[HISTORY: Adopted by the Town Board of the
Town of Cortlandt 3-16-1998 by L.L. No. 4-1998.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law also provided
for the repeal of L.L. No. 11-1997, adopted 12-9-1997, which imposed
a moratorium on the activities described in this chapter.
The Telecommunications Act of 1996 affirmed
the Town of Cortlandt's authority concerning the placement, construction
and modification of telecommunications towers. The Town Board of the
Town of Cortlandt finds that telecommunications towers and related
facilities may pose a unique hazard to the health, safety, public
welfare and environment of the Town of Cortlandt and its inhabitants.
In order to ensure that the placement, construction or modifications
of telecommunications towers and related facilities is consistent
with the Town's land use policies, the Town is adopting a single,
comprehensive telecommunications tower application and permit process.
The intent of this chapter is to minimize the negative impact of telecommunications
towers, establish a fair and efficient process for review and approval
of applications, assure an integrated, comprehensive review of environmental
impacts of such facilities and protect the health, safety and welfare
of the Town of Cortlandt.
This chapter may be known and cited as the "Telecommunications
Tower Siting and Special Use Permit Law for the Town of Cortlandt."
A.
If any word, phrase, sentence, part, section, subsection
or other portion of this chapter or any application thereof to any
person or circumstance is declared void, unconstitutional or invalid
for any reason, then such word, phrase, sentence, part, section, subsection
or other portion, or the proscribed application thereof, shall be
severable, and the remaining provisions of this chapter, and all applications
thereof, not having been declared void, unconstitutional or invalid,
shall remain in full force and effect.
B.
Any special use permit issued under this chapter shall
be comprehensive and not severable. If part of a permit is deemed
or ruled to be invalid or unenforceable in any material respect by
a competent authority or is overturned by a competent authority, the
permit shall be void in total, upon election by the Zoning Board of
Appeals.
[Amended 1-18-2005 by L.L. No. 1-2005]
For purposes of this chapter, and where not
inconsistent with the context of a particular section, the defined
terms, phrases, words, abbreviations and their derivations shall have
the meaning given in this Section. When not inconsistent with the
context, words in the present tense include the future tense, words
used in the plural number include words in the singular number and
words in the singular number include the plural number. The word "shall"
is always mandatory, and not merely directory.
An accessory facility or structure serving or being used
in conjunction with a telecommunications tower and located on the
same property or lot as the telecommunications tower, including but
not limited to, utility or transmission equipment storage sheds or
cabinets.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency signals. Such waves shall
include but not be limited to radio, television, cellular, paging,
personal telecommunications services (PCS) and microwave telecommunications.
Shall include any individual, corporation, estate, trust
partnership, joint stock company, association of two or more persons,
limited liability company, or entity submitting an application to
the Town of Cortlandt for a special use permit for a telecommunications
tower.
The form approved by the Board, together with all necessary
and appropriate documentation that an applicant submits in its quest
to receive a special use permit for a telecommunications tower.
[1]The Zoning Board of Appeals of the Town of Cortlandt, which
is the officially designated agency or body of the community to whom
applications for a special use permit for a telecommunications tower
must be made, and that is authorized to review, analyze, evaluate
and make decisions with respect to granting or not granting, recertifying
or not recertifying or revoking special use permits for telecommunications
towers. The Board may at its discretion delegate or designate other
official agencies of the Town to accept, review, analyze, evaluate
and make recommendations to the Board with respect to the granting
or not granting, recertifying or not recertifying or revoking special
use permits for telecommunications towers.
[Amended 1-18-2005 by L.L. No. 1-2005]
The location on a telecommunications tower which, in the
event of a failure of the telecommunications tower, would result in
the telecommunications tower falling or collapsing within the boundaries
of the property on which the telecommunications tower is placed.
Any tower or supporting structure that, due to design, location
or appearance, partially or completely hides, obscures, conceals or
otherwise disguises the presence of the tower and one or more antennas
or antenna arrays affixed thereto.
The area in which any portion of a telecommunications tower
could or would fall, collapse or plunge to the ground or into a river
or other body of water. The collapse zone shall be no less than the
lateral equivalent of the distance from the break point to the top
of the structure plus ten feet, such being not less than 1/2 the height
of the structure.
The use of the same telecommunications tower or structure
to carry two or more antennas for the provision of wireless services
by two or more persons or entities.
Shall have the meaning in this chapter and any special use
permit granted hereunder as is defined and applied under the New York
Uniform Commercial Code (UCC).
An application that contains all information and/or data
necessary to enable the Board to evaluate the merits of the application,
and to make an informed decision with respect to the effect and impact
of the telecommunications tower on the Town in the context of the
permitted land use for the particular location requested.
Westchester County, New York.
Only programming transmitted or broadcast by satellite directly
to subscribers' premises without the use of ground receiving equipment,
except at the subscribers' premises or in the uplink process to the
satellite.
The environmental assessment form approved by the New York
Department of Environmental Conversation.
State and/or Federal Environmental Protection Agency or its
duly assigned successor agency.
The Federal Aviation Administration or its duly designated
and authorized successor agency.
The Federal Telecommunications Commission or its duly designated
and authorized successor agency.
A tower that is not supported by guy wires and ground anchors
or other means of attached or external support.
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or governmental entity.
