Telecommunications Towers, Antennae and Related Facilities Local Law
Local Law No. 2 of 1998
A Local Law amending the Land Use Local Law of the Town of Colesville, Broome County, New York (Siting of Telecommunications Towers, Antennae and Related Facilities; Special Use Permits)
Be it enacted by the Town Board of the Town of Colesville as follows:
Section 1.
The Land Use Local Law of the Town of Colesville, Broome County, New York Town of Colesville Local Law #2-1984 (hereinafter referred to as Land Use Local Law) be and the same is hereby amended by adding thereto and inserting therein the following new section to be designated "14. Telecommunications Towers, Antennae and Related Facilities", to read and provide as follows;
14. Telecommunications Towers, Antennae and Related Facilities
14.1 Purpose and Legislative Intent
The Telecommunications Act of 1996 (herein after referred to as the Act), in effect, affirmed the authority of a local government, such as the Town of Colesville, over decisions regarding the placement, construction and modification of personal wireless service facilities.
The Town Board of the Town of Colesville finds and determines that Telecommunications Towers and related facilities may pose a unique hazard to the safety, public welfare and environment of the Town of Colesville 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 insure that the placement, construction
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and modification of Telecommunications Towers and related facilities is consistent with the Town's land use policies, the Town is adopting a single, comprehensive, Telecommunications Tower application and permit process. The intent of this local law is to minimize the negative impact of Telecommunications Towers, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of the environmental impacts of such facilities, and protect the health (consistent with the Act), safety and welfare or Town of Colesville and its residents.
14.2 Title.
This local Law may be known, cited, and referred to as the Telecommunications Tower Siting and Special Use Permit Local Law of the Town of Colesville. For purposes of section 14 of the Land Use Local Law, This Local Law may be known, cited, and referred to as the Law.
14.3 Severability.
A. If any word, phrase, sentence, part, section, subsection, or other portion of this Law 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 Law, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect. The invalidity of any provision of this Law shall not affect the validity of any other provision of this Law which can be given effect without such invalid provision.
B. Any Tower special use permit issued under this Law shall be comprehensive and not severable. If any part of a Tower Special Use Permit issued hereunder is deemed or rules 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, upon election by the Board.
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14.4 Definitions.
For purposes of this Law, 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.
•1."Accessory Facility or Structure" means an accessory facility or structure serving or being used in conjunction with a Telecommunications Tower, and located on the same property or lot as the Telecommunications Tower, including but not limited to, utility or transmission equipment storage sheds or cabinets.
•2."Act" means the Telecommunications act of 1996
•3. "Applicant" means and shall include any individual, corporations, estate, trust, partnership, joint venture, association of tow (2) or more persons, limited liability company, or any other entity submitting an Application to the Town of Colesville for a Tower Special Use Permit for a Telecommunications Tower.
•4."Application" means the form approved by the Board, together with all necessary and appropriate documentation that an Applicant submits in order to receive a Tower Special Use Permit for a Telecommunications Tower.
•5."Antenna" means 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.
•6."Board" means the Planning Board of the Town of Colesville, which is the officially designated board of the Town of Colesville to which applications for a Tower Special Use Permit for a Telecommunications Tower must be made, and which is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or
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not recertifying, or revoking Tower Special Use Permits for Telecommunications Towers. The Board may, at its discretion, request that other official agencies of the Town accept, review, analyze, evaluate and make recommendations to the Board with respect to the granting or not granting, recertifying or not recertifying or revoking Tower Special Use Permits for Telecommunications Towers.
7. "Break point" means the location on a Telecommunications Tower which, in the event of a failure of the Telecommunications Tower, would result in the Telecommunications Tower falling or collapsing within the boundaries of the property or lot on which the Telecommunications Tower is placed.
8. "Camouflaged Tower" means any Tower or supporting structure that, due to design, location, or appearance, partially or completely hides, obscures, conceals, or otherwise disguises the presence of the Tower and one or more Antennas or Antenna arrays affixed thereto.
9. "Collapse zone" means the area in which any portion of a Telecommunications Tower could or would fall, collapse or plunge to the ground or in to a river or other body of water. The collapse zone shall be no less than the lateral equivalent of the distance from the Break point to the top of the structure plus ten feet, such being not less than one-half (1/2) times the height of the structure.
10. "Collocation" means the use of the same Telecommunications Tower or Telecommunications Structure to carry two or more antennae for the provision of wireless services by two or more persons or entities.
11. "Commercial Impracticability" or "Commercially Impracticable" shall have the meaning in this Law and any Tower Special Use Permit granted hereunder as is given to those terms and applied under section 2-6 1 5 of the New York Uniform Commercial Code (UCC).
12. "Completed Application" means an Application that contains all information and/or data necessary to enable to Board to evaluate the merits of the Application, and to make an informed decision with respect to the effect and impact of the Telecommunications Tower on
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the Town in the context of the permitted land use for the particular location requested.
