[HISTORY: Adopted by the Town Board of the Town of Fort Edward9-13-1999
by L.L. No. 4-1999. Amendments noted where applicable.]
The Telecommunications Act of 1996 affirmed the Town of Fort Edward's
authority concerning the placement, construction and modification of wireless
telecommunications facilities. The Town Board of the Town of Fort Edward finds
that wireless telecommunications facilities may pose a unique hazard to the
health, safety, public welfare and environment of the Town of Fort Edward
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 negative 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 Fort Edward.
This chapter may be known and cited as the "Wireless Telecommunications
Facilities Siting Law for the Town of Fort Edward."
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 Board.
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.
Any individual, corporation, estate, trust partnership, joint-stock
company, association of two or more persons, limited liability company or
entity submitting an application to the Town of Fort Edward for a special
use permit for wireless telecommunications facilities.
The form approved by the Board, together with all necessary and appropriate
documentation that an applicant submits in order to receive a special use
permit for wireless telecommunications facilities.
A system of electrical conductors that transmit or receive electromagnetic
waves or radio frequency signals. Such waves shall include but not be limited
to radio, television, cellular, paging, personal telecommunications services
(PCS) and microwave telecommunications.
The Planning Board of the Town of Fort Edward.
The use of the same telecommunications tower or structure to carry
two or more antennas for the provision of wireless services by two or more
persons or entities.
Shall have the meaning in this chapter and any special use permit
granted hereunder as is defined and applied under the New York Uniform Commercial
Code (UCC).
An application that contains all information and/or data necessary
to enable the Board to evaluate the merits of the application and to make
an informed decision with respect to the effect and impact of wireless telecommunications
facilities on the town in the context of the permitted land use for the particular
location requested.
The Environmental Assessment Form approved by the New York Department
of Environmental Conservation.
The State and/or Federal Environmental Protection Agency or its duly
assigned successor agency.
The Federal Aviation Administration or its duly designated and authorized
successor agency.
The Federal Communications Commission or its duly designated and
authorized successor agency.
A tower that is not supported by guy wires and ground anchors or
other means of attached or external support.
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.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership, joint-stock
company, association of two or more persons having a joint common interest
or governmental entity.
See definition for "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the 1996 Telecommunications
Act.
See definition for "wireless telecommunications facilities."
The official document or permit by which an applicant is allowed
to construct and use wireless telecommunications facilities as granted or
issued by the Board.
The State of New York.
The transmission and reception of audio, video, data and other information
by wire, radio frequency, light and other electronic or electromagnetic systems.
A structure used in the provision of services described in the definition
of "wireless telecommunications facilities."
In relation to all aspects and components of this chapter, something
intended to, or that does, exist for fewer than 90 days.
The Town of Fort Edward, New York.
A structure or location designed, or intended to be used or used
to support antennas. It includes without limit freestanding towers, guyed
towers, monopoles and similar structures that employ camouflage technology,
including but not limited to structures such as a multistory building, church
steeple, silo, water tower, sign or other similar structures intended to mitigate
the visual impact of an antenna or the functional equivalent of such. It is
a structure intended for transmitting and/or receiving radio, television,
cellular, paging, personal telecommunications services or microwave telecommunications,
but excluding those used exclusively for fire, police and other dispatch telecommunications,
or exclusively for private radio and television reception and private citizen's
bands, amateur radio and other similar telecommunications.
In order to ensure that the placement, construction and modification
of wireless telecommunications facilities protects the town's health,
safety, public welfare, environmental features and other aspects of the quality
of life specifically listed elsewhere in this chapter, the Board 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.
Implementing an application process for person(s) seeking
a special use permit for wireless telecommunications facilities.
B.
Establishing a policy for examining an application for
and issuing a special use permit for wireless telecommunications facilities
that is both fair and consistent.
C.
Establishing reasonable time frames for granting or not
granting a special use permit for wireless telecommunications facilities,
or recertifying or not recertifying or revoking the special use permit granted
under this chapter.
D.
Promoting and encouraging, wherever possible, the sharing
and/or collocation 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
as to minimize adverse aesthetic impacts to 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.
