[HISTORY: Adopted by the Town Board of the
Town of Newburgh 10-27-1999 by L.L. No. 8-1999. Amendments noted where
applicable.]
The Telecommunications Act of 1996 affirmed
the Town of Newburgh's authority concerning the placement, construction
and modification of wireless telecommunications facilities. The Town
Board of the Town of Newburgh finds that wireless telecommunications
facilities may pose a unique hazard to the health, safety, public
welfare and environment of the Town of Newburgh 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 the 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 Newburgh.
This chapter shall be known and cited as the
"Wireless Telecommunications Facilities Siting Law for the Town of
Newburgh."
A.
If any word, phrase, sentence, part, section, subsection
or other portion of this chapter or any application thereof to any
person or circumstance is declared void, unconstitutional or invalid
for any reason, then such word, phrase, sentence, part, section, subsection
or other portion, or the proscribed application thereof, shall be
severable, and the remaining provisions of this chapter, and all applications
thereof, not having been declared void, unconstitutional or invalid,
shall remain in full force and effect.
B.
Any special use permit issued under this chapter shall
be comprehensive and not severable. If part of a permit is deemed
or ruled to be invalid or unenforceable in any material respect, by
a competent authority, or is overturned by a competent authority,
the permit shall be void in total.
For purposes of this chapter, and where not
inconsistent with the context of a particular section, the defined
terms, phrases, words, abbreviations and their derivations shall have
the meaning given in this section. When not inconsistent with the
context, words in the present tense include the future tense, words
used in the plural number include words in the singular number and
words in the singular number include the plural number. The word "shall"
is always mandatory, and not merely directory.
An accessory facility or structure serving or being used
in conjunction with 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.
Any person submitting an application to the Town of Newburgh
for a special use permit for wireless telecommunications facilities.
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.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency signals. Such waves shall
include but not be limited to radio, television, cellular, paging,
personal telecommunications services (PCS) and microwave telecommunications.
The Planning Board of the Town of Newburgh.
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.
The meaning in this chapter and any special use permit granted
hereunder as is defined and applied under the New York Uniform Commercial
Code (UCC).
An application that contains all information and/or data
necessary to enable the Board to evaluate the merits of the application
and to make an informed decision with respect to the effect and impact
of wireless telecommunications facilities on the Town in the context
of the permitted land use for the particular location requested.
Only programming transmitted or broadcast by satellite directly
to subscribers, premises without the use of ground receiving equipment,
except at the subscribers' premises or in the uplink process to the
satellite.
The environmental assessment form approved by the New York
Department of Environmental Conservation (Appendix A to 6NYCRR 617.20)
and includes a visual EAF addendum (Appendix B).
State and/or Federal Environmental Protection Agency, or
its duly assigned successor agency.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
A tower that is not supported by guy wires and ground anchors
or other means of attached or external support.
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
See "wireless telecommunications facilities."
The same meaning as defined and used in the 1996 Telecommunications
Act.
See "wireless telecommunications facilities."
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.
The State of New York.
The transmission and reception of audio, video, data and
other information by wire, radio frequency, light and other electronic
or electromagnetic systems.
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
In relation to all aspects and components of this chapter,
something intended to, or that does, exist for fewer than 90 days.
The Town of Newburgh, New York.
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 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.
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 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.
A.
All applicants for a special use permit for wireless
telecommunications facilities, or any modification of such facility,
shall comply with the requirements set forth in this section. The
Board is the officially designated agency or body of the community
to whom applications for a special use permit for wireless telecommunications
facilities must be made, and that is authorized to review, analyze,
evaluate and make decisions with respect to granting or not granting,
recertifying or not recertifying, or revoking special use permits
for wireless telecommunications facilities. The Board may at its discretion
delegate or designate other official agencies of the Town to accept,
review, analyze, evaluate and make recommendations to the Board with
respect to the granting or not granting, recertifying or not recertifying
or revoking special use permits for wireless telecommunications facilities.
B.
An application for a special use permit for wireless
telecommunications facilities shall be signed on behalf of the applicant
by the person preparing the same and with knowledge of the contents
and representations made therein and attesting to the truth and completeness
of the information. The landowner, if different than the applicant,
shall also sign the application. At the discretion of the Board, any
false or misleading statement in the application may subject the applicant
to denial of the application without further consideration or opportunity
for correction.
C.
Applications not meeting the requirements stated herein,
or which are otherwise incomplete, may be rejected by the Board.
D.
The applicant shall include a statement in writing
that:
(1)
The applicant's proposed wireless telecommunications
facilities shall be maintained in a safe manner and in compliance
with all conditions of the special use permit, without exception,
unless specifically granted relief by the Board in writing, as well
as all applicable and permissible local codes, ordinances and regulations,
including any and all applicable county, state and federal laws, rules
and regulations.
