[HISTORY: Adopted by the Town Board of the
Town of Newstead 4-24-1997 by L.L.
No. 1-1997 (Ch. 84 of the 1988 Code). Amendments
noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 450.
The Town of Newstead recognizes the increased
demand for wireless communication transmitting facilities and the
need for the services they provide. Often, these facilities require
the construction of a communications tower and/or similar facilities.
The intent of this chapter is to regulate the location construction
and modification of telecommunication facilities in accordance with
the guidelines of the Telecommunications Act of 1996 and other applicable
laws by:
A.
Accommodating the need for telecommunications facilities
while regulating their location and number in the community.
[Amended 6-27-2022 by L.L. No. 1-2022]
B.
Minimizing adverse visual impacts of these towers/antennas/small
cell installations through proper design, siting, and screening.
[Amended 6-27-2022 by L.L. No. 1-2022]
C.
Preserving and enhancing the positive aesthetic qualities
of the built and natural environment in the Town of Newstead.
D.
Providing for the health, safety, and welfare of the
community by avoiding potential damage to adjacent properties from
tower failure, falling ice, etc., through engineering and proper siting.
[Amended 6-27-2022 by L.L. No. 1-2022]
E.
Requiring the joint use of towers when available and
encouraging the placement of antennas and small cell installations
on existing structures to reduce the number of such structures in
the future. No new tower may be established if there is a technically
suitable space available on an existing communications tower or structure
within the search area that the new cell site is to serve.
[Amended 6-27-2022 by L.L. No. 1-2022]
[Amended 6-27-2022 by L.L. No. 1-2022]
As used in this chapter, the following terms
shall have the meanings indicated:
A nonhabitable accessory facility or structure serving or
being used as or in conjunction with a communications tower and/or
similar facility and located on the same lot as the communications
tower. Examples of such structures include utility or transmission
equipment storage sheds or cabinets.
A system of electrical conductors that transmit or receive
frequency signals. Such signals shall include but not be limited to
radio, television, cellular, paging, personal communication services
(PCS), and microwave communications.
A miniature radio access point or wireless network base station
with a low radio frequency (RF) power, footprint, and range with use
including but not limited to enhancing cellular network coverage and
capacity. It includes all equipment required for the operation and
maintenance of "small cell" or “microcell” wireless communications
systems that transmit and/or receive signals, including antennas,
strand mounted antennas, microwave dishes, power supplies, transformers,
electronics, and other types of equipment required for the transmission
or receipt of such signals.
Towers, antennas, small cell installations, support structures,
and/or accessory structures, together used in connection with the
provision of cellular telephone service, personal communications services,
digital and/or data communication services, paging services, radio
and television broadcast services, and similar broadcast services.
A structure designed to support antennas and/or small cell
installations. It includes without limit, freestanding towers, guyed
towers, monopoles, and similar structures which or which do not employ
camouflage technology.
[Amended 10-26-1998 by L.L. No. 1-1998; 6-27-2022 by L.L. No. 1-2022]
No telecommunications facility or facilities shall be sited,
located, constructed, erected, or modified without issuance of a building
permit and such permits or approvals as are prescribed in this chapter.
A.
Collocated/existing structure antennas and small cell installations:
(1)
An antenna or small cell installation that is to be attached to an
existing communications tower, smokestack, or water tower is permitted
in all zoning districts. The height of the new antenna shall not extend
above the height of the existing structure by more than 35 feet.
(2)
The antenna and any mounting structure and related equipment shall
be integrated into said structure in such a manner as to minimize
its visual impact to the greatest extent practicable.
(3)
A new antenna or small cell installation requires a building permit.
The building permit application will include a structural analysis/report
(certified by a New York State licensed professional engineer or architect)
verifying the ability of the structure to handle the antenna or small
cell installation and certification by a qualified radio frequency
engineer that the cumulative emissions from the site are within federal
and state RF radiation exposure limits.
B.
Noncollocated/new structure antennas and small cell installations.