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 section. The Board is the officially
designated agency or body of the community 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, recertifying or not recertifying or revoking
special use permits for wireless telecommunications facilities. The Board
may, at its discretion, delegate or designate other official agencies of the
town to accept, review, analyze, evaluate and make recommendations to the
Board with respect to the granting or not granting, recertifying or not recertifying
or revoking special use permits for wireless telecommunications facilities.
B.
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 landowner, if different than the applicant, shall also sign the application.
At the discretion of the Board, any false or misleading statement in the application
may subject the applicant to denial of the application without further consideration
or opportunity for correction.
C.
Applications not meeting the requirements stated herein
or which are otherwise incomplete may be rejected by the Board.
D.
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 Board, in writing, as well as all applicable and permissible
local codes, ordinances and regulations, including any and all applicable
county, 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 New York State.
E.
No wireless telecommunications facilities shall be installed
or constructed until the site plan is reviewed and approved by the Board,
and the special use permit has been issued.
F.
All applications for the construction or installation
of new wireless telecommunications facilities shall be accompanied by a report
containing the information hereinafter set forth. The report shall be signed
by a licensed professional engineer registered in the state. Where this section
calls for certification, such certification shall be by a qualified New York
State licensed professional engineer approved by the Board, unless otherwise
noted. The application shall include, in addition to the other requirements
for the special use permit, the following information:
(1)
Documentation that demonstrates the need for the wireless
telecommunications facility to provide service primarily within the town.
(2)
Name, address and phone number of the person preparing
the report.
(3)
Name, address and phone number of the property owner,
operator and applicant, to include the legal form of the applicant.
(4)
Postal address and Tax Map parcel number of the property.
(5)
Zoning district or designation in which the property
is situated.
(6)
Size of the property, stated both in square feet and
lot line dimensions, and a diagram showing the location of all lot lines.
(7)
Location of nearest residential structure.
(8)
Location of nearest habitable structure.
(9)
Location, size and height of all structures on the property
which is the subject of the application.
(10)
Location, size and height of all proposed and existing
antennas and all appurtenant structures.
(11)
Type, size and location of all proposed and existing
landscaping, including fencing.
(12)
The number, type and design of the telecommunications
tower(s) antenna(s) proposed and the basis for the calculations of the telecommunications
tower's capacity to accommodate multiple users.
(13)
The make, model and manufacturer of the tower and antenna(s).
(14)
A description of 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)
Transmission and maximum effective radiated power of
the antenna(s).
(17)
Direction of maximum lobes and associated radiation of
the antenna(s).
(18)
Applicant's proposed tower maintenance and inspection
procedures and related system of records.
(19)
Certification that NIER levels at the proposed site are
within the threshold levels adopted by the FCC.
(20)
Certification that the proposed antenna(s) will not cause
interference with existing telecommunications devices, though the certifying
engineer need not be approved by the Board.
(21)
A copy of the FCC license applicable for the use of wireless
telecommunications facilities.
(22)
Certification that a topographic and geomorphologic study
and analysis has been conducted, and that taking into account the subsurface
and substrata and the proposed drainage plan, that the site is adequate to
assure the stability of the proposed wireless telecommunications facilities
on the proposed site, though the certifying engineer need not be approved
by the Board.
(23)
Propagation studies of the proposed site and all adjoining
proposed or in-service or existing sites.
(24)
The applicant shall disclose, in writing, any agreement
in existence prior to submission of the application that would limit or preclude
the ability of the applicant to share any new telecommunications tower that
it constructs.
G.
In the case of a new telecommunications tower, the applicant
shall be required to submit a written report demonstrating its efforts to
secure shared use of existing telecommunications tower(s) or use of existing
buildings or other structures within the town. Copies of written requests
and responses for shared use shall be provided to the Board.
H.
The applicant shall furnish written certification that
the telecommunications facility, foundation and attachments are designed and
will be constructed "as built" to meet all local, county, state and federal
structural requirements for loads, including wind and ice loads.
I.
After construction and prior to utilization of the site,
the applicant shall furnish written certification that the wireless telecommunications
facilities are grounded and bonded so as to protect persons and property and
installed with appropriate surge protectors.
J.
