[Amended 1-23-2017 by L.L. No. 3-2017]
The Telecommunications Act of 1996 affirmed
the Town of Marlborough's authority concerning the placement, construction
and modification of wireless telecommunications facilities. The Town
Board of the Town of Marlborough finds that wireless telecommunications
facilities may pose a unique hazard to the health, safety, public
welfare and environment of the Town of Marlborough and its inhabitants.
The Town also recognizes that facilitating the development of wireless
service technology can be an economic development asset to the Town
and of significant benefit to the Town and its residents. In order
to ensure that the placement, construction or modification of wireless
telecommunications facilities is consistent with the Town's land use
policies, the Town is adopting a single, comprehensive, wireless telecommunications
facilities application and permit process. The intent of this chapter
is to minimize the negative impact of wireless telecommunications
facilities, 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 Marlborough, and to accommodate
small cell and DAS technologies within the public highway rights-of-way.
This chapter shall be known and cited as the
"Wireless Telecommunications Facilities Regulations for the Town of
Marlborough."
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.
ACCESSORY FACILITY OR STRUCTURE
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, utility or transmission equipment storage
sheds or cabinets.
APPLICANT
Any person submitting an application to the Town of Marlborough
for a special use permit for wireless telecommunications facilities.
APPLICATION
The form approved by the Board, together with all necessary
and appropriate documentation that an applicant submits in order to
receive a special use permit for wireless telecommunications facilities.
ANTENNA
A system of electrical conductors that transmits or receives
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.
BOARD
The Planning Board of the Town of Marlborough.
COLLOCATION
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.
COMPLETED APPLICATION
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 wireless telecommunications facilities on the Town in the context
of the permitted land use for the particular location requested.
DAS OR DISTRIBUTED ANTENNA SYSTEM
A wireless technology consisting of a network of antenna
nodes (typically co-located on other structures, and installed lower
to the ground than conventional panel antennas on towers) and supporting
equipment to provide wireless services within a geographic area or
structure. DAS typically can service more than one wireless carrier.
[Added 1-23-2017 by L.L.
No. 3-2017]
EAF
The environmental assessment form approved by the New York
Department of Environmental Conservation (Appendix A to 6 NYCRR 617.20)
and includes a visual EAF addendum (Appendix B).
EPA
State and/or federal Environmental Protection Agency, or
its duly assigned successor agency.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated
and authorized successor agency.
FREESTANDING TOWER
A tower that is not supported by guy wires and ground anchors
or other means of attached or external support.
HEIGHT
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.
NIER
Nonionizing electromagnetic radiation.
PERSON
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest, or any other entity.
SMALL CELL SITE
Small cells are low-powered wireless base stations that function
like cells in a mobile wireless network, typically covering targeted
indoor or localized outdoor areas ranging in size from homes and offices
to stadiums, shopping malls, hospitals, and metropolitan outdoor spaces.
Wireless service providers often use small cells to provide connectivity
to their subscribers in areas that present capacity and coverage challenges
to traditional wide-area macrocell networks, such as coverage gaps
created by buildings, tower siting difficulties, and challenging terrain.
Small cells typically are built to service one wireless carrier.
[Added 1-23-2017 by L.L.
No. 3-2017]
SPECIAL USE PERMIT
The official document or permit by which an applicant is
allowed to construct and use wireless telecommunications facilities
as granted or issued by the town.
STATE
The State of New York.
TELECOMMUNICATIONS
The transmission and reception of audio, video, data and
other information by wire, radio frequency, light and other electronic
or electromagnetic systems.
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
TEMPORARY
In relation to all aspects and components of this chapter,
something intended to, or that does, exist for fewer than 90 days.
TOWN
The Town of Marlborough, Ulster County, New York.
WIRELESS TELECOMMUNICATIONS FACILITIES or TELECOMMUNICATIONS
TOWER or TELECOMMUNICATIONS SITE or PERSONAL WIRELESS FACILITY
A structure, facility or location designed or intended to
be used as, or used to support, antennas. It includes, without limit,
freestanding towers, guyed towers, monopoles, DAS or small cell site
facilities on utility poles in the public rights-of-way or property
of the Town of Marlborough or of another municipal corporation within
the Town of Marlborough and similar structures that employ camouflage
technology, including but not limited to structures such as a multistory
building, 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,
911, personal telecommunications services, commercial satellite services
or microwave telecommunications, but excluding those used exclusively
for the Town's 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.
[Amended 1-23-2017 by L.L. No. 3-2017]
[Amended 1-23-2017 by L.L. No. 3-2017]
In order to ensure that the placement, construction and modification
of wireless telecommunications facilities protects the Town's
health, safety, public welfare, environmental features and other aspects
of the quality of life specifically listed elsewhere in this chapter,
the Town Board hereby adopts an overall policy with respect to a special
use permit for most, but not all, wireless telecommunications facilities
for the express purpose of achieving the following goals:
A. Implementing an application process for person(s)
seeking a special use permit for wireless telecommunications facilities.
