[Added 11-25-1996 by L.L.
No. 13-1996; amended 1-28-2019 by L.L. No. 1-2019]
The Planning Board of the Town of Hamburg is hereby authorized
to review and approve, approve with modifications or disapprove tower
special permits and site plans consistent with Town Law §§ 274-a
and 274-b.
A.
The purpose of this article is to establish general guidelines for
the siting of telecommunications facilities including communications
towers, antennas and small cell or microcell facilities which are
regulated in accordance with the Telecommunications Act of 1996 (and
any revisions) and other applicable federal laws.
B.
The intent of this article is to regulate the location of telecommunications
facilities, in accordance with the Town's Master Plan and Zoning Map
and giving full consideration to existing land uses and environmentally
sensitive areas, and conforming to the Telecommunications Act of 1996
and other applicable federal laws, by:
(1)
Accommodating the need for telecommunications towers and antennas
while regulating their location in the community;
(2)
Encouraging the location of towers in nonresidential areas,
away from significant natural resources and without adverse effect
to designated and eligible for designation historic resources;
(3)
Minimizing the total number of towers throughout the community;
(4)
Strongly encouraging the joint use of new and existing tower
sites as a primary option rather than construction of additional single-use
towers;
(5)
Encouraging owners of towers and antennas to locate them, to
the maximum extent possible, in areas where the adverse impact on
the size and scale of the community's built environment, the natural
environment, and designated and eligible for designation historic
resources is minimal;
(6)
Encouraging users of towers and antennas to configure them in
a way that minimizes the adverse visual impact of the towers and antennas
through careful design, siting, landscape screening and innovative
camouflaging and design techniques (stealth technology);
(7)
Enhancing the ability of the providers of telecommunications
services to provide such services to the community quickly, effectively,
and efficiently;
(8)
Helping to ensure that these facilities are limited to those
for which the petitioner has demonstrated a need for service. No towers
shall be built purely "on speculation" for future users;
(9)
Avoiding potential damage to adjacent properties from tower
failure through engineering and careful siting of tower structures.
These definitions only apply to this article. Duplicate definitions
that are found in other sections of the law do not apply to this section
of the law.
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including but not limited to generators or other emergency power supply
equipment, utility or transmission equipment storage sheds or cabinets,
or fencing.
For the purposes of this law and for consistency with 47
CFR; an apparatus designed for the purpose of emitting radiofrequency
(RF) radiation, to be operated or operating from a fixed location
pursuant to FCC authorization, for the provision of personal wireless
service and any commingled information services. For purposes of this
definition, the term antenna does not include an unintentional radiator,
mobile station, or device authorized under 47 CFR part 15.
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a particular return
or investment or profit, standing alone, shall not deem a situation
to be "commercially impracticable" and shall not render an act or
terms of an agreement "commercially impracticable."
The distance measured from the preexisting grade level to
the highest point on the tower or structure, including any antenna
or lightning protection device.
The addition, removal, or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, radios, equipment shelters, landscaping,
fencing, utility feeds, changing the color or materials of any visually
discernable components, vehicular access, parking and/or an upgrade,
or change out of equipment for better or more modern equipment. Adding
a new wireless carrier or service provider to a telecommunications
tower or telecommunications site is a modification. A modification
shall not include the replacement of any components of a wireless
facility where the replacement is technically equivalent to the component
being replaced for any matters that involve the normal repair and
maintenance of a wireless facility.
See definition for "wireless telecommunications facilities."
Any wireless service provider or agent submitting an application
for a special use permit, site plan approval or building permit application
for wireless telecommunications facilities.
Temporary in relation to all aspects and components of this
local law, something intended to, or that does, exist for fewer than
90 days.
The official document or permit by which a petitioner is
allowed to construct and use wireless telecommunications facilities
as granted or issued by the Town.
Structures other than utility poles, light poles and similar
structures that are built for the sole purpose of supporting a wireless
telecommunications facility.
Any exterior facility, including an antenna, antenna array
or other communications equipment, excluding a satellite dish antenna
or small cell telecommunications facility, established for the purpose
of providing wireless voice, data, and image transmission within a
designated service area and which includes equipment consisting of
personal wireless services, as defined in federal law, including by
Federal Communications Commission orders or regulations. A telecommunications
facility must not be staffed. A telecommunications facility consists
of one or more antennas attached to a support structure and related
equipment. Equipment may be located within a building or an exterior
equipment cabinet.
Siting additional telecommunications facilities on an existing
tower, structure or pole, without the need to construct a new tower,
structure or pole (some modifications, as defined in this law are
allowed). Co-location may include siting multiple facilities from
the same provider or from more than one provider in the same location.
The establishment of a telecommunications facility on a base
structure where no such facility presently exists.
This is an industry term that is defined in 47 CFR (1.1312(e)(2)
or as revised).
Any telecommunications facility that is integrated into an
architectural feature of a structure or the surrounding landscape
so that the facility does not appear out of character and is generally
less visually apparent or prominent.
A monopole, tower, utility pole, existing light pole, building
or any other freestanding self-supporting structure. This definition
also includes the replacement of a structure with another structure
of equivalent dimensions which can safely support the installation
of a telecommunications facility.
All new wireless telecommunications facilities (towers or antennas),
or relocated, rebuilt, modified, or extended towers or antennas, as
well as small cell facilities in the Town of Hamburg shall be subject
to these regulations.
A.