The applicant shall submit a completed long-form EAF
and a completed visual EAF addendum. The Board may require submission of a
more detailed visual analysis based on the results of the visual EAF addendum.
Applicants are encouraged to seek preapplication meetings with the Town Board
to address the scope of the required visual assessment.
K.
If requested by the Board, the applicant shall furnish
a visual impact assessment which shall include:
(1)
A zone of visibility map which shall be provided in order
to determine locations where the tower may be seen.
(2)
Pictorial representations of before and after views from
key viewpoints both inside and outside of the town, including but not limited
to state highways and other major roads; state and local parks; other public
lands; historic districts; preserves and historic sites normally open to the
public; and from any other location where the site is visible to a large number
of visitors, travelers or residents. The Board, acting in consultation with
its consultants or experts, will provide guidance concerning the appropriate
key sites at a preapplication meeting.
(3)
An assessment of the visual impact of the tower base,
guy wires and accessory buildings from abutting and adjacent properties and
streets.
L.
Any and all representations made by the applicant to
the Board, 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 Board.
M.
The applicant shall, in a manner approved by the Board,
demonstrate and provide in writing and/or by drawing how it shall effectively
screen from view its proposed wireless telecommunications facilities base
and all related facilities and structures.
N.
All utilities from wireless telecommunications facilities
sites shall be installed underground and in compliance with all laws, rules
and regulations of the town, including specifically, but not limited to, the
National Electrical Safety Code and the National Electrical Code where appropriate.
The Board may waive or vary the requirements of undergrounding installation
of utilities whenever, in the opinion of the Board, such variance or waiver
shall not be detrimental to the health, safety, general welfare and environment,
including the visual and scenic characteristics of the area.
O.
All wireless telecommunications facilities shall contain
a demonstration that the facility be sited so as to have the least adverse
visual effect on the environment and its character and the residences in the
area of the wireless telecommunications facilities sites.
P.
Both the wireless telecommunications facility and any
and all accessory or associated facilities shall maximize 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.
Q.
At a telecommunications site, an access road 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 vegetation cutting. Road grades shall closely follow natural contours
to assure minimal visual disturbance and reduce soil erosion.
R.
A person who holds a special use permit for wireless
telecommunications facilities shall construct, operate, maintain, repair,
provide for removal of, modify or restore the permitted wireless telecommunications
facilities in strict compliance with all current technical, safety and safety-related
codes adopted by the town, county, state or United States, including but not
limited to the most recent editions of the National Electrical Safety Code
and the National Electrical Code, as well as accepted and responsibly 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.
S.
A holder of a special use permit granted under this chapter
shall obtain, at its own expense, all permits and licenses required by applicable
rule, regulation or law 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.
T.
With respect to this application process, the Board will
normally seek to have lead agency status, pursuant to the State Environmental
Quality Review Act (SEQRA). The Board shall conduct an environmental review
of the proposed project in combination with its review of the application
under this chapter.
U.
An applicant shall submit to the Town Clerk the number
of completed applications determined to be needed at the preapplication meeting.
A copy of the application shall be provided to the legislative body of all
adjacent municipalities and to the County Planning Agency.
V.
The applicant shall examine the feasibility of designing
a proposed telecommunications tower to accommodate future demand for at least
two additional commercial applications, for example, future collocations.
The scope of this examination shall be determined by the Board. The telecommunications
tower shall be structurally designed to accommodate at least two 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 telecommunications tower is not
technologically feasible or is commercially impracticable and creates an unnecessary
and unreasonable burden, based upon:
(1)
The number of FCC licenses foreseeably available for
the area.
(2)
The kind of wireless telecommunications facilities site
and structure proposed.
(3)
The number of existing and potential licenses without
wireless telecommunications facilities spaces/sites.
(4)
Available space on existing and approved telecommunications
towers.
W.
The applicant shall submit to the Board a letter of intent
committing the owner of the proposed new tower and his/her successors in interest
to negotiate in good faith for shared use of the proposed tower by other telecommunications
providers in the future. This letter shall be filed with the Board. Failure
to abide by the conditions outlined in the letter may be grounds for revocation
of the special use permit. The letter shall commit the new tower owner and
his/her successors in interest to:
(1)
Respond within 60 days to a request for information from
a potential shared-use applicant.