B. Establishing a policy for examining an application
for and issuing a special use permit for wireless telecommunications
facilities that is both fair and consistent.
C. Establishing reasonable time frames for granting or
not granting a special use permit for wireless telecommunications
facilities, 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 wireless telecommunications facilities
among service providers.
E. Promoting and encouraging, wherever possible, the
placement, height and quantity of wireless telecommunications facilities
in such a manner as to minimize adverse aesthetic impacts to the land,
property, buildings and other facilities adjacent to, surrounding
and in generally the same area as the requested location of such wireless
telecommunications facilities.
F. Exempting DAS and small cell sites from special permit requirements
where the facilities are situated on existing or new utility poles
not exceeding 50 feet in height in the public highway rights-of-way
or where situated on existing or new utility poles not exceeding 35
feet in height on property of the Town of Marlborough or any other
municipal corporation within the Town of Marlborough. Such DAS and
small cell site facilities shall require only a building permit issued
by the Town's Building Inspector. The Building Inspector shall
be empowered to condition the issuance of a building permit upon implementation
of stealth installation or other measures which mitigate visual effect.
Placement of these facilities within the public highway rights-of-way
of the Town of Marlborough shall be subject to the obtaining of a
franchise pursuant to the relevant chapter of the Town Code dealing
with that subject matter, or subject to an agreement for the use of
lands of the Town of Marlborough or another municipal corporation
in the Town of Marlborough.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
which prevents unauthorized access; specifically as follows:
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 to operate or service them.
Wireless telecommunications facilities 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. The sign shall not be lighted
unless the Board shall have allowed such lighting or unless such lighting
is required by applicable provisions of law. The sign shall be approved
by the Board before installation. No other signage, including advertising,
shall be permitted on any facilities, antennas, antenna supporting
structures or antenna towers, unless required by law.
The following requirements shall govern the
landscaping surrounding towers:
A. Tower facilities shall be landscaped with a buffer
of plant material that effectively screens the view of the tower compound
from property used for residences or planned residences or any other
area frequented by the public. The standard buffer shall consist of
a landscaped strip at least 10 feet wide outside the perimeter of
the compound. However, at a minimum, the facility should be shielded
from public view by evergreen trees at least eight feet high at planting
and planted in staggered double rows 15 feet on center.
B. In locations where the visual impact of the tower
would be minimal, the landscaping requirement may be reduced at the
sole discretion of the Board.
C. Existing mature tree growth and natural landforms
on the site shall be preserved to the maximum extent possible. In
some cases, such as a tower sited on large, wooded lots, natural growth
around the property perimeter may be a sufficient buffer. The determination
of whether the existing tree growth and topography are sufficient
is at the sole direction of the Board.
All proposed wireless telecommunications facilities
shall be set back from abutting parcels, recorded rights-of-way and
road and street lines by a distance of twice the height of the tower.
A minimum lot size of four acres shall be required in the R-1 Zone.
Any accessory structure shall be located so as to comply with the
applicable minimum setback requirements identified above.
The extent and parameters of a special use permit
for wireless telecommunications facilities shall be as follows:
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 consent of the Board,
and such consent shall not be unreasonably withheld or delayed.
C. Such special use permit may, following a hearing upon
due prior notice to the applicant, be revoked, cancelled or terminated
for a violation of the conditions and provisions of the special use
permit for wireless telecommunications facilities, or for a material
violation of this chapter after prior written notice to the applicant
and the holder of the special use permit.
The applicant and the owner of record of any
proposed wireless telecommunications facilities property site shall,
at their cost and expense, 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 of at least $75,000, and which such sureties as are deemed
sufficient by the Board to assure the faithful performance of the
terms and conditions of this chapter and conditions of 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
wireless telecommunications facilities and any necessary site restoration
is completed. The failure to pay any annual premium for the renewal
of any such security shall be a violation of the provisions of the
special use permit and shall entitle the Board to revoke the special
use permit after prior written notice to the applicant and holder
of the permit and after a hearing upon due prior notice to the applicant
and holder of the special use permit.
The holder of the special use permit shall annually
certify in writing to the Town that NIER levels at the site are within
the threshold levels adopted by the FCC. The certifying engineer must
be licensed to practice engineering in the State of New York.
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 is solely on the applicant
to prove to the satisfaction of the Board. The applicant shall bear
all costs of the Board of 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. No such relief or exemption shall
be approved unless the applicant demonstrates by clear and convincing
evidence that, if granted, the relief or exemption will have no significant
effect on the health, safety and welfare of the Town, its residents
and other service providers, and the Board must determine the grant
of relief or exemption does not conflict with and/or violate the intent
of this chapter. Under no circumstances are the provisions for public
hearing contained in this chapter to be waived.