[Amended 2-13-2017 by L.L. No. 1-2017]
The Telecommunications Act of 1996 affirmed the Town of Brutus's
authority concerning the placement, construction and modification
of wireless telecommunications facilities. The Town of Brutus finds
that the improper siting, placement or construction of wireless telecommunications
facilities may pose significant concerns to the health, safety, public
welfare, character and environment of the Town 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 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 Brutus.
This chapter shall be known and cited as the
"Wireless Telecommunications Facilities Siting Law for the Town of
Brutus."
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 wireless service provider submitting an application for
a special permit for wireless telecommunications facilities.
APPLICATION
All necessary and appropriate documentation that an applicant
submits in order to receive a special permit for wireless telecommunications
facilities.
ANTENNA
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
BOARD
The Town of Brutus Zoning Board of Appeals.
COLLOCATION
The use of an existing tower or structure to support antennas
for the provision of wireless services.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
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 satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be commercially impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
COMPLETED APPLICATION
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
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.
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 or lightning
protection device.
MODIFICATION or MODIFY
The addition, removal or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernable
components, vehicular access, parking and/or an upgrade or changeout
of equipment for better or more modern equipment. Adding a new wireless
carrier or service provider to a telecommunications tower or telecommunications
site as a collocation is a modification. A modification shall not
include the replacement of any components of a wireless facility where
the replacement is identical to the component being replaced or for
any matters that involve the normal repair and maintenance of a wireless
facility without adding, removing or changing anything.
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.
REPAIRS AND MAINTENANCE
The replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or for any matters that involve the normal repair and maintenance
of a wireless facility without the addition, removal or change of
any of the physical or visually discernable components or aspects
of a wireless facility that will add to the visible appearance of
the facility as originally permitted.
SPECIAL PERMIT
The official document or permit by which an applicant is
allowed to file for a building permit to construct and use wireless
telecommunications facilities as granted or issued by the Town.
STEALTH or STEALTH TECHNOLOGY
To minimize adverse aesthetic and visual impacts on 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, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
STATE
The State of New York.
SUBSTANTIALLY CHANGE THE PHYSICAL DIMENSIONS[Added 2-13-2017 by L.L. No. 1-2017]
A.
Any change to a tower or base station that meets any of the
following criteria:
(1)
For towers outside of public rights-of-way, it increases the
height of the tower by more than 10%, or by the height of one additional
antenna array with separation from the nearest existing antenna not
to exceed 20 feet, whichever is greater; for those towers in the rights-of-way
and for all base stations, it increases the height of the tower or
base station by more than 10% or 10 feet, whichever is greater;
(2)
For towers outside of public rights-of-way, it protrudes from
the edge of the tower more than 20 feet or more than the width of
the tower structure at the level of the appurtenance, whichever is
greater; for those towers in the rights-of-way and for all base stations,
it protrudes from the edge of the structure more than six feet;
(3)
It involves installation of more than the standard number of
new equipment cabinets for the technology involved, but not to exceed
four cabinets;
(4)
It entails any excavation or deployment outside the current
site of the tower or base station;
(5)
It would defeat the existing concealment elements of the tower
or base station; or
(6)
It does not comply with conditions associated with the prior
approval of construction or modification of the tower or base station
unless the noncompliance is due to an increase in height, increase
in width, addition of cabinets, or new excavation that does not exceed
the thresholds identified above.
B.
For purposes of the above, changes in height resulting from
a modification should be measured from the original support structure
in cases where the deployments are or will be separated horizontally,
such as on buildings' rooftops; in other circumstances, changes
in height should be measured from the dimensions of the tower or base
station inclusive of originally approved appurtenances and any modifications
that were previously approved.
TELECOMMUNICATIONS
The transmission and/or 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
Temporary in relation to all aspects and components of this
chapter, something intended to, or that does, exist for fewer than
90 days.
TOWER
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
WIRELESS TELECOMMUNICATIONS FACILITIES
Means and includes a telecommunications site and personal
wireless facility. It means a structure, facility or location designed,
or intended to be used as, or used to support antennas or other transmitting
or receiving devices. This includes, without limit, towers of all
types and kinds and structures, including, but not limited to, buildings,
church steeples, silos, water towers, signs or other structures that
can be used as a support structure for antennas or the functional
equivalent of such. It further includes all related facilities and
equipment such as cabling, equipment shelters and other structures
associated with the site. It is a structure and facility intended
for transmitting and/or receiving radio, television, cellular, SMR,
paging, 911, personal communications services (PCS), commercial satellite
services, microwave services and any commercial wireless telecommunications
service not licensed by the FCC.