Amateur radio station operators/receive-only antennas. This article
shall not govern any tower or the installation of any antenna that
is under 70 feet in height and is owned and operated by a federally
licensed amateur radio station operator or is used exclusively for
receive-only antennas.
B.
Preexisting wireless telecommunications facilities (towers and antennas).
Preexisting wireless towers or antennas. Preexisting towers and preexisting
antennas shall not be required to meet the requirements of this article
(unless modified as defined in this article), other than any applicable
state or federal requirements and any applicable building codes.
Applications for telecommunications facilities shall propose,
locate, site, and erect these facilities in accordance with the following
priorities as listed in the order below; Subsection A, Co-located/existing
structure antennas, being the most preferred and Subsection B(4),
Non-co-located in residential districts being the least preferred.
A petitioner for a non-co-located/new structure antenna may not bypass
sites of higher priority by stating that the site proposed is the
only site leased or selected. All applications shall address co-location
as an option. The petitioner shall submit a written report demonstrating
the petitioner's review of the higher priority locations and demonstrating
by technical reasons why a higher priority site was not chosen.
A.
Co-located/existing structure antennas (including small cell or microcell).
(1)
An antenna that is to be attached to an existing wireless telecommunications tower facility, or any building or structure, is permitted in all zoning districts and will be reviewed administratively through a building permit process specifically designed for these types of projects (which may include a courtesy review and recommendation by the Planning Board, as determined by the Building Department). These antennas will also include accessory equipment that are also regulated under this Code. If the proposal is to locate the antenna on or within Town-owned property, the project will require approval from the Hamburg Town Board (see § 280-336).
(2)
The building permit application will include a structural analysis/report
verifying the ability of the structure to handle the antenna. Antennas
on structures, buildings, etc. shall be located in such a manner to
reduce their visual appearance, utilizing stealth technology to the
fullest extent possible. Specifically, these technologies can include
integrating the antenna into the pole or other structure, flush mounting
the antenna, camouflaging the antenna, designing the antenna to match
the structure, etc. In areas of high visibility (visible to residential
homes or the traveling public), accessory equipment structures may
need to be screened, camouflaged or placed below ground in a vault.
Co-located antennas may be placed on:
(a)
For existing utility, light or telephone poles, the height of
the new antenna shall not extend above the height of the existing
structure by more than five feet (note the requirement for placing
new antennas on or within Town-owned property). If a pole needs to
be replaced in order to accommodate the antenna, then the replacement
pole shall not be more than five feet higher than the existing pole
(If more than five feet taller, then the application will be treated
as a new support structure).
[1]
If the new antenna is being placed on a structure
within non-town governmental entity owned lands (like a road right-of-way),
but is to be located on a structure (like a utility pole that is not
owned by that other government entity), then the project may require
referral by the Building Department to the Planning Board for review
and input prior to issuance of a building permit.
(b)
Industrial buildings: the height of new antenna shall not extend
above the height of the existing building by more than 12 feet;
(c)
Multifamily residential buildings: the height of new antenna
shall not extend above the height of the existing building by more
than 12 feet;
(d)
Commercial buildings: the height of new antenna shall not extend
above the height of the existing building by more than 12 feet;
(e)
Water tower: the height of new antenna shall not extend above
the height of the water tower by more than 12 feet; or
(f)
Existing standalone, wireless telecommunication tower facility:
the height of new antenna shall not extend above the height of the
existing facility by more than 12 feet.
B.
Non-co-located/new support structure antennas (including small cell
or microcell requiring a new support structure or a structure being
expanded beyond the allowable limit). An antenna that will not be
mounted on an existing structure (or allowable replacement structure),
as defined above, or is more than the allowed height above that structure
on which it is mounted, is permitted as follows:
(1)
Municipal or government-owned property:
(a)
If located on municipally (Town of Hamburg) owned property,
a Town lease, license agreement or master license agreement must be
obtained and the Town must refer the proposal to the Planning Board
for their input. The tower/support structure must be set back the
height of the tower from any residentially zoned property and be in
accordance with the applicable requirements of this article.
(b)
If proposed in Town road right-of-way, the Town will require
a Town lease, license agreement or master license agreement, and also
require the project to receive a tower special use permit (including
Highway Department referral and recommendation). Proper location and
setbacks shall be agreed to with the Town (in the lease, license or
agreement).
(c)
If located on county, state, federal property or right-of-way,
or public school property, the tower/support structure shall be administratively
reviewed by the Town and the Planning Board shall conduct a courtesy
review and the tower must be set back the height of the tower from
any property line.
(2)
M1, M2, M3, and FG zoning districts require site plan application per § 280-338 of this article. If the tower is to be set back less than the height of the proposed tower to any adjacent residential district or residentially used lot, then the application will require a tower special use permit and site plan approval.
(3)
All commercial zoning districts (C1, C2, C3, HC, and WC) and mixed use zoning districts (PRD and PUD) require site plan approval per § 280-333 of this article and a tower special use permit per § 280-334 of this article.
(a)
The tower must be set back a minimum of the height of the tower
from any residentially zoned property or any front yard line.
(b)
Towers exceeding 195 feet in height in these commercial zoning
districts and mixed use zoning districts shall be treated as Type
1 Actions under the State Environmental Quality Review Act (SEQRA).
(4)
Residential zoning districts (NC, R1, R2, R3, R4, RA, and RE) require site plan approval per § 280-333 of this article and tower special use permit § 280-334 of this article.
(a)
The tower must be set back a minimum of twice the height of
the tower from all property lines and any existing building not located
on the site, but in no case shall be less than 100 feet.
