I. Purpose and Goals

 In recognition of the requirements of the federal Telecommunications Act of 1996, this ordinance is designed and intended to balance the interests of the residents of Shelburne, telecommunications providers, and telecommunications customers in the requirements and siting of telecommunications facilities within the town of Shelburne so as to ensure coordinated development of communications infrastructure while preserving the health, safety and welfare of the Town and its residents as well as the town’s rural character. This Ordinance establishes general guidelines for the siting of telecommunications facilities to enhance and fulfill the following goals:

A.     Preserve the authority of Shelburne to regulate and to provide for reasonable opportunity for the siting of telecommunications facilities;

B.      Reduce adverse impacts such facilities may create, including, but not limited to, impacts on aesthetics, environmentally sensitive areas, historically significant locations, flight corridors,  health and safety by injurious accidents to person and property, and prosperity through protection of property values;

C.     Provide for co-location and minimal impact siting options through assessment of technology, current locational options, future available locations, innovative siting techniques, and siting possibilities beyond the political jurisdiction of the Town.

D.     Permit the construction of new towers only where all other reasonable opportunities have been exhausted, and to encourage the users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas.

E.      Require cooperation and co-location, to the highest extent possible, between competitors in order to reduce cumulative negative impacts upon the Town.

F.      Provide routine maintenance and safety inspections for any and all facilities;

G.     Provide for the removal of abandoned facilities that are no longer inspected for safety concerns and Building code compliance. Provide a mechanism for the Town to remove these abandoned towers to protect the citizens from imminent harm and danger; and provide for the removal or upgrade of facilities that are technologically outdated.

II.  Definitions

1.)      Alternative tower structure - Innovative siting techniques such as artificial trees, clock towers, bell towers, steeples, light poles, and similar alternative design mounting structures that camouflage or conceal the presence of antennas or towers.

2.)      Antenna - Any exterior apparatus designed for telephonic, radio, television, personal communications service (PCS), pager network, or any other communications through the sending and/or receiving of electromagnetic waves of any bandwidth.

3.)      Co-location - The use of an existing tower or an existing telecommunications facility, for multiple purposes or users.

4.)      Elevation - The measurement of height above sea level.

5.)      Equipment Shelter - An enclosed structure, cabinet, shed, vault, or box near the base of the telecommunication facility within which are housed equipment for those facilities such as battery and electrical equipment.

6.)      Fall Zone - The area on the ground within a prescribed radius from the base of a telecommunication facility. The fall zone is the area within which there is a potential hazard from falling debris  (such as ice), collapsing material or the collapse of the tower itself.

7.)      Guy wires - A cable used to secure and steady a tower.

8.)      Guyed tower - A monopole or lattice tower that is tied to the ground or other surface by diagonal cables.

9.)      Height - The vertical distance measured from the average elevation of the finished grade surrounding the tower or other structure to the highest point on the tower or other structure, including antennas.

10.)   Lattice tower - A type of mount that is self-supporting with multiple legs and cross-bracing of structural steel.

11.)   Monopole - A type of mount that is self-supporting with a single shaft of wood, steel or concrete and a platform (or racks) for panel antennas arrayed at the top, constructed without guy wires.

12.)   Pre-existing towers and antennas - Any tower or antenna lawfully constructed or permitted prior to the adoption of this ordinance. Also, any tower or antenna lawfully constructed in accordance with this ordinance that predates an application currently before the Town.

13.)   Secondary use - A use of land or of a building or portion thereof which is unrelated to the principal use of the land or building.

14.)   Telecommunications facilities - Any structure, antenna, tower, or other device that provides commercial mobile wireless services, unlicensed wireless services, cellular phone services, specialized mobile radio communications (SMR), and personal communications services (PCS), and common carrier wireless exchange access services.

15.)   Tower - A structure that is designed and constructed primarily for the purpose of supporting one or more antennas, including self-supporting lattice or monopole towers and including guyed towers. The term includes radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers, alternative tower structures, and the like.