(2)
Negotiate in good faith concerning future requests for
shared use of the new tower by other telecommunications providers.
(3)
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.
X.
Unless waived by the Board, there shall be a preapplication
meeting. The purpose of the preapplication meeting will be to address issues
which will help to expedite the review and permitting process. A preapplication
meeting may also include a site visit if, required. Where the application
is for the shared use of an existing telecommunications tower(s) or other
high structure, the applicant should seek to waive any section or subsection
of this chapter that may not be required. At the preapplication meeting, the
waiver requests, if appropriate, will be decided by the Board. Costs of the
town's consultants to prepare for and attend the preapplication meeting
will be borne by the applicant.
Y.
The holder of a special use permit shall notify the Town
of Fort Edward of any intended modification of a Wireless telecommunications
facility and shall apply to the town to modify, relocate or rebuild a wireless
telecommunications facility.
A.
Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities in
accordance with the following priorities, one being the highest priority and
four being the lowest priority.
B.
If the proposed property site is not 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 presented is the only site leased or selected. An application
shall address collocation as an option and, if such option is not proposed,
the applicant must explain why collocation is commercially or otherwise impracticable.
Agreements between providers limiting or prohibiting collocation shall not
be a valid basis for any claim of commercial impracticability or hardship.
D.
Notwithstanding the above, the Board may approve any
site located within an area in the above list of priorities, provided that
the Board finds that the proposed site is in the best interest of the health,
safety and welfare of the town and its inhabitants.
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 the site selected is not
the highest priority, then a detailed written explanation as to why sites
of a higher priority were not selected shall be included with the application.
F.
The applicant shall, in writing, identify and disclose
the number and locations of any additional sites that the applicant has been,
is or will be considering, reviewing or planning for wireless telecommunications
facilities in the town, and all municipalities adjoining the town, for a two-year
period following the date of the application.
G.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the Board may
disapprove an application for any of the following reasons.
(1)
Conflict with safety and safety-related codes and requirements.
(2)
Conflict with traffic needs or traffic laws or definitive
plans for changes in traffic flow or traffic laws.
(3)
Conflict with the historic nature of a neighborhood or
historical district.
(4)
The use or construction of wireless telecommunications
facilities which is contrary to an already stated purpose of a specific zoning
or land use designation.
(5)
The placement and location of wireless telecommunications
facilities which would create an unacceptable risk or the probability of such
to residents, the public, employees and agents of the town or employees of
the service provider or other service providers.
(6)
Conflicts with the provisions of this chapter.
A.
Shared use of existing wireless telecommunications facilities
shall be preferred by the town, as opposed to the proposed construction of
a new telecommunications tower. Where such shared use is unavailable, location
of antennas on other preexisting structures shall be considered and preferred.
The applicant shall submit a comprehensive report inventorying existing towers
and other appropriate structures within four miles of any proposed new tower
site, unless the applicant can show that some other distance is more reasonable,
and outlining opportunities for shared use of existing facilities and the
use of other preexisting structures as a preferred alternative to new construction.
B.
An applicant intending to share use of an existing telecommunications
tower or other structure shall be required to document the intent of the existing
owner to share use. In the event of an application to share the use of an
existing telecommunications tower does not increase the height of the telecommunications
tower, the Board shall waive such requirements of the application required
by this chapter as may be for good cause shown.
C.
Such shared use shall consist only of the minimum antenna
array technologically required to provide service within the town, to the
extent practicable, unless good cause is shown.
A.
The applicant must submit documentation justifying to
the Board the total height of any telecommunications tower, facility and/or
antenna and the basis therefor. Such justification shall be to provide service
within the town, to the extent practicable, unless good cause is shown.
B.
Telecommunications towers shall be no higher than the
minimum height necessary. Unless waived by the Board upon good cause shown,
the maximum height shall be 100 feet, based on three collocated antenna arrays
and ambient tree height of 80 feet.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required bylaw.
B.