See "telecommunications tower."
Shall have the same meaning as defined and used in the 1996
telecommunications Act.
See "telecommunications tower."
The official document or permit by which an applicant is
allowed to construct and use a telecommunications tower as granted
or issued by the municipality.
The State of New York.
The transmission and reception of audio, video, data and
other information by wire, radio frequency, light and other electronic
or electromagnetic systems.
A structure or location designed or intended to be used or
used to support antennas. It includes without limit, freestanding
towers, guyed towers, monopoles and similar structures that employ
camouflage technology, including, but not limited to structures such
as a church steeple, silo, water tower, sign or other similar structures
intended to mitigate the visual impact of an antenna or the functional
equivalent of such. It is a structure intended for transmitting and/or
receiving radio, television, cellular, paging, personal telecommunications
services or microwave telecommunications, but excluding those used
exclusively for fire, police and other dispatch telecommunications,
or exclusively for private radio and television reception and private
citizen's bands, amateur radio and other similar telecommunications
that do not exceed height limitations addressed elsewhere in Town
regulations.
A structure used in the provision of services described in
the definition of "telecommunications tower."
In relation to all aspects and components of this chapter,
something intended to, or that does, exist for fewer than 90 days.
The Town of Cortlandt, New York.[2]
[1]
Editor’s Note: Local Law No. 2-2017, adopted 7-18-2017,
provided that “The issuing authority will be the Planning Board.”
[2]
Editor's Note: The definition of “Zoning
Board of Appeals or ZBA,” which immediately followed this definition,
was repealed 1-18-2005 by L.L. No. 1-2005. See now the definition
of “Board” above.
In order to ensure that the placement, construction
and modification of telecommunications towers conforms to the Town's
land use code or law, the Board creates a special use permit for a
telecommunications tower. As such, the Board adopts an overall policy
with respect to a special use permit for a telecommunications tower
for the express purpose of achieving the following goals:
A.
Implementing an application process for person(s)
seeking a special use permit for a telecommunications tower.
B.
Establishing a policy for examining an application
for and issuing a special use permit for a telecommunications tower
that is both fair and consistent with the current land use code or
law of the Town.
C.
Establishing reasonable time frames for granting or
not granting a special use permit for a telecommunications tower,
or recertifying or not recertifying, or revoking the special use permit
granted under this chapter.
D.
Promoting and encouraging, wherever possible, the
sharing and/or collocation of a telecommunications tower among service
providers.
E.
Promoting and encouraging, wherever possible, the
placement of a telecommunications tower in such a manner as to cause
minimal disruption to aesthetic considerations of the land, property,
buildings and other facilities adjacent to, surrounding and in generally
the same area as the requested location of such a telecommunications
tower.
A.
All applicants for a special use permit for a telecommunications
tower shall comply with the requirements set forth in this section.
B.
Any application for a special use permit for a telecommunications
tower shall be signed by an officer of the applicant attesting to
the truth and completeness of the information. The landowner, if different
that the applicant, shall acknowledge the application and verify that
they are aware of the application and are aware that the Town may
deny the application or issue a permit with conditions. At the discretion
of the Board, any false statement regarding the requirements of this
section may subject the applicant to denial of the application without
further consideration or opportunity for correction.
C.
Applications not meeting the requirements stated herein
or which are otherwise incomplete may be rejected by the Board as
invalid, without prejudice to the resubmission by an applicant of
an appropriate and complete application.
D.
The applicant shall state in writing:
(1)
That the applicant's proposed telecommunications tower
will be maintained in a safe manner and in compliance with all conditions
of the special use permit, without exception, unless specifically
granted relief by the Board in writing, as well as all applicable
and permissible local codes, ordinances, and regulations, including
any and all applicable county, state and federal laws, rules and regulations.
(2)
That the construction of the telecommunications tower
is legally permissible, including but not limited to the fact that
the applicant is authorized to do business in New York State.
E.
No telecommunications tower shall be installed or
constructed until the site plan is reviewed and approved by the Board.
The site plan application shall include, in addition to the other
requirements for the special use permit under applicable municipal
code, the following additional information:
(1)
All applications for the construction or installation
of a new telecommunications tower shall be accompanied by a report
containing the information hereinafter set forth. The report shall
be signed by a licensed professional engineer registered in the state
and shall contain the following information. Where this section calls
for certification, such certification shall be by a qualified New
York State licensed professional engineer acceptable to the Town,
unless otherwise noted.
(a)
The name and address of the person preparing
the report.
(b)
The name and address of the property owner,
operator and applicant, to include the legal form of the applicant.
(c)
The postal address and sheet, block and lot
or parcel number of the property.
(d)
The zoning district or designation in which
the property is situated.
(e)
The size of the property stated both in square
feet and lot line dimensions, and a diagram showing the location of
all lot lines.
(f)
The location of the nearest residential structure.
(g)
The location of the nearest habitable structure.
(h)
The location of all structures on the property
which is the subject of the application.
(i)
The location, size and height of all proposed
and existing antennas and all appurtenant structures.
(j)
The type, size and location of all proposed
and existing landscaping.
(k)
The number, type and design of the telecommunications
tower(s) antenna(s) proposed and the basis for the calculations of
the telecommunications tower's capacity to accommodate multiple users.