(b)
The maximum height of a tower in these zoning districts is 175
feet. An area variance for height will be required from the Zoning
Board of Appeals to exceed this height, following initial review by
the Planning Board (and completion of the SEQR process).
(c)
All applications for telecommunications facilities in these
zoning districts shall be treated as Type 1 Action under the State
Environmental Quality Review Act (SEQRA).
(d)
New microcell structures to be located in residential districts
(not within a ROW), shall not be on a structure greater than 35 feet
in height and shall be set back from any property line by the height
of the structure.
The following requirements apply to all applications that require
site plan approval. All applications requiring a special use permit
are also subject to site plan review and the requirements of this
section. Applications only requiring site plan review may have some
of the following requirements waived by the Town, based on the tower's
location and size. Applications for microcells requiring site plan
approval may have some of these requirements waived (many may not
be applicable to these types of installations).
A.
All applicants, after obtaining Town of Hamburg and other required
approvals, must obtain a building permit from the Code Enforcement
Officer of the Town of Hamburg. The Code Enforcement Officer is hereby
authorized to issue building permits under this article if it is determined
that an applicant has met the requirements established in this article.
B.
Site plan applications will be processed by the Town of Hamburg Planning
Board. The intent of site plan review is to evaluate site plans and
require changes consistent with minimizing conflicts which may result
between the site layout and design of proposed uses and natural site
conditions and features and/or existing or planned adjacent uses.
Site plan review is also responsible for ensuring that development
comply with clearly calculated planning goals and policies as are
provided in the Town of Hamburg's Comprehensive Plan and other area-specific
planning documents.
C.
A site plan submittal including the following:
(1)
A scaled site plan clearly indicating the location, type and
height of the proposed tower or height increase, on-site land uses
and zoning, adjacent land uses and zoning (including when adjacent
to other municipalities), adjacent roadways, proposed means of access,
setbacks from property lines, elevation drawings of the proposed tower
or increased height and any other structures, topography, parking
and other information deemed by Town staff to be necessary to assess
compliance with this article.
(2)
Legal description of the parent tract and leased parcel.
(3)
The setback distance between the proposed tower, or existing
tower proposed to be increased in height, and the nearest residentially
use or zoned properties.
(4)
A landscape plan showing specific landscape materials.
(5)
Method of fencing and finished color and, if applicable, the
method of camouflage and illumination.
D.
An applicant is required to demonstrate, using technological evidence,
that the tower or antenna must be located where it is proposed in
order to satisfy its function in the applicant's grid system. Further,
the applicant must demonstrate by technological evidence that the
height requested is the minimum height necessary to fulfill the cell
site's function within the grid system.
E.
The Town of Hamburg may deny the application to construct a new tower
if the applicant has not proven to the Town that they cannot mount
the antenna on an existing structure and/or public property (even
if the site does not require a special use permit).
F.
Applications for necessary permits will only be processed when the
applicant demonstrates that it is either an FCC-licensed telecommunications
provider or has in place agreements with an FCC-licensed telecommunications
provider for use or lease of the support structure or tower (no tower
may be built "on-spec").
G.
Principal or accessory use. Antennas and towers may be considered
either principal or accessory uses. A different existing use of an
existing structure on the same lot shall not preclude the installation
of an antenna or tower on such lot.
H.
Lot size. For the purpose of determining whether the installation
of a tower or antenna complies with district development regulations,
including but not limited to setback requirements, lot-coverage requirements
and other such requirements, the dimensions of the entire lot shall
control, even though the antennas or towers may be located on leased
parcels/areas within such lot.
I.
Inventory of existing sites. Each applicant and the provider (for
a proposed new tower) shall provide to the Town an inventory of their
existing towers, antennas or sites approved for towers or antennas
that are either within the jurisdiction of the Town of Hamburg or
within 1/2 mile of the border thereof, including specific information
about the location, height, and design of each tower. The Town will
maintain records of this information and the Planning Department or
the Code Enforcement Officer may share such information with other
applicants applying for site plan approval or special use permits
under this article or other organizations seeking to locate antennas
within the jurisdiction of the Town of Hamburg; provided, however,
that the Town official is not, by sharing such information, in any
way representing or warranting that such sites are available or suitable.
J.
Aesthetics. Applications shall meet the following minimal requirements:
(1)
Towers shall either maintain a galvanized steel finish or, subject
to any applicable standards of the FAA, be painted a neutral color
so as to reduce visual obtrusiveness. Proposed color(s) shall be delineated
on the site plan.
(2)
At a tower site, the design of the buildings and related structures
shall, to the extent possible, use materials, colors, textures, screening
and landscaping that will blend them into the natural setting and
surrounding buildings.
(3)
If an antenna is installed on a structure other than a tower,
the antenna and supporting electrical and mechanical equipment must
be of a neutral color that is identical to or closely compatible with
the color of the supporting structure so as to make the antenna and
related equipment as visually unobtrusive as possible (integrated
into the structure, or stealth or camouflaging technology should be
considered).
(4)
No new towers shall be a lattice tower.
K.
Fencing. A well-constructed masonry or stone wall or privacy fence
made of natural materials, not less than eight feet (for residential
districts) or 10 feet (for nonresidential districts) in height from
finished grade, shall be provided around each antenna and/or tower
and shall also be equipped with an anticlimbing device. Access to
the tower shall be through a locked gate. No barbed wire shall be
used. Use of chain-link and PVC fencing is prohibited.