In order to ensure that the placement, construction,
and modification of wireless telecommunications facilities protect
the Town's health, safety, public welfare, environmental features,
the nature and character of the community and neighborhood and other
aspects of the quality of life specifically listed elsewhere in this
chapter, the Town hereby adopts an overall policy with respect to
a special permit for wireless telecommunications facilities for the
express purpose of achieving the following goals:
A. Requiring a special permit for any new, collocation
or modification of a wireless telecommunications facility.
B. Implementing an application process for a person(s)
seeking a special permit for wireless telecommunications facilities.
C. Establishing a policy for examining an application
for and issuing a special permit for wireless telecommunications facilities
that is both fair and consistent.
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, including but not limited to the use of stealth
technology, to minimize adverse aesthetic and visual impacts on 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, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
F. That in granting a special permit, the Town has found
that the facility shall be the most appropriate site as regards being
the least visually intrusive among those available in the Town.
The following shall be exempt from this chapter:
A. The Town's fire, police, department of transportation
or other public service facilities owned and operated by the local
government.
B. Any facilities expressly exempt from the Town's siting,
building and permitting authority.
C. Over-the-air reception devices including the reception
antennas for direct broadcast satellites (DBS), multichannel multipoint
distribution (wireless cable) providers (MMDS), television broadcast
stations (TVBS) and other customer-end antennas that receive and transmit
fixed wireless signals that are primarily used for reception.
D. Facilities exclusively for private, noncommercial
radio and television reception and private citizen's bands, licensed
amateur radio and other similar noncommercial telecommunications.
E. Facilities exclusively for providing unlicensed spread
spectrum technologies [such as IEEE 802.11a, b, g (Wi-Fi) and Bluetooth]
where the facility does not require a new tower.
[Amended 2-13-2017 by L.L. No. 1-2017]
A. The Town shall prefer locating wireless telecommunications facilities
on existing towers or other structures, without increasing the height,
over the construction of a new tower. The applicant shall submit a
comprehensive report inventorying existing towers and other suitable
structures within four miles of the location of any proposed new tower,
unless the applicant can show that some other distance is more reasonable
and demonstrate conclusively why an existing tower or other suitable
structure cannot be used.
B. An applicant intending to locate on an existing tower or other suitable
structure shall be required to document the intent of the existing
owner to permit its use by the applicant.
C. To the extent practicable, the primary function of such shared use
should be to provide service within the Town.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
that prevents unauthorized access. Specifically:
A. All antennas, towers and other supporting structures,
including guy anchor points and wires, shall be made inaccessible
to individuals and constructed or shielded in such a manner that they
cannot be climbed or collided with; and
B. Transmitters and telecommunications control points
shall be installed in such a manner 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 in order to provide
adequate notification to persons in the immediate area of the presence
of RF radiation or to control exposure to RF radiation within a given
area. A sign of the same size is also to be installed to contain the
name(s) of the owner(s) and operator(s) of the antenna(s) as well
as an emergency phone number(s). The sign shall be on the equipment
shelter or cabinet of the applicant and be visible from the access
point of the site and must identify the equipment owner of the shelter
or cabinet. On tower sites, an FCC registration sign, as applicable,
is also to be present. The signs shall not be lighted, unless applicable
law, rule or regulation requires lighting. No other signage, including
advertising, shall be permitted.
All proposed towers and any other proposed wireless
telecommunications facility structures shall be set back from abutting
parcels, recorded rights-of-way and road and street lines by the greater
of the following distances: a distance equal to the height of the
proposed tower or wireless telecommunications facility structure plus
10% of the height of the tower or structure, or the existing setback
requirement of the underlying zoning district, whichever is greater.
Any accessory structure shall be located so as to comply with the
applicable minimum setback requirements for the property on which
it is situated.
[Amended 2-13-2017 by L.L. No. 1-2017]
A. The Town may retain such consultants as it deems to be properly experienced,
qualified and necessary to assist the Town in reviewing and evaluating
any application for a wireless telecommunications facility received
pursuant to this chapter.
B. Applications for such facilities shall contain a deposit intended
to reimburse the Town for the reasonable anticipated costs of review
and evaluation by such consultants, in the amounts described below.