Telecommunications towers shall be of a galvanized finish
or painted with a rust-preventive paint of an appropriate color to harmonize
with the surroundings, as approved by the Board, 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 and an artist's
rendering or other visual representation showing the effect of light emanating
from the site on neighboring habitable structures within 1,500 feet of all
property lines of the parcel on which the wireless telecommunications facilities
are located.
All wireless telecommunications facilities and antennas shall be located,
fenced or otherwise secured in a manner which prevents unauthorized access
and to prevent tampering, specifically as follows:
A.
All antennas, towers and other supporting structures,
including guy wires, shall be made inaccessible to individuals and constructed
or shielded in such a manner that they cannot be climbed or run into; and
B.
Transmitters and telecommunications control points must
be installed such 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 to provide adequate notification to persons in the immediate
area of the presence of an antenna that has transmission capabilities. The
sign shall 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 located so as to be
visible from the access point of the site. The sign shall not be lighted unless
the Board shall have allowed such lighting or unless such lighting is required
by applicable provisions of law. The sign shall be approved by the Board before
installation. No other signage, including advertising, shall be permitted
on any facilities, antennas, antenna supporting structures or antenna towers,
unless required by law.
Wireless telecommunications facilities shall be located with a minimum
setback from any property line a distance equal to the height of the wireless
telecommunications facility or the existing setback requirement of the underlying
zoning district, whichever is greater. Further, 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 Board may hire any consultant and/or expert necessary
to assist the Board in reviewing and evaluating the application and any requests
for recertification.
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 Board in connection with the review of any application.
The initial deposit shall be $7,500. These funds shall accompany the filing
of an application and the town will maintain a separate escrow account for
all such funds. The town's consultants/experts shall bill or invoice
the town no less frequently than monthly for its services in reviewing the
application and performing its duties. If at any time during the review process
this escrow account has a balance less than $4,000, the applicant shall immediately,
upon notification by the town, replenish said escrow account so that it has
a balance of at least $4,000. Such additional escrow funds must 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 billing or invoicing at the conclusion of the review process,
the difference shall be promptly refunded to the applicant.
C.
The total amount of the funds 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 by the Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as required and requested by the town, shall be paid by the applicant.
A.
No person shall be permitted to site, place, build, construct
or 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 exceptions noted in the definition of "wireless telecommunications
facilities," such as those used exclusively for fire, police and other dispatch
telecommunications or exclusively for private radio and television reception
and private citizen's bands, amateur radio and other similar telecommunications.
B.
New construction, including routine maintenance on existing
wireless telecommunications facilities, shall comply with the requirements
of this chapter.
C.
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 modification to existing
wireless telecommunications facilities must comply with this chapter.
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 Board, notice of which shall be published in the official newspaper
of the town no less than five calendar days prior to the scheduled date of
the public hearing. In order that the town may notify nearby landowners, the
applicant, at least three weeks prior to the date of said public hearing,
shall be required to provide names and addresses of all landowners whose property
is located within 1,500 feet of any property line of the lot on which the
proposed new wireless telecommunications facilities are proposed to be located.
B.
The Board shall schedule the public hearing referred to in Subsection A of this section once it finds the application is complete. The Board, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary.
C.
It is the intent of this section to conform to § 274-b
of the New York State Town Law.
A.
The Board will undertake a review of an application pursuant
to this chapter in a timely fashion, consistent with its responsibilities
with SEQRA, 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 Board may refer any application or part thereof to
any advisory or other committee for a nonbinding recommendation.
C.
Except for necessary building permits, no additional
permits or approvals from the town, shall be required for wireless telecommunications
facilities covered by this chapter.
D.
After the public hearing and after formally considering
the application, the Board may approve, approve with conditions or disapprove
an application for a special use permit. It's 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.
E.
If the Board 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 Board's action,
and the special use permit shall be issued within 30 days after such approval.
F.
If the Board 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 Board's action.
A.
At any time between 12 months and six months prior to
the five-year anniversary date after the effective date of the special use
permit and all subsequent fifth anniversaries of the effective date of the
original special use permit for wireless telecommunications facilities, the
holder of a special use permit for such wireless telecommunications facilities
shall submit a signed written request to the Board for recertification. In
the written request for recertification, the holder of such special use permit
shall note the following:
(1)
The name of the holder of the special use permit for
the wireless telecommunications facilities.
