[HISTORY: Adopted by the Town Board of the Town of Forestburgh 2-7-2002 by L.L. No. 1-2002. Amendments noted where applicable.]
Zoning — See Ch. 180.
The purposes of this chapter shall be:
To establish clear standards for the siting of wireless communication facilities, buildings and structures, equipment, communication towers, antenna towers and monopoles.
To promote the health, safety, and general welfare of the residents of Forestburgh through the establishment of minimum standards to reduce the adverse visual effects of communication facilities, including but not limited to, transmission towers and antennas, through the use of advanced technology, careful design, siting, and screening and buffering.
To protect residential areas and land uses and property values from potential adverse impacts of towers and antennas.
To encourage the location of communication facilities and communication towers in areas suitably screened, buffered and adequately separated from residential uses.
To minimize the total number of communication facilities and communication towers throughout the community.
To encourage the joint use of new and existing communication tower sites as a primary option rather than construction of additional single-use communication towers while recognizing the collocation on higher towers is not always preferable to two less visible, less obtrusive shorter towers; thereby maximizing the use of existing communication towers or alternative antenna host sites, while not unreasonably limiting competition among communication providers or unreasonably limiting reception of receive-only antenna.
To require users of communication towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is shown to be minimal.
To require users of communication towers and antennas to configure them in a way that minimizes adverse visual, aesthetic and community character intrusion impacts caused by the installation and view of communication towers and antennas, through careful design, siting, landscape screening and buffering, sufficient setbacks to reduce visual impacts to adjacent properties, and innovative camouflaging techniques such as alternative tower structures, thereby protecting the physical appearance of the community and preserving its scenic and natural beauty. Open and scenic areas (as determined by the Town Board or the Planning Board) shall be preserved and tower and antenna siting shall be excluded.
To avoid potential damage to adjacent properties from communication towers through careful engineering and appropriate siting of communication towers.
To enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently by facilitating the siting of personal wireless communication facilities.
As used in this chapter, the following terms shall have the meanings indicated:
- ADEQUATE COVERAGE
- Coverage is considered to be adequate within the service area of the Town of Forestburgh if the minimum standards set forth by the Federal Communications Commission to permit the applicant to operate a personal wireless communication service within the area are met.
- ALTERNATIVE TOWER STRUCTURE
- Man-made trees, clock towers, bell steeples, light poles and similar alternative designs, including structures that camouflage or conceal the presence of antennas or towers.
- A system of electrical conductors that transmit or receive radio frequency waves. Such waves shall include but not be limited to radio navigation, radio, television, wireless and microwave communications.
- The siting and/or mounting of multiple communication facilities used by the same provider, or by two or more competing providers, on the same property and/or antenna support structure or a communication tower.
- MAJOR WIRELESS COMMUNICATIONS FACILITY
- Any wireless communications facility that is not a minor wireless communications facility, including but not limited to any facilities including any wireless communications towers, as hereinafter defined.
- MINOR WIRELESS COMMUNICATIONS FACILITIES
- Any wireless communications facility situated (1) on the same property as an existing wireless communications facility designed for collocation and previously approved under this chapter, or (2) on or in an existing building or other structure; and where the equipment consists of a combination of antennas, or other receiving device, necessary in number to facilitate the provision of wireless communication services from such location, provided that such minor installation: (1) comprises antennas, or transmitting and receiving devices which are no more than six feet in height, which are mounted on supports affixed to an existing structure, and (2) operates with all significant equipment accessory thereto (other than the aforementioned antennas and transmitting or receiving devices, supports and connecting cables), installed in interior space appurtenant to such existing building, tower, or structure, or located upon a structure the total combined height of which is less than 100 feet from the preconstruction average-finished grades.
- WIRELESS COMMUNICATIONS FACILITY
- Any site containing equipment used in connection with the commercial operation of wireless communications services, as defined herein, and as the term "personal wireless services facility" is defined in the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 332 (c)(7)(C), or as hereafter amended, to transmit and/or receive frequencies, including, but not limited to, antennas, monopoles, equipment, appurtenances and structures.