13. "County" means Broome County.
14. "Direct-to home satellite services" or "Direct Broadcast Service" or "DBS" means only programming transmitted or broadcast by satellite directly to subscribers' premises without the use of ground receiving equipment, other than such equipment at the subscriber' premises or in the uplink process to the satellite.
15. "EPA" means the United States Environmental Protection Agency, or its duly designed and authorized successor agency.
16. "FAA" means the Federal Aviation Administration, or its duly designated and authorized successor agency.
17. "FCC" means the Federal Communications Commission, or its duly designated and authorized successor agency.
18. "Free standing Tower" means a Tower that is not supported by guy wires and ground anchors or other means of attached or external support.
19. "Full EAF" means the Full Environmental Assessment Form approved by the New York Department of Environmental Conservation.
20. "Height" means, when referring to a Tower or structure, the distance measured from the pre-existing grade level to the highest point on the Tower or structure, even if said highest point is an Antenna.
21. "NIER" means Non-Ionizing Electromagnetic Radiation
22. "Person" means any individual, corporation, estate, trust, partnership, joint venture, association of two (2) or more persons having a joint common interest, limited liability company, or governmental entity.
23. "Personal Wireless Facility" - See definition for "Telecommunications Tower".
24. "Personal Wireless Services" or "PWS" or "Personal Telecommunications Service" or "PCS" shall have the same meaning given to those terms or used in the Telecommunications Act of 1996.
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25. "Site" See definition for Telecommunications Tower.
26. "State" means the State of New York.
27. "Telecommunications" means the transmission and reception of audio, video, data, and other information by wire, radio frequency, light and other electronic or electromagnetic systems.
28. "Telecommunications Tower" or "Tower" or "Site" or "Personal Wireless Facility" means a structure or location designed, or intended to be used, or used to support Antennas. It includes without limit, free standing Towers, guyed Towers, monopoles, and similar structures that employ camouflage technology, including, but not limited to structures such as a 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, personal Telecommunications services, or microwave Telecommunications, but excluding those used exclusively for fire, police or other dispatch Telecommunications, or exclusively for private radio or television reception or exclusively for private citizen's bands, amateur radio or other similar Telecommunications.
29. "Telecommunications Structure" means a structure used in the provision of services descried in the definition of ‘Telecommunications Tower'.
30. "Temporary" means in relation to all aspects and components of this Law, something intended to, or that does, exist for fewer than ninety (90) days.
31. "Tower Special Use Permit" means the authorization by which an Applicant is permitted to place, construct, use, and modify a Telecommunications Tower, subject to the requirements imposed by the Law and the conditions attached to the issuance of the Tower Special Use Permit by the Board.
32. "Town" means the Town of Colesville, New York.
33. "Town Board" means the Town Board of the Town of Colesville.
14.5 Overall Policy and Desired Goals for Tower Special Use Permits for Telecommunications Towers.
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A) In order to ensure that the placement, construction, and modification of Telecommunications Towers conforms to the Town's purpose and intent of this Law, the Town Board (acting pursuant to section 274-b of the Town Law and other applicable provisions hereby authorizes the Board to grant Tower Special Use Permits pursuant to this Law. As such, the Town Board adopts an overall policy with respect to a Tower Special Use Permit for a Telecommunications Tower for the express purpose of achieving the following goals:
1) implementing an Application process for person(s) seeking a Tower Special Use Permit for a Telecommunications Tower;
2) establishing a policy for examining an application for, and issuing a Tower Special Use Permit for, a Telecommunications Tower that is both fair and consistent.
3) establishing reasonable time frames for granting or not granting a Tower Special Use Permit for a Telecommunications Tower, or recertifying or not recertifying, or revoking the Tower Special Use Permit granted under this Law.
4) promoting and encouraging, wherever possible, the sharing and/or collocation of a Telecommunications Tower among service providers;
5) promoting and encouraging, wherever possible, the placement of a Telecommunications Tower in such a manner as to cause minimal disruption to aesthetic considerations of the land, lot, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such a Telecommunications Tower.
14.6 Tower Special Use Permit Application and Other Requirements.
A) All Applicants for a Tower Special Use Permit for a Telecommunications Tower shall, in addition to the other requirements in this Law, comply with the requirements set forth in this Section.
B) An Application for a Tower Special Use Permit for a Telecommunications Tower shall be signed by the Applicant, (or by a person acting on behalf of the Applicant who has prepared the same and who has knowledge of the contents and representations made therein) attesting
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to the truth and completeness of the information. The owner of the land on which the Telecommunications Tower is proposed to be located, if different from 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.