(2)
The construction of the wireless telecommunications
facilities is legally permissible, including but not limited to the
fact that the applicant is authorized to do business in New York State.
E.
No wireless telecommunications facilities shall be
installed or constructed until the site plan is reviewed and approved
by the Board and the special use permit has been issued.
F.
All applications for the construction or installation
of new wireless telecommunications facilities shall be accompanied
by a report containing the information hereinafter set forth. The
report shall be signed by a licensed professional engineer registered
in the state. Where this section calls for certification, such certification
shall be by a qualified New York State licensed professional engineer,
unless otherwise noted. The application shall include, in addition
to the other requirements for the special use permit, the following
information:
(1)
Documentation that demonstrates the need for the wireless
telecommunications facility to provide service primarily within the
Town.
(2)
Name, address and phone number of the person preparing
the report.
(3)
Name, address and phone number of the property owner,
operator and applicant, to include the legal form of the applicant.
(4)
Postal address and Tax Map parcel number of the property.
(5)
Zoning district or designation in which the property
is situated.
(6)
Size of the property stated both in square feet and
lot line dimensions, and a diagram showing the location of all lot
lines.
(7)
Location of nearest residential structure.
(8)
Location of nearest habitable structure.
(9)
Location, size and height of all structures on the
property which is the subject of the application.
(10)
Location, size and height of all proposed and existing
antennas and all appurtenant structures.
(11)
Type, locations and dimensions of all proposed and
existing landscaping and fencing.
(12)
The number, type and design of the telecommunications
tower(s) antenna(s) proposed and the basis for the calculations of
the telecommunications tower's capacity to accommodate multiple users.
(13)
The make, model and manufacturer of the tower and
antenna(s).
(14)
A description of the proposed tower and antenna(s)
and all related fixtures, structures, appurtenances and apparatus,
including height above preexisting grade, materials, color and lighting.
(15)
The frequency, modulation and class of service of
radio or other transmitting equipment.
(16)
Transmission and maximum effective radiated power
of the antenna(s).
(17)
Direction of maximum lobes and associated radiation
of the antenna(s).
(18)
Applicant's proposed tower maintenance and inspection
procedures and related system of records.
(19)
Certification that NIER levels at the proposed site
are within the threshold levels adopted by the FCC.
(20)
Certification that the proposed antenna(s) will not
cause interference with existing telecommunications devices, though
the certifying engineer need not be approved by the Town.
(21)
A copy of the FCC license applicable for the use of
wireless telecommunications facilities.
(22)
Certification that a topographic and geomorphologic
study and analysis has been conducted, and that taking into account
the subsurface and substrata, and the proposed drainage plan, that
the site is adequate to assure the stability of the proposed wireless
telecommunications facilities on the proposed site, though the certifying
engineer need not be approved by the Town.
(23)
Propagation studies of the proposed site and all adjoining
proposed, in-service or existing sites.
(24)
Applicant shall disclose in writing any agreement
in existence prior to submission of the application that would limit
or preclude the ability of the applicant to share any new telecommunications
tower that it constructs.
G.
In the case of a new telecommunications tower, the
applicant shall be required to submit a written report demonstrating
its efforts to secure municipal use or shared use of existing telecommunications
tower(s) or use of existing buildings or other structures within the
Town. Copies of written requests and responses for shared use shall
be provided to the Board.
H.
The applicant shall furnish written certification
that the telecommunications facility, foundation and attachments are
designed and will be constructed (as-built) to meet all local, county,
state and federal structural requirements for loads, including wind
and ice loads. If the wireless facility is subsequently approved and
constructed, similar as-built certification indicating that the facility
has been constructed in accordance with all standards shall be furnished
prior to the Town issuance of any certificate of occupancy or compliance.
I.
After construction and prior to receiving a certificate
of compliance, the applicant shall furnish written certification that
the wireless telecommunications facilities are grounded and bonded
so as to protect persons and property and installed with appropriate
surge protectors.
J.
The applicant shall submit a completed long form EAF
and a completed visual EAF addendum. Based on the results of the visual
EAF addendum, the Board may require submission of a more detailed
visual analysis. The scope of the required environmental and visual
assessment will be reviewed at the preapplication meeting.
K.
The applicant shall furnish a visual impact assessment
which shall include:
(1)
A Zone of Visibility Map which shall be provided in
order to determine locations where the tower may be seen.