- WIRELESS COMMUNICATIONS SERVICES
- The provision of personal wireless communications services, including, but not limited to, those more commonly referred to as cellular telephone service, regulated by the Federal Communications Commission in accordance with the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 332 (c)(7)(C), or as hereafter amended.
- WIRELESS COMMUNICATIONS TOWERS
- Any freestanding structure, including lattice structures or framework and freestanding self-supported vertical pole (commonly known as "monopole") on which any equipment is located in connection with the provision of wireless communications services.
The Planning Board shall comply with the provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulations. An application for approval of a wireless communications facility proposed to be located in a residential zoning district shall constitute a Type 1 action.
No wireless communications facilities except those approved prior to the effective date of these regulations shall be used, located, constructed or maintained on any lot, structure or land area unless in conformity with these regulations. No wireless communications facilities may hereafter be erected, moved, reconstructed, changed or altered unless in conformity with these regulations. No existing structure shall be modified to serve as a wireless communications facility unless in conformity with these regulations.
All communication facilities shall at all times be in conformance with the rules and regulations of any governmental entity having jurisdiction over such communication facilities and uses, antenna and/or supporting structures and towers, including, without limitation, the FCC and FAA.
All communication facilities shall be operated and maintained by an FCC licensee only.
All communication facilities shall be shown to be necessary to provide coverage to an area of Town which currently lacks adequate coverage and that any related communication tower or antenna is proposed at the minimum height and aesthetic intrusion possible to provide adequate coverage. The applicant seeking to locate a communication facility in the Town of Forestburgh shall demonstrate the need for new or additional antennas or communication towers.
All communication facilities, if proposed for placement on a lot that is within or abuts a residential district, shall prove that adequate coverage cannot be achieved by siting the facility on a lot which is not or does not abut a residential district.
All communication facilities shall be constructed and maintained in conformance with all building, electrical, fire prevention and other applicable codes.
Approved zoning districts.
Major wireless communications facilities shall be a use permitted upon site plan approval in zoning districts which permit public utility facilities requiring site plan approval from the Planning Board in accordance with the provisions of the Zoning Law and this chapter.
If it can be demonstrated by the applicant that there is no site in the above referenced zoning districts which would provide coverage consistent with federal regulations, the Planning Board may determine that a major wireless communications facility may be permitted as a special permit use in another district in accordance with the Zoning Law and this chapter.
Conditions precedent to granting site plan or special permit approval.
A service coverage map and report shall be provided. The service coverage map shall show and describe all existing and proposed areas of service coverage relating to the proposed communications facility. The service coverage map shall locate all existing sites in the Town and in bordering communities which contain communications towers or related facilities. A detailed report shall accompany the service coverage map and shall indicate why the proposed communications tower, equipment and facility are necessary. The report shall identify locations within the proposed project site service coverage area which are not, and could not be, served by either existing facilities, by collocation, utilization of alternative technology or an alternative tower structure.
A long-range communications facilities plan shall be provided, evidencing that the proposed location of the communication facility and supporting buildings and equipment has been planned to result in the fewest number of communications transmission tower locations within the Town. The plan shall indicate how the applicant intends to provide service throughout the Town, and how the applicant plans to coordinate with all other providers of wireless communication services in the Town. The plan shall address the applicant's planned and possible location of additional tower sites, additional antennas, related service area coverage, and alternative long-range plan scenarios that illustrate potential effects of multiple towers and tower height, community intrusion impacts and visual and aesthetic impacts.
Documentation sufficient to demonstrate that the proposed communication tower height and bulk are the minimum height and bulk necessary to provide licensed communication services to locations within the Town which the applicant is not able to serve with existing facilities in the project site area shall be provided, including evidence that visual, aesthetic and community character intrusion impacts have been minimized to the greatest extent practicable.