15) Transmission and maximum effective radiated power of the Antenna(s);
16) Direction of maximum lobes and associated radiation of the Antenna(s);
17) Applicant's proposed Tower maintenance and inspection procedures and related system of records;
18) Certification that NIER levels at the proposed site are within the threshold levels adopted by the FCC< though the certifying engineer need not be approved by the Board;
19) Certification that the proposed Antenna(s) will not cause interference with existing telecommunications devices, through the certifying engineer need not be approved by the Board;
20) A copy of the FCC license applicable for the use of the Telecommunications Tower;
21) 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, the site is adequate to assure the stability of the proposed Telecommunications Tower on the proposed site, though the certifying engineer need not be approved by the Town;
22) Propagation studies of the proposed site and all adjoining proposed or in- service or existing sites.
23) Location, layout, and dimensions of off-street parking and loading facilities; vehicular entry, exit, and circulation on the site and neighboring roads;
24) Grading and drainage plan for the site;
25) Type, size and location of all proposed screening, signs, and physical features meant to protect adjacent land uses.
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26) 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.
Where this section calls for a certification, such certification shall be by a qualified New York State licensed professional engineer, acceptable to the Board, unless otherwise noted.
G) In the case of a new Telecommunications Tower, the Applicant shall be required to submit a written report demonstrating its efforts to secure shared use of existing Telecommunications Tower(s). 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 Tower and attachments both are designed and constructed ("As Built") to meet all County, State and Federal structural requirements for loads, including wind and ice loads;
I) The Applicant shall furnish written certification that the telecommunications Tower is designed with a break point that would result in the Telecommunications Tower falling or collapsing within the boundaries of the property or lot on which the Telecommunications Tower is placed;
J) After construction and prior to receiving a Certificate of Occupancy, Applicant shall furnish written certification that the Telecommunications Tower and related facilities are grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.
K) The Applicant shall submit a completed Full EAF and a completed Visual EAF addendum. The Board may require submission of a more detailed visual analysis based on the results of the Visual EAF addendum. Applicants are encouraged to seek pre application meetings with the Board to address the scope of the required visual assessment. The Applicant shall submit a completed environmental impact statement (EIS) if the same is required by applicable provisions of law.
L) If requested by the Board, the Applicant shall furnish a Visual Impact assessment which
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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 or travelers. If requested by the Applicant, the Board, acting in consultation with its consultants or experts, will provide guidance concerning the appropriate key sites at a pre application meeting.
•3. An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets.
M) Any and all representations made by 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.
N) The Applicant shall, in a manner approved by the Board, effectively screen from view its proposed telecommunications Tower base and all related facilities and structures, subject to Board approval.
O) All utilities leading to and away from any Telecommunications Tower site shall be installed in compliance with the New York State Uniform Fire Prevention and Building Code and shall be installed underground and in compliance with all applicable ordinances, local laws, codes, 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 undergrounding installation of utilities whenever, in the opinion of the Board, such variance or waiver shall not be detrimental to the health, safety, general welfare or environment, including the visual and scenic characteristics of the area.
P) All Telecommunications Towers and accessory facilities shall be sited so as to have the least
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practical adverse visual effect on the environment and its character, and the residences in the area of the Telecommunications Tower site.
Q) Accessory facilities shall maximize use of building materials, colors and textures designed to blend with the natural surroundings.
R) 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 potential.
S) A person who holds a Tower Special Use Permit for a Telecommunications Tower shall construct operate, maintain, repair, modify or restore the permitted Telecommunications Tower in strict compliance with all current 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 New York State Uniform Fire Prevention and Building Code, Nation Electrical Safety Code and the National Electrical Code, as well as accepted and responsibly 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.
T) A holder of a Tower Special Use Permit granted under this Law shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or Law, and must maintain the same, in full force and effect, for as long as required by the Town of other governmental entity or agency having jurisdiction over the Applicant.
U) Subject to, and in accordance, with, the State Environmental Quality Review Act - (SEQRA), the Board shall be the lead agency for the purpose of conducting the environmental review of the Application for Tower Special Use Permits. The Board shall conduct an integrated, comprehensive environmental review of the proposed project in combination with its review of the Application under this Law.
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V) An Applicant shall submit no fewer than eight (8) copies of the entire Completed Application to the Board and a copy of the Application to the town Boards of all towns which adjoin the Town, any adjacent municipality and to the Broome County Department of Planning and Economic Development, clerk of the Broome County Legislature and clerk of the Chenango County Legislature.
W) The Applicant shall examine the feasibility of designing a proposed Telecommunications Tower to accommodate future demand for at least two (2) additional commercial applications, for example, future collocations. The scope of this examination shall be determined by the Board. The Telecommunications Tower shall be structurally designed to accommodate at least two (2) 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 by the Board, provided that the Applicant, in writing, demonstrates that the provisions of future shared usage of the Telecommunications Tower is not technologically feasible, or is Commercially Impracticable and creates an unnecessary and unreasonable burden, based upon:
1) The number of FRR licenses foreseeable available for the area;
2) The kind of Telecommunications Tower site and structure proposed;
3) The number of existing and potential licenses without Telecommunications Tower spaces/sites:
4) Available space on existing and approved Telecommunications Towers.
