HomeMy WebLinkAboutLL-1997 #07Local Law Fitirtg
NEW YORK STATE DEPAR~ENT OF STAT~
i 62 WASHINGTON AVENUE, ALBANY. N~/ 12~31
(Use this form to file a locat law with the Secretary. of State.)
TexI of [aw should be given as amended. Do no~ ;.ndude matter being eliminated and do not uze
italic~ or underlining to indicate aew mat~en
l{;~t~X $outhold
Town
7
Local Law No ................. of the y~r 1.9--9-7-
5nactin9 a Temporary MOratorium on the Issuance of
A Ioca! Iow -- ......
Approvals and/or Permits for Telecommunication Towers
Town Board
Be it enacted by the .......................................................................... of the
¢i~. of___S2.u._t_h_o_Ld. ......................................................... as rono~s:
Town
Section 1. PURPOSE
Wireless communication technology has created the demand for
structures on which transmitting and/or receiving antennae are located. The
number of structures absent regulation may be anticipated to increase as the
demand for cellular phone service correspondingly increases. The Town Board
~s concerned that the impact of an unregulated increase in the number of such
structures be examined at this time. Shared use, appropriate setbacks..visual
impact and the tike would be appropriate subjects for study in detail beyond the
present provisions of Town Code Section 100-31(B)(6), which currently governs
oublic utility structures. This Local Law is intended to provide the Town Board an
opportunity to study the likely impacts of the Telecommunications Act of 1996
signed into law by President Clinton on February 8. 1996, including most
oarticularly, appropriate and inappropriate locations for telecommunication
structures., the impact of an unregulated number of such structures and the likely
next stages of development of this technology.
Section 2. ENACTMENT OF TEMPORARY MORATORIUM
Until one hundred and twenty days (120 days) from the date of
enactment of this local law, after which this Local Law shall lapse and b6 without
further force and effect and subject to another Local Law adopted by the Town
Board during that one hundred twenty day period, no agency, board officer or
(If additional space is ne~ied~ alxach pages the sam~ siz~ as thi~ she.~, and n~ ~0
employee of the Town of Southotd? including by way of illustration, not limitation.
the Zoning Board of Appeals acting under its special exception use powers
under Town Code Section 100-31 (B), or the Planning Board acting under its site
plan approval powers under Town Code Section 100-2~;0 et al., or the Building
Inspector iSsuing any building permit pursuant to any provision of the Town
Code, shall issue, cause to be issued or allow to be issued any approvat or
permit for any telecommunication tower, meaning a structure on which
transmitting and/or receiving antennae are located or any accessory facility
theretO, including a structure housing transmission equipment accessory to a
telecommunications tower.
Section 3. EXCLUSIONS
This Local Law shall not apply to any person or entity who has.
prior to the effective date of this Local Law. obtained all permits required for
construction of a telecommunications tower pursuant to Town Code Section 100-
31 (b)(6). including later applications to repair or alter (but not enlarge ~n height)
any such existing tower or structure.
Section 4. AUTHORITY TO SUPERSEDE
To the extent any provisions of this Local Law are construed as
inconsistent with the provision of Town Law Section 267. 267-a. 267-b, 272-a
and 274-b, this Local Law is intended pursuant to Municipal Home Rule Law
Sections 10(t )(ii)(e)(3) and 22 to supersede any said inconsistent authority.
Section 5. VARIANCES TO THIS MORATORIUM
Any person or entity suffering unnecessary hardship as that term is
used and construed in Town Law Section 267-b(2)(b) by reason of the
enactment and continuance or this moratorium may apply to the Zoning Board of
Aopeals for a variance excepting the person's or entity's premises or a pettion
thereof from a moratorium and allowing issuance of a permit under Town Code
100-31 (B)(6), all in accordance with the applicable provisions of the Town Code
Sections 100-270 et aL
Section 6. SEVERABILITY
tf any clause, sentence, paragraph, section or part of this Local
Law shall be adjudge by any court of competent jurisdiction to be invalid, the
judgment shall not affect, impair or invalidate the remainder of this Local Law.
Section 7. EFFECTIVE DATE
This Local Law shall take effect upon filing with the Secretary of
State.