An antenna or small cell installation that will not be mounted on
an existing structure as defined above or that is more than 35 feet
higher than the existing structure on which it is mounted is permitted
in accordance with the following regulations:
(1)
General requirements. No application for a noncollocated antenna
or small cell installation or a new site for a telecommunications
facility shall be considered complete unless and until the applicant
shall have submitted a report which establishes to the satisfaction
of the Board the following:
(a)
That the applicant is required to provide service to locations
which it is not able to serve through existing facilities which are
located either within or outside of the Town, showing the specific
locations and/or areas the applicant is seeking to serve. The applicant
must document a gap in service which will be remedied by the proposed
installation.
(b)
The report shall set forth an inventory of existing facilities
and/or structures, within or outside of the Town, which might be utilized
or modified in order to provide coverage to the locations the applicant
is seeking to serve and include a report on the possibilities and
opportunities for collocation as an alternative to a new site.
[1]
For existing utility, light, or telephone poles, the height
of the new antenna or small cell installation shall not extend above
the height of the existing structure by more than five feet. If a
pole needs to be replaced in order to accommodate the antenna or small
cell installation, then the replacement pole shall not be more than
five feet taller than the existing pole.
(c)
The applicant must demonstrate that the proposed antenna, small
cell installation, or telecommunications facility cannot be accommodated
on any such existing facility or structure either within or outside
of the Town due to one or more of the following reasons:
[1]
The proposed equipment would exceed the existing and reasonably
potential structural capacity of existing facilities or structures
within or outside of the Town considering existing and planned use
for those facilities or structures.
[2]
The existing or proposed equipment would cause interference
with other existing or proposed equipment which could not reasonably
be mitigated or prevented.
[3]
Said existing facilities or structures do not have space on
which the proposed equipment can be placed so it can function effectively
and reasonably and/or the applicant has not been able, following good
faith efforts, to reach an agreement with the owner(s) of such facilities
or structures.
[4]
Other reasons which make it impracticable to locate or place
the proposed equipment on said facilities or structures.
(2)
Zoning districts, approvals, and bulk requirements.
(a)
All districts require site plan review and a telecommunications facility special permit as set forth in § 373-4.
[1]
The tower or telecommunications facility with the exception
of a small cell installation or a telecommunications facility that
consists only of a small cell installation and supporting structure
must be set back a minimum of the height of the tower or structure
from any property line and any existing building and be a minimum
of 500 feet from any residential dwelling, school, park, daycare,
athletic field, or historic structure. A small cell installation or
a telecommunications facility that consists only of a small cell installation
and supporting structure must be a minimum of 100 feet from any residential
dwelling, school, park, daycare, athletic field, or historic structure.
[2]
The maximum height of a tower or telecommunications facility
is 175 feet. An area variance for height will be needed from the ZBA
to exceed this height.
[3]
Towers, telecommunications facilities, or similar structures
exceeding 175 feet in height in Industrial (I-1 and I-2) and Commercial
(C-2 and C-1) Zoning districts shall be treated as Type I actions
under the State Environmental Quality Review Act (SEQRA).[1] All applications for a telecommunications facility in
Municipal- or government-owned property and RC, MHP, RVP and Residential
(R-1, R-2, R-3 and R-A) Zoning Districts shall be treated as a Type
I action under the State Environmental Quality Review Act (SEQRA).
[1]
Editor's Note: See Environmental Conservation Law § 8-0101
et seq.
[Amended 6-27-2022 by L.L. No. 1-2022]
All applicants for telecommunications facility
special permits shall make a written application to the Town Board
through the Town Planning Department. This application shall include:
A.
A telecommunications facility special permit application
form.
B.
Applicable fees, according to the Town of Newstead
Fee Schedule.
C.
Site plan application forms, including a long form
EAF, if applicable.
D.
Site plan, in form and content acceptable to the Town,
prepared to scale and in sufficient detail and accuracy showing at
a minimum:
(1)
The exact location of the proposed telecommunications
facility, together with guy wires and guy anchors, if applicable.
