such a requirement would be of direct benefit to public safety and would not unduly adversely affect residents of any surrounding property.

Appearance and buffering.

(1)

The use of any portion of a telecommunications facility for signs or promotional or advertising purposes, including but not limited to company name, phone numbers, banners, streamers, and balloons is prohibited; provided, however, that signage including no text or graphics other than health or safety warnings, which signage complies with the requirements of Article XIV, Signs, and which signage has been reviewed and approved as part of the special permit, may be placed on the telecommunications facility.

(2)

The telecommunications facility shall have the least visual effect practical on the environment as determined by the Planning Board. Any tower that is not subject to FAA marking as set forth above shall otherwise:

(a)

Have a galvanized finish, or shall be painted gray above the surrounding tree line and gray or green below the tree line, as deemed appropriate by the Planning Board.

(b)

Be disguised or camouflaged to blend in with the surroundings, to the extent that such alteration does not impair the ability of the facility to perform its designed function.

(3)

Accessory structures shall maximize the use of building materials, colors, and textures designed to blend in with the natural surroundings.

(4)

In fulfilling the requirements of the State Environmental Quality Review (SEQR), the Planning Board may require a full Environmental Assessment Form (EAF) for the proposed telecommunications facilities. A Visual Environmental Assessment Form ("visual EAF") shall be required as an addendum thereto. The Planning Board may require submittal of a more detailed visual analysis based on the results of the visual EAF.

(5)

The telecommunications facility shall have appropriate vegetative buffering, satisfactory to the Planning Board, around the fences of the tower base area, accessory structures and the anchor points of guyed towers to buffer their view from neighboring residences, recreation areas, and public roads. The Planning Board may require the applicant to install and maintain screening of any telecommunications facility adjacent to waterways, landmarks, refuges, community facilities, or conservation or historic areas within view of the public.

(6)

Without limiting the requirements of Subsection F(5), existing on-site vegetation shall be preserved to the maximum extent possible, and no cutting of trees exceeding four inches in diameter (measured at a height of four feet of the ground) shall occur in connection with the telecommunications facility expect in accordance with facility. Clear-cutting of all trees in a single contiguous area exceeding 20,000 square feet shall be prohibited.

(7)

The Planning Board may require additional information, such as line-of-sight drawings, detailed elevation maps, visual simulations, before-and-after renderings, and alternate tower designs to more clearly identify adverse impacts for the purpose of their mitigation.

(8)

Equipment or vehicles not used in direct support, renovations, additions or repair of any telecommunications facility shall not be stored or parked on the facility site.

Access and parking.

(1)

Accessways shall make maximum use of existing public or private roads to the extent practicable. New accessways constructed solely for a telecommunications facility must be at least 20 feet wide, but no more than 30 feet wide, and closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential.

(2)

The road surface (driveways) shall be centered within accessways and no more than 60% of the width of the legal access way shall be covered with any form of improved surface.

(3)

Parking areas shall be sufficient to accommodate the greatest number of service vehicles expected on the premises at any one time.

(4)

Driveways or parking areas shall provide adequate on site turnarounds, such that service vehicles shall exit the lot moving forward and will not have to back out onto a public road.

Security.

(1)

Towers, anchor points of guyed towers, and accessory structures shall each be surrounded by fencing of sufficient height to secure the site, the top foot of which may, at the discretion of the Planning Board in deference to the character of the neighborhood, be comprised of three strands of barbed wire to discourage unauthorized access to the site. The Planning Board may waive the requirement of fencing if, in its discretion, The Board determines that other forms of security are adequate, or that, by reason of location or occupancy, security will not be significantly compromised by the omission, or reduction in size, of the otherwise required fencing.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]

(2)

Motion-activated or staff-activated security lighting around the base of a tower or accessory structure entrance may be installed, provided that such lighting does not project off the site. Such lighting should only be activated when the area within the fenced perimeters has been entered.

(3)

There shall be no permanent climbing pegs within 15 feet of the ground of any tower.

(4)

A locked gate at the intersection of the access way and a public road may be required to obstruct entry by unauthorized vehicles. Such gate must be located entirely upon the lot and not on the public right-of-way.

Engineering and maintenance.

(1)

Site plans for a telecommunications facility must bear the seal of a professional engineer licensed to practice in the State of New York. Every facility shall be built, operated and maintained to acceptable industry standards, including but not limited to the most recent, applicable standards of the Institute of Electric and Electronic Engineers (IEEE) and the American National Standards Institute (ANSI).

(2)

Every telecommunications facility shall be inspected at owner's expense, at least every second year for structural integrity and for electric and magnetic field limits and power density (conforming to FCC 96-326 Table 1) by a New York State licensed engineer. A copy of the inspection report shall be submitted to the Village's Code Enforcement Officer. Any unsafe condition revealed by such report shall be corrected within 10 days of written notification of same from the Village to the record landowner on which the facility is constructed, given by certified mail, return receipt required, or other equally effective manner of providing notice. The time period for correction may, on written application of the landowner or owner of the facility be extended by the Village Board of Trustees if it is impracticable to complete the correction within said 10 days and if, in the sole discretion of the Village Board of Trustees, there is no imminent danger to life, limb, or other person's property. If the unsafe condition is not corrected to the satisfaction of the Village's Code Enforcement Officer within the applicable time period, the special permit for construction of the facility may, after a hearing by the Village Board of Trustees on at least 10 days' prior notice to the landowner of record given by certified mail, return receipt requested, or other equally effective manner of providing notice, be revoked by such Board. The special permit may only be revoked if the Village Board of Trustees finds, following the close of the public hearing, that there is an unsafe condition at the facility which poses a risk of bodily injury or significant property damage. Upon such revocation of the special permit, the facility shall be removed or dismantled to the point of removing all unsafe conditions.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]

(3)

A safety analysis by a qualified professional must accompany any special permit application or amendment or renewal thereof, for the purpose of certifying that general population/uncontrolled (as such term is defined in the FCCs Section 1.1310, 47 CFR, 1.1310) electromagnetic radiation exposure does not exceed standards set by the FCC or any permit granted by the FCC.

