Town of Perinton, NY Article IV Exceptions

§ 208-11 Nonconforming uses.

A. Any nonconforming use or structure now lawfully existing may be continued only on the premises and in the buildings and structures where it now exists.

[Amended 2-13-2013 by L.L. No. 1-2013]

B. Such nonconforming use shall not be enlarged, and the buildings, structures or premises shall not be altered or changed except to a conforming use.

C. When a nonconforming use shall have been changed to a conforming use, it shall not thereafter be changed back to any nonconforming use.

D. The failure to exercise any nonconforming use for the period of one year or more shall terminate the right to such nonconforming use, and thereafter the buildings, structures and premises shall be used only in conformity with this chapter.

E. Buildings and structures now under construction which comply with the provisions of the 1954 Zoning Ordinance of the Town of Perinton may be completed according to the present plans. If the intended use of such buildings and structures is permitted under such ordinance, that use may be exercised as a nonconforming use subject to the provisions of this chapter.

F. If more than 50% of the area of a nonconforming building is destroyed by fire or other casualty, the nonconforming use may not be continued unless site plan approval is granted by the Planning Board. Application for site plan approval must be made within one year from the date of loss in order to preserve status as a nonconforming use.

§ 208-12 Public properties.

The provisions of this chapter shall not restrict the construction or use in the exercise of a governmental function of public buildings, lands or property supported in whole or in part by taxes imposed on real property in the Town of Perinton.

§ 208-13 Radio, antenna and communication installations.

[Amended 3-24-1993 by L.L. No. 4-1993; 1-22-1997 by L.L. No. 1-1997; 9-23-1998 by L.L. No. 2-1998; 2-24-2010 by L.L. No. 1-2010; 5-23-2012 by L.L. No. 1-2012; 12-18-2019 by L.L. No. 2-2020]

A. Legislative intent. The Town of Perinton recognizes the increased demand for wireless communications transmitting facilities and the need for the services they provide. Often, these facilities require the construction of a communications tower. The intent of this section is to protect the Town's interest in properly siting towers in a manner consistent with sound land use planning, while also allowing wireless service providers to meet their technological and service objectives for the benefit of the public.

B. Co-locating antennas on existing structures. Antennas may be added or attached to existing communications towers, water tanks, buildings or structures in any district upon obtaining site plan approval and the issuance of a building permit. Accessory structures shall be similarly permitted when located near such existing structures.

C. Communications towers in industrial and commercial districts. Telecommunication facilities shall be permitted in Industrial and Commercial Districts upon obtaining site plan approval and a building permit.

D. Communications towers in other districts. Telecommunications facilities are permitted in districts other than those identified in Subsection C above only upon the issuance of a tower special permit by the Town Board, as set forth in Subsection E below, and obtaining site plan approval from the Planning Board.

E. Tower special permit requirements. Prior to the issuance of a tower special permit by the Town Board, the following requirements shall be addressed:

(1) Application and site plan. All applicants for a tower special permit shall make written application to the Town Board. The application shall include a site plan setting forth specific site data on a map, acceptable in form and content to the Town Board, which shall be prepared to scale and in sufficient detail and accuracy and which shall show the following:

(a) The location of property lines and permanent easements.

(b) The location of the communications tower, together with guy wires and guy anchors, if applicable.

(c) A side elevation or other sketch of the communications tower showing the proposed antennas.

(d) The location of all structures on the property and all structures on any adjacent property within 10 feet of the property lines, together with the distance of these structures to the proposed communications tower.

(e) The names of adjacent landowners.

(f) The location, nature and extent of any proposed fencing, landscaping and/or screening.

(g) The location and nature of proposed utility easements and access road, if applicable.

(h) A viewshed map or visual simulation showing the view from surrounding properties of the proposed communications towers and/or antennas.

(2) Preference for higher-intensity use districts. The Town Board may express a preference that the proposed facility be located in a higher-intensity use district or on higher-intensity use property, provided that a location exists within such district which is available to the applicant and satisfies the applicant's need to provide adequate service and coverage to the intended area, and further provided that there are no reasonable technical, physical and/or financial reasons why locating the proposed telecommunications facility in such a district is impractical or unfeasible. A guideline for the Town Board's preference, from most favorable to least favorable, is as follows:

(a) Property with an existing structure suitable for co-location.

(b) Industrial District.

(c) Commercial and Limited Commercial Districts.

(d) Municipal or governmentally owned property upon a finding by the Town Board that the siting of a proposed facility on the municipal or governmentally owned land would not have as significant of a visual impact as would the siting of such a facility on other property within that particular district.

(e) Restricted Business District.

(f) Residential District.

(3) Aesthetics. 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:

(a) The Town Board may require a monopole or guyed tower (if sufficient land is available to the applicant) instead of a freestanding communications tower.

(b) The Town Board may require reasonable landscaping consisting of trees or shrubs to screen the base of the communications tower to the extent possible from adjacent residential property. Existing on-site trees and vegetation shall be preserved to the maximum extent possible.

(c) The Town Board may require the applicant to show that it has made good faith efforts to co-locate on existing communications towers or other available and appropriate structures and/or to construct new communications towers near existing communications towers in an effort to consolidate visual disturbances.