( 1 -A )
(Complete the certifJcat/on in the paragraph that applies to the filing of this local law and
strike out that which ~s not applicable.)
1. (Final adoption by local legislative body onty.)
I hereby certify that the local law annexed hereto, desienated as local taw No
of the (~1.~_ ~ .R~)~Town)~ of --£--S-9--t'l-~--h--°-[~ ............................................ was duly passed by the
.... _T_.o_w_'p._.B_pfa_'_rLd_ ..... ~ ................... on---M--a-Y-,!-3- ..... 19 ._9_.7, in accordance with the aPPlicable prov~ions of law.
2. (Passage by local legislative body with approval, no disapproval or repassage after disapproval
by the Elective Chief Executive Off.me.r*.)
I heret~y, cerfify that the local law mmexed herelo, designated as local law No ................................ of I9 .....
of the (County)(City)(Town)0/-fllage) of ..................................................... was duly passed by the
............................................ on ................. 19 .... and was (aPProved)(not approved)(mpassed after
disapproval) by the .............................................. and was deemed duly adopted om ................. 19----,
in accordance with the applicable provisions of law.
3. (Final adoption by referendum.)
I hereby certify that the local law annexed hereto, designated as local law ,_'No ................................. of t9 .....
of the (Coumy)(City)(Town)(Village) of ............................................................... was duty passed by the
................................................... on .................. 19----, and was (approved)(not approved)(repassed after
disapproxrat) by the ................................................. on ................... t9- .... Such local law was submitted
to the people by reason of a imandatory)(permissive) referendum, and received the affirmative vote of a majority of
the qualified electom voting thereon at the (general)(speciat)(armual) election held on ................. 19--- , in
accordance with the applicable provisions of law.
4. (Subject to pemissive referendum and final adoption because no valid petition was filed requesting
referendum.)
I hereby certify that the local law annexed hereto, designated as local taw No ............................... of I9 ......
of the (County)(CityXTown)(V~tlage) of ................................................................ was duly passed by the
................................................... on .................. 19.---, and was (approvec0{'not approved)(repassed after
disapproval) by the .................................................. on .................. 19 .... Such local law was subject m
permissive referendum and no valid petition requesting such referendum was filed as of ................. t9----, in
accordance with the applicable provisions of law.
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 chairperson of the county legislative body~ the mayor ora city or village, or
the supervisor of a town where such officer is 'vested with the power ro approve or veto local laws or ordinances.
_
5. (City local taw concerning Charter revision proposed by petition.)
I hereby certify tMt the local law annexed hereto, designated 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 Mnnicipat Home Rule Law, and having received the al_gm'native vote ora majorzw of the
qualified electors of such ~ voting thereon at the (spec~l)(geaeml) election held on .................. 19----,
became operative.
6. (County local law concerning adoption of Charter.)
I hereby certify that the local law am~exed, hereto, designated as local !aw No .................................... of 19----
of the County of ....................................... Stale of New York, hay:ma been submitted to the eleamm
at the Geuemt Elect/on of November ................. 19----, pttrstmnt To subdiv/sio~ 5 and 7 of section 33 of the
Mtmi~cipal Home'Rute Law, amt baY/ag received the atTxmalive vote of a majority of the qualified electors of the o'/t-
ies ofia/d county as a un/t amd a majority of the qualified electors of the towns of said cotmty considered as a unit.,
voting at sa/d geaerat election, became operative.
(If any other authorized tom of tinal adoption has been followed, p/case previde an appropriate certification.)
further certify that I have compared the preceding local law w/th the origi~aI on file in th/s office and that the same
is a correct transcript therefrom and of the wlmle o£such original local law, and was finally adopted in the man. er
dicatedin pam~m-aph------t ..... ,above.~ ~'"~~
or officer de~a~maled by ~ ~gixla ~ive ixxiy~
Judith T. Terry, Town clerk
;Seco Date: May 1~t, 1997
(Certification to be executed by County Attorney, Corporation Counsel. Town Attorney, Village Aittorney or
other authorized attorney of locality.)