(l)
The make, model and manufacturer of the tower
and antenna(s).
(m)
A description of the proposed tower and antenna(s)
and all related fixtures, structures, appurtenances and apparatus,
including height above preexisting grade, materials, color and lighting.
(n)
The frequency, modulation and class of service
of radio or other transmitting equipment.
(o)
The transmission and maximum effective radiated
power of the antenna(s).
(p)
The direction of maximum lobes and associated
radiation of the antenna(s).
(q)
The applicant's proposed tower maintenance and
inspection procedures and related system of records.
(r)
Certification that NIER levels at the proposed
site are within the threshold levels adopted by the FCC, though the
certifying engineer need not be approved by the Town.
(s)
Certification that the proposed antenna(s) will
not cause interference with existing telecommunications devices, though
the certifying engineer need not be approved by the Town.
(t)
A copy of the FCC license applicable to the
use of the telecommunications tower.
(u)
Certification that a topographic and geomorphologic
study and analysis has been conducted, and that, taking into account
the subsurface and substrata, and the proposed drainage plan, that
the site is adequate to assure the stability of the proposed telecommunications
tower on the proposed site, though the certifying engineer need not
be approved by the Town.
(v)
Propagation studies of the proposed site and
all adjoining proposed or in-service or existing sites.
(w)
The applicant shall disclose in writing any
agreement in existence prior to submission of the application that
would limit or preclude the ability of the applicant to share any
new telecommunications tower that it constructs.
F.
In the case of a new telecommunications tower, the
applicant shall be required to submit a report demonstrating its efforts
to secure shared use of existing telecommunications tower(s). Copies
of written requests and responses for shared use shall be provided
to the Board.
G.
Certification by a licensed engineer that the telecommunications
tower and attachments both are designed and constructed ("as built")
to meet all county, state and federal structural requirements for
loads, including wind and ice loads.
H.
Certification by a licensed engineer that the telecommunications
tower is designed with a break point that would result in the telecommunications
tower falling or collapsing within the boundaries of the property
on which the telecommunications tower is placed.
I.
After construction and prior to receiving a certificate
of compliance, the applicant shall have certified by a licensed engineer
that the telecommunications tower and related facilities are grounded
and bonded so as to protect persons and property and installed with
appropriate surge protectors.
J.
The applicant shall submit a completed long form EAF
and a completed visual environmental assessment form (visual EAF addendum).
The Board may require submission of a more detailed visual analysis
based on the results of the visual EAF. Applicants are encouraged
to seek preapplication meetings with the Zoning Board of Appeals to
address the scope of the required visual assessment.
[Amended 1-18-2005 by L.L. No. 1-2005]
K.
A visual impact assessment which shall at the Board's
request include:
(1)
A Zone of Visibility Map which shall be provided in
order to determine locations from which the tower may be seen.
(2)
Pictorial representations of "before and after" views
from key viewpoints both inside and outside of the Town, including
but not limited to state highways and other major roads; state and
local parks; other public lands; historic districts; preserves and
historic sites normally open to the public; and from any other location
where the site is visible to a large number of visitors or travelers.
If requested by the applicant, the Zoning Board of Appeals, acting
in consultation with its consultants or experts, will provide guidance
concerning the appropriate key sites at a presubmission conference.
[Amended 1-18-2005 by L.L. No. 1-2005]
(3)
An assessment of the visual impact of the tower base,
guy wires and accessory buildings from abutting and adjacent properties
and streets.
L.
Any and all representations made to the Board, on
the record, during the application process, whether written or verbal,
shall be deemed a part of the application and will be relied upon
in that context and in good faith by the Board.
[Amended 1-18-2005 by L.L. No. 1-2005]
M.
The applicant shall effectively screen from view its
proposed telecommunications tower base and all related facilities
and structures, subject to Board approval.
N.
All utilities leading to and away from any telecommunications
tower site shall be installed underground and in compliance with all
laws, rules and regulations of the Town, including specifically but
not limited to the National Electrical Safety Code and the National
Electrical Code where appropriate. The Board may waive or vary the
requirements of undergrounding installation of utilities whenever,
in the opinion of the Board, such variance or waiver shall not be
detrimental to the health, safety, general welfare or environment,
including the visual and scenic characteristics of the area.
O.
All telecommunications towers and accessory facilities
shall be sited so as to have the least practical adverse visual effect
on the environment and its character, and the residences in the area
of the telecommunication tower site.
P.
Accessory facilities shall maximize use of building
materials, colors and textures designed to blend with the natural
surroundings.
Q.
An access road and parking will be provided to assure
adequate emergency and service access. Maximum use of existing roads,
whether public or private, shall be made to the extent not commercially
or physically impracticable. Road construction shall at all times
minimize ground disturbance and vegetation-cutting. Road grades shall
closely follow natural contours to assure minimal visual disturbance
and reduce soil erosion potential. Usual requirements regarding weight
and carrying capacity for emergency vehicles should apply to access
roads.
R.
A person who holds a special use permit for a telecommunications
tower shall construct, operate, maintain, repair, modify or restore
the permitted telecommunications tower in strict compliance with all
current technical, safety and safety-related codes adopted by the
Town, the county, the state, or the United States, including but not
limited to the most recent editions of the National Electrical Safety
Code and the National Electrical Code, as well as accepted and responsibly
workmanlike industry practices and recommended practices of the National
Association of Tower Erectors. The codes referred to are codes that
include, but are not limited to construction, building, electrical,
fire, safety, health and land use codes.