(2)
The maximum height of the proposed tower, telecommunications
facility, or structure, if applicable.
(3)
A detail of tower or structure type (monopole, guyed,
freestanding or other).
(4)
The color or colors of the telecommunications facility.
(5)
The location, type and intensity of any lighting on
the telecommunications facility.
(6)
The property’s boundaries (a copy of a property
survey must also be provided).
(7)
Proof of the landowner’s consent if the applicant
will not own the property. (A copy of a lease agreement must also
be provided if the applicant will not own the property.)
(8)
The location of all structures on the property and
all structures on any adjacent property, together with the distance
of these structures to telecommunications facility.
(9)
The names of adjacent landowners.
(10)
The location, nature, and extent of any proposed fencing
and landscaping or screening.
(11)
The location and nature of proposed utility easements
and access road, if applicable.
(12)
Building elevations of accessory structures or immediately
adjacent buildings, if applicable.
E.
“Before” and “after” propagation
studies prepared by a qualified radio frequency engineer demonstrating
existing signal coverage, contrasted with the proposed signal coverage
resulting from the proposed telecommunications facility.
F.
A search ring prepared by a qualified radio frequency
engineer and overlayed on an appropriate background map demonstrating
the area within which the telecommunications facility needs to be
located in order to provide proper signal strength and coverage to
the target cell. The applicant must be prepared to explain to the
Town Board why it selected the proposed site, discuss the availability
(or lack of availability) of a suitable structure within the search
ring which would have allowed for collocated antenna(s) or small cell
installations, and to what extent the applicant explored locating
the proposed tower or telecommunications facility in a more intensive
use district. Correspondence with other telecommunication companies
concerning collocation is part of this requirement.
G.
The Town staff/advisory committees and Town Board,
upon reviewing the application, may request reasonable additional
visual and aesthetic information as it deems appropriate on a case-by-case
basis. Such additional information may include, among other things,
enhanced landscaping plans, line-of-sight drawings and/or visual simulations
from viewpoints selected by the Town staff/advisory committees. Line-of-sight
drawings and visual simulations are mandatory for applications in
Residential and Neighborhood Commercial Zoning Districts.
H.
In historic districts and important preservation/conservation
areas the Town may require additional site plan and telecommunications
facility special permit requirements. These requirements can include
specially designed towers, additional screening, greater setbacks,
and improved landscaping. In siting, these areas should be avoided
to the maximum extent possible.
[Amended 10-26-1998 by L.L. No. 1-1998; 6-27-2022 by L.L. No. 1-2022]
The following criteria will be considered by the Town prior
to the approval/denial of a request for the telecommunications facility
permit; the criteria listed may be used as a basis to impose reasonable
conditions on the applicant. All denials shall be in writing and supported
by substantial evidence contained in a written record. Town special
permits are nonassignable and nontransferrable.
A.
Siting preferences.
(1)
The Town expresses a preference that the proposed telecommunications
facility be located in a higher intensity use district or on higher
intensity use property, provided that there is a technologically feasible
and available location. A guideline for the Town's preference,
from most favorable to least favorable districts/property, is as follows:
(a)
Property with an existing structure suitable for collocation,
except in residential districts.
(b)
I-1 or I-2 District.
(c)
C-2 or C-1 Districts.
(d)
Municipal- or government-owned property.
(e)
RC, MHP, RVP or (R-1, R-2, R-3 and R-A) Residential Districts
and Historic District and important presentation/conservation areas.
(2)
Any request by the Town for information on a preferred alternate
site shall not unreasonably delay the application.
B.
Aesthetics. Telecommunications facilities shall be located and buffered
to the maximum extent which is practical and technologically feasible
to help ensure compatibility with surrounding land uses. In order
to minimize any adverse aesthetic effect on neighboring residences
to the extent possible, the Town Board may impose reasonable conditions
on the applicant, including the following:
(1)
Tower/telecommunications facility height, location and design are
matters of primary public concern. The Town Board may require a monopole
or guyed tower (if sufficient land is available to the applicant)
instead of a freestanding tower. Monopoles are a preferred design.