14.7 Location of Telecommunications Towers.
A) Applicants for Tower Special Use Permits for Telecommunications Towers shall locate site and erect said Telecommunications Towers or other tall structures in accordance with the following priorities, one (1) being the highest priority and six (6) being the lowest priority.
1. on existing Telecommunications Towers or other tall structures;
2. collocation on a site with existing Telecommunications Towers or structures.
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3. within an industrial district (I) within the Town.
4. within a commercial district (C) within the Town.
5. within a rural/agricultural district (R/AG) within the Town.
6. within any other zoning district within the Town.
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 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.
An Applicant may not by-pass sites of higher priority by stating the site presented is the only site leased or selected. An Application shall address collocation as an option an if such option is not proposed, the Applicant must explain with collocation is Commercially Impracticable or otherwise impracticable. Agreements between providers limiting or prohibiting collocation shall not be a valid basis for any claim of Commercial Impracticability or hardship.
B) The Applicant shall submit a written 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.
C) The Applicant shall, in writing, identify and disclose the number and locations of any additional sites that the Applicant has, is, or will be considering, reviewing or planning for Telecommunications Towers in the Town, and all municipalities adjoining the Town, for a two year period following the date of the Application.
D) Notwithstanding that a potential site may be situated in an areas 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
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or traffic laws;
3) conflict with the historic nature of a neighborhood or historical district;
4) the use or construction of a Telecommunications Tower which is contrary to an already stated purpose of a specific zoning or land use designation;
5) the placement and location of a Telecommunications Tower 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; or
6) conflicts with the provisions of the Act or this Law.
E) Shared use of existing Telecommunications Towers shall be preferred by the Board, as opposed to the proposed construction of new Telecommunications Towers. Where such shared use is unavailable, location of Antennas on other pre-existing structures shall be considered and preferred. The applicant shall submit a comprehensive report inventorying existing towers and other appropriate structures within four (4) miles of any proposed new Tower Site, 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 pre existing structures as a preferred alternative to new construction.
14.8 Shared use of Telecommunications Tower(s)
A) An Applicant intending to share use of an existing Telecommunications Tower or other tall structure shall be required to document the intent of the existing owner to share use.
B) In the event of an Application to share the use of an existing Telecommunications Tower that does not increase the height of the Telecommunications Tower, the Board shall waive such requirements of the Application required by this Law as may, for good cause, be shown. The Applicant is encouraged to seek a pre-Application meeting with the Board to review such a proposed Application and settle the issue of waivers of such provisions which will help to expedite review and permitting for such Applications. The purpose of making provisions for such waivers shall be to expedite, for the Applicant and the Board, the review and permitting for the shared use of an existing Telecommunications Tower.
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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.
14.9 Height of a Telecommunications Tower.
A) The Applicant must submit documentation justifying to the Board the total height of any Telecommunications Tower and/or Antenna and the basis therefore. Such justification shall be to provide appropriate 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. Unless waived by the Board upon good cause shown, the presumed maximum height shall be one hundred-forty (140) feet based on three (3) collocated antenna arrays and ambient tree height of eighty (80) feet. A Telecommunications Tower shall not be deemed to be a building for purposes of the building height requirements set forth in the schedule of regulations which form a part of the Land Use Local Law.
C) The maximum height of any Telecommunications Tower and attached Antennas constructed after the effective date of this Law shall not exceed that which shall permit operation without artificial lighting of any kind or nature, in accordance with municipal, County, State, and/or any federal statute, law, local law, town ordinance, code, rule or regulation.
10.10 Visibility of a Telecommunications Tower.
A) Telecommunications Towers shall not be artificially lighted or marked, except as required by applicable provisions of 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 Law.
C) If lighting is required, 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
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an artist's rendering or other visual-representation showing the effect of light emanating from the site on neighboring habitable structures within fifteen-hundred (1,500) feet of all property lines of the lot on which the Telecommunications Tower is located;
14.11 Security of Telecommunications Towers.
All Telecommunications Towers and Antennas shall be located, fenced or otherwise secured in a manner which prevents unauthorized access. Specifically:
•1. 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; and
•2. Transmitters and Telecommunications control points must be installed such that they are readily accessible only to person authorized to operate or service them.
14.12 Signage.
Telecommunications Towers shall contain a sign no larger than four (4) square feet in area 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 an 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. No other signage, including advertising, shall be permitted on any Antennas, Antenna supporting structures or Antenna Towers, unless required b law.
14.13 Lot Size and Setbacks.
A) All proposed Telecommunications Towers shall be set back from abutting parcels, recorded rights-of-way and road and street lines a distance sufficient to substantially contain on-site all ice-fall or debris from a Tower or Tower failure, and to preserve the privacy and sanctity of any
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adjoining properties.
