Town of DeWitt, NY
Onondaga County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of DeWitt 6-28-2010 by L.L. No. 3-2010.[1]Amendments noted where applicable.]
GENERAL REFERENCES
Fire prevention and building construction — See Ch. 94.
Subdivision of land — See Ch. 164.
Zoning — See Ch. 192.
[1]
Editor's Note: This local law also repealed former Ch. 172, Telecommunications, adopted 9-10-2001 by L.L. No. 8-2001, as amended.
A. 
While the federal government has regulated the commercial mobile service and wireless industry, it has left the regulation with regard to placement, aesthetics, construction and other related issues to local control.
B. 
Local governments may not exclude such uses or unreasonably discriminate among providers of functionally equivalent services.
C. 
According to federal law, local governments may not regulate such uses on the basis of radio frequency radiation.
D. 
The technology underlying commercial mobile services requires that transmitting facilities be located in proximity to one another, as calls are passed from one service cell to another in relay fashion.
E. 
The Town has an interest in minimizing the number and height of towers that are located within its borders due to the proximity of the international airport and given the fact that the Town is predominately a low-rise developed municipality.
F. 
Aesthetics are an important consideration in the quality of life in the Town, and the towers are determined to be aesthetically detrimental to the Town and have a negative impact upon surrounding properties, especially residential properties. It is the Town's objective to minimize towers in and adjacent to residential districts.
G. 
In many cases, antennas mounted on existing structures can provide the same level of commercial mobile service with minimal or no aesthetic impacts upon neighboring uses.
H. 
Where the construction of new towers is necessary in order to provide commercial mobile services, often it is possible to house more than one such provider on a given structure, thus reducing the proliferation of new tower construction. Additionally, construction of towers and structures in commercial or business districts is generally favored over construction in residential districts, if appropriate coverage can be obtained. Therefore, the construction of more than one tower on a commercial or business site may be preferred over construction on a residential site, where feasible and within the criteria of this chapter.
The Town acknowledges the need, demand and national policy supporting the availability of personal wireless service (PWS) to the public. At the same time, the Town recognizes the valid concerns and interests its residents and property owners have in the enjoyment of their homes and properties. The purpose of these provisions relating to PWS as defined below is to provide for the health, safety and welfare of the property owners and residents of the Town; to encourage the location of PWS towers, to the extent they are needed, in nonresidential areas of the Town; to encourage the shared use of existing and new towers and structures as a means of reducing the overall need for towers in the Town; to minimize the adverse impacts of PWS service facilities located in the Town; to balance the competing needs of such uses and their neighbors while at the same time accommodating the public interest in and demand for such services; to avoid potential damage to adjacent properties from tower failure through structural standards and setback requirements; and to further regulate the siting of any tower structure in the Town, especially those exceeding 100 feet in height, whether they are used for PWS, microwave relay or any other purpose.
As used in this chapter, the following terms shall have the meanings indicated:
ACCESSORY STRUCTURES
Accessory buildings and structures, including base stations designed and used to shelter equipment and/or to support PWS. The term "accessory structure" does not include offices, long-term storage of vehicles or other equipment storage, or broadcast studios.
ANTENNA
A device used to transmit and/or receive radio or electromagnetic waves, including but not limited to directional antennas, such as panels and microwave dishes, and omnidirectional antennas, such as whip antennas.
PERSONAL WIRELESS SERVICES (PWS)
Commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services as defined by Section 704 of the Federal Telecommunications Act.
TOWER
Any ground- or structure-mounted pole, spire or combination thereof taller than 15 feet, including supporting lines, cables, wires, braces and masts, built or used for the purpose of mounting an antenna or similar apparatus above grade.
A. 
No antenna or tower shall hereafter be used, erected, changed or altered except after obtaining all permits and licenses in conformity with this chapter.
B. 
The Zoning Board of Appeals is hereby authorized to review and approve, approve with modifications or deny specific use permits pursuant to this chapter and Chapter 192, Zoning. The Zoning Board of Appeals shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed antenna, tower or accessory structures.
C. 
The Planning Board is hereby authorized to review all structures, antennas and other improvements proposed or required for those activities regulated by this chapter and Chapter 192, Zoning.
D. 
The application for towers in all districts, antennas in residential districts, and towers and antennas within 750 feet of a residential district must be referred to the Planning Board for expedited review, provided that all documentation is in order. An applicant may make a brief oral statement in support of its application before the Planning Board. The Planning Board will then make its determination as to the minimum site plan requirements and refer the matter to the Zoning Board of Appeals. If the applicant desires to be heard regarding modifications to the Planning Board's requirements, it must file with the Town a waiver of its right for an expedited determination.