Demonstration that shared use is impracticable. The Planning Board may issue a permit for a major wireless communications facility only when the applicant demonstrates that shared use of an existing structure or site is impractical. An applicant shall be required to present a report inventorying all existing structures within 1/2 mile of the proposed site which are at an elevation which tenders them potential sites. The report shall describe opportunities for shared use of these existing facilities as an alternative to a proposed new tower. The report shall demonstrate that the applicant used its best efforts to secure permission for shared use from the owner of each existing facility as well as documentation of the physical, technical and/or financial reasons why shared usage is not practical in each case. The applicant's written request and the property owner's written responses for shared use shall be provided.
Commitment for future shared use. New wireless communications towers shall be designed to accommodate future shared demand for reception and transmitting facilities. The applicant shall submit to the Town Board and Planning Board an irrevocable letter of intent committing the owner of the proposed new tower and its successors in interest, to permit shared uses of the proposed tower by other telecommunications providers in the future. This letter shall also be filed with the Building Inspector prior to issuance of a building permit. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the site plan approval following a hearing and opportunity to be heard. The letter shall commit the new tower owner and his successors in interest to the following:
To notify all carriers licensed to provide telecommunication services within the Town of its application and that it will entertain requests for collocation.
To respond within 90 days to a request for information from a potential shared-use application.
To use best efforts and negotiate in good faith concerning future requests for shared use of the tower by other telecommunications providers.
To allow shared use of the tower if another telecommunications provider agrees in writing to pay reasonable charges. The charge may include but is not limited to a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity and depreciation, and all of the costs of adapting the tower of equipment to accommodate a shared user without causing electromagnetic interference.
A written certification shall be submitted, prepared by a qualified engineer and/or health physicist which calculates the maximum amount of nonionizing electromagnetic radiation ("NIER") which will be emitted from the proposed wireless communications facility and demonstrates that any such emissions from the facility will be within the threshold levels adopted by the Federal Communications Commission, as of the day of application and as part of the certification required as part of § 176-8 of this chapter. The certification shall include a statement or explanation of how compliance was determined, and explanation as to what if any restrictions on access will be maintained to ensure compliance and a statement as to whether other significant transmitting sources are located at or near the transmitting site and, if so, whether their emissions were considered in determining compliance.
Siting on lands owned by the Town shall be permitted on any Town parcels, in the discretion of the Town Board.
Procedural. The following procedural information shall be required:
Visual impact assessment.
A view shed analysis in order to determine locations where the tower and appurtenant facilities may be visible.
Graphic representations of before and after views from key viewpoints located inside and outside of the Town, including but not limited to state highways and other major roads, state and local parks, other public lands, preserves and historic sites normally open to the public residential developments and from any other location where the site is visible to a large number of visitors or travelers.
Assessment of alternative tower designs and color schemes, as described in Subsection A(2), below.
Assessment of the visual impact of the tower base, guy wires, accessory buildings and overhead, utility lines from abutting properties and streets.
Tower design. A report regarding alternative tower designs which includes lattice and monopole structures and other designs to minimize visual impacts. The Board may request review of the tower design by a qualified engineer in order to evaluate the need for, and the design of, any new tower and potential alternatives. All designs to be considered shall be required to include, at a minimum, the following characteristics:
Towers shall be designed to accommodate future shared use by other wireless communications providers.
Unless specifically required by other regulations, a tower shall have a finish (either painted or unpainted) that minimizes its degree of visual impact.
No portion of any tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to company name, phone numbers, banners and streamers.
Any new tower shall be securely mounted to withstand damage from earthquakes and the wind and ice loads for the place of installation in accordance with the New York State Uniform Fire Prevention and Building Code.
The height of any new tower shall be the minimum height necessary, considering shared use, to meet the minimum requirements of the Federal Communications Commission for coverage of the service area encompassing the Town of Forestburgh.
Fully engineered site plan. A site plan showing, at a minimum, all existing roads, buildings, tower(s), guy wires and anchors, antennae, parking and landscaping, and shall include grading plans for new facilities and roads.