StaTS OF ~'rsw ~J~FO LK
COUNTY OF
t. the undersigned, hereby ~rdfy that the foregoingllocal taw contains the correct text and that alt proper proceedings
have been had or ~aken for the enactment of the loca~ law annexed hereto.
kaury L.Dowd, Town Attorney
Title
~ of Southold
Town
Date: May 111. 1997
STATE OF NEW YORK
DEPARTMENT OF STATE
ALBANY, NY 12231"O001
June 4, 1997
JUDITH T. TERRY
TOWN HALL
53095 MAIN ROAD
SOUTHOLD, NY 11971
RE: Town of Southold, Local Law 7, 1997, filed 05/19/97
The above referenced material was received and filed by this office as
indicated. Additional local law filing forms will be forwarded upon
request.
Sincerely,
Janice G. Durfee
Principal File Clerk
Bureau of State Records
(518) 474-2755
JGD:ml
PUBLIC HEARING
SOUTHOLD TOWN BOARD
MAY 13. 1997
5:00 P.M.
ON A PROPOSED "LOCAL LAW ENACTING
O1~t THE ISSUANCE OF APPROVALS
TELECOMMUNICATION TOWERS".
A TEMPORARY MORATORIUM
AND/OR PERMITS FOR
Present:
Supervisor Jean W. Cochran
Councilwoman Alice J. Hussie
Counciiman Joseph L. Townsend. Jr.
Councilwoman Ruth D. Oliva
Justice Louisa P. Evans
Councilman William D. Moore
Town Clerk Judith T. Terry
Town Attorney Laury L. Dowd
SUPERVISOR COCHRAN: The first public hearing that is scheduled is "A
Local Law Enacting a Temporary Moratorium on the Issuance of Approvals
and/or Permits for Telecommunication Towers". Councilman Moore will read
the Local Law as presented.
COUNCILMAN MOORE: "Public Notice is hereby given that there has been
presented to the Town Board of the Town of Southold, Suffolk County, ~lew
York, on the 1st da,/ of April, t997, a Local Law entitled, "A Local Law
Enacting a Temporary Moratorium on the Issuance of Approvals and/or
Permits for Teteconanunicatlon Towers~'. Notice is further given that the
Town Board of the Town of Southotd will hold a public hearing on the
aforesaid Local Law at the Southold Town Hall. 53095 Main Road. Southold,
New York, on the 13th day of May, 1997, at 5:00 P.M., at which time
ail interested persons will be heard. This proposed "Local Law Enacting a
Temporary Moratorium on the Issuance of Approvals and/or Permits for
Telecommunication Towers'' reads as fotlows:
BE IT ENACTED, by the Town Board of the Town of Southold as foilows:
Section 1. PURPOSE
WireJess communication technology has created the demand for
s~ '~ures on-which transmitting and/er receiving antennae are located. The
'~um~er of s~ruc:ures aCsen: regulation may be anticipated to inc"ease as the
demand for .~iiuiar ~hene sepzice corres~ondingiy inc,~ases. The Town Board
is .concerned that the ,,mpact of an unregulated ir, crease in the number of such
pg 2 - PH ....
structures be examine~ at this time. Shared use. appropriate setbacks, visual
imoact and the tike would be appropriate subjects for study in detail beyond the
present provisions of Town Code Section 100-3t (B)(6), which currently governs
public utility structures. This Local Law is intended to provide the Town Board an
opportunity to study the likely impacts of the Telecommunications Act of 1996
signed into taw by President Clinton on February 8, 1996, including most
particularly, appropriate and inappropriate locations for telecommunication
structures, the ~mpact of an unregulated number of such structures and f~e Iikeiy
hex1 stages of development of this technology.
Section 2: ENACTMENT OF TEMPORARY MORATORIUM
Until one hundred and twenty days (120 days~¢ from the date of enactment
of this local Iaw. after which this Local Law shall lapse and be without further
force and effect and subject to an other Local Law adopted by the Town Board
during that one hundrea ~enty day period, no agency, board officer or
employee of the Town of Southold. including by way of illustration, not limitation~
the Zoning Board of Aopeats acting under its special exceotion use powers
under Town Code Section 100-31 ~B), or me Planning Board acting under its site
p~an approval powers under Town Code Section 100-250 et al.. or the Building
Inspector issuing any building permit pursuant to any provzsion of the Town
Coae. shall issue, cause to be issued or allow to be issued any approval or
permit for any telecommunication tower meaning a structure on which
transmitting and/or receiving antennae are located or any accessory facility
thereto, including a structure housing transmission equipment accessory to a
telecommunications tower.