(d) Towers should be designed and sited so as to avoid, whenever possible, application of Federal Aviation Administration (FAA) lighting and painting requirements. Communications towers shall not be artificially lighted except as required by the FAA. Towers shall be painted a galvanized finish or matte gray unless otherwise required by the FAA.

(e) No tower shall contain any signs or advertising devices.

(4) Radio frequency effects. The Town Board recognizes that federal law prohibits the regulation of cellular and PCS communications towers based on the environmental effects of radio frequency emissions where those emissions comply with the Federal Communications Commission (FCC) standards for those emissions. The Town Board may, however, impose a condition on the applicant that the communications antennas be operated only at FCC-designated frequencies and power levels.

(5) Traffic, access and safety.

(a) A road turnaround and a minimum of one parking space shall be provided to assure adequate emergency and service access. Maximum use of existing roads, public or private, shall be made.

(b) All communications towers and guy anchors shall be enclosed by a fence not less than eight feet in height or otherwise sufficiently protected from trespassing or vandalism.

(c) The applicant must comply with all applicable state and federal regulations, including but not limited to FAA and FCC regulations.

(6) In addition to the other requirements of Subsection E listed above, all applicants for telecommunications facilities shall submit documentation and analysis demonstrating that location of the telecommunications facility as proposed is necessary to provide adequate service and coverage to the intended area, as well as documentation demonstrating the technical, physical and/or financial reasons why locating the proposed telecommunications facility in a zoning district other than a residential district is impractical or unfeasible.

F. Future shared use of new communications towers. In the interest of minimizing the number of new communications towers, the Town Board may require, as a condition of tower special permit approval, that an applicant commit, in writing, that it will permit other telecommunications providers to make use of the proposed communications tower or telecommunications facility and that the applicant will design the communications tower to have a minimum height and carrying capacity needed to provide future shared usage, subject to the following conditions:

(1) The new antennas and equipment do not exceed structural loading requirements, interfere with communications tower space used or to be used by the applicant or propose any technical frequency interference with existing equipment.

(2) The party subsequently desiring to co-locate pays the applicant an appropriate and reasonable sum to co-locate.

(3) The party desiring to co-locate has a similar commitment to permit the applicant to co-locate on its facilities in other locations.

(4) The condition for co-location may not be required if the applicant demonstrates that provisions of future shared usage are not feasible or impose an unnecessary burden based upon:

(a) The number of FCC licenses foreseeably available for the area;

(b) The kind of communications tower site and structure proposed;

(c) Available spaces on other existing and approved communications towers; and

(d) Potential adverse visual impacts by a communications tower designed for shared usage.

G. Height. Communications towers permitted under this chapter shall be exempt from the height limitations otherwise applicable in the district in which they are located, unless specifically addressed herein.

H. Procedure. Upon receipt of a completed application, the Town Board shall hold a public hearing and shall comply with this section of the Code. The Town Board shall review the application for compliance with the provisions of this chapter and shall determine that the location of the proposed communications tower is in accordance with the principles and requirements stated herein.

I. Exemptions.

(1) Telecommunications facilities may be repaired and maintained without restriction.

(2) Antennas used solely for residential household television and radio reception shall be exempted.

(3) Satellite antennas measuring two meters or less in diameter and located in commercial or industrial districts and satellite antennas one meter or less in diameter in any district shall be exempted, provided that they are 10 feet or less above the surrounding grade or building to which they are mounted and a building permit is obtained to ensure that the installation is safe.

(4) Amateur radio installations, provided that they are installed in compliance with Subsection L of this section.

J. Waivers. The Town Board may waive or vary any requirements in § 208-13E for good cause shown.

K. Cessation of operation; abandonmen t. In the event that the use of any telecommunication facility has been discontinued by all operators on such facility for a period of 180 consecutive days or more, the facility shall be deemed to be abandoned. Determination of the date of abandonment shall be made by the Director of Building and Codes, who shall have the right to request documentation from the owner/operator of the facility regarding usage thereat. Upon such abandonment, the owner/operator shall remove the facility at its own expense; and failing prompt removal, the Town may remove the facility at the owner/operator's expense. All special permits, variances and approvals of the nature granted by the Town shall automatically expire as of the date of abandonment of the facility.

L. Amateur radio installations. Amateur radio installations are permitted in any district. Amateur radio antennas and antenna support structures are permitted, provided that:

(1) The antenna support structure or antenna is within or on a previously approved structure or within the rear yard area and meets the applicable setbacks.

(2) There is no more than one antenna support structure on the property.

(3) The total height of the antenna and antenna support structure above grade does not exceed 62 feet.

(4) In the case of a single-wire or dipole-type antenna, naturally occurring features, i.e., trees, may be used as a support and not be subject to the rear yard limitation. If a naturally occurring feature is not available on the property and other means are not feasible, then a second antenna support structure may be utilized exclusively to support a single-wire or dipole-type antenna. Such second antenna support structure shall be subject to the provisions of § 208-13L(1) above.

(5) A building permit is obtained for the support structure.

(6) The proposed antenna and antenna support structure will not, by reason of its location or nature, create a hazard to the public or any adjacent owner or occupant.