S.
A holder of a special use permit granted under this
chapter shall obtain, at its own expense, all permits and licenses
required by applicable law, rule, regulation or Law, and must maintain
the same, in full force and effect, for as long as required by the
Town or other appropriate governmental entity or agency.
T.
The Board intends to be the lead agency, pursuant
to the State Environmental Quality Review Act (SEQRA). The Board shall
conduct an integrated, comprehensive environmental review of the proposed
project in combination with its review of the application under this
chapter.
U.
An applicant shall submit no fewer than eight copies
of the entire completed application to the Zoning Board of Appeals
and a copy of the application to the legislative body of any adjacent
and adjoining municipalities and to the County Planning Agency.
[Amended 1-18-2005 by L.L. No. 1-2005]
V.
The applicant shall examine the feasibility of designing
a proposed telecommunications tower to accommodate future demand for
at least two additional commercial applications, e.g. future collocations.
The scope of this examination shall be determined by the Board. The
telecommunications tower shall be structurally designed to accommodate
at least two additional antenna arrays equal to those of the applicant,
and located as close to the applicant's antenna as possible without
causing interference. This requirement may be waived, provided that
the applicant, in writing, demonstrates that the provisions of future
shared usage of the telecommunications tower is not technologically
feasible, or is commercially impracticable and creates an unnecessary
and unreasonable burden, based upon:
(1)
The number of FCC licenses foreseeably available for
the area.
(2)
The kind of telecommunications tower site and structure
proposed.
(3)
The number of existing and potential licenses without
telecommunications tower spaces/sites.
(4)
Available space on existing and approved telecommunications
towers.
[1]
Editor’s Note: Local Law No. 2-2017, adopted 7-18-2017,
provided that “The issuing authority will be the Planning Board.”
A.
Priority of locations.
(1)
Applications for telecommunications towers shall
locate, site and erect said telecommunications towers or other tall
structures in accordance with the following priorities (outside of
any residential district within the Town), (a) being the highest priority
and (e) being the lowest priority:
[Amended 3-13-2001 by L.L. No. 5-2001]
(a)
On existing telecommunications towers or other
tall structures.
(b)
Collocation on a site with existing telecommunications
towers or structures.
(c)
In nonresidentially zoned areas of the Town,
including on municipally-owned properties.
(d)
In nonresidentially zoned areas of the Town.
(e)
On other property in the Town.
(2)
If the proposed property site is not the highest priority
listed above, then a detailed explanation must be provided as to why
a site of a higher priority was not selected. The person seeking such
an exception must satisfactorily demonstrate the reason or reasons
why such a permit should be granted for the proposed site, and the
hardship that would be incurred by the applicant or service provider
if not granted, or the benefits that might inure, and the beneficiaries
of such an alternative site.
(3)
An applicant may not bypass sites of higher priority
by stating the site presented is the only site leased or selected.
An application shall address collocation as an option and if such
option is not proposed, the applicant must explain why collocation
is commercially or otherwise impracticable. Agreements between providers
limiting or prohibiting collocation shall not be a valid basis for
any claim of commercial impracticability or hardship.
(4)
Notwithstanding the above, the Board may approve any
site located within an area in the above list of priorities, provided
that the Board finds that the proposed site is in the best interest
of the health, safety and welfare of the Town and its inhabitants.
B.
Upon filing an application for a special use permit
for a telecommunications tower, the applicant shall submit a written
report demonstrating the applicant's review of the above locations
in order of priority, demonstrating the technological reason for the
site selection. If the site selected is not the highest priority,
then a detailed written explanation as to why sites of a higher priority
were not selected shall be included with the application.
C.
The applicant shall, in writing, identify and disclose
the number and locations of any additional sites that the applicant
has, is or will be considering, reviewing or planning for telecommunications
towers in the Town and all municipalities adjoining or adjacent to
the Town for a two-year period from the date of the subject application.
D.
Notwithstanding that potential sites may be situated in areas described in Subsection A of this section, the Board may disapprove an application for reasons of noncompatibility, for any of the following reasons:
(1)
Conflict with safety and safety-related codes and
requirements;
(2)
Conflict with traffic needs or traffic laws, or definitive
plans for changes in traffic flow or traffic laws;
(3)
Conflict with the historic nature of a neighborhood
or historical district;
(4)
The use or construction of a telecommunications tower
which is contrary to an already stated purpose of a specific zoning
or land use designation;
(5)
The placement and location of a telecommunications
tower which would create an unacceptable risk, or the probability
of such, to residents, the public, employees and agents of the Town,
or employees of the service provider or other service providers; or
(6)
Otherwise conflict with the provisions of this chapter.
A.
Shared use of existing telecommunications towers shall
be preferred by the Town, as opposed to the proposed construction
of new telecommunications towers. Additionally, where such shared
use is unavailable, location of antennas on other preexisting structures
shall be considered and preferred. The applicant shall submit a comprehensive
report inventorying existing towers and other appropriate structures
within four miles of any proposed new tower site, unless the applicant
can show that some other distance is more reasonable, and outlining
opportunities for shared use of existing facilities and the use of
other preexisting structures as a preferred alternative to new construction.