E. 
Summary of review requirements for towers and antennas.
Summary of Review Requirements
Time Period
Item
Specific Use Permit
Plan-
ning Board Review
One-Time Permit
[See § 172-17]
Five-Year License
[See § 172-9]
Towers and antenna installed:
Before September 10, 2001
Tower
No
No
Yes
Yes
Antenna
No
No
Yes
Yes
After September 10, 2001
Tower
Yes
Yes
No
Yes
Antenna within 750 feet or in residential districts
Yes
Yes
No
Yes
All other antennas
No
Yes
No
Yes
A. 
PWS towers and antennas shall be permitted in all districts except for residential or within 750 feet of a residential district, except as set forth in Subsection B below, subject to the requirements of this chapter.
B. 
PWS towers and antennas shall not be permitted in residential districts or within 750 feet of a residential district, unless the applicant can show an undue hardship in that:
(1) 
The applicant would not be able to provide service to the area without locating in the described area.
(2) 
The applicant has demonstrated that it is unable to collocate on an existing tower or structure, nor can it locate a new or second PWS tower on a nonresidential property where there is an existing tower or structure.
C. 
Where the applicant seeks to locate a PWS facility in a residential district or within 750 feet of a residential district, an applicant must prove that it cannot utilize a current tower, structure, utility pole, building or land area for an additional structure because of technical reasons which would make the provision of service not possible. Proof of the extraordinary additional cost may be presented by the applicant on the issue of proof of inability to collocate or otherwise utilize a current tower, structure, utility pole, and building or land area. However, the fact that additional cost is involved and additional antenna may be required is not conclusive as to the finding of an inability to so collocate. Additional costs may be reasonable and rational costs of doing business, particularly where locations, in particular residential areas, are considered "prime."
D. 
In the event the applicant meets the criteria of Subsections B and C above, subject to all other requirements of this chapter, the PWS facility located in a residential district or within 750 feet of a residential district must meet the following additional criteria:
(1) 
If the PWS tower is less than 35 feet in height or the PWS antennas are to be located on a structure of less than 35 feet, the Planning Board in its discretion may require that the tower and/or antennas be completely camouflaged to blend with the surroundings, including but not limited to:
(a) 
The PWS tower being made to look like a tree.
(b) 
Camouflage by artificial leaves, painting or other suitable method.
(c) 
Enclosed with some modification to the structure or similar screening.
(2) 
If applicant has proved that a tower greater than 35 feet is needed to provide the required coverage, the Planning Board may require that more than one tower being 35 feet or less be built in lieu of a single taller tower in order to provide the required coverage. In such a case all of the criteria of this chapter must be fulfilled for each such tower.
(3) 
In all events of PWS facilities located in residential districts, the applicant must provide substantial foliage and landscaping within the vicinity of the tower as well as landscaped buffer areas in keeping with the goal of providing an aesthetically pleasing residential area.
The following information shall be submitted in support of an application for a PWS facility. This information is required in addition to any other information or documents required under Chapter 192, Zoning, pertaining to site plan review, specific use permits or variances.
A. 
Full application on a form supplied by the Town and the truthfulness attested to by a professional engineer:
(1) 
Environmental assessment form (EAF).
(2) 
The manufacturer's or applicant's engineer's design drawings pertaining to installation.
(3) 
The applicant's maintenance and inspection schedule.
(4) 
Identification of the effects such facility will have on other communication facilities in the vicinity.
(5) 
A safety analysis and certification by a licensed professional engineer that the proposed facility will be in compliance with all applicable FAA and FCC laws and regulations.
(6) 
Proof of the site owner's consent, if the applicant is not the owner of the site on which the applicant seeks to locate a commercial PWS facility.
(7) 
The name of the operator, owner, lessee(s) to the application
(8) 
Inventory of existing sites. Each applicant shall provide an inventory of its existing tower and antenna sites within the Town and within one mile of the border of the Town, including specific information regarding the tower and/or antenna height and the location, street address, tax parcel, latitude and longitude and mean sea level height of the tower base.
(9) 
Names and addresses of adjacent property owners, as contained in public records.
(10) 
Details showing compliance with these regulations.
(11) 
The location of the equipment of all three potential additional users as provided for in this chapter.
(12) 
Additional submission requirements for towers:
(a) 
Identification and description of an anti-climbing device.
(b) 
A report from a licensed professional engineer, which describes the tower, including its height and design; demonstrates the tower's compliance with applicable structural standards; and describes the tower's capacity, including the number and types of antennas it can accommodate.