Such deposit is intended by the Town to bear a reasonable relation
to the average cost needed to undertake the review deemed necessary
pursuant to this chapter in order to protect the health and safety
of its citizens and the environment. That amount has been determined
based upon prior applications within the Town, and based upon communications
with consultants and other similarly situated municipalities. The
total cost of the review may vary based upon the scope and complexity
of the proposed project, the completeness of the application or certification
or any other information as may be needed to complete the necessary
review by the consultants.
C. Applications for new towers shall include an initial deposit in the
amount of $5,000.
D. Applications for modification of existing towers, including co-locations
of facilities onto existing towers, shall include an initial deposit
in the amount of $2,000.
E. The Town shall maintain a separate escrow account for all deposits
received pursuant to this section. The Town's consultants shall
invoice the Town for its services in reviewing the application, and
such invoices shall be paid out of the funds deposited into such accounts.
In the event that the consultant determines that the review has or
shall exceed the amount initially deposited into the escrow, the consultant
shall provide a justification to the Town with the reasons such review
shall exceed the amount of such escrow, including any unusual factors
requiring further review. The Town shall then determine in its reasonable
discretion whether additional review is required and, if so, the amount
of additional deposit that such additional review will require, and
it shall notify the applicant that an additional deposit to the escrow
fund is required, the reasons why the Town has determined that such
additional review is necessary, and the amount of additional funds
that must be deposited by the applicant. In such an event, further
funds must be deposited by the applicant before any further action
is taken on the application. Such justification by the consultant
and determination by the Town shall be required each time the escrow
account is nearing depletion and it is determined that additional
review is required by the consultant.
F. In the event that funds remain in the escrow account at the conclusion
of the review and invoicing by the Town's consultant, any remaining
balance shall be promptly refunded to the applicant.
G. The Town shall make every effort to communicate with its consultants
to ensure that the breadth and scope of the review by its consultants
is reasonable and necessary based upon the facts and circumstances
of each particular application.
H. The Town may reduce the amount of the initial deposit if it determines,
in its reasonable discretion following administration of an adequate
number of applications to make an informed determination, that the
average cost needed to undertake the necessary review is less than
the amount of the deposit required herein.
[Amended 2-13-2017 by L.L. No. 1-2017]
A. Prior to the approval of any application for a special permit for
new wireless telecommunications facilities, a public hearing shall
be held by the Town, notice of which shall be published in the official
newspaper of the Town no less than 10 calendar days prior to the scheduled
date of the public hearing. In order that the Town may notify nearby
landowners, the application shall contain the names and addresses
of all landowners whose property is located within 1,500 feet of any
property line of the lot or parcel on which the new wireless telecommunications
facilities are proposed to be located.
B. No public hearing shall be held for an application to co-locate or
modify an existing tower or other structure, provided that the application
will not substantially change the physical dimensions of such tower
or other structure as defined in this chapter.
C. The Town shall schedule the public hearing referred to in Subsection
A of this section once it finds the application is complete; the Town, at any stage prior to issuing a special permit, may require such additional information as it deems necessary.
[Amended 2-13-2017 by L.L. No. 1-2017]
A. Action on application for modification of an existing wireless tower
or base station including co-location.
(1) Within 30 days following receipt of an application from the applicant,
the Town shall provide written notice regarding the completeness of
such application.
(2) The Town may in its reasonable discretion require the applicant to
demonstrate that the application for modification including co-location
does not substantially change the physical dimensions of the existing
wireless tower or base station, that it meets any required concealment
elements of the existing tower or base stations, and/or that it complies
with conditions associated with any previous approval of construction
or modification of the existing tower or base station, unless the
noncompliance results from: an increase in height; an increase in
width; the addition of cabinets; or new excavation that does not exceed
the thresholds identified in this chapter.
(3) The Town may in its reasonable discretion require the applicant to
demonstrate that the application for co-location or modification conforms
to generally applicable building, structural, electrical, and safety
codes and to other laws codifying objective standards that are reasonably
related to health and safety.
(4) The Town shall take final action on the application within 60 days
from its receipt of a complete application unless extended by agreement
of the applicant. The application shall be deemed approved in the
event of any failure to act within the aforesaid time frame, following
written notification by the applicant that such time frame has passed.
(5) In taking final action, the Town shall approve any application that
does not substantially change the physical dimensions of the existing
wireless tower or base station as defined herein, provided that the
application conforms to generally applicable building, structural,
electrical, and safety codes and to other laws codifying objective
standards that are reasonably related to health and safety.
(6) In the event of denial of the application, the Town shall inform
the applicant of the basis for denial in writing.