A report by a New York State licensed professional engineer specializing in electrical engineering with expertise in radio communication facilities and, if a monopole or tower is required or the electrical engineer is not qualified to certify the structural soundness of the installation, a New York State licensed professional engineer specializing in structural engineering. The report shall contain the following information:
Name(s) and address(es) of person(s) preparing the report;
Name(s) and address(es) of the property owner, operator and applicant;
Postal address and section, block and lot number of the property;
Zoning district in which the property is situated;
Approximate size of the property and the approximate location of all lot lines;
Approximate location of nearest residential structure;
Approximate location of nearest occupiable structure;
Approximate location of nearest day-care center, school, camp or recreational park;
Approximate location of all structures on the property which is the subject of the application;
Approximate location, size and height of all proposed and existing antennae and all appurtenant structures;
Type, size and location of all proposed and existing landscaping;
The number, type and design of the antenna(e) proposed and the basis for the calculations of capacity;
The make, model and manufacturer of the antenna(e);
A description of the proposed antenna(e) and all related fixtures, structures, appurtenances and apparatus, including height above grade, materials, color, grounding and lighting;
The frequency, modulation and class of service of radio equipment;
Transmission and maximum effective radiated power of the antenna(e);
Certification that the proposed antenna(e) will not cause interference with existing communication devices;
Elevation drawings depicting the front, side and rear of the property, illustrating the proposed antenna, mounting device and structure, if any, on which the antenna(e) is mounted;
A map depicting and listing all existing sites in the Town and bordering communities containing transmitting antenna(e) used by the operator, owner or applicant;
All applications, communications and permits submitted to and issued by the Federal Aviation Administration.
The Planning Board may, in a proper case, waive one or more of the forgoing requirements set forth in this section and may require additional reports or evidence that it deems necessary to ensure the health, safety and welfare of the community are adequately addressed.
Intermunicipal notification. In order to keep neighboring municipalities informed, and to facilitate the consideration of shared use of existing tall structures in a neighboring municipality, and to assist the continued development of communication for emergency services, the applicant shall provide the following additional notice of the application:
Notification in writing to the Municipal Clerk of any adjoining municipality within one mile of a proposed site or a greater distance if determined by the Board to be impacted by a proposed new telecommunication tower.
Notification in writing by certified mail of all landowners within 1,000 feet of the property line of the parcel on which a new tower is proposed.
Location, lot size and setbacks. Lot size and setbacks. Any proposed wireless communications tower and its accessory structures shall be located on a single parcel and shall comply with setback requirements as identified below.
Distance from public facilities. In order to protect the health safety and welfare of children who may be injured by falling ice or debris, all wireless communication towers shall be a distance of not less than 350 feet from the nearest property line of a school, day-care center, camp, public park or playground.
Lot size of major wireless communications facilities sites shall be determined by the amount of land required to meet the setback requirements. If the land is to be leased, the entire area required shall be leased from a single parcel.
Wireless communications towers shall be located with a minimum setback from any property line equal to the height of the tower in any zoning district, except, however, if the applicant can demonstrate that the fall zone for the structure can be safely accommodated on a smaller size parcel or with reduced setbacks to no less than the minimum bulk requirements in the underlying zoning district, the Planning Board shall have the discretion to reduce the size accordingly. The applicant must demonstrate that there is adequate protection to adjoining properties from the dangers of falling ice or debris through either an easement or other safeguards. The Planning Board shall make findings of fact justifying a reduction and shall impose such additional conditions that the Board may deem appropriate to protect the health, safety and welfare. Accessory structures shall comply with the minimum setback requirements in the underlying zoning district.
Additional setbacks may be required by the Planning Board to contain on-site substantially all ice fall or debris from tower failure and preserve the privacy of any adjoining residential and public properties.
Vegetative screening and fencing.
Landscaping. All communication facilities shall provide landscaping as follows:
All communications towers shall be located and designed to have the least possible adverse visual and aesthetic effect on the environment.