(2)
Pictorial representations of "before" and "after"
views from key viewpoints both inside and outside of the Town, including
but not limited to state highways and other major roads; state and
local parks; other public lands; historic districts; preserves and
historic sites normally open to the public; and from any other location
where the site is visible to a large number of visitors, travelers
or residents. The Board, acting in consultation with its consultants
or experts, will provide guidance concerning the appropriate key sites
at a preapplication meeting.
(3)
An assessment of the impact of the tower base, guy
wires and accessory buildings from abutting and adjacent properties
and streets.
L.
Any and all representations made by the applicant
to the Board, on the record, during the application process, whether
written or verbal, shall be deemed a part of the application and may
be relied upon in good faith by the Board.
M.
The applicant shall, in a manner approved by the Board,
demonstrate and provide in writing and/or by drawing how it shall
effectively screen from view its proposed wireless telecommunications
facilities base and all related facilities and structures.
N.
All utilities at a wireless telecommunications facilities
site shall be installed underground and in compliance with all laws,
rules and regulations of the Town, including specifically, but not
limited to, the National Electrical Safety Code and the National Electrical
Code where appropriate. The Board may waive or vary the requirements
of underground installation of utilities whenever, in the opinion
of the Board, such variance or waiver shall not be detrimental to
the health, safety, general welfare and environment, including the
visual and scenic characteristics of the area.
O.
All wireless telecommunications facilities shall contain
a demonstration that the facility be sited so as to have the least
adverse visual effect on the environment and its character, on existing
vegetation and on the residences in the area of the wireless telecommunications
facilities sites.
P.
Both the wireless telecommunications facility and
any and all accessory or associated facilities shall maximize use
of building materials, colors and textures designed to blend with
the structure to which it may be affixed and/or to harmonize with
the natural surroundings.
Q.
At a telecommunications site, an access road and parking
shall be provided to assure adequate emergency and service access.
Maximum use of existing roads, whether public or private, shall be
made to the extent practicable. Road construction shall at all times
minimize ground disturbance and vegetation-cutting. Road grades shall
closely follow natural contours to assure minimal visual disturbance
and reduce soil erosion.
R.
A person who holds a special use permit for wireless
telecommunications facilities shall construct, operate, maintain,
repair, provide for removal of, modify or restore the permitted wireless
telecommunications facilities in strict compliance with all current
applicable technical, safety and safety-related codes adopted by the
Town, county, state or United States, including but not limited to
the most recent editions of the National Electrical Safety Code and
the National Electrical Code, as well as accepted and responsible
workmanlike industry practices and recommended practices of the National
Association of Tower Erectors. The codes referred to are codes that
include, but are not limited to, construction, building, electrical,
fire, safety, health and land use codes. In the event of a conflict
between or among any of the preceding, the more stringent shall apply.
S.
A holder of a special use permit granted under this
chapter shall obtain, at its own expense, all permits and licenses
required by applicable law, rule, regulation or code and must maintain
the same, in full force and effect, for as long as required by the
Town or other governmental entity or agency having jurisdiction over
the applicant.
T.
With respect to this application process, the Board
intends to be the lead agency, pursuant to SEQRA. The Board shall
conduct an environmental review of the proposed project in combination
with its review of the application under this chapter.
U.
An applicant shall submit to the Clerk of the Board
the number of completed applications determined to be needed at the
preapplication meeting. A notification of the application shall be
provided to the legislative body of all adjacent municipalities and
to the County Planning Department, if determined to be necessary,
based upon the proposed location of the structure. Within 10 business
days following the applicant's first appearance before the Planning
Board, the applicant shall forward a letter prepared by the Planning
Board or an authorized agent of the Planning Board to all property
owners within 500 feet of the land involved in the application, or
such additional distance as the Planning Board may deem advisable,
as the names of such owners appear on the last completed assessment
roll of the Town, notifying the property owners of the receipt of
the plat and application, by first-class mail. The list of property
owners shall be obtained by the applicant from the Town's Assessor.
The applicant shall thereafter submit a duly executed, notarized affidavit
of mailing to the Planning Board. Further appearances before the Planning
Board shall be prohibited until an affidavit meeting the requirements
has been delivered. In the event a modification to an application
proposes an increase in height of more than 10%, then a supplementary
letter shall be required to be forwarded in the same manner advising
of the modification.
[Amended 4-1-2013 by L.L. No. 2-2013]
V.
The applicant shall examine the feasibility of designing
a proposed telecommunications tower to accommodate future demand for
at least two additional commercial applications, for example, future
collocations. The scope of this examination shall be determined by
the Board. The telecommu-nications tower shall be structurally designed
to accommodate at least two additional antenna arrays equal to those
of the applicant and located as close to the applicant's antenna as
possible without causing interference. This requirement may be waived,
provided that the applicant, in writing, demonstrates that the provisions
of future shared usage of the telecommunications tower is not technologically
feasible, 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 telecommunications facilities
site and structure proposed.