B) Telecommunications Towers shall be located with a minimum setback from any property line a distance equal to one half (1/2) the height of the Tower or the existing setback requirement of the underlying zoning district, whichever is greater. Further, any Accessory Structure shall be located so as to comply with the applicable minimum zoning district setback requirements for the property on which it is situated.
14.14 Retention of Expert Assistance and Reimbursement by Applicant.
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 Town for al reasonable costs of consultant and expert evaluation and consultation to the Board in connection with the review of any Application. The initial deposit shall be $7,500.00 These funds shall accompany the filing of an Application and the Town shall maintain a separate escrow account for all such funds. The Town's consultants/experts, bill or invoice the Town no less 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 $2,500.00, Applicant shall immediately upon notification by the Town, replenish said escrow account so that it has a balance of at least $2,500.00. Such additional escrow finds must be deposited with the Town before any further action or consideration is taken on the Application. If, at the conclusion of the review process, the cost of such consultant/expert services is more than the amount escrowed pursuant hereto, the Applicant shall pay the difference to the Town prior to the issuance of any Tower Special Use Permit. In the event that the amount held in escrow by the Town is more than the amount of the actual billing or invoicing by the Town's consultants or experts, the difference shall be promptly refunded to the Applicant.
C) The total amount of the funds set forth in Subsection (B) of this Section may vary with the
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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 required and requested by the Town, shall be paid by the Applicant. The initial amount of the escrow deposit shall be established at a pre-application meeting with the Board. Notice of the hiring of a consultant/expert shall be given to the Applicant at or before this meeting.
14.15 Exceptions from the Tower Special Use Permit Requirements.
A) No person shall site, place, build, construct, modify, prepare, use or repair, any site for the placement or use of, a Telecommunications Tower on or after the effective date of this Law without having first obtained hereunder a Tower Special Use Permit for a Telecommunications Tower. Notwithstanding anything to the contrary in this section, no Tower Special Use Permit shall be required for those Towers used exclusively for fire, police or other dispatch Telecommunications, or exclusively for private radio or television reception or exclusively for private citizen's bands, amateur radio or other similar Telecommunications.
B) New construction, including routing maintenance on an existing Telecommunications Tower, shall comply with the requirements of this Law.
C) All Telecommunications Towers existing on or before the effective date of this Law shall be allowed to continue as they presently exist, provided however, that any modification, enlargement or extension of existing Towers must comply with this Law.
14.16 Public Hearing Required.
Prior to the approval of any Application for a Tower Special Use Permit for a Telecommunications Tower, 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 two weeks prior to the scheduled date of the public hearing. In order that the Town may notify nearby landowners, the Applicant, at least three (3) weeks prior to the date of said public hearing, shall be required to provide to the Board the names and address
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of all landowners whose property is located within fifteen hundred (1500) feet of any property line of the lot on which the proposed new Telecommunications Tower is proposed to be located. The Board shall schedule the public hearing referred to in Subsection (A) of this Section once it finds the Application is complete. The Board, at any stage prior to issuing a Tower Special Use Permit, may require such additional information as it deems necessary.
14.17 Action on an Application for a Tower Special Use Permit for a Telecommunications Tower.
A) The Board shall, in accordance with the Act, undertake a review of an Application pursuant to this Law 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.
B) The Board may refer any Application or part thereof to any Town advisory committee or other Town committee for a non-binding recommendation.
C) Except for necessary building permits, and subsequent Certificates of Occupancy, once a Tower Special Use 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 Telecommunications Towers or facilities covered by the Tower Special Use Permit.
D) After the public hearing and after formally considering the Application, the Board may approve and issue, or deny a Tower 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.
E) If the Board approves the Tower Special Use Permit for a Telecommunications Tower, then the Applicant shall be notified of such approval in writing within ten (10) calendar days of the Board's action, and the Tower Special Use Permit shall be issued within thirty (30) days after such approval.
F) If the Board denies the Tower Special Use Permit for a Telecommunications Tower, then
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the Applicant shall be notified of such denial in writing within ten (10) calendar days of the Board's action.
G) The Board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed Tower Special Use Permit. Upon its granting of such Tower Special Use Permit for a Telecommunications Tower, any such conditions and restrictions must be met in connection with the issuance of a building permit and any other required permits by applicable enforcement officials of the Town.
14.18 Recertification of a Tower Special Use Permit for a Telecommunications Tower.
A) At any time between twelve (12) months and six (6) months prior to the five (5) year anniversary date after the effect date of the Tower Special Use Permit and all subsequent fifth anniversaries of the effective date of the original Tower Special Use Permit and all subsequent fifty anniversaries of the effective date of the original Tower Special Use Permit for a Telecommunications Tower, the holder of a Tower Special Use Permit for such Tower shall submit a signed written request to the Board for recertification. In the written request for recertification, the holder of such Tower Special Use Permit shall include the following information:
1) the name of the holder of the Tower Special Use Permit for the Telecommunications Tower
2) if applicable, the number or title of the Tower Special Use Permit;
3) the date of the original granting of the Tower Special Use Permit;
4) whether the Telecommunications Tower has been moved, re-located, rebuilt, repaired, or otherwise modified since the issuance of the Tower Special Use Permit;
5) if the Telecommunications Tower has been moved, re-located, rebuilt, repaired, 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 and abided by;
6) any requests for waivers or relief of any kind whatsoever from the requirements of this Law and any requirements for a Tower Special Use Permit; and
7) a statement that the Telecommunications Tower is in compliance with the Tower Special Use Permit and compliance with all applicable statutes, laws, local laws ordinances, codes, 193-48
rules and regulations.