L.
Lighting. Towers shall not be artificially lighted, unless required
by the FAA or other applicable authority. If lighting is required,
the lighting alternatives and design chosen must cause the least disturbance
to the surrounding views or residential homes.
M.
State or federal requirements. All towers and antennas must meet
or exceed current standards and regulations of the FAA, the FCC and
any other agency of the state or federal government with the authority
to regulate towers and antennas. If such standards and regulations
are changed, then the owners of the towers and antennas governed by
this article shall bring such towers and antennas into compliance
with such revised standards and regulations within six months of the
effective date of such standards and regulations, unless a different
compliance schedule is mandated by the controlling state or federal
agency. Failure to bring towers and antennas into compliance with
such revised standards and regulations shall constitute grounds for
the removal of the tower or antenna at the owner's expense.
N.
Building codes; safety standards. To ensure the structural integrity
of towers and antennas, the owner of a tower or antenna shall ensure
that it is maintained in compliance with standards contained in applicable
state or local building codes and the applicable standards for towers
that are published by the Electronic Industries Association, as amended
from time to time. If, upon inspection, the Town of Hamburg concludes
that a tower or antenna fails to comply with such codes and standards
and constitutes a danger to persons or property, then, upon notice
being provided to the owner of the tower or antenna, the owner shall
have 30 days to bring such tower or antenna into compliance with such
standards. Failure to bring such tower or antenna into compliance
within said 30 days shall constitute grounds for the removal of the
tower or antenna at the owner's expense.
O.
Measurement. For purposes of measurement, tower setbacks shall be
calculated and applied to facilities located in the Town of Hamburg
irrespective of municipal and county jurisdictional boundaries.
P.
Licenses or agreements. Owners and/or operators of towers or antennas
shall certify that all licenses or agreements required by law by any
governmental entity, including the Town of Hamburg, now or in the
future for the construction and/or operation of a wireless communication
system in the Town of Hamburg have been obtained and shall file a
copy of all required licenses and agreements with the Office of Planning
and Development or the Code Enforcement Officer.
Q.
Buildings and support equipment. Buildings and support equipment associated with antennas or towers shall comply with the requirements of § 280-335.
R.
Multiple antenna/tower plan. The Town of Hamburg encourages the users
of towers and antennas to submit a single application for approval
of multiple towers and/or antenna sites. Applications for approval
of multiple sites shall be given priority in the review process.
S.
The owner of any tower or antenna shall provide the Town Clerk with
a demolition/removal bond equal to the cost of removal of the tower
or antenna. Said bond shall be reviewed and approved by the Town Attorney.
T.
The owner of any tower or antenna shall provide information detailing
the purpose for the proposed antenna or tower.
U.
All applicants/applications under this article must comply with the
State Environmental Quality Review Act (SEQRA).
V.
Unless otherwise provided, new towers and antennas and their related
structures shall comply with all existing setbacks within any zoning
districts. Additional setbacks may be required by this article, the
Code Enforcement Officer, Planning Board, or the Town Board, as applicable,
to contain on-site substantially all ice-fall or debris from tower
failure and/or to comply with the purpose of this article. This Code
may include setback requirements for tower parts, including guy wire
anchors, and to any accessory facilities.
W.
A petitioner may be required to submit the appropriate environmental
assessment form and a visual addendum. Based on the results of the
analysis, including the visual addendum, the Town may require submission
of a more detailed environmental and visual analysis. The scope of
the required environmental and visual assessment will be reviewed
at the preapplication meeting.
X.
The petitioner, if required, shall furnish a visual impact assessment,
which shall include:
(1)
Elevation drawings of the proposed facility, and any other proposed
structures, showing height above ground level;
(2)
A landscaping plan indicating the proposed placement of the
facility on the site; location of existing structures, trees, and
other significant site features; the type and location of plants proposed
to screen the facility; the method of fencing, the color of the structure,
and the proposed lighting method;
(3)
Photo simulations of the proposed facility taken from perspectives
determined by the Planning Board, or their designee, during the preapplication
conference. Each photo must be labeled with the line of sight, elevation,
and with the date taken imprinted on the photograph. The photos must
show the color of the facility and method of screening.
(4)
A narrative discussing:
(a)
The extent to which the proposed facility would be visible from,
but not limited to state highways, major roads, state and local parks,
public lands, historic districts, preserves, historic sites, archaeological
sites, environmental conservation areas, any other location where
the site is visible to visitors, travelers, employees, or residents;
and
(b)
The tree line elevation of vegetation within 100 feet of the
facility.
(5)
Property boundaries (copy of property survey), along with the
location of all existing structures on the property and the location(s)
of all existing structures on the adjacent properties within 50 feet
of the property lines.
(6)
The distance between the proposed tower and the existing structures
on the subject property and the adjacent properties, located within
50 feet of the property lines.
Y.
A written description of how the proposed facility fits into the
applicant's telecommunications network. This submission requirement
does not require the disclosure of confidential business information.
Z.
Evidence demonstrating that no existing building, tower, or structure
can accommodate the applicant's proposed facility, the evidence for
which may consist of any one or more of the following:
(1)
Evidence that no existing facilities (building, tower or other
structure) are located within the targeted market coverage area as
required to meet the applicant's engineering requirements;
(2)
Evidence that existing facilities do not have sufficient height
or cannot be increased in height at a reasonable cost to meet the
applicant's engineering requirements,
(3)
Evidence that existing facilities do not have sufficient structural
strength to support applicants proposed antenna and related equipment.