Section 3. EXCLUSIONS.
This Local Law shall not apply to any person or entity who has, prior to
the effective date of this Local Law. obtained all permits required for construction
of a ~etecommunications tower pursuant to Town Code Section 100-31 (B)(6),
including later applications to repair or alter (but not enlarge in height) any such
exisbng tower or structure.
pg 3 - PH ....... ~
Section 4. AUTHORITY TO SUPERSEDE.
To the extend any provisions of this Local Law are construed as
inconsistent with the provision of Town Law Section. 267. 267-a. 267-b, 274-a
and 274-b. this Local Law is intended pursuant to Municipal Home Rule Law
Sections 10(1 )(ii)(e)(3) and 22 to supersede any said inconsistent authority.
Section 5. VARIANCES TO THIS MORATORIUM.
Any person or entity suffering unnecessary hardship as that term is used
and construed in Town Law Section 267-b(2)(b) by reason of the enactment and
continuance or this moratorium may apply to the Zoning Board of Appeals for a
variance excepting the person's or entity's premises or a portion thereof from a
moratorium and allowing issuance of a permit under Town Code Section 100-
31 (B)(6), alt in accordance with the applicable provisions of the Town Code
Sections 100-270 et at,
Section 6. SEVERABtLfTY
If any clause, sentence, paragraph, section or part of this Local Law shal
be adjudge by any court of competent jurisdiction to be invalid, the judgment
shall not affect, impair or invalidate the remainder of this Local Law.
Section 7. EFFECTIVE DATE.
This Local Law shall take effect upon filing with the Secretary of State.
* Underline represents additions.
Copies of this Local Law are available in the Office of the Town Clerk to
any interested persons during business hours. Dated: April 15, 1997.
Judith T, Terry, Southold Town Clerk." I have an affidavit of publication._
by the Town Clerk on the Bulletin Board, an affidavit of publication in The
Suffolk Times. I have a memorandum from our Town Attorney advising that
this is a Type Two action for SEQRA, and it has been determined by Law
not have a significant impact on the environment. It is precluded from
Environmental Review under Environment Conservation Law Article
have a communication from the County of Suffolk Department of Planning
statlng that this is a matter for local determination, as there is no
apparent significant countywide or intercommunity impact, and a
memorandum supporting the proposed Local Law received from our Southold
Town Planning Board. That seems to be all the communications.
SUPERVISOR COCHRAN: Is there anyone in attendance that would like to
speak in favor of this Local Law? Is there anyone that would llke to speak
in favor?
pg · - PH
SUSAN MADICAN: My name is Susan Madigan, and I live in Orient,
and I urge you to enact a moratorium. For 120 days? I didn't hear you.
To place local zoning for the telecommunication towers. We have been very,
very involved in this, and I strongly urge the Board to do this.
SUPERVISOR COCHRAN: Thank you, Susan.
would like to address the Board in favor?
Is there anyone else that
FREDDIE WAXBERCER:
Waxberger from Orient.
and
the
the ToWn mi
I might just as well add my voice to it. Freddie
We have done a lot of quick catch up on this
obviously, for everybody to learn about it,
should give itself time to study
permits which would establish precedents that
f be sorry to have established.
SUPERVISOR COCHRAN: Is there anyone, else like to speak in favor?
DAVID MOORE: David Moore, also, from Orient, and I would support this
Local: L.a.w,.also, simply because I think the Town has to look at the overall
plan within .the to~n for commUnication towers, as we have heard very
clearly in ~the meetings that were he d here, that thdre are going to be
mOre demands, that others will follow this one. We have.to figure out where
) go, because obviously they are going to go somewhere in
The 120 days, I think, will give you a chance to do
that.
SUPERVISOR COCHRAN: Is there anyone else like to address the Board?
