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LL #06-1997Ll— LOCAL LAW #6 OF 1997 TOWN OF WAPPINGER A Local Law entitled a "Cell Tower Moratorium" adopting a temporary 120 -day moratorium on the approval, establishment, placement, construction, enlargement and erection of telecommunications towers, antennae and facilities in the Town of Wappinger. BE IT ENACTED by the Town Board of the Town of Wappinger as follows: Section 1: Title: Cell Tower Moratorium. This Local Law shall be known and cited as Town of Wappinger Local Law No. # 6 of 1997, entitled a "Cell Tower Moratorium" by implementing a temporary 120 -day moratorium on the approval, establishment, placement, construction, enlargement and erection of telecommunications towers, antennae and facilities in the Town of Wappinger. Section 2: Legislative Intent and Purpose. 1. The Town of Wappinger contains several major transportation corridors, including State Route 9, State Route 91) and State Route 376. There are presently no wireless telecommunications towers in the Town. The Town has received several investigative inquiries regarding the placement and construction of wireless telecommunications towers in the Town and there is currently one application to construct a wireless telecommunications tower and one application for a 70 foot wireless telecommunications tower/antenna for private commercial use pending before the Planning Board and, in addition, the Zoning Administrator has received several investigative inquiries and expects to receive several more applications for such towers/antennae in the near future. 2. It further appears that the Town of Wappinger and Southern Dutchess County in o:\common\wappinger\locallaw\cciltow.5 general has a very limited number of potential sites which would be acceptable for the installation of wireless telecommunications facilities. 3. The Town's Zoning Law does not contain adequate provisions relating to the establishment, location, approval and control of wireless telecommunications towers and antennae. Since the time of the enactment of the Zoning Law, the technology with regard to telecommunications towers has changed dramatically in the communications industries. These changes in the technology necessitate a comprehensive evaluation of a proper means to accommodate this needed service as part of the Town's land use laws and policies. The existing law on telecommunication towers and utility structures does not address current technology or issues such as co -location, use of existing towers or other structures, or prioritization of potential location sites. It is imperative that the Town amend its Zoning Law to provide procedures, standards and criteria for the approval, control and monitoring of these towers and antennae within its boundaries. 4. The Federal Telecommunications Act was signed into law in February of 1996. The effects of this Act upon the Town of Wappinger's ability to regulate wireless telecommunications facilities requires study by the Town of Wappinger. 5. The changes in wireless telecommunications technology, additional licenses granted by the Federal Communications Commissions, and the increased demand for wireless telecommunications services have led to a significant increase in the demand for wireless telecommunications facilities within the Town of Wappinger and Southern Dutchess County in general. 6. The citizens of the Town of Wappinger have expressed significant concern relating o:\comwon\wappingcr\locallaw\celltow.5 -2- to the location of wireless telecommunications facilities within the 'Town. The primary concerns relate to aesthetic effects and impacts on neighboring properties and the community as a whole. 7. The citizens of the Town of Wappinger have also expressed a desire that the Town of Wappinger receive adequate wireless telecommunications services, provided that the facilities are designed and located so as to address the community's aesthetic concerns. 8. The Town also recognizes that there is a public need for telecommunications services, while simultaneously recognizing its obligations under the Federal Communications Act. The Town acknowledges that telecommunications services are important modes of communication. It is not the purpose of this law to prohibit such services; to avoid rendering decisions in a reasonable period of time; to discriminate among providers of functionally equivalent services; or to regulate the entry of any commercial or private mobile service. To the contrary, it is the purpose of this law to develop comprehensive land use regulations that will facilitate the location of towers and related facilities in designated locations, and give clear notice to service providers of the Town's provisions relating to siting and development of same. 9. The Telecommunications Act preserves a right to non-discriminatory zoning regulations. The Town Board desires to provide for the establishment, placement, construction, enlargement and erection of commercial transmitting antennae (towers for wireless telecommunications services) on a comprehensive Town -wide basis, and provide zoning regulations that address modern technology and the needs of the providers of services. Towers and related facilities incorporate large structures that are generally at a much larger scale than surrounding structures. It is important to implement land use regulations that maximize compatibility of towers with surrounding land uses, minimize impact on visual resources, o:\coiniiion\wappinger\locallaw\cciltow.5 -3- including the significant ridge lines in (lie Town, and impact on community character, and avoid any unnecessary proliferation of towers, either in number or location. 10. Information received from the industry and from other governmental agencies that have studied current technology establishes that wireless telecommunications facilities can be designed and installed in ways that will address these aesthetic concerns. 