(2)
The Town Board will require reasonable landscaping consisting of
trees or shrubs to screen the base of the tower/telecommunications
facility and/or to screen the tower/telecommunications facility to
the extent possible from adjacent residential property. Existing on-site
trees and vegetation shall be preserved to the maximum extent possible.
(3)
The Town will require the applicant to show that he has made good-faith
efforts to collocate on existing towers or other available and appropriate
structures and/or to construct new towers near existing towers in
an effort to consolidate visual disturbances. However, such request
shall not unreasonably delay the application.
(4)
Towers/telecommunications facilities and small cell installations
should be designed and sited so as to avoid, whenever possible, application
of FAA lighting and painting requirements. Towers/telecommunications
facilities and small cell installations shall not be artificially
lighted except as required by the Federal Aviation Administration
(FAA) or the Town. Towers/telecommunications facilities and small
cell installations shall be of a nonreflective finish, color subject
to Board approval, unless otherwise required by the FAA. Any lighting
which may be required by FAA shall not consist of strobe lights, unless
specifically mandated by FAA.
(5)
No tower/telecommunications facility shall contain any signs or advertising
devices. Notwithstanding the foregoing, the Board may require appropriate
signage indicating ownership of the facility and phone numbers to
call in case of emergency.
(6)
The applicant must submit a copy of its policy regarding collocation
on the proposed tower/telecommunications facility with other potential
future applicants. Such policy should allow collocation under the
following conditions: the new antenna(s), small cell installations,
and equipment do not exceed structural loading requirements, interfere
with tower space used or to be used by the applicant nor pose any
technical or radio frequency interference with existing equipment;
the party desiring to collocate pays the applicant an appropriate
and reasonable sum to collocate; and the party desiring to collocate
has a similar policy of collocation for the applicant.
(7)
All other uses ancillary to the antenna/tower/small cell installation/telecommunications
facility and associated equipment (including a business office, maintenance
depot, vehicle storage, etc.) are prohibited from the site unless
otherwise permitted in the particular zoning district.
C.
Radio-frequency effect. The Town Board may impose a condition on
the applicant that the communication antennas and small cell installations
be operated only at Federal Communications Commission (FCC) designated
frequencies and power levels and/or Environmental Protection Agency
(EPA) technical exposure limits, and that the applicant provide competent
documentation to support that maximum allowable frequencies, power
levels and exposure limits for radiation will not be exceeded.
D.
Traffic, access and safety.
(1)
A road turnaround and one parking space shall be provided to assure
adequate year-round emergency and service access, where applicable.
Maximum use of existing roads, public or private, shall be made. The
use of public roadways or road rights-of-way for the siting of a tower
or antenna(s)/small cell installation accessory structure is prohibited.
(2)
All towers and guy anchors, if applicable, shall be enclosed by a
fence not less than eight feet in height or otherwise sufficiently
protected from trespassing or vandalism.
(3)
The applicant must comply with all applicable state and federal regulations,
including but not limited to FAA and FCC regulations.
(4)
There shall be no permanent climbing pegs within 30 feet of the ground
on any tower.
E.
Removal of telecommunications facility. The applicant shall agree
to remove the tower and/or entire telecommunications facility if the
telecommunications facility becomes obsolete or ceases to be used
for its intended purpose for 12 consecutive months. The Town Board,
in its discretion, may require the applicant to provide a demolition
bond for purposes of removing the telecommunications facility in case
the applicant fails to do so as required above.
F.
Structural safety. During the application process the applicant shall
provide a certification from a qualified, licensed engineer, certifying
that the telecommunications facility meets applicable structural safety
standards. The owner shall also have a structural inspection performed
every two years by a licensed professional engineer. A report shall
be submitted to the Town describing the structural integrity of the
facility, maintenance issues and repairs needed or made, if any. Damage
to infrastructure or property owned by the Town of Newstead in the
installation or maintenance of a telecommunications facility or due
to the failure to properly maintain or repair a telecommunications
facility shall be paid for by the applicant. If the applicant fails
to make repairs within 72 hours after notice is given, the Town may
perform the repairs or maintenance at applicant's expense.