B.
An applicant intending to share use of an existing
telecommunications tower or other tall structure shall be required
to document the intent of the existing owner to share use.
C.
With respect to an application to share the use of
an existing telecommunications tower that does not increase the height
of the telecommunications tower, the Board shall waive such requirements
of the application required by this chapter as may be upon good cause
shown. The applicant is encouraged to seek a preapplication meeting
with the Board to review such a proposed application and settle the
waivers or established provisions which will help to expedite review
and permitting for such applications. The purpose of such waivers
or other alternative procedures shall be to expedite for the applicant
and the Town the review and permitting for the shared use of an existing
telecommunications tower.
D.
Such shared use shall consist only of the minimum
antenna array technologically required to provide service within the
Town, to the extent practicable, unless good cause is shown.
A.
The applicant must submit documentation justifying
to the Board the total height of any telecommunications tower and/or
antenna and the basis therefor. Such justification shall be to provide
service within the Town, to the extent practicable, unless good cause
is shown.
B.
Telecommunications towers shall be no higher than
the minimum height necessary. Unless waived by the Board upon good
cause shown, the presumed maximum height shall be 140 feet, based
on three collocated antenna arrays and ambient tree height of 80 feet.
C.
The maximum height of any telecommunications tower
and attached antennas constructed after the effective date of this
chapter shall not exceed that which shall permit operation without
artificial lighting of any kind or nature, in accordance with municipal,
county, state and/or any federal law and/or regulation.
A.
Telecommunications towers shall not be artificially
lighted or marked, except as required by law.
B.
Telecommunications towers shall be of a galvanized
finish, or painted with a rust-preventive paint of an appropriate
color to harmonize with the surroundings as approved by the Board,
and shall be maintained in accordance with the requirements of this
chapter.
C.
If lighting is required, the applicant shall provide
a detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations, and
an artist's rendering or other visual representation showing the effect
of light emanating from the site on neighboring habitable structures
within 1,500 feet of all property lines on which the telecommunications
tower is located.
All telecommunications towers and antennas shall
be located, fenced or otherwise secured in a manner which prevents
unauthorized access. Specifically:
A.
All antennas, towers and other supporting structures,
including guy wires, shall be made inaccessible to individuals and
constructed or shielded in such a manner that they cannot be climbed
or run into.
B.
Transmitters and telecommunications control points
must be installed such that they are readily accessible only to persons
authorized by the FCC's licensee to operate or service them.
Telecommunications towers shall contain a sign
no larger than four square feet to provide adequate notification to
persons in the immediate area of the presence of an antenna that has
transmission capabilities. The sign shall contain the name(s) of the
owner(s) and operator(s) of the antenna(s) as well as emergency phone
number(s). The sign shall be located so as to be visible from the
access point of the site. No other signage, including advertising,
shall be permitted on any antennas, antenna supporting structures
or antenna towers unless required by law.
A.
All proposed communications towers shall be set back
from abutting parcels, recorded rights-of-way and road and street
lines a distance sufficient to substantially contain on-site all ice-fall
or debris from a tower or tower failure, and to preserve the privacy
and sanctity of any adjoining properties.
B.
Telecommunications towers shall be located with a
minimum setback from any property line a distance equal to 1/2 the
height of the tower or the existing setback requirement of the underlying
zoning district, whichever is greater. Further, any accessory structure
shall be located so as to comply with the minimum setback requirements
for the property on which it is situated.
A.
The Board may hire any consultant and/or expert necessary
to assist the Board in reviewing and evaluating the application and
any requests for recertification.
[Amended 1-18-2005 by L.L. No. 1-2005]
B.
An applicant shall deposit with the Town funds sufficient
to reimburse the Town for all reasonable costs of consultant and expert
evaluation and consultation to the Board in connection with the review
of any application. The initial deposit shall be $7,500. These funds
shall accompany the filing of an application and the Town will maintain
a separate escrow account for all such funds. The Town's consultants/experts
shall bill or invoice the Town no less frequently than monthly for
its services in reviewing the application and performing its duties.
If at any time during the review process this escrow account shows
a negative balance, additional funds must be submitted to the Town
before any further action or consideration will be permitted to be
taken on the application. If at the conclusion of the review process
the cost of such consultant/expert services is more than the amount
escrowed pursuant hereto, the applicant shall pay the difference to
the Town prior to the issuance of any special use permit. In the event
that the amount held in escrow by the Town is more than the amount
of the actual billing or invoicing, the difference shall be promptly
refunded to the applicant.
C.
The total amount of the funds set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed by the Board or its consultant/expert to complete the necessary review and analysis. Additional funds, as required, shall be paid by the applicant. The initial amount of the escrow deposit shall be established at a preapplication meeting with the Town. Notice of the hiring of a consultant/expert shall be given to the applicant at or before this meeting.
A.
No person shall be permitted to site, place, build,
construct or modify or prepare any site for the placement or use of
a telecommunications tower as of the effective date of this chapter
without having first obtained a special use permit for a telecommunications
tower. Notwithstanding anything to the contrary in this section, no
special use permit shall be required for those exceptions noted in
the definition of telecommunications tower.
B.
