[HISTORY: Adopted by the Town Board of the Town of New Lebanon 4-16-2005 by L.L. No. 2-2005; amended in its entirety 1-8-2007 by L.L. No. 1-2007. Amendments noted where applicable.]
[Amended 7-14-2015 by L.L. No. 4-2015]
The Telecommunications Act of 1996 affirmed the Town of New Lebanon, New York's authority concerning the placement, construction and modification of wireless telecommunications facilities. The Town of New Lebanon 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 ensure 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 the 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 New Lebanon, while complying with the regulations such as the Tax Relief Act of 2012.
This chapter shall be known and cited as the "Wireless Telecommunications Facilities Siting Ordinance" for the Town of New Lebanon.
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.
- ACCESSORY FACILITY OR STRUCTURE
- An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to utility or transmission equipment storage sheds or cabinets.
- A system of electrical conductors that transmits or receives 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 New Lebanon.
- The use of an existing tower or structure to support antennas for the provision of wireless services.
- COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
- The inability to perform an act on terms that are reasonable in commerce; the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be "commercial impracticable" and shall not render an act or the terms of an agreement commercially impracticable.
- COMPLETED APPLICATION
- An application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.
- 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 pre-existing grade level to the highest point on the tower or structure, even if said highest point is an antenna or lightning-protection device.
- MODIFICATON or MODIFY
- The co-location, addition, removal or change of any of the
physical and visually discernable 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
discernable components, vehicular access, parking and/or an upgrade
or change-out of equipment for better or more modern equipment. A
modification shall not include the replacement of any components of
a wireless facility where the replacement is identical to the component
being replaced or for any matters that involve the normal repair and
maintenance of a wireless facility without adding, removing or changing
anything.[Amended 7-14-2015 by L.L. No. 4-2015]
- 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.
- PERSONAL WIRELESS FACILITY
- See definition for "wireless telecommunications facilities."
- PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS
- Shall have the same meaning as defined and used in the 1996 Telecommunications Act.
- REPAIRS AND MAINTENANCE
- The replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without the addition, removal or change of any of the physical or visually discernable components or aspects of a wireless facility that will add to the visible appearance of the facility as originally permitted.
- SPECIAL USE PERMIT
- The official document or permit by which an applicant is allowed to file for a building permit to construct and use wireless telecommunications facilities as granted or issued by the Town.
- The State of New York.
- STEALTH or STEALTH TECHNOLOGY
- To minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities from which the telecommunications facilities will be visible, 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.
- TELECOMMUNICATION SITE
- See definition for "wireless telecommunications facilities."
- TELECOMMUNICATIONS STRUCTURE
- A structure used in the provision of services described in the definition of "wireless telecommunications facilities."
- Temporary in relation to all aspects and components of this chapter, something intended to, or that does, exist for fewer than 90 days.
- Any structure designed primarily to support an antenna for receiving and/or transmitting a wireless signal.
- WIRELESS TELECOMMUNICATIONS FACILITIES
- Includes a "telecommunications site" and "personal wireless facility." It means a structure, facility or location designed, or intended to be used as, or used to support antennas or other transmitting or receiving devices. This includes, without limit, towers of all types and kinds and 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 telecommunication 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:
Requiring a special use permit for any new, co-location or modification of a wireless telecommunications facility.
Implementing an application process for person(s) seeking a special use permit for wireless telecommunications facilities.
Establishing a policy for examining an application for and issuing a special use permit for wireless telecommunications facilities that is both fair and consistent.
Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless telecommunications facilities among service providers
Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner by requiring the use of stealth technology to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities from which the telecommunications facilities will be visible, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
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.
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 § 189-6.
All wireless telecommunications facilities 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.
Any repair and maintenance of a wireless facility does not require the application for a special use permit.
The following shall be exempt from this chapter:
The Town's fire, police, Department of Transportation or other public service facilities owned and operated by the local government.
Any facilities expressly exempt from the Town's siting, building and permitting authority.
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.
Facilities exclusively for private, noncommercial radio and television reception and private citizen's bands, licensed amateur radio and other similar noncommercial telecommunications.
Facilities exclusively for providing unlicensed spread spectrum technologies [such as IEEE 802.1 la, b, g (Wi-Fi) and Bluetooth] where the facility does not require a new tower.
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 whom applications for a special use permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting or revoking special use permits for wireless telecommunications facilities. The Town may, at its discretion, delegate or designate other official agencies or officials of the Town to accept, review, analyze, evaluate and make recommendations to the Town Board with respect to the granting or not granting or revoking special use permits for wireless telecommunications facilities.