B) If, after such review, the Board determines that the permitted Telecommunications Tower is in compliance with the Tower Special Use Permit and all applicable statutes, laws, local laws, ordinances, codes, rules, and regulations, then the Board shall issue a recertification Tower Special Use Permit for the Telecommunications Tower, 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 Telecommunications Tower is not in compliance with the Tower Special Use Permit and all applicable statutes and local lows, ordinances, codes, rules and regulations, then the Board may refuse to issue a recertification Tower Special Use Permit for the Telecommunications Tower, and in such event, such Telecommunications Tower 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 Board does not complete its review, as noted in Subsection (B) of this Section prior to the five (5) year anniversary date of the Tower Special Use Permit, or subsequent fifth anniversaries, then the Applicant for the permitted Telecommunications Tower shall receive an extension of the Tower Special Use Permit for up to six (6) months in order for the Board to complete its review.
D) If the holder of a Tower Special Use Permit for a Telecommunications Tower does not submit a request for recertification of such Tower Special Use Permit within the timeframe noted in subsection (A) of this section then such Tower 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 Tower Special Use Permit, or subsequent fifth anniversaries, unless the holder of the Tower Special Use Permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees thatthere were legitimately extenuating circumstances, then the holder of the Tower Special Use Permit may
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submit a late recertification request.
14.19 Extent and Parameters of Tower Special Use Permit for a Telecommunications Tower.
The extent and parameters of a Tower Special Use Permit for a Telecommunications Tower shall be as follows:
•1) such Tower Special Use Permit shall be non-exclusive;
•2) such Tower 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;
•3) such Tower 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 Tower Special Use Permit for a Telecommunications Tower, or for a material violation of this Law after prior written notice to the Applicant and the holder of the Tower Special Use Permit.
14.20 Application Fee.
A) At the time that a person submits an Application for a Tower Special Use Permit for a new Telecommunications Tower, such person shall pay to the Town an application fee in the amount of $5,000.00. If the Application is for a Tower Special Use Permit for collocating on an existing Telecommunications Tower, the application fee payable to the Town shall be in the amount of $1,000.00.
B) No Application fee is required in order to recertify a Tower Special Use Permit. In the case of any modification, the fees provided in Subsection (A) shall apply.
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14.21 Performance Security.
The Applicant and the owner of record of any proposed Telecommunications Tower 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 the amount of $75,000.00 and with such sureties as are deemed sufficient by the Board to assure the faithful performance of the terms and conditions of this Law and conditions of any Tower Special Use Permit issued pursuant to this Law. The full amount of the bond or security shall remain in full force and effect throughout the term of the Tower Special Use Permit and/or until the removal of the Telecommunications Tower, and any necessary site restoration is completed. The failure by Applicant to pay any annual premium for the renewal of any such security shall be a violation of the provisions of the Tower Special Use Permit and shall entitle the Board to revoke the Tower Special Use Permit after prior written notice to the Applicant and holder of the Tower Special Use Permit, and after a hearing upon due prior notice to the Applicant and holder of the Tower Special Use Permit.
14.22 Reservation of Authority to Inspect Telecommunications Towers.
A) In order to verify that the holder of a Tower Special Use Permit for a telecommunications Tower and any and all lessees, renters, and/or licensees of a Telecommunications Tower place, maintain, construct, modify and use 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, and its consultants or experts may inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification, maintenance and use of such facilities including, but not limited to, Towers, Antennas, and buildings or other structures constructed or located on the permitted site. If requested by the Town, the holder of the Tower Special Use Permit shall assist the Town and its consultants and experts in obtaining access to the site.
B) The Town shall pay for costs associated with such an inspection, except for those
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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 Law 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 thirty (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 Law, 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.
14.23 Annual NIER Certification.
The holder of the Tower Special Use Permit shall, annually, certify in writing to the Tow that NIER levels at the site are within the threshold levels adopted by the FCC> (The certifying engineer need not be approved by the Town.)
14.24 Liability Insurance.
A) A holder of a Tower Special Use Permit for a Telecommunications Tower shall secure and at all times maintain public liability insurance for personal injuries, death, and property damage, and umbrella insurance coverage, for the duration of the Tower Special Use Permit in amounts set forth below
1) Commercial General Liability covering personal injuries, death and property damage: $2,000,000 per occurrence/$6,000,000 aggregate;
2) Automobile Coverage $2,000,000 per occurrence;
3) Excess Liability: $1,000,000
4) Workers Compensation and Disability Insurance in accordance with applicable statu-
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tory amounts.