New construction, including routine maintenance on
an existing telecommunications tower, shall comply with the requirements
of this chapter.
C.
All telecommunications towers existing on or before
the effective date of this chapter shall be allowed to continue their
usage as they presently exist; provided, however, that any modification
to existing towers must comply with this chapter.
A.
Prior to the approval of any application for a special
use permit for a telecommunications tower, a public hearing shall
be held by the Zoning Board of Appeals, notice of which shall be published
in the official newspaper of the Town no less than two weeks prior
to the scheduled date of the public hearing. In order that the Town
may notify nearby landowners, the applicant, at least three weeks
prior to the date of said public hearing, shall be required to provide
names and addresses of all landowners whose property is located within
1,500 feet of any property line of the parcel on which the proposed
new telecommunications tower is proposed to be located.
[Amended 1-18-2005 by L.L. No. 1-2005]
[1]
Editor’s Note: Local Law No. 2-2017, adopted 7-18-2017,
provided that “The issuing authority will be the Planning Board.”
A.
The Board will undertake a review of an application
pursuant to this chapter in a timely fashion, consistent with its
responsibilities, and shall act within a reasonable period of time
given the relative complexity of the application and the circumstances,
with due regard for the public's interest and need to be involved,
and the applicant's desire for a timely resolution.
B.
The Board may refer any application or part thereof
to any advisory or other committee for a nonbinding recommendation.
C.
Except for necessary building permits and subsequent
certificates of compliance, no additional permits or approvals from
the Town, e.g., site plan or zoning approvals, shall be required for
telecommunications towers or facilities covered by this chapter.
D.
After formally considering the application, the Board
may approve and issue, or deny, a special use permit. Its decision
shall be in writing and shall be based on substantial evidence upon
a record. The burden of proof for the grant of the permit shall always
be upon the applicant.
E.
If the Board approves the special use permit for a
telecommunications tower, then the applicant shall be notified of
such approval in writing within 10 calendar days of the Board's action,
and the special use permit shall be issued within 30 days after such
approval.
F.
If the Board denies the special use permit for a telecommunications
tower, then the applicant shall be notified of such denial in writing
within 10 calendar days of the Board's action.
G.
The Town's decision on an application for a special
use permit for a telecommunications tower shall be supported by substantial
evidence contained in a written record.
A.
At any time between 12 months and six months prior
to the five-year anniversary date and all subsequent fifth anniversaries
of the original granting of a special use permit for a telecommunications
tower, the holder of a special use permit for such tower shall submit
a written request for recertification. In the written request for
recertification, the holder of such special use permit shall note
the following:
(1)
The name of the holder of the special use permit for
the telecommunications tower.
(2)
If applicable, the number or title of the special
use permit.
(3)
The date of the original granting of the special use
permit.
(4)
Whether the telecommunications tower has been moved,
relocated, rebuilt, repaired or otherwise modified since the issuance
of the special use permit.
(5)
If the telecommunications tower has been moved, relocated,
rebuilt, repaired or otherwise modified, then whether the Board approved
such action, and under what terms and conditions, and whether those
terms and conditions were complied with and abided by.
(6)
Any requests for waivers or relief of any kind whatsoever
from the requirements of this chapter and any requirements for a special
use permit.
(7)
That the telecommunications tower is in compliance
with the special use permit and compliance with all applicable codes,
laws, rules and regulations.
B.
If, after such review, the Board determines that the
permitted telecommunications tower is in compliance with the special
use permit and all applicable codes, laws and rules, then the Board
shall issue a recertification special use permit for the telecommunications
tower, which may include any new provisions that are mutually agreed
upon, or required by the force of law or regulation.
C.
If the Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted telecommunications tower shall receive an extension of the special use permit for up to six months, in order for the Board to complete its review as noted in Subsection B of this section.
D.
If the holder of a special use permit for a telecommunications tower does not submit a request for recertification of such special use permit within the time frame noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a recertification request for the existing special use permit for a telecommunications tower to be extended for up to six months in order to allow the Board adequate time to review the recertification request.
The extent and parameters of a special use permit
for a telecommunications tower shall be as follows:
A.
Such special use permit shall be nonexclusive.
B.
Such special use permit shall not be assignable or
transferable without the express written consent of the Board, and
such consent shall not be unreasonably withheld.
C.
Such special use permit may be revoked, canceled or
terminated for a violation of the conditions and provisions of the
special use permit for a telecommunications tower, or for a material
violation of this chapter.
A.
An application fee shall be paid at the time that
a permit application is submitted hereunder. Said fee shall be determined
annually by the Town Board and shall be part of the annual fee resolution
of the Town Board establishing fees for all Town permits and activities.
The Town Board shall set two fees: one for the construction of a tower
and a second fee for collocating on an existing tower.
B.
An application fee is not required in order recertify a special use permit for a telecommunications tower, unless there has been a modification of the telecommunications tower since the date of the issuance of the existing special use permit. In the case of any modification, Subsection A shall apply.
The applicant and the owner of record of any
proposed telecommunications tower property site shall be jointly required
to execute and file with the Town a bond or other form of security
acceptable to the Town as to type of security and the form and manner
of execution in an amount deemed sufficient by the Board to assure
the faithful performance of the terms and conditions of this chapter
and any special use permit issued pursuant to this chapter. The full
amount of the bond or security shall remain in full force and effect
throughout the term of the special use permit and/or until the removal
of the telecommunications tower, and any necessary site restoration
is completed.