(c) 
The site plan shall show distances between the proposed tower structure and structures on adjoining properties within 750 feet, together with the names and addresses of all property owners within 750 feet of the boundary of the property on which the tower is proposed, as contained in the public records.
(d) 
A computer-imaged photograph of the tower, as it would appear on the site, including any proposed attachments, from at least three different angles selected by the Town.
(e) 
Identification and location of any PWS antennas located within one mile of the proposed tower, regardless of ownership.
(f) 
As-built drawings, within 60 days after completion of the construction.
(g) 
A demolition bond or other security acceptable to the Town for the purpose of removing the tower if the owner fails to do so if the tower has not been used for a period of six months, or has been ordered removed by the Town, because its use is no longer necessary. Such bond or security shall be automatically renewable on each anniversary until advised by the Town of DeWitt in writing that it is no longer needed.
B. 
Any application to the Planning Board shall include copies of the full application, if one is required, to the Zoning Board of Appeals.
A. 
All antennas and towers erected, constructed or located within the Town shall comply with the following requirements:
(1) 
A proposal for a tower shall not be approved unless the Zoning Board of Appeals finds that the antenna planned for the proposed tower cannot be accommodated on an existing or approved tower or structure due to one or more of the following reasons:
(a) 
The antenna would exceed the structural capacity of the existing or approved tower or structure, as documented by a qualified professional engineer, and the existing or approved tower cannot be reinforced, modified or replaced to accommodate the planned or equivalent antenna. All reasonable costs of such modification or replacement of the tower or structure shall be presumed to be borne by the owner of the proposed antenna.
(b) 
The antenna would cause interference materially impacting the usability of other existing or planned antenna at the tower or building as documented by a qualified professional engineer and the interference cannot be prevented at a reasonable cost.
(c) 
Existing or approved towers and structures cannot accommodate the antenna at a height necessary to function reasonably, as documented by a qualified professional engineer, and cannot be modified or replaced as provided for in Subsection A(1)(a) above.
(d) 
Other unforeseen reasons that make it infeasible to locate the antenna upon an existing or approved tower or structure.
(2) 
Any proposed tower shall be designed, in all respects, to accommodate both the applicant's antennas and comparable antennas for three or more additional users. Towers must be designed to allow for future rearrangement of antennas upon the tower and to accept antennas mounted at varying heights. Additionally, the necessary land to accommodate the equipment of said additional users shall be under the control of the tower applicant. This control may be through ownership, lease or contract with a period of time no less than the control the applicant has over the land used for the equipment for subject tower application.
(3) 
The applicant shall submit to the Zoning Board of Appeals a letter of intent committing the applicant, and his/her successors in interest, to negotiate in good faith for shared use of the proposed tower or structure by other PWS providers in the future. Additionally, any and all of the land encumbered by the applicant's purchase or lease for intended use shall not be encumbered by the lessor or lessee to provide for "exclusive" use of the land, structure or tower for PWS. The issuance of a permit (assuming the tower is approved according to this section) shall commit the new tower and/or antenna owner and his/her successors in interest to:
(a) 
Respond in a timely and thorough manner to a request for information from a potential shared-use applicant.
(b) 
Negotiate in good faith concerning future requests for shared use of the new tower or structure or land by other PWS providers.
(c) 
Allow shared use of the new tower, structure or land if another PWS provider agrees, in writing, to pay charges.
(d) 
Make no more than a reasonable charge for shared use, based on current market price. If there is a dispute between the parties that cannot be resolved between them, the Town may require the parties to submit to expedited arbitration through the American Arbitration Association.
(4) 
Collocation on towers, structures or land encumbered by an antenna, structure or tower existing prior to September 10, 2001.
B. 
Notwithstanding anything to the contrary herein, the collocation requirements of this chapter are intended to be enforceable as to existing antennas, towers and structures and/or land encumbered by antennas, structures or towers. Accordingly, upon a renewal, extension or exercise of option for a renewal term of an existing lease for land, structure or tower, a clause in any such lease, whether entered into prior to or after the enactment of this chapter, which provides for exclusivity as to the land, structure or tower in favor of one or more carriers shall not be enforceable against a carrier seeking collocation.
All PWS facilities must meet or exceed all applicable federal, state and local laws, rules, standards or regulations of the FCC and the FAA. If such standards, rules, laws or regulations are changed or amended, at any time in the future, then the owners of such facilities shall bring those facilities into compliance with such revised regulations if such changes or amendments provide for existing towers and/or antennas to be brought into compliance.
A. 