Specifically:
(a)
Planned, necessary equipment would exceed the structural capacity
of the existing facility, considering the existing and planned use
of those facilities, and these existing facilities cannot be reinforced
to accommodate the new equipment.
(b)
The applicants proposed antenna or equipment would cause electromagnetic
interference with the antenna on the existing towers or structures,
or the antenna or equipment on the existing facility would cause interference
with the applicants proposed antenna.
(c)
Existing or approved facilities do not have space on which planned
equipment can be placed so it can function effectively.
(4)
For facilities existing prior to the effective date of this
ordinance, evidence that the fees, costs, or contractual provisions
required by the owner in order to share or adapt an existing facility
are unreasonable. Costs exceeding the pro rata share of a new facility
development are presumed to be unreasonable. This evidence shall also
be satisfactory for a tower built after the passage of this ordinance
(it should be noted that facilities built in the Town in accordance
with the Town law must allow co-location on the tower);
(5)
Evidence that the applicant has made diligent good faith efforts
to negotiate co-location on an existing facility, building, or structure,
and has been denied access.
AA.
Identification of districts, sites, buildings, structures or objects,
significant in American history, architecture, archaeology, engineering
or culture, that are listed, or eligible for listing, in the National
Register of Historic Places (see 16 U.S.C. 470w(5); 36 CFR 60 and
800).
AB.
If the proposed tower is found by the Planning Board to be a good
location, the petitioner may be asked to examine the feasibility of
designing a proposed tower to accommodate future demand (co-locators)
for a minimum of three to five additional commercial applications.
The tower shall be structurally designed to accommodate a minimum
of three to five additional antenna arrays equal to those of the petitioner,
and located as close to the petitioner's antenna as possible without
causing interference. This requirement may be waived, provided that
the petitioner, in writing, demonstrates that the provisions of future
shared usage of the Tower is not technologically feasible, is commercially
impracticable or creates an unnecessary and unreasonable burden, based
upon:
(1)
The foreseeable number of FCC licenses available for the area;
(2)
The kind of wireless telecommunication facility site and structure
proposed;
(3)
The number of existing and potential licenses without wireless
telecommunications facilities' spaces/sites; and
(4)
Available space on existing and approved towers.
AC.
Petitioner/applicant may not bypass sites of higher priority by stating
the site proposed is the only site leased or selected. An application
shall address co-location as an option. If such option is not proposed,
the petitioner must explain to the reasonable satisfaction of the
Planning Board why co-location is commercially impracticable or otherwise
impracticable. Agreements between providers limiting or prohibiting
co-location shall not be a valid basis for any claim of commercial
impracticability or hardship.
AD.
Notwithstanding the above, the Planning Board may approve any site
located within an area in the above list of priorities, provided that
the Planning Board finds that the proposed site is in the best interest
of the health, safety, and welfare of the Town and will further the
policies and goals set forth in the Town's laws and Comprehensive
Plan.
AE.
The petitioner shall submit a written report demonstrating the petitioner's
review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If appropriate, based
on selecting a site of lower priority, a detailed written explanation
as to why sites of a higher priority were not selected shall be included
with the application.
AF.
Traffic, access, and safety (for new towers):
(1)
A road turnaround and one parking space shall be provided to
assure adequate emergency and service access. Maximum use of existing
roads, public or private, shall be made. The use of public roadways
or road rights-of-way for the siting of a tower or antenna(s) accessory
structures is prohibited. All applicable county, state, and federal
regulations for traffic ingress and egress and fire access shall apply.
AG.
No tower shall contain any signs or advertising devices. A small
sign, to be approved by the Planning Board, shall be placed on fencing
surrounding the base of the tower identifying the owner of the facility,
owner's physical mailing address, owner's telephone number, and owner's
e-mail address.
AH.
The Planning Board may request evaluation of alternative tower designs
to include, but not be limited to: stealth technology, flush mounted
arrays, and concealed tower designs (e.g. monopines/trees, lighthouses,
windmills, water towers, etc.).
AI.
Proof of landowner's consent if the applicant will not own the property
(a copy of a lease agreement must also be provided if the applicant
will not own the property).
AJ.
"Before" and "after" propagation studies prepared by a qualified
(licensed) radio frequency engineer, demonstrating existing signal
coverage, contrasted with the proposed signal coverage resulting from
the proposed telecommunications facility.
AK.
A "search ring" prepared by a qualified (licensed) radio frequency
engineer and overlaid on an appropriate background map demonstrating
the area within which the telecommunications facility needs to be
located in order to provide proper signal strength and coverage to
the target cell. The applicant must be prepared to explain to the
Planning Board why it selected the proposed site, discuss the availability
or lack of availability of a suitable structure within the search
ring which would have allowed for a co-located antenna(s), and to
what extent the applicant explored locating the proposed tower in
a more intensive use district. Correspondence with other telecommunications
companies concerning co-location is part of this requirement.
A.
The following provisions shall govern the issuance of special use
permits for the construction of new towers or other new facilities
requiring a special use permit.
(1)
Applicants for a special use permit under this section are also subject to the site plan review requirements of Article XLIV of the Zoning Local Law of the Town of Hamburg and this article.
(2)
Applications for special use permits under this section shall be subject to the procedures and requirements of Article XLVI of the Zoning Local Law of the Town of Hamburg and the procedures and requirements of this article.
(3)
In granting a special use permit, the Planning Board may impose
conditions to the extent such conditions are necessary to minimize
any adverse effect of the proposed tower and antenna on adjoining
properties.