A.
In order to verify that the holder of a special use
permit for a telecommunications tower and any and all lessees, renters
and/or licensees of a telecommunications tower place and construct
such facilities, including towers and antennas, in accordance with
all applicable technical, safety, fire, building and land use codes
or other applicable requirements, the Town may inspect all facets
of said permit holder's, renter's, lessee's or licensee's placement,
construction, modification and maintenance of such facilities, including
but not limited to towers, antennas and buildings or other structures
constructed or located on the permitted site.
B.
The Town shall pay for all of its costs associated
with such an inspection, except for those circumstances occasioned
by said holder's, lessee's or licensee's refusal to provide necessary
information or necessary access to such facilities, including towers,
antennas, and appurtenant or associated facilities, or refusal to
otherwise cooperate with the Town with respect to an inspection, or
if violations of this chapter are found to exist, in which case the
holder, lessee or licensee shall reimburse the Town for the cost of
the inspection.
C.
Payment of such reimbursement shall be made to the
Town within 30 days from the date of the invoice or other demand for
reimbursement. In the event that the finding(s) of violation is/are
appealed in accordance with the procedures set forth in this chapter,
said reimbursement payment must still be paid to the Town and the
reimbursement shall be placed in an escrow account established by
the Town specifically for this purpose, pending the final decision
on appeal.
A.
A holder of a special use permit for a telecommunications
tower shall secure and at all times maintain public liability insurance,
property damage insurance and umbrella insurance coverage for the
duration of the special use permit in amounts as set forth below
B.
The public and personal liability and property damage
insurance policy shall specifically include the Town and its officials,
employees and agents as additional insureds.
C.
The public and personal liability insurance and property
damage insurance policy shall be issued by an agent or representative
of an insurance company licensed to do business in the state.
D.
The public liability and property damage insurance
policy shall contain an endorsement obligating the insurance company
to furnish the Town with at least 30 days' written notice in advance
of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall
be delivered to the Town at least 15 days before the expiration of
the insurance which such policies are to renew or replace.
F.
Before construction of a permitted telecommunications
tower is initiated, but in no case later than 15 days after the grant
of the special use permit, the holder of the special use permit shall
deliver to the Town a copy of each of the policies or certificates
representing the insurance in the required amounts.
A.
Any special use permit issued pursuant to this chapter
shall contain a provision with respect to indemnity. Such provision
shall require the holder of the special use permit, to the extent
permitted by the law, to at all times defend, indemnify, protect,
save, hold harmless and exempt the Town, officials of the Town, its
officers, agents, servants, and employees from any and all penalties,
damage or charges arising out of any and all claims, suits, demands,
causes of action or award of damages, whether compensatory or punitive,
or expenses arising therefrom, either at law or in equity, which might
arise out of, or are caused by, the construction, erection, modification,
location, products performance, operation, maintenance, repair, installation,
replacement, removal or restoration of a telecommunications tower
within the Town. With respect to the penalties, damages or charges
referenced herein, reasonable attorneys' fees, consultants' fees and
expert witness fees are included in those costs that are recoverable
by the Town.
A.
In the event of a violation of this chapter or any
special use permit issued pursuant to this chapter, the Board may
impose and collect, and the holder of the special use permit for a
telecommunications tower shall pay to the Town, fines or penalties
as set forth in § 268 of the Town Law of the State of New
York.
B.
Notwithstanding anything in this chapter, the holder
of the special use permit for a telecommunications tower may not use
the payment of fines, liquidated damages or other penalties, to evade
or avoid compliance with this chapter or any section of this chapter.
An attempt to do so shall subject the holder of the special use permit
to termination and revocation of the special use permit. The Town
may also seek injunctive relief to prevent the continued violation
of this chapter.
A.
When any permitted telecommunications tower is repaired,
rebuilt, placed, moved, relocated, modified or maintained in a way
that is inconsistent or not in compliance with either the Town's land
use code, or the provisions of this chapter or of the special use
permit, then the Board shall notify the holder of the special use
permit for a telecommunications tower of the specific inconsistent,
noncompliant or violative use or situation. Such notice shall indicate
that the telecommunications tower, and any appurtenant or related
facilities located at the permitted site, is in violation of or noncompliance
with the requirements of this chapter or the special use permit, and
that the holder of the special use permit is in default of its special
use permit, and that the facilities must be returned to consistent,
compliant use and status within seven days of the date of the postmark
of the Notice, or of the date of personal service of the notice, whichever
is applicable. Notwithstanding anything to the contrary in this Subsection
or any other section of this chapter, if the situation causes, creates
or presents an imminent danger or threat to the health or safety of
lives or property, in the sole determination of the Board, the Board
may, at its sole discretion, order the violative or noncompliant situation
remedied within 24 hours.
B.
If within the seven day period set forth in § 277-26A the affected and noncompliant telecommunications tower is not brought into compliance with either the land use code or the provisions of this chapter or of the special use permit, or substantial steps are not taken in order to bring the affected telecommunications tower into compliance, then the Board may revoke such special use permit for a telecommunications tower, and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the Board may determine
that the health, safety and welfare interests of the Town warrant
and require the removal of a telecommunications tower.