Towers shall be inspected every five years on behalf of the tower owner by a licensed professional engineer for structural integrity and continued compliance with these regulations. A copy of such inspection report, including findings and conclusions, shall be submitted to the Town Development and Operations Department with the application for a license during the month of December every five years. This requirement shall be considered a condition to any specific use permit, variance or any other permit or license required by this chapter.
B. 
Operators shall obtain licenses for each tower and/or antenna operated pursuant to this chapter no later than January 31 of the sixth year from the year in which the tower or antenna initially becomes operational, and every five years thereafter. The license fee shall be set from time to time by the Town Board. The license shall be issued by the Department of Development and Operations.
C. 
The operator of any PWS facility sited within the Town of DeWitt shall submit certification every five years, signed by a New York State licensed professional engineer, verifying such facility is in compliance with all applicable federal, state and local radio frequency radiation emission standards. Such certification shall be delivered to the Town Development and Operations Department with the application for a license during the month of December every five years. This requirement shall be considered a condition to any specific use permit, variance or other permit or license required by this chapter.
A. 
Proof of noninterference from antennas. Each application for installation of antennas shall include either a preliminary or a certified statement that the installation of the antenna, including reception and transmission functions, will not interfere with the radio or television service enjoyed by adjacent residential and nonresidential properties or with public safety telecommunications. In the event only a preliminary statement is submitted with the application, a final certified statement on noninterference will be provided and approved by the Town prior to the issuance of a permit. A professional engineer shall prepare the statement.
B. 
Antenna safety. Antennas shall be subject to state and federal regulations pertaining to nonionizing radiation and other health hazards related to such facilities. The owner shall submit evidence of compliance with the FCC standards every five years, with the application for a license, as provided for elsewhere in this chapter. If new, more restrictive standards are adopted, the antennas shall be made to comply or the Town may restrict continued operations. The cost of verification of compliance shall be borne by the owner and operator of the tower.
C. 
Tower lighting. Towers shall not be illuminated by artificial means and shall not display strobe lights unless the Federal Aviation Administration or other federal or state authority for a particular tower specifically requires such lighting.
D. 
Signs and advertising on towers. The use of any portion of a tower for signs other than warning or equipment information signs is prohibited. Said signs shall not be larger than two square feet.
A. 
Existing on-site vegetation shall be preserved to the maximum extent practicable.
B. 
The base of the tower and any accessory structures shall be landscaped.
C. 
Towers and accessory structures shall be provided with security fencing to prevent unauthorized entry.
A. 
Towers and antennas shall be designed to blend into the surrounding environment through the use of color and camouflaging architectural treatment, except in instances where the color is dictated by federal or state authorities such as the FAA. Every antenna and tower shall be of neutral colors that blend with the natural features, buildings and structures surrounding such antenna and structure; provided, however, that directional or panel antenna and omnidirectional or whip antennas located on the exterior of a building that will also serve as an antenna tower shall be of colors that match, and cause the antenna to blend with, the exterior of the building. Accessory structures will be designed to be architecturally compatible with principal structures on the site and adjoining sites.
B. 
The maximum height of a tower is limited to 100 feet above the ground upon which the antenna is placed.
C. 
The use of guyed towers is prohibited. Towers must be self-supporting without the use of wires, cables, beams or other means. The design should utilize a monopole configuration, unless the applicant can demonstrate through reports by a licensed professional engineer that an open framework construction is the only feasible method that will allow the provider to provide service to the area to be served and that a monopole will not allow for that service to be provided. Permanent platforms or structures exclusive of antennas that serve to increase off-site visibility are prohibited.
D. 
Minimum spacing between tower locations is 1/4 mile.
E. 
A tower's setback may be reduced in the sole discretion of the Zoning Board of Appeals to allow the integration of a tower into an existing or proposed structure such as a church steeple, light pole, power line or similar structure.
F. 
A driveway and an appropriate parking area will be provided to ensure adequate emergency and service access. Maximum use of existing roads, public or private, shall be made. As an occasional used facility, all pavement shall be grass block or porous material, to minimize runoff and preserve natural vegetation.
A. 
Towers shall not be located closer than 750 feet to the nearest residential district. In all other cases, towers shall be set back from adjoining properties a distance equal to at least the height of such tower.
B. 
All PWS facilities shall be sited, located and designed to have the least possible practical visual impact on the environment and surroundings.
The operator of every PWS antenna shall submit to the Development and Operations office copies of all licenses and permits required by other agencies and governments with jurisdiction over the design, construction, location and operation of such antenna and shall maintain such licenses and permits and provide evidence of renewal or extension thereof when granted.