(4)
Any information of an engineering nature that the applicant
submits, whether civil, mechanical or electrical, shall be certified
by a licensed professional engineer.
(5)
An applicant for a special use permit shall submit the information
described in this section and a nonrefundable fee as established by
resolution of the Town Board of the Town of Hamburg.
(6)
Compliance with the requirements of this article shall be required.
B.
New towers.
(1)
Information required. In addition to any information required for applications for special use permits pursuant to Article XLVI of the Zoning Local Law of the Town of Hamburg, applicants for a special use permit for a tower shall submit the following information:
(a)
A description of compliance with requirements of this article (including the information required in § 280-333) and all applicable federal, state, or local laws.
(b)
A notarized statement by the applicant as to whether construction
of the tower will accommodate co-location of additional antennas for
future users.
(c)
Identification of the entities providing the backhaul network
for the tower(s) described in the application and other cellular sites
owned or operated by the applicant in the Town of Hamburg.
(d)
A description of the suitability of the use of existing towers,
other structures or alternative technology not requiring the use of
towers or structures to provide the services to be provided through
the use of the proposed new tower/structure.
(e)
A description of the feasible locations/areas of future towers
or antennas within the Town of Hamburg based upon existing physical,
engineering, technological or geographical limitations in the event
the proposed tower is erected.
(f)
Proof of notification (certified mail return receipts to be
given to the Town by the applicant) of all property owners within
500 feet of the boundaries of the property that the tower is to be
constructed.
(2)
Factors considered in granting special use permits for towers. In addition to any standards for consideration of special use permit applications pursuant to Article XLVI of the Zoning Local Law of the Town of Hamburg. The Planning Board of the Town of Hamburg shall consider the following factors in determining whether to issue a special use permit:
(a)
Height of the proposed tower or the increase in height proposed
to any existing tower;
(b)
Proximity of the proposed or existing tower to residential structures
and residential zoning district boundaries;
(c)
Nature of uses on adjacent and nearby properties;
(d)
Surrounding topography;
(e)
Surrounding tree coverage and foliage;
(f)
Design of the tower, with particular reference to design characteristics
that have the effect of reducing or eliminating visual obtrusiveness;
(g)
Proposed ingress and egress; and
(h)
Availability of suitable existing towers, other structures or
alternative technologies not requiring the use of towers or structures,
as discussed in this article.
(i)
The proof required by this article that the tower is needed
and that the location is in the most preferred location (as described
in this article and below).
(3)
Availability of suitable existing towers, other structures or
alternative technology. No new tower or tower reconstruction, relocation
or height increase shall be permitted unless the applicant demonstrates
to the reasonable satisfaction of the Planning Board of the Town of
Hamburg that no existing tower, structure or alternative technology
that does not require the use of towers or structures can accommodate
the applicant's proposed antenna. An applicant shall submit information
requested by the Planning Board related to the availability of suitable
existing towers, other structures or alternative technology. Evidence
submitted to demonstrate that no existing tower, structure or alternative
technology can accommodate the applicant's proposed antenna may consist
of any of the following:
(a)
No existing towers or structures are located within the geographic
area which meet applicant's engineering requirements.
(b)
Existing towers or structures are not of sufficient height to
meet applicant's engineering requirements.
(c)
Existing towers or structures do not have sufficient structural
strength to support applicant's proposed antenna and related equipment.
(d)
The applicant's proposed antenna would cause electromagnetic
interference with the antenna on the existing towers or structures
or the antenna on the existing towers or structures would cause interference
with the applicant's proposed antenna.
(e)
The applicant demonstrates that there are other limiting factors
that render existing towers and structures unsuitable.
(4)
The following setback requirements shall apply to all towers
for which a special use permit is required:
(a)
For a tower to be located in a residential zoning district,
towers must be set back a minimum distance equal to twice the height
of the tower, including any proposed height increase, from any residentially
zoned lot line.
(b)
Accessory buildings must satisfy the minimum zoning district
setback requirements in the Hamburg Town Code and any specific requirements
of this article.
(5)
Security fencing for towers. Towers shall be enclosed by security
fencing as provided in this article.
(6)
The following requirements shall govern the landscaping surrounding
towers and their equipment for which a special use permit is required:
(a)
Tower facilities shall be landscaped with a buffer of plant
materials that effectively screens the view of the tower compound
(buildings and equipment) from property used for residences. The standard
buffer shall consist of a landscaped strip at least four feet wide
outside the perimeter of the compound.
(b)
In locations where the visual impact of the tower's building
and equipment would be minimal, the landscaping requirement may be
reduced or waived.
(c)
Existing mature tree growth and natural land forms on the site
shall be preserved to the maximum extent possible. In some cases,
such as towers sited on large, wooded lots, natural growth around
the property perimeter may be sufficient buffer.
A.
Such special use permit shall be nonexclusive.
B.
Such special use permit shall not be assigned, transferred, or conveyed
without the express prior written notification to the Town within
30 days prior to such assignment, transfer, or conveyance.
C.
Such special use permit may, following a hearing upon due prior notice
to the petitioner, be revoked, canceled, or terminated for a violation
of the conditions and provisions of the special use permit, or for
a material violation of this local law after prior written notice
to the holder of the special use permit.
A.
The Town may hire a qualified consultant and/or expert necessary
to assist the Town in reviewing and evaluating the application, including
the construction and modification of the site, once permitted, and
any requests for recertification. Prior to hiring such consultant,
the Town will determine an appropriate scope for such services.