11. The Town of Wappinger requires time to study the feasibility of requiring co - location of wireless telecommunications facilities within the limited number of potentially acceptable sites within the Town of Wappinger. 12. Processing applications for wireless telecommunications facilities at the present time without the information to determine the need for or the ability to design such facilities so as to allow for co -location or nearby siting of additional facilities may result in the inability to allow adequate sites for competing providers. Beneficial services may not be able to be provided without careful allocation of existing sites. 13. The law of the State of New York allows a municipality to enact a moratorium of reasonable duration for the purpose of implementing needed land use regulations. 14. In order to balance the needs for comprehensive zoning regulation and the need to provide services, the Town has chosen to enact this moratorium in the narrowest possible way. The Town has chosen to implement a very short moratorium period of 120 days, rather than a longer period. The Town intends to undertake evaluation, consideration, public discussion, and possible implementation of new zoning regulations in a timely fashion. Service providers and members of the public will be welcome to participate during this process. 15. Additionally, this law allows applicants to appear before the appropriate boards o:\comiiioji\wappiiigcr\locallaw\celltow.5 -4- and agencies of the Town for discussion, and allows public hearings on applications to be held, although it does not allow final action to be taken by any board or agency on the application. To the extent the law remains the same after the end of the moratorium, the work done on the project during the moratorium period would remain valid. Naturally, all decisions after the moratorium will have to be made under the law in effect at the time the decision is made. 16. This moratorium also provides a limited exemption from the moratorium for proposed facilities to be located on existing towers, or other structures, under conditions set forth herein. 17. Finally, in order to avoid or minimize any undue hardship that may arise from a strict application of this Local Law, the Town Board has provided for a review and appeals procedure to entertain and, if appropriate, to grant variances. Section 3: Moratorium Law. 1. Pursuant to the statutory powers vested in the Town of Wappinger to regulate and control zoning and land use, the Town Board hereby enacts a temporary 120 -day moratorium on the establishment, location, placement, construction, enlargement and erection of telecommunications towers and facilities, for the purpose of allowing the development of comprehensive zoning regulations to control the location and development of such facilities. 2. For the purposes of this Local Law, the term "telecommunications towers and facilities" shall include all towers, monopoles, 3 -sided towers, guy -wired towers, and any other tower or other support structure or other facility used to support telecommunications antennae or other communications devices, or otherwise used in connection with telecommunications services, including but not limited to the transmission or receiving of radio, television, telephone o:\common\wappinger\locallaw\celltow.5 -5- or microwave communications, and any structures accessory thereto. However, this Local Law is not intended to cover police or fire communications, or facilities used exclusively for private radio and television reception and private citizens' bands, amateur radio and other similar private residential communications. If any question arises under this law as to whether a particular tower or other facility is covered by this Local Law, the Zoning Board of Appeals is empowered to interpret this law in the same manner as interpretations of the Zoning Law. 3. During the effective period of this Local Law: A. Pending_ADOications. No currently pending application for establishment, placement, construction, enlargement or erection of a telecommunications tower or facility, or for approval for subdivision plat, site plan, special permit, area variance or use variance, building permit, or certificate of occupancy for a proposed telecommunications tower or facility, shall be finally considered or voted upon by any board or agency of the Town of Wappinger while this moratorium Local Law is in effect. B. New Applications. No new application for establishment, placement, construction, enlargement or erection of a telecommunications tower or facility, or for approval of a subdivision plat, site plan, special permit or area or use variance, building permit or certificate of occupancy for a proposed telecommunications tower or facility, shall be finally considered or voted upon by any board or agency of the Town of Wappinger while this Local Law is in effect. C. Without limiting the foregoing: o:\common\wappinger\locallaw\celltow.5 -6- i) The Planning Board shall not make any decision or findings, or grant any approval to a subdivision plat, site plan, special permit, or other permit which would have as the result the establishment, placement, construction, enlargement or erection of a telecommunications tower or other facility. ii) The Zoning Board of Appeals shall not make any decision or findings or grant any approval to a special permit, area variance or use variance, or other permit which would have as the result the establishment, placement, construction, enlargement or erection of a telecommunications tower or facility. iii)The Planning Board acting as Architectural Review Board shall not make any decision or findings or grant any approval which would have as the result the establishment, placement, construction, enlargement or erection of a telecommunications tower or facility. iv) The Building Inspector or Zoning Enforcement Officer shall not issue any permit which would have as the result thereof the establishment, placement, construction, enlargement or erection of a telecommunications tower or facility. D. Nothing in the provisions of sections A, B and C above shall be deemed to preclude an applicant from appearing before the appropriate boards or agencies for discussions relating to proposed locations for facilities, or o: \common\wappinger\locallaw\celltow.5 -%- ;;V Bhp 1 from the holding of public hearings relating to such proposals. However, no final action or approval shall be taken on these applications. 