(3)
The number of existing and potential licenses without
wireless telecommunications facilities spaces/sites.
(4)
Available space on existing and approved telecommunications
towers.
W.
The applicant shall submit to the Board a letter of
intent committing the owner of the proposed new tower, and his/her
successors in interest, to negotiate in good faith for shared use
of the proposed tower by other telecommunications providers in the
future. This letter shall be filed with the Board. Failure to abide
by the conditions outlined in the letter may be grounds for revocation
of the special use permit. The letter shall commit the new tower owner
and their successors in interest to:
(1)
Respond within 60 days to a request for information
from a potential shared-use applicant.
(2)
Negotiate in good faith concerning future requests
for shared use of the new tower by other telecommunications providers.
(3)
Allow shared use of the new tower if another telecommunications
provider agrees, in writing, to pay reasonable charges. The charges
may include, but are 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,
less depreciation, and all of the costs of adapting the tower or equipment
to accommodate a shared user without causing electromagnetic interference.
X.
Unless waived by the Board, there shall be a preapplication
meeting. The purpose of the preapplication meeting will be to address
issues which will help to expedite the review and permitting process.
A preapplication meeting may also include a site visit if requested
by the Board. Where the application is for the shared use of an existing
telecommunications tower(s) or other high structure, the applicant
should seek to waive any section or subsection of this chapter that
may not be required. At the preapplication meeting, the waiver requests,
if appropriate, will be reviewed by the Board. Costs of the Board's
consultants to prepare for, and attend, the preapplication meeting
will be borne by the applicant.
Y.
The holder of a special use permit shall notify the
Board of any intended modification of a wireless telecommunications
facilities and shall apply to the Board to modify, relocate or rebuild
a wireless telecommunications facility.
Z.
In order to better inform the public, in the case
of a new proposed telecommunications tower, the applicant shall, prior
to the public hearing on the application, hold a "balloon test" as
follows: The applicant shall arrange to fly, or raise upon a temporary
mast, a minimum of a three-foot diameter brightly colored balloon
at the maximum height of the proposed new tower. The dates, (including
a second date in case of poor visibility on the initial date) times
and location of this balloon test shall be advertised twice by the
applicant, seven and 14 days in advance of the test date, in one of
the official newspapers in the Town. The applicant shall inform the
Board, in writing, of the dates and times of the test at least 14
days in advance. The balloon shall be flown for at least eight consecutive
hours sometime between 7:00 a.m. and 4:00 p.m. of the dates chosen.
The primary date shall be on a weekend, but the second date, in case
of poor visibility on the initial date, may be on a weekday.
AA.
The applicant will provide a written copy of an analysis,
completed by a qualified individual or organization, to determine
if the telecommunications tower or existing structure intended to
support wireless facilities requires lighting under Federal Aviation
Regulation Part 77. This requirement shall be for any new tower or
for an existing structure or building where the application increases
the height of the structure or building. If this analysis determines
that the FAA must be contacted, then all filings with the FAA, all
responses from the FAA and any related correspondence shall be provided
in a timely manner.
A.
Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities
in accordance with the following priorities, one being the highest
priority and five being the lowest priority.
B.
If the proposed property site is not the highest priority
listed above, then a detailed explanation must be provided as to why
a site of a higher priority was not selected. The person seeking such
an exception must satisfactorily demonstrate the reason or reasons
why such a permit should be granted for the proposed site and the
hardship that would be incurred by the applicant if the permit were
not granted for the proposed site.
C.
An applicant may not bypass sites of higher priority
by stating the site presented is the only site leased or selected.
An application shall address collocation as an option and, if such
option is not proposed, the applicant must explain why collocation
is commercially or otherwise impracticable. Agreements between providers
limiting or prohibiting collocation shall not be a valid basis for
any claim of commercial impracticability or hardship.
D.
Notwithstanding the above, the Board may approve any
site located within an area in the above list of priorities, provided
that the Board finds that the proposed site is in the best interest
of the health, safety and welfare of the Town and its inhabitants.
E.
The applicant shall submit a report demonstrating
the applicant's review of the above locations in order of priority,
demonstrating the technological reason for the site selection. If
the site selected is not the highest priority, then a detailed written
explanation as to why sites of a higher priority were not selected
shall be included with the application.
F.
The applicant shall, in writing, identify and disclose
the number and locations of any additional sites that the applicant
has been, is or will be considering, reviewing or planning for wireless
telecommunications facilities in the Town, and all municipalities
adjoining the Town, for a two-year period following the date of the
application.