B) The Commercial General liability insurance policy and excess liability policy shall specifically include the Town and its officers, boards, employees, committee members, attorneys, agents, and consultants as additional named insureds.
C) The insurance policies shall be issued by 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 thirty (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 fifteen (15) days before the expiration of the insurance which such policies are to renew or replace.
F) Before construction of a permitted Telecommunications Tower is initiated, but in no case later than fifteen (15) days after the grant of the Tower Special Use Permit, the holder of the Tower Special Use Permit shall deliver to the Town a copy of each of the policies or certificates representing the insurance in the required amounts.
14.25 Indemnification.
A) Any Tower Special Use Permit issued pursuant to this Law shall contain a provision with respect to indemnification. Such provision shall require the holder of the Tower Special Use Permit, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the Town, its officers, boards, employees, committee members, attorneys, agents, and consultants of, and 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 a Telecommunications Tower within the Town. With respect to the penalties,
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damages or charges referenced herein, reasonably attorneys' fees, consultants' fees, and expert witness fees are included in those costs that are recoverable by the Town. The holder of the Tower Special Use Permit shall not be obligated to provide such indemnification in the case of any claims, suits, demands, cause of action or award of damages which arise solely as a result of the negligence or intentional acts or actions of the Town or its officials, boards, employees, committee members, attorneys, agents or consultants.
B) Notwithstanding anything in this Law, the holder of the Tower Special Use Permit for a Telecommunications Tower may not use the payment of fines, liquidated damages or other penalties, to evade or avoid compliance with this Law or any section of this Law. An attempt to do so shall subject the holder of the Tower Special Use Permit to termination and revolcation of the Tower Special Use Permit, after prior written notice to the Applicant and holder of the Tower Special Use Permit and after a hearing upon due prior notice to the Applicant and holder. The Town may also seek injunctive relief to prevent the continued violation of this Law.
14.27 Default and/or Revocation.
A) If a Telecommunications Tower is used, operated, repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this Law or of the Tower Special Use Permit, then the Board shall notify the holder of the Tower Special Use Permit in writing of such violation. Such notice shall specify the nature of the violation or non-compliance and that the violations must be corrected within seven
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(7) 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 Law, if the violation causes, creates, or presents and 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 twenty-four (24) hours.
B) If within the period set forth in (A) above the Telecommunications Tower is not brought in to compliance with the provisions of this Law, or of the Tower Special Use Permit, or substantial steps are not taken in order to bring the affected Telecommunications Tower into compliance, then the Board may revoke such Tower Special Use Permit for a Telecommunications Tower, and shall notify the holder of the Tower Special Use Permit in writing within forty-eight (48) hours of such action, and the reasons for such action. The holder of the Tower Special Use Permit shall not thereafter use or operate the Telecommunications Tower until such time as the Tower Special Use Permit has been restored.
C) Nothing herein shall prevent the Town from pursing remedies pursuant to sections 14.26 and 6.1 of the Land Use Local Law.
14.28 Removal of a Telecommunications Tower.
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 a Telecommunications Tower
1) A Telecommunications Tower with a permit has been abandoned (i.e not used as a Telecommunications Tower) for a period exceeding ninety consecutive (90) days or a total of one hundred eighty (180) days in any three hundred-sixty five (365) day period, except for periods caused by force majeure or acts of God;
2) a permitted Telecommunications Tower falls into such a state of disrepair that it creates a health or safety hazard;
3) a Telecommunications Tower has been placed, located, constructed, or modified without the prior granting of the required Tower Special Use Permit, or any other necessary
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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 Tower Special Use Permit for the Telecommunications Tower in writing within forty-eight (48) hours that said Telecommunications Tower is to be removed at the cost and expense of the holder of said permit. The Board may approve an Interim Temporary Tower Special Use Permit, so as to enable the sale of the Telecommunications Tower.
C) The holder of the Tower Special use Permit, at its cost and expense, shall dismantle and remove such Telecommunications Tower, 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 ninety (90) days of receipt of written notice from the Board. However, if the owner of the property upon which the Telecommunications Tower is located wishes to retain any access roadway to the Telecommunications Tower, the owner may do so with the approval of the Board.
D) If a Telecommunications Tower is not removed or substantial progress has not been made to remove the Telecommunications Tower within ninety (90) days after the permit holder has received such notice, then the Board may order officials or representatives of the Town to remove the Telecommunications Tower at the sole cost and expense of the owner or permit holder.
E) If, the Town removes, or cause to be removed, a Telecommunications Tower, and the owner of the Telecommunications Tower does not claim the property and remove it from the site to a lawful location within ten (10) days following receipt of written notice from the Board, then the Town may take steps to declare the Telecommunications Tower abandoned, and sell it and its components.