III.  Regulations

All telecommunication facilities shall comply with the following requirements. These requirements shall supersede any and all other applicable standards found elsewhere in the Shelburne Zoning Ordinances and Regulations that are less strict.

A.     Height. New telecommunication facilities located on any existing structures shall not increase the height of the existing structure more than 20 feet. No telecommunication facility shall project higher than 20 feet above the average surrounding tree canopy height nor may a telecommunication facility be visible above the ridgeline from any public right of way.

B.      Fall Zone. In order to ensure public safety, the minimum distance from the ground mount of a telecommunication facility to any property line, road, habitable dwelling, business or institutional use or recreational facility shall be 125% of the height of the facility, including any antennas or other appurtenances. This setback is considered the "fall zone".

C.     Visual Impact and Lighting. In order to preserve the character of the existing developed and  natural environments within the Town of Shelburne, and to minimize any detrimental visual  impact that telecommunication facilities might have, all telecommunication facilities will adhere to the following requirements:

1)       The design of the towers, ground mounts, antennas, buildings and related structures shall, to the maximum extent possible, use materials, colors, textures, screening, and landscaping that will blend the tower facilities with the natural setting and built environment.

2)       If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible.

3)       Telecommunication facilities shall not be artificially lighted, unless required by the Federal Aviation Administration (FAA) or other applicable authority. If lighting is required, the Planning Board may review the available lighting alternatives and approve the design that would cause the least disturbance to the surrounding views.

4)       Towers shall be located on sites where the grade/slope and tree cover of the site and surrounding land can be used to decrease any adverse visual impacts.

5)       Towers or ground-mounted facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the facilities from adjacent properties and public roads. Natural vegetation is preferred.

6)       Existing mature tree growth and natural landforms on the site shall be preserved to the maximum extent possible.

7)       Towers shall not contain any permanent or temporary signs, writing, symbols or other graphic representation of any kind, except as may be allowed or required by the Planning Board in the interests of public safety.

A.     Fencing. - Towers shall be enclosed by security fencing located inside the landscaped buffer. The fencing shall be at least 6 feet in height and equipped with appropriate anti-climbing devices.

B.      Federal Requirements - All telecommunication facilities must meet or exceed current standards and regulations of the FAA, the Federal Communications Commission (FCC), and any other agency of the federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the facilities governed by this ordinance shall bring such facilities into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a more stringent compliance schedule is mandated by the controlling federal agency. Failure to bring facilities into compliance with such revised standards and regulations shall constitute grounds for the removal of the facilities at the owner's expense. 

C.     Towers and/or antennas that are no longer useable due to changes in technology are to be removed within one year of being taken out of service.

IV.  Application Procedure

A.      Application to erect telecommunication facilities in Shelburne shall be made to the Planning Board through site plan review.

B.      The application shall contain a scaled plan including a scaled elevation view, surrounding topography, surrounding tree cover and natural vegetation, radio frequency coverage, setbacks, fall zone, design of the facility and construction materials, design characteristics that will avoid visual obtrusiveness, landscaping, fencing, parking, access roads, adjacent uses, and any other information deemed necessary by the Planning Board to assess compliance with this ordinance.

1)       The applicant shall submit written proof that the proposed use/facility complies with the FCC regulations on radio frequency  (RF) exposure guidelines.

2)       The applicant shall submit written proof of legal authority to use the proposed site.

3)       The applicant shall submit written proof that an evaluation has taken place, as well as the results of such evaluation, satisfying the requirement of the National Environmental Policy Act (NEPA) further referenced in applicable FCC rules. If an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) is required under the FCC rules and NEPA, submission of the EA or EIS to the Planning Board prior to the beginning of the federal 30 day comment period and the Town process, shall become part of the application requirements.

4)       Each applicant for a facility shall provide to the Planning Board an inventory of its existing facilities that are within the jurisdiction of the Town and those within two miles of the border thereof, including specific information about the location, height, design of each facility, as well as economic and technological feasibility for co-location on the inventoried facilities. The Planning Board may share such information with other applicants applying for approvals or conditional use permits under this ordinance or other organizations seeking to locate antennas within the jurisdiction of the governing authority, provided however that Planning Board is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

5)      Each applicant for a facility shall provide a list of any additional towers which may be required in Shelburne for completion of their planned wireless coverage.