G.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the
Board may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and
requirements.
(2)
Conflict with traffic needs or traffic laws, or definitive
plans for changes in traffic flow or traffic laws.
(3)
Conflict with the historic nature of a neighborhood
or historical district.
(4)
The use or construction of wireless telecommunications
facilities which is contrary to an already stated purpose of a specific
zoning or land use designation.
(5)
The placement and location of wireless telecommunications
facilities which would create an unacceptable risk, or the probability
of such, to residents, the public, employees and agents of the Town,
or employees of the service provider or other service providers.
(6)
Conflicts with the provisions of this chapter.
A.
Shared use of existing wireless telecommunications facilities shall be preferred by the Town as opposed to the proposed construction of a new telecommunications tower. Where shared use is unavailable, location of antennas on other preexisting structures shall be considered and preferred. The applicant shall submit a comprehensive report inventorying existing towers, municipal facilities, such as water towers, and other appropriate structures within four miles of any proposed new tower site and identifying their priority as described in § 168-7A above, unless the applicant can show that some other distance is more reasonable, and outlining opportunities for shared use of existing facilities and the use of other preexisting structures as a preferred alternative to new construction.
B.
An applicant intending to share use of an existing
telecommunications tower or other structure shall be required to document
the intent of the existing owner to share use. In the event that an
application to share the use of an existing telecommunications tower
does not increase the height of the telecommunications tower, the
Board shall waive such requirements of the application required by
this chapter as may be for good cause shown.
C.
Such shared use shall consist only of the minimum
antenna array technologically required to provide service within the
Town, to the extent practicable, unless good cause is shown.
A.
The applicant must submit documentation justifying
to the Board the total height of any telecommunications tower, facility
and/or antenna and the basis therefor. Such justification shall be
to provide service within the Town, to the extent practicable, unless
good cause is shown.
B.
Telecommunications towers shall be no higher than
the minimum height necessary.
C.
The maximum height of any telecommunications tower
and attached antennas constructed after the effective date of this
chapter shall not exceed that which shall permit operation without
artificial lighting of any kind, in accordance with municipal, county,
state, and/or any federal statute, law, local law, Town ordinance,
code, rule or regulation.
A.
Wireless telecommunications facilities shall not be
artificially lighted or marked, except as required by law.
B.
Telecommunications towers shall be of a galvanized
finish or painted with a rust-preventive paint of an appropriate color
to harmonize with the surroundings as approved by the Board and shall
be maintained in accordance with the requirements of this chapter.
C.
If lighting is required, the applicant shall provide
a detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations and
an artist's rendering or other visual representation showing the effect
of light emanating from the site on neighboring habitable structures
within 300 feet of all property lines of the parcel on which the wireless
telecommunications facilities are located.
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.
All proposed wireless telecommunications facilities
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 wireless telecommunications facility
or the existing setback requirements of the underlying zoning district,
whichever are 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.
A.
The Board may hire any consultant and/or expert necessary
to assist the Board in reviewing and evaluating the application and
any requests for recertification.
B.
An applicant shall deposit with the Town funds sufficient
to reimburse the Board for all reasonable costs of consultant and
expert evaluation provided to the Board in connection with the review
of any application. The initial deposit shall be $7,500. These funds
shall accompany the filing of an application and the Town will maintain
a separate escrow account for all such funds. The Town's consultants/experts
shall bill or invoice the Town no more frequently than monthly for
its services in reviewing the application and performing its duties.
If at any time during the review process this escrow account has a
balance less than $2,500, the applicant shall immediately, upon notification
by the Town, replenish said escrow account so it has a balance of
at least $5,000. Such additional escrow funds shall be deposited with
the Town before any further action or consideration is taken on the
application. In the event the amount held in escrow by the Town is
more than the amount of the billing or invoicing at the conclusion
of the review process, the difference shall be promptly refunded to
the applicant.
C.
The total amount of the fends set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed by the Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as reasonably required and requested by the Town, shall be paid by the applicant.
A.
No person shall be permitted to site, place, build,
construct or modify, or prepare any site for the placement or use
of, wireless telecommunications facilities as of the effective date
of this chapter without having first obtained a special use permit
for wireless telecommunications facilities. Notwithstanding anything
to the contrary in this section, no special use permit shall be required
for those exceptions noted in the definition of wireless telecommunications
facilities.
B.
New construction on existing wireless telecommunications
facilities shall comply with the requirements of this chapter.
C.
All wireless telecommunications facilities existing
on or before the effective date of this chapter shall be allowed to
continue as they presently exist; provided, however, that any modification
to wireless telecommunications facilities must comply with this chapter.
[Amended 4-1-2013 by L.L. No. 2-2013]
A.