B.
If the Town hires a qualified consultant/expert, the petitioner shall
deposit with the Town funds sufficient to reimburse the Town for all
reasonable costs of a qualified consultant and expert evaluation and
consultation to the Town in connection with the review of any application
including the construction and modification of the site, once permitted.
The initial deposit shall be determined by the Town and a request
sent to the applicant. The placement of these funds with the Town
shall occur after the preapplication meeting and at the time of application.
The Town will maintain a separate escrow account for all such funds.
The Town's consultants/experts shall invoice the Town for its services
in reviewing the application, including the construction and modification
of the site, once permitted. If at any time during the process this
escrow account has a balance less than $1,000, the petitioner shall
immediately, upon notification by the Town, replenish said escrow
account so that it has a minimum balance as stipulated by the Town
(based on estimates provided by the consultant/expert). Such additional
escrow funds shall be deposited with the Town before any further action
or consideration is taken on the application. In the event that the
amount held in escrow by the Town is more than the amount of the actual
invoicing at the conclusion of the project, the remaining balance
shall be promptly refunded to the petitioner.
C.
The total amount of the funds needed as 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 to complete the necessary review, analysis, and inspection of any construction or modification.
A.
The following provisions shall govern the issuance of administrative
approvals:
(1)
Applicants for administratively approved uses must comply with
the applicable site plan submittal requirements of this article, as
directed by the Code Enforcement Officer.
(2)
The Code Enforcement Officer may administratively approve the
uses listed in this article.
(3)
Each applicant for administrative approval shall apply to the
Code Enforcement Officer by providing them the information as specified
by the Code Enforcement Officer and this article and submitting a
nonrefundable fee as established by resolution of the Town Board of
the Town of Hamburg.
(4)
The Code Enforcement Officer shall respond to each such complete
application within 60 days after receiving it by either approving
or denying the application.
(5)
If an administrative approval is denied, the applicant may file
an application for a special use permit pursuant to this article in
order to proceed.
A.
Antennas mounted on structures or rooftops. The equipment cabinet
or structure used in association with antennas shall comply with the
following (note, that for some new towers, the applicant may propose
an open equipment platform to eliminate the need for HVAC thus reducing
noise):
(1)
The cabinet or structure shall not contain more than 300 square
feet of gross floor area or be more than six feet in height. In addition,
for buildings and structures which are less than 65 feet in height,
the related unmanned equipment structure, if over 300 square feet
of gross floor area or six feet in height pursuant to an area variance
granted by the Zoning Board of Appeals of the Town of Hamburg, shall
be located on the ground and shall not be located on the roof of the
structure.
(2)
If the equipment structure is located on the roof of a building,
the area of the equipment structure and other equipment and structures
shall not occupy more than 25% of the roof area.
(3)
Equipment storage buildings or cabinets shall comply with all
applicable building codes.
B.
Antennas mounted on utility poles or light poles (microcells). The
equipment cabinet or structure used in association with these antennas
shall be located in accordance with the following:
(1)
In residential districts, the equipment cabinet or structure
shall be sited using stealth technology (including locating them below
grade) to the fullest extent practicable. In these residential districts
and all zoning districts, the following shall apply:
C.
Antennas located on towers. The related unmanned equipment structure
shall not contain more than 300 square feet of gross floor area or
be more than 12 feet in height and shall be located in accordance
with the minimum yard requirements of the zoning district in which
located.
Any antenna or tower that is not operated for a period of 12
months shall be considered abandoned, and the owner of such antenna
or tower shall remove the same within 90 days of receipt of notice
from the Town of Hamburg notifying the owner of such abandonment.
The Planning Board shall require the applicant to provide a demolition
bond (in an amount determined by the Planning Board based on the cost
of removal) for purposes of removing the tower in case applicant fails
to do so as required above.
A.
Nonexpansion of nonconforming use. Towers that are constructed and
antennas that are installed in accordance with the provisions of this
article shall not be deemed to constitute the expansion of a nonconforming
use or structure.
B.
Preexisting towers. Preexisting towers shall be allowed to continue
their usage as they presently exist. Routine maintenance shall be
permitted on such preexisting towers. New construction other than
routine maintenance on a preexisting tower shall comply with the requirements
of this article.
C.
Rebuilding damaged or destroyed nonconforming towers or antennas.
Notwithstanding § 280-336E, bona fide nonconforming towers
or antennas that are damaged or destroyed may be rebuilt without having
to first obtain administrative approval or a special use permit and
without having to meet the setback requirements specified in this
article. The type, height and location of the tower on site shall
be of the same type and intensity as the original facility approval.
Building permits to rebuild the facility shall comply with applicable
building codes and shall be obtained within 180 days from the date
the facility is damaged or destroyed. If no permit is obtained or
if said permit expires, the tower or antenna shall be deemed abandoned
as specified in § 280-335E, hereof.
This section only applies to proposed towers on Town-owned parcels
or rights-of-way.
A.
General. All applicants who wish to locate a tower or antenna on Town land or ROWs must submit to the Office of the Code Enforcement Officer a completed application and detailed plan that complies with the requirements of this article and the Code of the Town of Hamburg and must furnish any other pertinent information as may be requested by the Town. In addition, such applicant shall submit along with the applications nonrefundable fee as shall be established by resolution of the Town Board of the Town of Hamburg. Any such application is subject to the site plan review requirements of Article XLIV of the Zoning Local Law of the Town of Hamburg. Upon receipt of any such complete application, within the 60 days, the Code Enforcement Officer shall issue a building permit if he is satisfied that the applicant is in compliance with the requirements contained herein or deny such application.