(2)
If applicable, the number or title of the special use
permit.
(3)
The date of the original granting of the special use
permit.
(4)
Whether the wireless telecommunications facilities have
been moved, relocated, rebuilt or otherwise modified since the issuance of
the special use permit and if so, in what manner.
(5)
If the wireless telecommunications facilities have been
moved, relocated, rebuilt or otherwise modified, then whether the Board approved
such action, and under what terms and conditions, and whether those terms
and conditions were met.
(6)
Any requests for waivers or relief of any kind whatsoever
from the requirements of this chapter and any requirements for a special use
permit.
(7)
That the wireless telecommunications facilities are in
compliance with the special use permit and compliance with all applicable
codes, laws, rules and regulations.
(8)
Recertification that the telecommunications tower and
attachments both are designed and constructed "as built" and continue to meet
all local, county, state and federal structural requirements for loads, including
wind and ice loads. Such recertification shall be by a qualified New York
State licensed professional engineer acceptable to the town, the cost of which
shall be borne by the applicant.
B.
If, after such review, the Board determines that the
permitted wireless telecommunications facilities are in compliance with the
special use permit and all applicable statutes, laws, local laws, ordinances,
codes, rules and regulations, then the Board shall issue a recertification
special use permit for the wireless telecommunications facilities, which may
include any new provisions or conditions that are mutually agreed upon or
required by applicable statutes, laws, local laws, ordinances, codes, rules
and regulations. If, after such review, the Board determines that the permitted
wireless telecommunications facilities are not in compliance with the special
use permit and all applicable statutes, local laws, ordinances, codes, rules
and regulations, then the Board may refuse to issue a recertification special
use permit for the wireless telecommunications facilities, and, in such event,
such wireless telecommunications facilities shall not be used after the date
that the applicant receives written notice of such decision by the Board.
Any such decision shall be in writing and supported by substantial evidence
contained in a written record.
C.
If the applicant has submitted all of the information requested by the Board and required by this chapter, and if the Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months in order for the Board to complete its review.
D.
If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the time frame noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
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 consent of the Board, and such
consent shall not be unreasonably withheld or delayed.
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 for
wireless telecommunications facilities or for a material violation of this
chapter after prior written notice to the applicant and the holder of the
special use permit.
A.
At the time that a person submits an application for
a special use permit for a new telecommunications tower, such person shall
pay an application fee in the amount listed on the Schedule of Fees[1] to the Town. If the application is for a special use permit for collocating on an existing telecommunications tower or high structure, where no increase in height of the tower or structure is required, the fee shall be in the amount adopted by the Town Board pursuant to Town Code § 50-1 and listed on the Fee Schedule.
[Amended 6-13-2005 by L.L. No. 6-2005]
B.
No application fee is required in order to recertify a special use permit for wireless telecommunications facilities unless there has been a modification of the wireless telecommunications facilities since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in Subsection A shall apply.
The applicant and the owner of record of any proposed wireless telecommunications
facilities property site shall, at their 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 and with such sureties as are deemed sufficient
by the Board to assure the fail 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 the
removal of the wireless telecommunications facilities and any necessary site
restoration is completed. The failure to pay any annual premium for the renewal
of any such security shall be a violation of the provisions of the special
use permit and shall entitle the Board to revoke the special use permit after
prior written notice to the applicant and holder of the permit and after a
hearing upon due prior notice to the applicant and holder of the special use
permit.
A.
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.
B.
The town shall pay for costs associated with such an
inspection, except for those circumstances occasioned by said holder's,
lessee's or licensee's refusal to provide necessary information,
or necessary access to such facilities, including towers, antennas and appurtenant
or associated facilities, or refusal to otherwise cooperate with the town
with respect to an inspection, or if violations of this chapter are found
to exist, in which case the holder, lessee or licensee shall reimburse the
town for the cost of the inspection.
The holder of the special use permit shall, annually, certify in writing
to the town that NIER levels at the site are within the threshold levels adopted
by the FCC. The certifying engineer need not be approved by the town.
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.