4. Construction with other Laws. All local laws, ordinances, rules or regulations of the Town of Wappinger and any parts thereof in conflict with the provisions of this Local Law are hereby suspended to the extent necessary to give this Local Law full force and effect during the effective period. 5. Effective Period and Coverage of Local Law. The Local Law shall apply to all zones and all real property within the Town of Wappinger. It shall be in effect for 120 days after its effective date, and shall expire following either the expiration of 120 days from its effective date, or the passage of zoning amendments governing the placement of commercial towers or antennae relating to wireless telecommunications services, which ever shall occur first. 6. Penalties. Any person, firm or corporation that shall establish, place, construct, enlarge or erect any commercial tower or antenna for the provision of wireless telecommunications services in violation of the provisions of this Local Law, or shall otherwise violate any of the provisions of this Local Law shall be: A. Guilty of an offense and, upon conviction, shall be subject to a fine of $350.00; and B. Subject to an application to the Supreme Court of Dutchess County for injunctive relief in favor of the Town of Wappinger to cease any and all such actions which conflict with this Local Law and, if necessary, to remove any construction which may have taken place in violation of this Local Law; o:\coininon\wappinger\locallaw\celltow.5 in C. Subject to payment of reasonable attorneys' fees incurred by the Town of Wappinger to enforce this Local Law and the penalties set forth in sections A and B hereof; and D. Subject to payment of the costs incurred by the Town of Wappinger to enforce this Local Law and the penalties set forth in sections A and B hereof, including, but not limited to, the cost of removal of any tower constructed in violation of this Local Law and the remediation of the surrounding area. 7. Hardship/Exceptions. A. Application to the Town Board. Where an owner of property, or other aggrieved party, affected by this Local Law can show that he would suffer undue hardship from the moratorium, or where public health, safety and welfare requires, then the owner of said property may apply to the Town Board in writing for a variance from strict compliance with this Local Law upon submission of documentary proof to support the claim. For the purposes of this Local Law, the necessity to wait through the 120 -day period to obtain a final decision regarding an application shall not alone constitute undue hardship requiring relief from the provisions of the law. B. Procedure. Upon submission of a written application to the Town Clerk by the property owner seeking a variance of this Local Law, the Town Board shall, within thirty (30) days of the receipt of said application, schedule a Public Hearing on said application upon five (5) days written a:\conmion\wappingcr\locallaw\cclltow.5 -9- notice in the official newspaper of the Town. At said Public Hearing, the property owner and any other parties wishing to present evidence with regard to the application shall have an opportunity to be heard, and the Town Board shall within thirty (30) days of the close of said Public Hearing render its decision either granting or denying the application for a variance from the strict requirements of this Local Law. If the Town Board determines that a property owner will suffer an undue or unnecessary hardship if this Local Law is strictly applied to a particular property, then the Town Board shall vary the application of this Local Law to the minimum extent necessary to provide the property owner relief from strict compliance with this Local Law. C. Judicial Remedy. Any party aggrieved by the determination of the Town Board on an application for a variance from the strict compliance with this Local Law may appeal said decision to the Supreme Court, State of New York, Dutchess County, pursuant to Article 78 of the Civil Practice Laws and Rules within thirty (30) days of the filing of said decision in the office of the Town Clerk. 8. Exemptions. The following shall be exempt from the provisions of this Local Law: A. The establislunent, placement, construction, enlargement or erection of a telecommunications tower or facility which has received all required approvals from the Town of Wappinger Zoning Board of Appeals, the o:\common\wappinger\locallaw\celitow.5 Planning Board, the Architectural Review Board, the Building Inspector and/or the Zoning Enforcement Officer, prior to the effective date of this Local Law. B. Approval, permitting, establishment, placement, construction, enlargement or erection of antennae or other transmitting or receiving components on already existing towers or other structures, such as buildings, billboards, water towers, and similar facilities, so long as the added component does not increase the size or height of the structure to which it is attached. When there is a question as to whether a proposed application comes within the terms of this exemption, the Zoning Board shall be authorized to interpret this section, in the same manner as other interpretations of the Zoning Law. All activities exempted from this moratorium must still be authorized and receive all required permits by the Zoning Board, Building Inspector and/or Zoning Enforcement Officer, and any other appropriate agency, under the existing provisions of the Code of the Town of Wappinger. Section 4: Separability. The provisions of this Local Law are separable and if