The Town may reject applications not meeting the requirements stated herein or which are otherwise incomplete.
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.
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.
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.
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.
The applicant shall include a statement in writing:
That the applicant's proposed wireless telecommunications facilities shall be maintained in a safe manner, and in compliance with all conditions of the special use permit, without exception, unless specifically granted relief by the Town in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable Town, state and federal laws, rules, and regulations;
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.
Where a certification is called for in this chapter, such certification shall bear the signature and seal of a professional engineer licensed in the state.
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.
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;
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, include an analysis of current and projected usage;
The name, address and phone number of the person preparing the report;
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 that the applicant, provide name and address of the tower owner;
The postal address and Tax Map parcel number of the property;
The zoning district or designation in which the property is situated;
Size of the property stated both in square feet and lot line dimensions, and a survey showing the location of all lot lines;
The location of the nearest residential structure;
The location, size and height of all existing and proposed structures on the property which is the subject of the application;
The type, locations and dimensions of all proposed and existing landscaping, and fencing;
The azimuth, size and center line height location of all proposed and existing antennas on the supporting structure;
The number, type and model of the antenna(s) proposed, with a copy of the specification sheet;
The make, model, type and manufacturer of the tower and design plan stating the tower's capacity to accommodate multiple users;
A site plan describing the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above pre-existing grade, materials, color and lighting;
The frequency, modulation and class of service of radio or other transmitting equipment;
The actual intended transmission power stated as the maximum effective radiated power (ERP) in watts;
Signed documentation such as the "Checklist to Determine Whether a Facility is Categorically Excluded" to verify that the wireless telecommunication facility with the proposed installation will be in full compliance with the current FCC RF emissions guidelines (NIER). If not categorically excluded, a complete RF emissions study is required to provide verification;
A signed statement that the proposed installation will not cause physical or RF interference with other telecommunications devices;
A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities;
A copy of the geotechnical subsurface soils investigation, evaluation report and foundation recommendation for a proposed or existing tower site and, if existing tower or water tank site, a copy of the installed foundation design.
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.
Application for new towers.
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.
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 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.
The applicant shall examine the feasibility of designing the proposed tower to accommodate future demand for at least four additional commercial applications, for example, future co-locations. The tower shall be structurally designed to accommodate at least four additional antenna arrays equal to those of the applicant, and located as close to the applicant's antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:
The foreseeable number of FCC licenses available for the area;
The kind of wireless telecommunications facilities site and structure proposed;
The number of existing and potential licenses without wireless telecommunications facilities spaces/sites;
Available space on existing and approved towers.
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:
Respond within 60 days to a request for information from a potential shared-use applicant;
Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers;
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.
Failure to abide by the conditions outlined above may be grounds for revocation of the special use permit.
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.
If 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-22F-96 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.
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.
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:
If a new tower or increasing the height of an existing structure is proposed, a computer-generated "Zone of Visibility Map" at a minimum of one-mile radius from the proposed structure, with and without foliage, shall be provided to illustrate locations from which the proposed installation may be seen.
Pictorial representations of "before" and "after" (photo simulations) views from key viewpoints both inside and outside of the Town as may be appropriate, including but not limited to state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers or residents. Guidance will be provided, concerning the appropriate key sites at the pre-application meeting; provide a map showing the locations of where the pictures were taken and distance from the proposed structure.
A written description of the visual impact of the proposed facility, including, 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.
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.
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.
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.
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.
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.
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.
There shall be a pre-application meeting. The purpose of the pre-application meeting will be to address issues that will help to expedite the review and permitting process. A pre-application meeting shall also include a site visit if there has not been a prior site visit for the requested site. Costs of the Town's consultants to prepare for and attend the pre-application meeting will be borne by the applicant.
An applicant shall submit to the Town the number of completed applications determined to be needed at the pre-application meeting. Written notification of the application shall be provided to the legislative body of all adjacent municipalities as applicable and/or requested.
The holder of a special use permit shall notify the Town of any intended modification of a wireless telecommunications facility and shall apply to the Town to modify, relocate or rebuild a wireless telecommunications facility.
Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, (1) being the highest priority and (6) being the lowest priority:
On existing towers or other structures without increasing the height of the tower or structure;
On Town-owned properties;
On properties in areas zoned for heavy industrial use;
On properties in areas zoned for commercial use;
On properties in areas zoned for agricultural use;
On properties in areas zoned for residential use;
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.
