[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Editor's Note: This local law also repealed former Ch. 172,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 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.
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.
Commercial mobile services, unlicensed wireless services
and common carrier wireless exchange access services as defined by
Section 704 of the Federal Telecommunications Act.
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:
(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.
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.
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:
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.