any provision, clause, sentence, subsection, word or part thereof is held illegal, invalid or unconstitutional, or inapplicable to any person or circumstance, such illegality, invalidity or unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, subsections, words or parts of this Local Law or their application to other persons or circumstances. It is hereby o:\common\wappinger\locallaw\celliow.5 -11- declared to be the legislative intent that this ordinance would have been adopted if such illegal, invalid or unconstitutional provision, clause, sentence, subsection, word or part had not been included therein, and if such person or circumstance to which the Local Law or part thereof is held inapplicable had been specifically exempt therefrom. Section 5: Supersession. Pursuant to Municipal Home Rule Law Section 22, the provisions of this law are intended to supersede any inconsistent provision of State or Local Law, including those of the following sections of New York State Town Law which set forth the procedures for reviewing site plans, subdivisions and variances to wit: Town Law 274-a (8), 274-b (6), 276 (5), 276 (6), 276 (8), 267-a (5), 267-a (5), 267-a (7) and 267-a (8); and the provisions of the Town of Wappinger Zoning Law or any other Local Law which are inconsistent therewith. Section 6: Effective Date. This Local Law shall take effect immediately upon adoption and filing as provided by the Municipal Home Rule Law. o:\cominon\wappinger\locallaw\celllow.5 -12- (Complete the certification in the paragraph that applies to the filing of this local law and strike out that which is not applicable.) (Final adoption by local legislative body only.) iereby certify that the local law annexed hereto, designated as local law No. #6 of 1997 the 0QuUuryWkV)(Town)0MRkWt3 of Wappinger was duly passed by the Town Board on November 2 4 ,19 97 _, in accordance with the applicable provisions of law, lame of Legislative Body) (P:!! -.sage by local legislative body with approval, no disapproval or repassnge after disApproval the Elective Chief Executive Officer'.) i er6, certify that the local law annexed hereto, designated as local law No. of 19 the (County)(City)(Town)(Village) of was duly passed by the ame of egis on 19 , and was (approved)(not' disapproved)(repassed after -atwe o y isapproval) by the(El was deemed duly adopted on 19_, ectrve hie Executive [titer i accordance with the applicable provisions of law. (Final adoption by referendum.) hereby certify that the local law annexed hereto, designated as local law No. of 19 f the (County)(City)(Town)(Village) of was duly passed by the on 19 , and was (approved)(not disapproved)(repassed after Name of Legislative Body isapproval) by the on 19 Such local law was Elective Chief Executive Officer IT ubmitted to the people by reason of a (mandatory)(permissive) referendum, and received the affirmative ote of a majority of the qualified electors voting thereon at the (general)(special)(annual) election held on _ 19_, in accordance with the applicable provisions of law. .`►ject to permissive referendum and final adoption because no valid petition was filed requesting erndurn.) hereby certify that the local law annexed hereto, designated as local law No. of 19 if the (County)(City)(Town)(Village) of was duly passed by the ,Name of Legislative Body on 19 and was (approved)(not disapproved)(repassed after Isapproval) by the on 19 Such local law was subject to Elective Chief Executive Officer' —� )ermissive referendum and no valid petition requesting such referendum was filed as of n accordance with the applicable provisions of law. 19 Elective Chief Executive Officer means or Includes the chief executive officer of a county elected on a county -wide basis or, If there be none, the chairman of the county legislative body, the mayor of a city or village, or the supers•isor of a town where such officer is vested with the power to approve or veto local laws or ordinances. (2) 0 S. (City locul law concerning Charter revision proposed by petition.) I.hereby certify that the local law annexed heretodesignated as local law No. , of 19 of the City of having been submitted to referendum pursuant to the provisions of section (36)(37) of the Municipal Home Rule Law, and having received the affirmative vote of a majority of the qualified electors of such city voting thereon at the (special)(general) election held on • 19_, became operative. 6. (County local law concerning adoption of Charter.) I hereby certify that the local law annexed hereto, designated as local law No. of ]9 of the County of , State of New York, having been submitted to the electors at the General Election of November 19_, pursuant to subdivisions 5 and 7 of 33 of the Municipal Home Rule Law, and having received the affirmative vote of majority of the Iu ied electors of the cities of said county as a unit and of a majority of the qualified electors of the towns 4 Ld county considered as a unit voting at said general election, became operative. (If any other authorized form of final adoption has been followed, please provide an appropritate certification.) I further certify that I have compared the preceding local law with the original on file in this office and that the same is a correct transcript therefrom and of the whole of such original local law, and was finally adopted in the manner indicated in paragraph I. , above. �..ierx of ttR e6'Unty legislative body,ity, own or iltage 0 officer designated by local legilsative body (Seal) Ela 11 owden �Tolerk Date,, Nov,4S, r(07 "Certification to be executed by County Attorney, Corporation Counsel, Town Attorney, Village Attorney or at.(horized Attorney of locality.) `OFEW YORK DUTCHESS i, the undersigned, hereby certify that the foregoing local law contains the correct text and that all proper proceedings have been had or taken for the enactment of the local law annexed hereto. Albert P. Roberts Attorney to the Town Title t>�liX.K3XX extyyXX Town or Wappinger r=tX Date: 7 (3)