The area surrounding the installation, other than the area necessary to maintain a clear line of site to the signal source, shall be landscaped and maintained with trees, shrubs, and ground cover to maximize screening and visual buffering. An existing natural vegetative buffer which meets or exceeds the above requirements may be substituted or enhanced for said requirements.
Screening and buffering utilizing trees of a height and density established by the Planning Board that will, over time, reduce visual impacts resulting from the installation of said facility shall be provided.
The outside of security fencing shall be screened with evergreen shrubs, trees or climbing evergreen material on the fencing.
The base of any communication tower and any accessory structure shall be effectively screened using primarily vegetative screening, including a continuous evergreen screen planted in a natural setting and consisting of native plant species. Existing vegetation shall be preserved to the maximum extent practicable. Additional planting shall be required, as necessary, to screen and buffer all structures from nearby properties or important view sheds of scenic areas. All landscaping shall be properly maintained to ensure continued screening and buffering.
Security and safety fencing. Security and safety fencing shall be located around all communication towers, equipment and related facilities to restrict unauthorized access. Access to all structures shall be through a locked gate or principal building. Fencing shall be designed to minimize visual and aesthetic impacts and shall be equipped with appropriate anticlimbing devices. Failure to maintain said security and safety fencing in an appropriate manner shall be grounds for immediate revocation of all permits and certificates of use by the Building Inspector. In addition:
All communication towers, antenna towers or monopoles, and other supporting structures shall be made inaccessible to nonauthorized persons, particularly children, and shall be constructed or shielded in such a manner that they cannot be climbed.
All transmitter controls that could cause the transmitter to deviate from its authorized operating parameters shall be designed and installed in such a manner that they are readily accessible only to persons authorized by the licensee to operate or service them.
All transmitters used with in-building radiation systems shall be designed in such a manner that, in the event an unauthorized person does gain access, that person cannot cause the transmitter to deviate from its authorized operating parameters in such a way as to cause interference to other stations.
All transmitters (other than hand-carried or pack-carried mobile transmitters) and control points shall be equipped with a visual means of indicating when the control circuitry has been put in a condition that should cause the transmitter to radiate.
All transmitters shall be designed in such a manner that they can be turned off independently of any remote control circuits.
Coloring and marking. Unless otherwise required by the FAA or FCC, all communication facilities, including antenna and communication towers, shall be colored, camouflaged and/or shielded to blend with surrounding areas, provided such coloring, camouflage and/or shielding do not inhibit their effectiveness. The painting or marking of such facilities shall be a finish or coloring which will minimize visual and aesthetic impacts. Towers and all appendages shall generally have a galvanized finish and shall be painted gray or blue gray, or some other finish or color that is shown to be visually unobtrusive.
Signals and lights. No communication tower, antenna tower or monopole shall include any signals, lights or illumination unless required by the FAA or other applicable authority. The applicant shall provide evidence mandating any requirement for lighting. If lighting is required, said lighting shall be shown to cause the least disturbance to surrounding properties and views. Any lighting necessary for accessory structures or buildings shall be minimized and shall be properly shielded to prevent light emission and glare onto adjacent properties.
Signage. No signs, including advertising signs, shall be permitted on any antenna, communication tower, antenna tower or monopole, or antenna support structure, except as follows:
Signs specifically required by a federal, state or local agency.
Each site shall include a sign containing the name of the owner and operator of any antenna present, including an emergency phone number. In addition, any door having access to a roof-mounted antenna and all entrances to the fenced enclosure shall be similarly signed.
Any signage permitted above shall comply with the sign regulations of the Town Code.
Undergrounding of electrical power and noise suppression.
All electrical power supply to service the on-site buildings and appurtenances supporting the tower antenna operations shall be installed underground. Noise suppression shall be utilized in the structural design and construction of the tower support buildings and appurtenances.
Access and parking.
Access. Adequate emergency and service access shall be provided. Maximum use of existing roads, public or private, shall be made. Road construction shall, at all times, minimize ground disturbance and vegetation cutting to within the toe of the fill, the top of cuts, or no more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential.