(1)
A permitted telecommunications tower has been abandoned
for a period exceeding 90 days or a total of 180 days in any three-hundred-sixty-five-day
period, which in this case means not used for the intended and permitted
purpose for such a period, except for situations caused by the commonly
recognized definition of force majeur or Acts of God of an extraordinary
and catastrophic nature and effect.
(2)
A permitted telecommunications tower falls into such
a state of disrepair that it creates a health or safety hazard.
(3)
A telecommunications tower has been located, constructed
or modified on property located within the Town without having obtained
the required special use permit or other necessary authorization.
B.
If the Board makes such a determination as noted in Subsection A of this section, then the Board shall notify the holder of the special use permit for the telecommunications tower within 48 hours that said telecommunications tower must and shall be removed, unless the Board approves an interim temporary use agreement/permit, such as to enable the sale of the telecommunications tower.
C.
If a telecommunications tower is not removed voluntarily
within 90 days after the permit holder has received notice, or substantial
progress has not been made to remove the telecommunications tower
within 90 days of said notice, then the Board may order officials
or representatives of the Town to remove the telecommunications tower
at the sole expense of the owner or permit holder, or the Town, at
its discretion, may take possession of the telecommunications tower.
D.
If, pursuant to Subsection C of this section, officials, employees or representatives of the Town remove or cause to be removed a telecommunications tower, and the owner of the telecommunications tower does not claim the property and remove it within 10 days, then the Town may take whatever steps are available under State law to declare the telecommunications tower abandoned, and sell the facility and its components.
E.
If the Board approves an interim temporary use agreement/permit for the telecommunications tower, such agreement/permit shall be for no more 90 days, during which time a suitable plan for removal, conversion or relocation of the affected telecommunications tower shall be developed by the holder of the permit, subject to the approval of the Board, and an agreement to such plan shall be executed by the holder of the permit and the Town. If such a plan is not developed within the ninety-day time frame, then the Town may take possession of and dispose of the affected telecommunications tower in the manner noted in Subsection C of this section.
F.
In the event that a telecommunications tower is no
longer used for the purpose specified in the application, or the telecommunications
tower ceases operations for a period of 180 days in any three-hundred-sixty-five-day
period, the holder of the special use permit, or its successors or
assigns, shall dismantle and remove such telecommunications tower
and all associated structures and facilities from the site and restore
the site to as close to its original condition as is possible, such
restoration being limited only by physical or commercial impracticability,
within 90 days of receipt of written notice from the Board. However,
if the owner of the property upon which the telecommunications tower
is located wishes to retain any access roadway to the telecommunications
tower, the owner may do so with the approval of the Board.
Any applicant desiring relief or exemption from
any aspect or requirement of this chapter may request such from the
Board at a preapplication meeting, provided that the relief or exemption
is contained in the original application for either a special use
permit or, in the case of an existing or previously granted special
use permit, a request for modification of its tower and/or facilities.
Such relief may be temporary or permanent, partial or complete, at
the sole discretion of the Board. However, the burden of proving the
need for the requested relief or exemption, and its lack of significant
effect on the Town or its residents or other service providers, is
solely on the applicant to prove to the satisfaction of the Board.
The applicant shall bear all costs of the Board or the Town in considering
the request and the relief shall not be transferable to a new or different
holder of the permit or owner of the tower or facilities without the
specific written permission of the Board, and such permission shall
not be unreasonably withheld.
A.
The Board may at any time conduct a review and examination
of this entire chapter.
B.
If after such a periodic review and examination of
this chapter, the Board determines that one or more provisions of
this chapter should be amended, repealed, revised, clarified or deleted,
then the Board may take whatever measures are necessary in accordance
with applicable law in order to accomplish the same. It is noted that
where warranted, and in the best interests of the Town, the Board
may repeal this entire chapter at any time.
A.
To the extent that the holder of a special use permit
for a telecommunications tower has not received relief or is otherwise
exempt, from appropriate state and/or federal agency rules or regulations,
then the holder of such a special use permit shall adhere to and comply
with all applicable rules, regulations, standards and provisions of
any state or federal agency, including but not limited to the FAA
and the FCC. Specifically included in this requirement are any rules
and regulations regarding height, lighting, security, electrical and
RF emission standards.
B.
To the extent that applicable rules, regulations,
standards and provisions of any State or Federal agency, including
but not limited to the FAA and the FCC, and specifically including
any rules and regulations regarding height, lighting, and security,
are changed and/or are modified during the duration of a special use
permit for a telecommunications tower, then the holder of such a special
use permit shall conform the permitted telecommunications tower to
the applicable changed and/or modified rule, regulation, standard,
or provision within a maximum of 24 months of the effective date of
the applicable changed and/or modified rule, regulation, standard,
or provision, or sooner as may be required by the issuing entity.
Where this chapter differs or conflicts with
other laws, rules and regulations, unless the right to do so is preempted
or prohibited by the county, state or federal government, the more
restrictive or protective of the Town and the public shall apply.
This chapter is enacted pursuant to the Municipal
Home Rule Law. This chapter shall supersede the provisions of Town
Law to the extent it is inconsistent with the same, and to the extent
permitted by the New York State Constitution, the Municipal Home Rule
Law or any other applicable statute.