(7) Following approval of an application for modification of an existing
wireless tower or base station including co-location, no further permits
or approvals from the Town shall be required except for applicable
building permits and certificates of compliance.
B. Action on all other applications pursuant to this chapter.
(1) The Town will undertake a review of an application pursuant to this
chapter in a timely fashion, consistent with its responsibilities,
and shall act within a reasonable period of time given the relative
complexity of the application and the circumstances, with due regard
for the public's interest and need to be involved, and the applicant's
desire for a timely resolution.
(2) The Town may refer any application or part thereof to any advisory
or other committee for a nonbinding recommendation.
(3) After the public hearing and after formally considering the application,
the Town may approve, approve with conditions, or deny a special permit.
Its decision shall be in writing and shall be supported by substantial
evidence contained in a written record. The burden of proof for the
granting of the permit shall always be upon the applicant.
(4) If the Town approves the special permit for wireless telecommunications
facilities, then the applicant shall be notified of such approval,
in writing, within 10 calendar days of the Town's action, and
the special permit shall be issued within 30 days after such approval.
Except for necessary building permits and subsequent certificates
of compliance, once a special permit has been granted hereunder, no
additional permits or approvals from the Town, such as site plan or
zoning approvals, shall be required by the Town for the wireless telecommunications
facilities covered by the special permit.
(5) If the Town denies the special permit for wireless telecommunications
facilities, then the applicant shall be notified of such denial in
writing within 10 calendar days of the Town's action.
The extent and parameters of a special permit
for wireless telecommunications facilities shall be as follows:
A. Such special permit shall not be assigned, transferred
or conveyed without the express prior written notification to the
Town.
B. Such special permit may, following a hearing upon
due prior notice to the applicant, be revoked, canceled, or terminated
for a violation of the conditions and provisions of the special permit,
or for a material violation of this chapter after prior written notice
to the holder of the special permit.
[Amended 2-13-2017 by L.L. No. 1-2017]
A. Together with submission of any application for a special permit,
all applicants shall pay a nonrefundable application fee in the following
amounts:
(1) For construction of new wireless telecommunications facilities: $2,500.
(2) For modification, including co-location of wireless telecommunications
facilities on existing towers or structures: $750.
B. Such application fee is intended as a regulatory measure to recoup
the costs associated with administration, including issuance, inspection
and enforcement of such special permit by the Town.
The applicant and the owner of record of any
proposed wireless telecommunications facilities property site shall,
at its 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 for a tower facility and $25,000 for a
collocation on an existing tower or other structure and with such
sureties as are deemed sufficient by the Town to assure the faithful
performance of the terms and conditions of this chapter and conditions
of any special 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 permit and/or until any necessary site restoration
is completed to restore the site to a condition comparable to that
which existed prior to the issuance of the original special permit.
In order to verify that the holder of a special
permit for wireless telecommunications facilities and any and all
lessees, renters, and/or licensees of wireless telecommunications
facilities place and construct such facilities, including towers and
antennas, in accordance with all applicable technical, safety, fire,
building, and zoning codes, laws, and regulations and other applicable
requirements, the Town may inspect all facets of said permit holder's,
renter's, lessee's or licensee's placement, construction, modification
and maintenance of such facilities, including, but not limited to,
towers, antennas and buildings or other structures constructed or
located on the permitted site.
If a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special permit, then the Town shall notify the holder of the special permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in §
122-25, and if a violation is not corrected to the satisfaction of the Town in a reasonable period of time the special permit is subject to revocation.
Any applicant desiring relief, waiver or exemption
from any aspect or requirement of this chapter may request such at
the preapplication meeting, provided that the relief or exemption
is contained in the submitted application for either a special permit
or, in the case of an existing or previously granted special permit,
a request for modification of its tower and/or facilities. Such relief
may be temporary or permanent, partial or complete. However, the burden
of proving the need for the requested relief, waiver or exemption
is solely on the applicant. The applicant shall bear all costs of
the Town in considering the request and the relief, waiver or exemption.
No such relief or exemption shall be approved unless the applicant
demonstrates by clear and convincing evidence that, if granted, the
relief, waiver or exemption will have no significant effect on the
health, safety and welfare of the Town, its residents and other service
providers.
Where this chapter differs or conflicts with
other laws, rules and regulations, unless the right to do so is preempted
or prohibited by the Town, state or federal government, this chapter
shall apply.
This chapter shall be effective immediately
upon passage, pursuant to applicable legal and procedural requirements.
This chapter is enacted pursuant to applicable
authority granted by the state and federal governments.