(No response) Would anyone like to address the Board in opposition? I
Will come back to in favor anyway, but in opposition, please, feel free.
HOWARD PACHMAN: Honorable Cochran, and members of the Town
Board, ladies and gentleman, my name is Howard Pachman. I am the
Attorney for Bell Atlantic NYNEX Mobile Communications. I come here
opposed to your mora. torium. As. you probably know m.y cli.ent, .Bell Atlantic
N~;NEX, has two zomng appticatmns for cell sites peiidmg in th~s town. In
light of these applications we submit our comments with respect to the
proposed moratorium. First and foremost, the moratorium serves no
purpose. Bell Atlantic NYNEX is willing to work with the town to establish
appropriate public communications facility regulati0~s for the benefit of
the town, and cellular providers. Second, Southold is not faced with a
flood of new cell site applications. Therefore a stop gap measure is
unnecessary and the imposition of the moratorium ~s unreasonable, and
appears to be targeted, again, solely at Bell Atlantic NYNEX Mobile, and
that is because we have presently pending after three months, and more
time with reference to the Orient application wen~ before the Board of
Zoning Appeals, and recently filed in a Mattituck area, which would have
been filed two or three weeks ago, but we have found that new sections of
the Zoning Code, and the Planning regulations, which didn't exist before
when we filed our application, al of a sudden come to the floor as to the
litany of wha~t we must provide, and submit to the town. I think we are
being targeted. I think there is selective enforcement, or selective
enforcement of the laws. How this application was filed, it was finally
[ilecl, today in the eve of this proposed moratorium~. Third, Bel Atlantic
N~NEx is a public utility. We fall under the Publllc Service LaW. We fall
pg 5 - PH
under the Federal Communications Law, and fall under a whole host of cases
reported in the New York State Court of Appeals in the Appellate Division,
that we are a public utility, and we are a necessary service. I am not
going to go through a long litany of how important cellular telephones are.
If anyone read the record before the Board of Zoning Appeals they would
see how necessary our service is. Cellular services are needed by the
Police, Fire, and other public services, who rely upon the services for
backup in the event of an emergency. Cellular service serves the
community by permitting emergency vehicles to forward emergency
information, such as cardiograms, hospita records, and other information at
emergencmes. We recently had the floods in
North Dakota. :hat existed in
until' they. can restore again.
have all kinds of storms, the most
is cellular service.
the Great South Bay we were
~l towers,
required with
so teat they
A four
to raise
It
im~01 it Places
they ni3t try to use their zor
and to, divert
has
mu~
Board of
'~&Sumabl y
o~her status mn the
in conflict, ii~ my,
no delay should
the moratOriUm is
municipalities on
States.
very
of
are in the
to
We of time
and
of
been
By
p, assed,
s next step~ which would be if the
~e would have to go
go through
to I~ permit. If you stop us
in an, inord,[nate amount of
is ,necessary will . and you will fall
OhS, Act. It 'says, that
~ns are pending. I say
le because it makes no adequate
p o.~ls!~),n foe ~ns. The so ca led variance
appllcaton, which' s ~the ordinance, is no variance at all. It
creates a hardship is almost !mpos~[ble, an.d. we could at all
meet under those terms, so tl~erefore the var~ancel ms annuh. If the Board
should feel, in it's Wisdom, that this moratorium is something that will
satisfy the needs of the~,toWn for making a determination where cellular
phones belong, and we believe they have already made that determination,
because it already provides under their special permit provisions of the
Code where they do beldng, and' where they are prohibited. We would
suggest to you that the f~:llowing addition be added to your Code. I have
copies for the Boai~d. I~:'will read it~ but it may be easier for you if at
pg 6 - PH
the same time you are able to look at it yourselves. We would suggest that
the following language be added to your proposed moratorium if it were to
be passed. One, nothing contained in this article shall be deemed one, to
abrogate or annul any prior approval granted, or in affect on the affective
date of this article. TWo, any presently pending application to zoning
changes, permits, variances, site plans, special exceptions, subdivision,
New York State Environmental Quality Review, SEQRA applications, and/or
other approvals, for which an application has been filed, and which ~s
presentl;f pending before the Town, in fact in this case the Board of
or the Town ' the adoption of this Local
Appeals,
Zoning
Law.