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.
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.
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.
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:
Conflict with safety and safety-related codes and requirements;
Conflict with the historic nature or character of a neighborhood or historical district;
The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;
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;
Conflicts with the provisions of this chapter.
[Amended 7-14-2015 by L.L. No. 4-2015]
The Town shall prefer locating on existing towers or others structures without increasing the height as opposed to the construction of a new tower, . The applicant shall submit a comprehensive report inventorying existing towers and other suitable structures within four 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.
An applicant intending to locate, co-locate and/or modify 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.
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.
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 lowers 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.
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 municipal, Town, state, and/or any federal statute, law, local law, Town ordinance, code, rule or regulation.
Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.
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.
If lighting is required, 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:
All antennas, towers and other supporting structures, including guy anchor points and wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or collided with; and
Transmitters and telecommunications control points shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them.
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 communications 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 communications 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.
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.
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 the construction and modification of the site, once permitted. The initial deposit shall be $8,500. The placement of the $8,500 with the Town shall precede the pre-application meeting. The Town will maintain a separate escrow account for all such funds. The Town's consultants/experts shall invoice the Town for its services in reviewing the application, including the construction and modification of the site, once permitted. 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 be promptly refunded to the applicant.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
Prior to the approval of any application for a special use permit for wireless communications facilities, a public hearing shall be held by the Town, notice of which shall be published in the official newspaper 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 addresses of all landowners whose property is located within 1,500 feet of any property line of the lot or parcel on which the new wireless telecommunications facilities are proposed to be located.
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.
The Town will undertake a review of an application pursuant to this article 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.
The Town may refer any application or part thereof to any advisory or other committee for a nonbinding recommendation.
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 grant of the permit shall always be upon the applicant.
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.
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.
[Amended 7-14-2015 by L.L. No. 4-2015]
The extent and parameters of a special use permit for wireless telecommunications facilities shall be as follows:
Such special use permit shall not be assigned, transferred or conveyed without the express prior written notification to the Town. Said notice shall be provided to the attention of the Town Clerk, P.O. Box 328, New Lebanon, NY 12125.
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, ordinances and regulations and other applicable requirements, the Town may inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification and maintenance of such facilities, including but not limited to towers, antennas and buildings or other structures constructed or located on the permitted site.
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:
For a wireless communications facility on Town property, the commercial general liability insurance policy shall specifically include the Town and its officers, Councils, employees, committee members, attorneys, agents and consultants as additional insureds.
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.
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.
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.
Before construction of a permitted wireless telecommunications facilities is initiated, but in no case later than 15 days after the grant 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.
Any application for wireless communication 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, councils, 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 person violating any provision of this chapter or of a term or condition of a special use permit issued pursuant to this chapter shall be guilty of a violation and subject to a fine of $250 or to a period of imprisonment of up to 15 days, or both. Each day a violation continues shall be a separate and distinct violation.
For purposes of enforcement of this chapter, the Building Inspector/Zoning Enforcement Officer is authorized to commence a criminal proceeding by filing an accusatory instrument in the Town Justice Court and to issue an appearance ticket thereon.
Notwithstanding any civil or criminal sanctions that may be imposed under this chapter, the Town may seek injunctive relief to remedy a continuing violation of this chapter and may also revoke a special use permit issued pursuant to this chapter.
If a wireless communications 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 § 189-24, 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.
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 communications facilities:
Wireless telecommunications facilities with a permit have been abandoned (i.e., not used as wireless telecommunications facilities) for a period exceeding 90 consecutive days or a total of 180 days in any 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;
Permitted wireless telecommunications facilities fall into such a state of disrepair that they create a health or safety hazard;
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.
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.
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.
If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the permit holder has received notice, then the Town may order officials or representatives of the Town to remove the wireless telecommunications facilities at the sole expense of the owner or special use permit holder.
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.
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 than 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 pre-application 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 effect on the health, safety and welfare of the Town, its residents and other service providers.
The Town may at any time conduct a review and examination of this entire chapter.
If, after such a periodic review and examination of this chapter, the Town determines that one or more provisions of this chapter should be amended, repealed, revised, clarified, or deleted, then the Town may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the Town, the Town may repeal this entire chapter at any time.
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.
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 communications 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.
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.
This chapter is enacted pursuant to applicable authority granted by the state and federal government.
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.
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.