(4)

The Village, at the expense of the applicant, may employ its own consultant(s) to examine the application and related documentation and make recommendations as to whether the criteria for granting the special permit have been met, including whether the applicant's conclusions regarding need, co-location, safety analysis, visual analysis, and structural inspection, are valid and supported by generally accepted and reliable engineering and technical data and standards.

Removal.

(1)

At the time of submittal of the application for a special permit for a telecommunications facility, the applicant shall submit an agreement to remove all antennas, driveways, structures, buildings, equipment sheds, lighting, utilities, fencing, gates, accessory equipment or structures, as well as any tower(s) dedicated solely for use within a telecommunications facility if such facility becomes technologically obsolete or ceases to perform its originally intended function for more than 12 consecutive months. Upon removal of said facility, the land shall be restored to its previous condition, including, but not limited to, the seeding or sodding, as appropriate depending upon the season of the work, of exposed soils.

(2)

At the time of obtaining a building permit, the applicant must provide a financial security bond for removal of the telecommunications facility and property restoration, with the municipality as the assignee, in an amount approved by the Planning Board upon the recommendation of the Village Engineer, but not less than $50,000.

Application. The application for a special permit for the construction of a telecommunications facility shall include, without altering any other application requirements set forth in this chapter:

(1)

A completed project application form in such detail and containing such information as the Planning Board may require.

(2)

Completed EAF and visual EAF.

(3)

Site plan in accordance with the requirements of this section including, without limitation:

(a)

The exact location including geographic coordinates of the proposed telecommunications facility including any towers, guy wires and anchors, if applicable;

(b)

The maximum height of the proposed facility, including all appurtenances;

(c)

A detail of tower type, if any, including engineering drawings from the tower manufacturer (monopole, guyed, freestanding, or other);

(d)

The location, type and intensity of any lighting on the tower;

(e)

Property boundaries and names of all adjacent landowners;

(f)

Proof of the landowner's consent to the erection of the facility and agreement to abide by the chapter if the applicant is not the landowner;

(g)

The location of all other structures on the property and all structures within 100 feet of the property lines together with the distance of these structures from any proposed tower;

(h)

The location, nature and extent of any proposed fencing, landscaping and screening;

(i)

The location and nature of any proposed utility easements and access roads or drives;

(j)

The location of the fall zone for the tower, if any; and

(k)

Documentary evidence that the proposal satisfied the requirements of Subsection B(2) above.

(4)

Agreement that the applicant will negotiate in good faith with any subsequent applicant seeking to co-locate a telecommunications facility on the initial applicant's facility. This agreement shall commit the initial applicant and landowner and their respective successors in interest to:

(a)

Respond in a timely, comprehensive manner to a request for information from a potential shared-use applicant.

(b)

Negotiate in good faith for shared use by third parties.

(c)

Allow shared use if an applicant agrees in writing to pay reasonable charges for same.

(d)

Make no more than a reasonable charge for shared use, based upon generally accepted accounting principles. The charge may include but shall not necessarily be 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, depreciation, and all of the costs of adapting the tower or user without causing electromagnetic interference or causing uses on the site to emit electromagnetic radiation in excess of levels permitted by the FCC.

(5)

The agreement for removal of the facility referred to above.

(6)

Copies of all documents submitted to the FCC or any other governmental agency having jurisdiction.

(7)

Any applicable application or other fees, including any deposits required by the Village to pay the costs of any consultants retained by the Village as provided herein.

Fees and deposits.

(1)

The fees for a special permit application for a telecommunications facility shall calculated as set forth on the Village of Dryden Fee Schedule, which Fee Schedule may be established by resolution and thereafter amended from time to time by resolution of the Village Board of Trustees; and in the event that the telecommunications facility includes a tower, the tower shall be considered to be a principal building and all other structures to be accessory buildings. In addition thereto, the applicant shall also deliver the additional required escrow deposit as provided for in Subsection L(2) below.

[Amended 2-16-2012 by L.L. No. 2-2012]

(2)

In addition to the delivery of the fees described at Subsection L(1) above, the applicant shall deliver with its application an amount equal to 1% of the estimated cost of the project. This sum shall be held by the Village in a non-interest-bearing account, and these funds shall be available to the Village to pay consultants engaged by the Village to assist in review of the application. Following grant or denial of the application, the Village shall return to the applicant any excess remaining in escrow. If the escrow account has been depleted prior to grant or denial of the application, the applicant shall deposit such funds as are then necessary for the Village to pay any outstanding fees to said consultants.

Miscellaneous.

(1)

Any special permit granted hereunder shall be valid only for the dimensions and number of structures for the telecommunications facility contained in original application as so approved. Any subsequent amendments or additions shall require a new application for same following the procedures set forth in this section.

(2)

In considering the application, the Planning Board may, if the application is granted, impose such reasonable conditions as it may deem necessary to minimize any adverse impacts of the facility or its construction, or to assure continued compliance with the terms of this section.

Notice of public hearing. Notwithstanding any provision of this chapter to the contrary, the requirements for delivery of notice of the public hearing for the special permit described in this section shall be expanded to include notice to all property owners that are identified by the Planning Board as being affected by the proposed telecommunications fixtures.