Board, prior to
language should
any
i~ a normal way
most familiar witi~, we
and
ion the
a
Ks that
have
to brir
record
we were
one
be added. Notwithstanding
written
mpairme.nt
of this article in
hearl ng. The Town
'Jew thereof, and
such determi,nation
necessary or
NOw this
the overall
of
or applications are
Telecommunications and
lawsuit. One of the
not only do you have
which you
A~t
in
an
We have the- need~
SO
the in their has ~l~n
of this the
of ,a
pa Which. would ~Obviously ih the
get you
to see those res.
er
)osJng
one that we would erect. SO, there are ways to let
us proceed in an orderly fashion, and there is really no need for this
moratorium, but, again, if you should put this moratorium in effect we
believe that it would be appropriate, fair, give us due process as to those
applications that are already pending, and this would show, too, my client
that this is not a targeted moratorium solely to inhibit and prohibit us
from proceeding. If that is the course of action that we are placed in, we
may find ourselves being forced to go to court. Thank you for your time
and attention.
SUPERVISOR COCHRAN: Thank you, sir. Is there anyone else that would
like to speak in op. pos~tlon. (No response.) Is there anyone that would
like to speak from either side of the issue, either for or against?.
CHARLOTTE HANSEN: My name is Charlotte Hansen from Orient. I am
just a little confused. I was at the meeting the other night, and these
hree act,errs, it seems to me, were offered at 10:00 o~clock, just as the
meeting closed. (Tape~ change.) That is something I don't think we were
privy to at all at that time.
HOWARD PACHMAN At the request of the Zoning Board of Appeals I
submitted a letter to the Fire Department, once again, making a
proPosition, and showing them those pictures, and those pictures were
submitted to the Board Of Zoning Appeals at the last heaning as one of our
final documents.
FREDDIE WAXBERGER: With al due respect, I didn't think that the
proposal on Orient was actually on the agenda tonight for discussion. But,
I would like to address some of the issues that Mr. Packman raises.
Certainly a moratorium had been imposed in town after town r at least from
the research that we have hurriedly done. Imposed' in town after town all
over the country successfully, and always they have been brought up in
response to the first upsetting application, because if there hadn't been an
application obviously they wouldn't be asking for a moratoria to conslden
the issue. In response, usually, to the first application, or the first
upse~tting application, they have written appropriate Zoning Code, because
the present Zoning Code we have, while it addresses public utilities, does
not ~address this specific issue of cellular towers, which falls somewhat
into~ a different category, because of the competition involved, which does
not usually occur with public utilities which are usually monopolies.
Secondly, I don't see how this can be considered discrimination or targeted
any specific cellular company, when the laws that are drafted obviously
cover all future applications by cellular companies. So, I think also that
Mr. Pachman is seeing the FCC regulations in a somewhat one sided
view, if one reads the regulations there are many considerations allowed
for issues, particularly in environmental protection, and other local zoning
rights. So, I strongly urge the Town not to except Mr. Pachman's
amendments, but definitely to pass the moratorium.
SUPERVISOR COCHRAN:
the Board?
Is there anyone else who would like to address
HOWARD PACHMAN: Just that I don't want to pursue this argument,
because it makes no sense, but if anyone would read the State of
Washington case, which the first moratorium was imposed, the only reason
that moratorium was sustained for the period that it was, Ts that it did not
prohibit the processing of applications during the course of the
moratorium. If one would read the case. rather than look at what someone
digests, and actually look at the law, you will find the only reason that
moratorium was sustained was because they permitted the applications to go,
and be ,processed during that term. That's why I gave you the language
here which woUld then put this moratorium, if it we~ adb~3ted, in concert,
and concur with the WaShington decision in the Federal 'Court~ Thank you
very much.
SUPERVISOR COCHRAN: Thank you, sir. Anyone else like to address the
Board? I will call one more time. Anyone like to address the Board? (No
response.) If not, I deem the hearing closed.
Judith T. Terry
Southold Town Clerk