Prior to the approval of any application for a special use permit for wireless telecommunications facilities, a public hearing shall be held by the Board, 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 nearby landowners are provided notice of the hearing, the applicant, at least three weeks prior to the date of said public hearing, shall be required to provide names and address of all landowners whose property is located within 500 feet of any property line of the lot on which the new wireless telecommunications facilities are proposed to be located, or such additional distance as the Planning Board may deem advisable. The list of property owners shall be obtained by the applicant from the Town's Assessor. In addition to publication, the notice shall be subject to the same mailing and posting requirements established for hearings by the Zoning Board of Appeals in § 185-55 of Chapter 185.
A.
The Board will undertake a review of an application
pursuant to this chapter in a timely fashion, consistent with its
responsibilities with SEQRA, and shall act within a reasonable period
of time given the relative complexity of the application and the circumstances,
with due regard for the public's interest and need to be involved,
and the applicant's desire for a timely resolution.
B.
The Board may refer any application or part thereof
to any other agency or committee for comments and nonbinding recommendations.
C.
After the public hearing and after formally considering
the application, the Board may approve and issue, or deny, a special
use permit. Its decision shall be in writing and shall be supported
by substantial evidence contained in a written record. The burden
of proof for the grant of the permit shall always be upon the applicant.
D.
If the Board approves the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such approval in writing within 10 calendar days of the Board's
action, and the special use permit shall be issued within 30 days
after such approval. Except for necessary building permits, and subsequent
certificates of compliance, once a special use permit has been granted
hereunder, no additional permits or approvals from the Town or Board,
such as site plan or zoning approvals, shall be required by the Town
or Board for the wireless telecommunications facilities covered by
the special use permit.
E.
If the Board denies the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such denial in writing within 10 calendar days of the Board's action,
and the applicant may seek review of the denial via the commencement
of an Article 78 proceeding under the Civil Practice Law and Rules
of the State of New York.
A.
At any time between 12 months and six months prior
to the five-year anniversary date after the effective date of the
special use permit and all subsequent fifth anniversaries of the effective
date of the original special use permit for wireless telecommunications
facilities, the holder of a special use permit for such wireless telecommunications
facilities shall submit a signed written request to the Board for
recertification. In the written request for recertification, the holder
of such special use permit shall note the following:
(1)
The name of the holder of the special use permit for
the wireless telecommunications facilities.
(2)
If applicable, the number or title of the special
use permit.
(3)
The date of the original granting of the special use
permit.
(4)
Whether the wireless telecommunications facilities
have been moved, relocated, rebuilt or otherwise modified since the
issuance of the special use permit and, if so, in what manner.
(5)
If the wireless telecommunications facilities have
been moved, relocated, rebuilt or otherwise modified, then whether
the Board approved such action, and under what terms and conditions,
and whether those terms and conditions were complied with.
(6)
Any requests for waivers or relief of any kind whatsoever
from the requirements of this chapter and any requirements for a special
use permit.
(7)
That the wireless telecommunications facilities are
in compliance with the special use permit and in compliance with all
applicable codes, laws, rules and regulations.
(8)
Recertification the telecommunications tower and attachments
both are designed and constructed (as-built) and continue to meet
all local, county, state and federal structural requirements for loads,
including wind and ice loads. Such recertification shall be by a qualified
New York State licensed professional engineer acceptable to the Town,
the cost of which shall be borne by the applicant.
B.
If, after such review, the Board determines the permitted
wireless telecommunications facilities are in compliance with the
special use permit and all applicable statutes, laws, local laws,
ordinances, codes, rules and regulations, then the Board shall issue
a recertification special use permit for the wireless telecommunications
facilities, which may include any new provisions or conditions that
are mutually agreed upon or required by applicable statutes, laws,
local laws, ordinances, codes, rules and regulations. If, after such
review, the Board determines that the permitted wireless telecommunications
facilities are not in compliance with the special use permit and all
applicable statutes, local laws, ordinances, codes, rules and regulations,
then the Board may refuse to issue a recertification special use permit
for the wireless telecommunications facilities, and, in such event,
such wireless telecommunications facilities shall not be used after
the date that the applicant receives written notice of such decision
by the Board. Any such decision shall be in writing and supported
by substantial evidence contained in a written record.
C.
If the applicant has submitted all of the information requested by the Board and required by this chapter, and if the Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months in order for the Board to complete its review.
D.
If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the time frame noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
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, canceled 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.
A.
At the time that a person submits an application for
a special use permit for a new telecommunications tower, such person
shall pay a nonrefundable application fee of $5,000 to the Town. If
the application is for a special use permit for collocating on an
existing telecommunications tower or high structure, where no increase
in height of the tower or structure is required, the application fee
shall be $2,000.