F) Notwithstanding anything in this Section to the contrary, the Board may approve a Temporary Special Use Permit for the Telecommunications Tower, for no more ninety (90) days, during which time a suitable plan for removal, conversion, or re-location of the affected
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Telecommunications Tower shall be developed by the holder of the permit, subject to the approval of the Board, and an agreement to comply with such plan shall be executed by the holder of the permit and the Town. If such a plan is not developed, approved and executed within the ninety (90) day time period, then the Town may take possession of and dispose of the affected Telecommunications Tower in the manner provided in this Section.
G) Nothing herein shall prevent the Town from pursing remedies pursuant to sections 14.26 and 6.1 of the Land Use Local Law.
14.29 Relief.
Any Applicant desiring relief or exemption from any aspect or requirement of this Law may request such from the Board at a pre-application meeting, provided that the relief or exemption is contained in the original Application for either a Tower Special Use Permit, or in the case of an existing or previously granted Tower 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 express prior written permission of the Board, and such permission shall not be unreasonably withheld or delayed. No such relief or exemption shall be approved unless the Applicant demonstrates by clear and convincing evidence that, if granted, the relief or exemption will have no significant adverse effect on the health, safety, and welfare of the Town, its residents and other service providers.
14.30 Periodic Regulatory Review by the Board.
A) The Board may at any time conduct a review and examination of this entire Law.
B) If after such a periodic review and examination of this Law, the Board determines that one or more provisions of this Law should be amended, repealed, revised, clarified, or deleted, then
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the Board may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the Town, the Board may recommend to the Town Board that the Town Board amend, revise, clarify or delete any part of this Law or repeal the entire Law.
C) Notwithstanding the provisions of subsections (A) and (B) of this section, the Town Board may at any time, and in any manner (to the extent permitted by Federal, State, or local law), amend, add, revise, repeal, and/or delete one or more provisions of this Law.
14.31 Adherence to State and/or Federal Rules and Regulations.
A) To the extent that the holder of a Tower Special Use Permit for a Telecommunications Tower has not received relief, or is otherwise exempt, from appropriate State and/or Federal agency rules or regulations, then the holder of such a Tower 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 Tower Special Use Permit for a Telecommunications Tower, then the holder of such a Tower Special Use Permit shall conform the permitted Telecommunications Tower to the applicable changed and/or modified rule, regulation, standard, or provision within a maximum of twenty-four (24) months of the effective date of the applicable changed and/or modified rule, regulation, standard, or provisions, or sooner as may be required by the issuing entity.
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14.32 Conflict with Other Laws.
Where this Law differs or conflicts with other statutes, local laws, ordinances, codes, rules or 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.
Section 2.
Section 9 (Special Permits) of the Land Use Local Law be and the same is hereby amended so that the same shall hereafter read and provide as follows:
9. Special Use Permits.
A) The Board of Appeals is empowered by the Town Board to issue special use permits for allowed uses as set forth in the Land Use District Schedule. After due notice and a public hearing, the Zoning Board of Appeals may issue a special use permit for uses which meet the following criteria:
1) The applicable provisions prescribed for each special use permit use have been met.
2) The land use or activity conforms with all applicable regulations governing the zoning district where it is to be located, and all other applicable provisions for the district for which the said use is permitted have been met.
3) That the land use or activity is to be designed, located and operated so as to protect the public health, safety and welfare.
4) That the land use or activity will encourage and promote a suitable and safe environment for the surrounding neighborhood and will not cause substantial injury to the value of other property in the neighborhood.
5) That the land use or activity will be compatible with existing adjoining development and will not adversely change the established character or appearance of the neighborhood.
6) That effective landscaping and buffering is provided as may be required by the Zoning Board of Appeals.
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7) That adequate off-street parking and loading are provided in accordance with the Land Use Local Law, and ingress and egress to parking and loading areas are so designed as to minimize the number of curbcuts and not unduly interfere with traffic or abutting streets.
8) That site development shall be such as to minimize erosion and shall not produce increased surface water runoff onto abutting properties.
9) That existing public streets and utilities servicing the project shall be determined to be adequate.
10) That significant existing vegetation shall be preserved to the extent practicable.
11) That adequate lighting of the site and parking areas is provided and that exterior lighting sources are designed and located so as to produce minimum glare on adjacent streets and properties.
12) The proposed site is in harmony with the Land Use Local Law and will not adversely affect the neighborhood if the above-described provisions are met.
B) The Zoning Board of Appeals shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit.
Section 3. Validity.
The invalidity of any provision of the Local Law shall not effect the validity of any other provision of this Local Law which can be given effect without such invalid provision.
Section 4. Effective Date.
This Local Law shall take effect immediately when it is filed in the Office of the Secretary of State in accordance with Section 27 of the Municipal Home Rule Law.