The commercial general liability insurance policy shall
specifically include the town and its officers, boards, employees, committee
members, attorneys, agents and consultants as additional named 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 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
which such policies are to renew or replace.
F.
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 telecommunications facilities that is proposed
for town property, pursuant to this chapter, shall contain a provision with
respect to indemnification of the town. 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, officials of the town, its officers,
agents, servants and employees from any and all penalties, damage 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
construction, erection, modification, location, products performance, operation,
maintenance, repair, installation, replacement, removal or restoration of
said wireless telecommunications facilities. 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 Board may impose and collect,
and the holder of the special use permit for wireless telecommunications facilities
shall pay to the town, fines or penalties asset forth below.
B.
A violation of this chapter is hereby declared to be
an offense, punishable by a fine not exceeding $350 or imprisonment for a
period not to exceed six months, or both, for conviction of a first offense;
for conviction of a second offense, both of which were committed within a
period of five years, punishable by a fine not less than $350 nor more than
$700 or imprisonment for a period not to exceed six months, or both; and,
upon conviction for a third or subsequent offense, all of which were committed
within a period of five years, punishable by a fine not less than $700 nor
more than $1,000 or imprisonment for a period not to exceed six months, or
both. However, for the purpose of conferring jurisdiction upon courts and
judicial officers generally, violations of this chapter or of such ordinance
or regulation shall be deemed misdemeanors and, for such purpose only, all
provisions of law relating to misdemeanors shall apply to such violations.
Each week's continued violation shall constitute a separate additional
violation.
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.
A.
If wireless telecommunications facilities are 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 Board shall notify the holder of the special
use permit, in writing, of such violation. Such notice shall specify the nature
of the violation or noncompliance and that the violations must be corrected
within seven days of the date of the postmark of the notice or of the date
of personal service of the notice, whichever is earlier. Notwithstanding anything
to the contrary in this subsection or any other section of this chapter, if
the violation causes, creates or presents an imminent danger or threat to
the health or safety of lives or property, the Board may, at its sole discretion,
order the violation remedied within 24 hours.
B.
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this chapter or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Board may revoke such special use permit for wireless telecommunications facilities and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the Board 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 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.
B.
If the Board makes such a determination as noted in Subsection A of this section, then the Board shall notify the holder of the special use permit and the property owner for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed. The Board 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 Board. 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 Board.
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 Board 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.
E.
If the town removes or causes to be removed wireless
telecommunications facilities, and the owner of the wireless telecommunications
facilities does not claim the property 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 it and its components.
F.
Notwithstanding anything in this section to the contrary,
the Board 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 Board, 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.
G.
Notwithstanding anything in this section to the contrary,
remedies provided in this section are in addition to any other remedies provided
by law.
Any applicant desiring a waiver or exemption from any aspect or requirement
of this chapter may request such from the Board at a preapplication meeting,
provided that the waiver or exemption is contained in the original 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 waiver may be temporary or permanent, partial or complete,
at the sole discretion of the Board. However, the burden of proving the need
for the requested relief or exemption is solely on the applicant to prove
to the satisfaction of the Board. The applicant shall bear all costs of the
Board or the town in considering the request, and the waiver or exemption
shall not be transferable to a new or different holder of the permit or owner
of the tower or facilities without the specific written permission of the
Board. Such permission shall not be unreasonably withheld or delayed. No such
waiver or exemption shall be approved unless the applicant demonstrates by
clear and convincing evidence that, if granted, the waiver or exemption will
have no significant affect on the health, safety and welfare of the town,
its residents and other service providers.
A.
The Town Board may at any time conduct a review and examination
of this entire chapter.
B.
If after such a periodic review and examination of this
chapter the town Board determines that one or more provisions of this chapter
should be amended, repealed, revised, clarified or deleted, then the Town
Board 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 Board may repeal this entire chapter
at any time.
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, radio frequency (RF) emission standards and
NIER emissions.
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, security and NIER emissions 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 state or federal agency.
Where this chapter differs or conflicts with other laws, rules and regulations,
unless the right to do so is preempted or prohibited by the county, state
or federal government, the more restrictive or protective of the town and
the public shall apply.
This chapter is enacted pursuant to the Municipal Home Rule Law of the
State of New York.