Parking. Parking shall be provided on-site in an amount determined by the Board based upon recommendation from the applicant. No parking shall be located in any required front yard.
At all times, the shared use within existing tall structures (for example: multistory buildings, church steeples, farm silos, etc.) and upon existing approved towers shall be preferred to the construction of major wireless communications facilities, including new wireless communications towers and/or monopole. Minor wireless communications facilities are a permitted use in all zoning districts within the Town of Forestburgh.
Minor wireless communications facilities permitted upon issuing of a building permit only. An application to collocate a wireless communications facility upon an existing wireless communications facility designed for collocation and previously approved under this chapter may be approved by the Building Inspector by issuance of a building permit incorporating the regulatory requirements of this chapter.
Minor wireless communications facilities permitted upon site plan approval. An application for any other minor wireless communications facility shall be subject to site plan review by the Planning Board in accordance with the Zoning Law and this chapter. The Planning Board may require the applicant to submit any of the items required for submission in major wireless communication's facilities' applications as part of the site plan review process.
An application for site plan approval of a minor telecommunications facility shall include the following:
A completed site plan application form.
Consent from the owner of the existing facility to allow shared use.
A site plan. The site plan shall show all existing and proposed structures and improvements, including antennae, road, buildings, guy wires and anchors, parking and landscaping and shall include grading plans for new facilities and roads. Any methods used to conceal the modification to the existing facility shall be indicated on the site plan.
An engineer's report certifying that the proposed shared use will not diminish the structural integrity and safety of the existing structure, will not hamper existing emergency networks and explaining what modifications, if any, will be required in order to certify the above.
A copy of the applicant's Federal Communications Commission (FCC) license.
The Planning Board may waive any of the above requirements if it is demonstrated by the applicant that under the facts and circumstances the submission of such documentation would cause an unnecessary and undue hardship.
The Planning Board may add any other documentation, reports or evidence that it deems necessary to ensure the health, safety and welfare of the community is adequately addressed.
Any antenna, communication facility, communication tower, antenna tower or monopole, including any supporting structure and related appurtenances, or part thereof, that is not used for a period of six months in any twelve-month period, shall be removed and the site restored by, and at the expense of, the owner of the property or the operator of said facility.
An extension of an additional six months may be granted by the Building Inspector upon a written request, including proof as determined reasonable by the Building Inspector that the owner is actively engaged in the marketing of the property for sale or rent.
In the event the tower is not removed and the site restored as herein required, the Town, after notice and opportunity to be heard, may cause the same to be removed and the site restored at the expense of the property owner collectible in the same manner as a real property tax.
Operational certification. Within 45 days of initial operation or modification of a wireless communication facility, the owner or operator shall submit to the Building Inspector a written certification by a professional engineer that the operation facility is in compliance with with application submitted, any conditions imposed, and all other provisions of this chapter as a condition to continue operating past the forty-five-day period. The Town may confirm and periodically reconfirm compliance as necessary to insure that the provisions of this chapter, including NIER level thresholds, as set forth by the FCC are in compliance. The owner/operator of the facility shall supply all necessary documentation to permit the Town to make such a determination regarding compliance. If found not to be in compliance the facility shall cease operation until compliance is restored.
Reimbursement of review expenses. All costs and expenses incurred by the Planning Board in connection with its review and approval of an application for a wireless communication facility shall be reimbursed to the Town by the applicant prior to final approval.
The current operator of any communication facility or communication tower, antenna or monopole, existing at the time that these regulations take effect, shall be permitted to remain in operation, provided the operator submits proof within six months of the enactment of these regulations that a valid building permit was issued for the facility and that the facility complies with current emission standards as recommended by the FCC.
Any legal nonconforming communication facility or communication tower shall be permitted to remain until such time as said use and facility is altered, at which time the compliance herein shall be brought in.
Any facility for which emission and security compliance documentation is not received shall cease operation within six months of the enactment of these regulations and shall be immediately removed thereafter.