B.
No application fee is required in order to recertify special use permit for wireless telecommunications facilities, unless there has been a modification of the wireless telecommunications facilities since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the application fees provided in Subsection A shall apply.
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 and with 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.
A.
In order to verify that the holder of a special use
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, ordinances 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.
B.
The Town shall pay for costs associated with such
an inspection, except for those circumstances occasioned by said holder's,
lessee's or licensee's refusal to provide necessary information, or
necessary access to such facilities, including towers, antennas and
appurtenant or associated facilities, or refusal to otherwise cooperate
with the Town with respect to an inspection, or if violations of this
chapter are found to exist, in which case, the holder, lessee or licensee
shall reimburse the Town for the cost of the inspection.
C.
Payment of such costs shall be made to the Town within
30 days from the date of the invoice or other demand for reimbursement.
In the event that the finding(s) of violation is/are appealed in accordance
with the procedures set forth in this chapter, said reimbursement
payment must still be paid to the Town and the reimbursement shall
be placed in an escrow account established by the Town specifically
for this purpose, pending the final decision on appeal.
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.
A.
A holder of a special use permit for wireless telecommunications
facilities shall secure and at all times public liability insurance
for personal injuries, death and property damage, and umbrella insurance
coverage for the duration of the special use permit in amounts as
set forth below:
B.
The commercial general liability insurance policy
shall specifically include the Town as additional named insureds.
C.
The insurance policies shall be issued by an agent
or representative of an insurance company licensed to do business
in the state and with a Best's rating of at least A.
D.
The insurance policies shall contain an endorsement
obligating the insurance company to furnish the Town with at least
30 days' prior written notice in advance of the cancellation of the
insurance.
E.
Renewal or replacement policies or certificates shall
be delivered to the Town at least 15 days before the expiration of
the insurance which such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications
facilities is initiated, but in no case later than 15 days after the
grant of the special use permit, the holder of the special use permit
shall deliver to the Town a copy of each of the policies or certificates
representing the insurance in the required amounts.
A.
Any application for wireless telecommunications facilities
that is proposed for Town property, pursuant to this chapter, shall
contain a provision with respect to indemnification. Such provision
shall require the applicant, to the extent permitted by the law, to
at all times defend, indemnify, protect, save, hold harmless and exempt
the Town and its officers, boards, employees, committee members, attorneys,
agents and consultants from any and all penalties, damages, costs
or charges arising out of any and all claims, suits, demands, causes
of action or award of damages, whether compensatory or punitive, or
expenses arising therefrom, either at law or in equity, which might
arise out of, or are caused by, the placement, construction, erection,
modification, location, products performance, use, operation, maintenance,
repair, installation, replacement, removal or restoration of said
wireless telecommunications facilities. With respect to the penalties,
damages or charges referenced herein, reasonable attorneys' fees,
consultants' fees and expert witness fees are included in those costs
that are recoverable by the Town.
A.
In the event of a violation of this chapter or any
special use permit issued pursuant to this chapter, the Board may
impose and collect, and the holder of the special use permit for wireless
telecommunications facilities shall pay to the Town, fines or penalties
as set forth below.
B.
A violation of this chapter is hereby declared to
be an offense, punishable by a fine not exceeding $350 or imprisonment
for a period not to exceed six months, or both, for conviction of
a first offense; for conviction of a second offense, both of which
were committed within a period of five years, punishable by a fine
not less than $350 nor more than $700 or imprisonment for a period
not to exceed six months, or both; and, upon conviction for a third
or subsequent offense, all of which were committed within a period
of five years, punishable by a fine not less than $700 nor more than
$1,000 or imprisonment for a period not to exceed six months, or both.
However, for the purpose of conferring jurisdiction upon courts and
judicial officers generally, violations of this article or of such
ordinance or regulation shall be deemed misdemeanors and for such
purpose only all provisions of law relating to misdemeanors shall
apply to such violations. Each continued violation shall constitute
a separate additional violation.
C.
Notwithstanding anything in this chapter, the holder
of the special use permit for wireless telecommunications facilities
may not use the payment of fines, liquidated damages or other penalties
to evade or avoid compliance with this chapter or any section of this
chapter. An attempt to do so shall subject the holder of the special
use permit to termination and revocation of the special use permit.
The Town may also seek injunctive relief to prevent the continued
violation of this chapter without limiting other remedies available
to the Town.
A.
If wireless telecommunications facilities are 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 use permit, then the Board shall notify
the holder of the special use permit in writing of such violation.