G.
Maintenance of telecommunications facility. All telecommunications
facilities shall be maintained in good order and repair.
H.
Retention of expert assistance and reimbursement by applicant.
(1)
The Town may hire a qualified consultant and/or expert necessary
to assist the Town in reviewing and evaluating the application. Prior
to hiring such consultant, the Town will determine an appropriate
scope for such services.
(2)
If the Town hires a qualified consultant/expert, the applicant shall
deposit with the Town funds sufficient to reimburse the Town for all
reasonable costs of a qualified 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 determined by the Town and a request
sent to the applicant. The placement of these funds with the Town
shall occur after the preapplication meeting and at the time of application.
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 $1,000, the
petitioner shall immediately, upon notification by the Town, replenish
said escrow account so that it has a minimum balance as stipulated
by the Town (based on estimates provided by the consultant/expert).
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.
(3)
The total amount of the funds needed as set forth in Subsection H 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.
I.
Proof of insurance. Applicant shall provide an executed agreement
in the form provided by the Town, pursuant to which applicant and
any related third parties agree to insure, defend, hold harmless and
fully indemnify the Town, its officers, employees, agents, attorneys,
and volunteers, from i) any claim, action or proceeding brought against
the Town or its officers, employees, agents, or attorneys to attack,
set aside, void, or annul any such approval of the Town or ii) a legal
action brought against the Town for loss of property value or other
harm caused by the placement or operation of a small cell installation
or telecommunications facility. Such indemnification shall include
damages, judgments, settlements, penalties, fines, defense costs or
expenses, including, but not limited to, interest, attorneys'
fees and expert witness fees, or liability of any kind related to
or arising from such claim, action, or proceeding whether incurred
by the applicant, the Town and/or the parties initiating or bringing
such proceeding. The agreement shall also include a provision obligating
the applicant to indemnify the Town for all of the Town's costs,
fees, and damages which the Town incurs in enforcing the indemnification
provisions of this section.
A.
Telecommunications facilities may be repaired and
maintained without a permit.
[Amended 6-27-2022 by L.L. No. 1-2022]
B.
Antennas used solely for residential household television
and radio reception shall be exempt.
C.
Satellite antennas measuring two meters or less in
diameter and located in commercial districts and satellite antennas
one meter or less diameter regardless of location shall be exempt.
[Amended 6-27-2022 by L.L. No. 1-2022]
A.
The Town Board may waive or vary any requirements
in this chapter for good cause shown.
B.
In the event of any conflicts or inconsistencies between this chapter and any other local law, including Chapter 450, Zoning, of the Town Code, this chapter is meant to control telecommunications facilities in the Town unless otherwise specifically referenced in this chapter.
[Amended 6-27-2022 by L.L. No. 1-2022]
C.
Telecommunications facility special permits authorized
by this chapter shall only be issued by the Town Board after referral
and recommendation by the Town Planning Board and after holding a
public hearing that has been advertised in the same manner as for
an amendment to the zoning code.
[Amended 6-27-2022 by L.L. No. 1-2022]
[Amended 6-27-2022 by L.L. No. 1-2022]
A.
Any person who violates any provisions of this chapter
or any regulation adopted hereunder is guilty of an offense punishable
by a fine not exceeding $250 for the first violation; and a minimum
of $250 and a maximum of $500 for a second violation within five years;
and a minimum of $500 and a maximum of $750 for a third or subsequent
violation within five years; or imprisonment for a period not to exceed
15 days, or both. Each week's violation shall constitute a separate
violation.
B.
Any entity receiving a telecommunications facility
special permit that subsequently does not meet the requirements and/or
conditions of that permit, shall have its permit revoked and the tower
and other components shall be removed within 90 days of notification
by the Town.