Every permit granting approval of an antenna or tower shall state that any assignment or transfer of the permit or any rights thereunder may be made only with notice to the Town, within 60 days after such transfer or assignment.
Abandoned or unused towers or portions of towers shall be removed as follows:
A. 
The applicant at the site shall remove all abandoned or unused towers and associated facilities within six months of the cessation of operations unless the Zoning Board of Appeals approves a time extension. If the applicant is not a landowner, a copy of the relevant portions of a signed lease which requires the applicant to remove the tower and associated facilities upon cessation of operations at the site shall be submitted at the time of application. In the event that a tower is not removed within six months of the cessation of operations at a site, the Town may remove the tower and associated facilities and the costs of removal shall be assessed against the property.
B. 
Unused portions of towers above a manufactured connection shall be removed within six months of the time of antenna relocation. The replacement of portions of a tower previously removed requires the issuance of a new specific use permit.
Towers and antennas in existence prior to September 10, 2001, which do not conform to this chapter, are subject to the following provisions:
A. 
All existing operators of towers and/or antennas shall obtain licenses for each tower or antennas on a tower or structure and comply with the following:
(1) 
If no license has been obtained for a location, it shall be obtained within 60 days of the enactment of this Code revision.
(2) 
Thereafter, a license shall be applied for during the month of December of every fifth year as provided for in § 172-9.
(3) 
The license shall be issued by the Department of Development and Operations.
(4) 
All operators shall submit the following information:
(a) 
The name of the legal entity which owns and/or operates the tower and/or antennas.
(b) 
The address, phone number and e-mail address of the contact person for such entity.
(5) 
The operator of the tower shall additionally submit the following information:
(a) 
The name of the legal entity for each of the other operators with antennas on the tower.
(b) 
The address, phone number and e-mail address of the contact person for all of such antenna operators.
B. 
All existing operators of towers and/or antennas shall obtain a one-time permit for each tower or antennas on a tower or a structure.
(1) 
The permit shall be issued by the Department of Development and Operations.
(2) 
The following information shall be submitted with the application for a permit:
(a) 
Tower operator.
[1] 
An as-built plan of the tower, including the manufacturer's design data, including tower finish and anti-climbing device.
[2] 
A report from a licensed professional engineer, which describes the tower, including its height and design, demonstrates the tower's compliance with applicable structural standards and describes the tower's capacity, including the number and types of antennas it can accommodate.
[3] 
The applicant's maintenance and inspection schedule.
[4] 
A safety analysis and certification by a licensed professional engineer that the proposed facility will be in compliance with all applicable FAA and FCC laws and regulations.
[5] 
Proof of the site owner's consent, if the applicant is not the owner of the lot upon which the tower is located.
[6] 
A demolition bond or other security acceptable to the Town for the purpose of removing the tower if the owner fails to do so in the event that the tower has not been used for a period of six months, or had been ordered removed by the Town, because its use is no longer necessary. Such bond or security shall be automatically renewable on each anniversary until advised by the Town of DeWitt that it is no longer required.
(b) 
Antenna operator. An as-built plan of the antennas, including:
[1] 
The manufacturer's design data.
[2] 
All accessory structures, equipment, antennas, cabling, storage facilities, equipment shed, access roads, landscaping, fencing and signing.
[3] 
Site plan showing all improvements, lot lines and adjacent property owners.
[4] 
If mounted on a structure other than a tower, elevations of each view where the antennas are located, method of attachment and colors.
The Zoning Board of Appeals shall conduct a public hearing within 62 days from the day an application is received. The Board shall issue a decision within 30 days after the hearing. Any denial for a permit under this chapter shall be in writing and supported by substantial evidence. Any failure by the applicant to provide the information required in this chapter in a timely manner may:
A. 
Constitute grounds to deny the application; or
B. 
Extend the time period the Board has to hold its hearing; or
C. 
Both.
The Town of DeWitt shall be exempt from this chapter, as shall any ambulance, emergency services, police or fire protection agencies.
A. 
An applicant for licenses, permits, site plan approval and specific use permit for a PWS facility shall submit a standard application fee (§ 15-10 of the Town Code) together with technical review fees for the costs of reviewing such applications.
B. 
The Town may retain technical consultants, at the expense of the applicant, as it deems necessary to provide assistance in the review of the site location alternatives analysis. These additional costs shall be limited to the consultant's review of the site location alternatives analysis, its report to the Planning Board, Zoning Board of Appeals and license application reviews.
Any violation of this chapter shall be punishable by a fine of a minimum of $250 per day and a maximum of $1,000 per day, or 15 days in jail, or both.