Such notice shall specify the nature of the violation or noncompliance
and the violations must be corrected within seven days of the date
of the postmark of the notice, or of the date of personal service
of the notice, whichever is earlier. Notwithstanding anything to the
contrary in this subsection or any other section of this chapter,
if the violation causes, creates or presents an imminent danger or
threat to the health or safety of lives or property, the Board may,
at its sole discretion, order the violation remedied within 24 hours.
B.
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this chapter, or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Board may revoke such special use permit for wireless telecommunications facilities and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the Board may determine
that the health, safety and welfare interests of the Town warrant
and require the removal of wireless telecommunications facilities.
(1)
Wireless telecommunications facilities with a permit
have been abandoned (i.e., not used as wireless telecommunications
facilities) for a period exceeding 90 days or a total of 180 days
in any three-hundred-sixty-five-day period, except for periods caused
by force majeure or acts of God, in which case, repair or removal
shall commence within 90 days.
(2)
Permitted wireless telecommunications facilities fall
into such a state of disrepair it creates a health or safety hazard.
(3)
Wireless telecommunications facilities have been located,
constructed or modified without first obtaining, or in a manner not
authorized by, the required special use permit, or any other necessary
authorization.
B.
If the Board makes such a determination as noted in Subsection A of this section, then the Board shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed. The Board may approve an interim temporary use agreement/permit such as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the special use permit, or its successors
or assigns, shall dismantle and remove such wireless telecommunications
facilities, and all associated structures and facilities, from the
site and restore the site to as close to its original condition as
is possible, such restoration being limited only by physical or commercial
impracticability, within 90 days of receipt of written notice from
the Board. However, if the owner of the property upon which the wireless
telecommunications facilities are located wishes to retain any access
roadway to the wireless telecommunications facilities, the owner may
do so with the approval of the Board.
D.
If wireless telecommunications facilities are not
removed or substantial progress has not been made to remove the wireless
telecommunications facilities within 90 days after the permit holder
has received notice, then the Board may order officials or representatives
of the Town to remove the wireless telecommunications facilities at
the sole expense of the owner or special use permit holder.
E.
If the Town removes, or causes to be removed, wireless
telecommunications facilities, and the owner of the wireless telecommunications
facilities does not claim and remove it from the site to a lawful
location within 10 days, then the Town may take steps to declare the
wireless telecommunications facilities abandoned and sell them and
their components.
F.
Notwithstanding anything in this section to the contrary,
the Board may approve a temporary use permit/agreement for the wireless
telecommunications facilities, for no more 90 days, during which time
a suitable plan for removal, conversion or relocation of the affected
wireless telecommunications facilities shall be developed by the holder
of the special use permit, subject to the approval of the Board, and
an agreement to such plan shall be executed by the holder of the special
use permit and the Town. If such a plan is not developed, approved
and executed within the ninety-day time period, then the Town may
take possession of and dispose of the affected wireless telecommunications
facilities in the manner provided in this section.
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 or the Town in considering the request and
the relief shall not be transferable to a new or different holder
of the permit or owner of the tower or facilities without the specific
written permission of the Board. No such relief or exemption shall
be approved unless the applicant demonstrates by clear and convincing
evidence, 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.
A.
To the extent that the holder of a special use permit
for wireless telecommunications facilities has not received relief,
or is otherwise exempt, from appropriate state and/or federal agency
rules or regulations, then the holder of such a special use permit
shall adhere to, and comply with, all applicable rules, regulations,
standards and provisions of any state or federal agency, including,
but not limited to, the FAA and the FCC. Specifically included in
this requirement are any rules and regulations regarding height, lighting,
security, electrical and RF emission standards.
B.
To the extent that applicable rules, regulations,
standards and provisions of any state or federal agency, including
but not limited to, the FAA and the FCC, and specifically including
any rules and regulations regarding height, lighting and security
are changed and/or are modified during the duration of a special use
permit for wireless telecommunications facilities, then the holder
of such a special use permit shall conform the permitted wireless
telecommunications facilities to the applicable changed and/or modified
rule, regulation, standard or provision within a maximum of 24 months
of the effective date of the applicable changed and/or modified rule,
regulation, standard or provision, or sooner as may be required by
the issuing entity.
Where this chapter differs or conflicts with
other laws, rules and regulations, unless the right to do so is preempted
or prohibited by the county, state or federal government, the more
restrictive or protective of the Town and the public shall apply.
This chapter shall take effect 10 days after
publication, posting and filing with the Secretary of State.
This chapter is enacted pursuant to the Municipal
Home Rule Law. This chapter shall supersede the provisions of Town
Law to the extent it is inconsistent with the same, and to the extent
permitted by the New York State Constitution, the Municipal Home Rule
Law or any other applicable statute.