(1)
Towers on Town land. Towers or antennas may be located on Town
land, provided that a license or lease authorizing such antenna or
tower has been approved by the Town of Hamburg and further provided
that the applicant complies with the provisions of this section.
(2)
Priority of users. Priority for the use of Town land for antennas
and towers will be given to the following entities in descending order:
(a)
The Town of Hamburg;
(b)
Public safety agencies, including law enforcement, fire and
ambulance services, which are not part of the Town of Hamburg and
private entities with a public safety agreement with the Town of Hamburg;
(c)
Other governmental agencies, for uses which are not related
to public safety; and
(d)
Entities providing licensed commercial wireless telecommunications
services, including cellular, personal communication services (PSC),
specialized mobilized radio (SMR), enhanced specialized mobilized
radio (ESMR), data, Internet, paging and similar services that are
marketed to the general public.
(3)
Placement. The placement of antennas or towers on Town land
must comply with the following requirements:
(a)
The antennas or tower will not interfere with the purpose for
which the Town land is intended.
(b)
The antennas or tower will have no adverse impact on surrounding
private property.
(c)
The applicant is willing to obtain adequate liability insurance
and commit to a lease agreement which includes equitable compensation
for the use of Town land and other necessary provisions and safeguards.
(d)
The applicant will submit a letter of credit, performance bond
or other security acceptable to the Town of Hamburg to cover the costs
of the antenna or tower's removal.
(e)
The antennas or tower will not interfere with other users of
Town land.
(f)
Upon reasonable notice, the Town of Hamburg may require the
antenna or tower to be removed at the applicant's expense.
(g)
The owner of the tower or antenna must reimburse the Town of
Hamburg for any costs which the Town incurs because of the presence
of the antenna or tower.
(h)
The applicant must obtain all necessary land use approvals.
(i)
The applicant will cooperate with the Town of Hamburg's objective
to promote co-locations and thus limit the number of separate antenna
sites requested.
(j)
The applicant's continued compliance with the requirements of
this article.
(4)
Special requirements. The use of certain Town land, such as
water tower sites, parks and Town road right-of-way, for antennas
or towers brings with it special concerns due to the unique nature
of these sites. The placement of antennas or towers on these special
Town lands will be allowed only when the following additional requirements
are met:
(a)
Water tower or reservoir sites. The Town of Hamburg's water
towers and reservoirs represent a large public investment in water
pressure stabilization and peak capacity reserves. Protection of the
quality of the Town's water supply is of prime importance to the Town.
The placement of antennas or towers on water tower or reservoir sites
will be allowed only when the Town is fully satisfied that the following
requirements are met:
[1]
The applicant's access to the facility will not increase the
risks of contamination to the Town's water supply;
[2]
There is sufficient room on the structure and/or on the grounds
to accommodate the applicant's facility;
[3]
The presence of the facility will not increase the water tower
or reservoir maintenance cost to the Town; and
[4]
The presence of the facility will not be harmful to the health
of workers maintaining the water tower or reservoir.
(b)
Parks. The presence of certain antennas or towers represent
a potential conflict with the purpose of some parks owned by the Town
of Hamburg. In no case shall towers be allowed in designated conservation
areas unless they are to be installed in areas which currently contain
tower facilities. Antennas or towers will be considered only in the
following parks after the recommendation of the Parks and Recreation
Department, approval by the Town Board of the Town of Hamburg and
NYS alienation procedures, if required:
(c)
Town road right-of-way. The Town of Hamburg Town Board may allow
antennas to be placed on existing structures within the Town road
right-of-way. New structures within the Town road right-of-way will
only be allowed under extenuating circumstances and would need to
follow the full requirements of this law. Antennas to be placed on
existing structures will also require input from the Highway Department,
the Engineering Department, the Town Attorney and the Building and
Planning Departments. The designs will utilize stealth technology,
and equipment will either be screened or placed underground. The Town
will consider all financial impacts of the project and the possibility
of yearly fees for use of these lands.
(5)
Termination. The Town Board of the Town of Hamburg may terminate
any lease if it determines that any one of the following conditions
exist:
(a)
A potential user with a higher priority as described in § 280-342 of this article cannot find another adequate location and the potential use would be incompatible with the existing use;
(b)
A user's frequency broadcast unreasonably interferes with other uses of higher priority as described in § 280-342 of this article regardless of whether or not this interference was adequately predicted in the technical analysis; or
(c)
A user violates any of the standards in this article or the
conditions attached to the Town of Hamburg's lease or other authorization.
(d)
Before taking action, the Town of Hamburg will provide notice
to the user of the intended termination and the reasons for it and
provide an opportunity for the user to address the Town Board regarding
the proposed action. This procedure need not be followed in emergency
situations.
(6)
Reservation of right. Notwithstanding the above, the Town Board
of the Town of Hamburg reserves the right to deny, for any reason,
the use of any or all Town land by any one or all.
B.
Master license agreement. The Town of Hamburg may utilize a master
license agreement to address the requirements of this section and
set the terms and conditions of utilizing ROWs.
If any section, subsection, phrase, sentence, or other portion
of this article is for any reason held invalid, void, unconstitutional,
or unenforceable by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision, and
such holding shall not affect the validity of the remaining portions
hereof.