A.    If the applicant is proposing to build a new tower or other ground-mounted structure, the applicant shall submit written evidence demonstrating why no existing structure can accommodate the applicant's proposed facility. This evidence must be substantial and can address such issues as location within   required geographic area, required height, electromagnetic interference, unreasonable financial requirements, etc.

B.    The applicant proposing to build a tower or ground mounted structure shall submit an agreement with the Town that allows for the co-location of additional facilities upon the new structure by a future applicant to the extent such co-location can exist while minimizing adverse impacts.

C.     The applicant shall submit the engineering information detailing the size and coverage required for the facility location. The Planning Board may have any submitted information reviewed by a consultant for verification of any claims made by the applicant regarding technological limitations and feasibility for alternative locations, or any other matter required by the application. Cost for this review shall be borne by the applicant.

 V.  Applicability

All towers must apply to the regulations set forth in this ordinance except as follows:

A.    Amateur Radio, Receive-Only Antennas.  This ordinance shall not govern any tower, or the installation of any antenna that is under 40 feet in height and is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only antennas.

B.     Essential Services and Public Utilities.  Telecommunications facilities shall not be considered infrastructure, essential services, or public utilities, as defined or used elsewhere in the Town’s ordinances and regulations. Siting for telecommunications facilities is a use of land, and is subject to the Town's zoning ordinance and all other applicable ordinances and regulations.

VI.   Siting Standards

General Provisions

The uses listed in this section are deemed to be permitted uses in the designated district in accordance with all other applicable ordinances and regulations of the Town including Non residential Site Plan Review and approval by the Planning Board.

A.   Antennas and towers may be considered either principal or secondary uses. A different existing use or an existing structure on the same lot shall not preclude the installation of an    antenna or tower on such lot.

B.     For purposes of determining whether the installation of a tower or antenna complies with zone development standards, the dimensions of the entire lot shall control, even though the antennas and towers may be located on leased parcels within such lots.

C.      Towers that are constructed, and antennas that are installed, in accordance with the provisions of this ordinance, shall not be deemed to constitute the expansion of a nonconforming use or structure.

D.    Applicants receiving approval to construct new telecommunication facilities must execute a written agreement with the Town specifying that the applicant agrees to provide for maximum shared use of the tower with other telecommunication providers and with governmental agencies at industry standard lease rates. This agreement shall include use by the Town for municipal communication purposes. The applicant shall also provide notice to all commercial carriers in the region that a new facility is to be erected and that an opportunity for co-location exists.

E.     Access Roads and Cable Paths shall have minimum visual impact on the Town of Shelburne.

F.      The applicant must submit a removal plan and cost estimate, both certified by a licensed engineer, to the Planning Board.

G.     Subject to all applicable local, state and federal regulations and Non-Residential Site Plan review and approval by the Planning Board, new tower construction and co-location of  telecommunication facilities shall be permitted in all areas of Town,

VII.  Bonding, Security, and Insurance

Recognizing the hazardous situation presented by abandoned and unmonitored towers, the Planning Board shall set the form and amount of security that represents the cost for removal and disposal of abandoned telecommunications facilities in the event that such a facility is abandoned and the facility owner is incapable and/or unwilling to remove the tower. The amount of security shall be based upon the removal cost plus fifteen percent (15%). The removal cost estimate shall be provided by the applicant and certified by a professional civil engineer licensed in New Hampshire. Every five (5) years from the date of the Planning Board approval of the site plan, the owner of the facility shall provide the Planning Board with a structural evaluation and a revised removal cost estimate prepared by a professional civil engineer licensed in New Hampshire. The Planning Board shall revise the amount of the security to be provided by the applicant to be the removal cost plus fifteen percent (15%). Furthermore, the Planning Board shall require submission of proof of insurance at a minimum of one (1) million dollars covering accident, damage and liability.

VIII.  Removal of Abandoned Antennas and Towers

Any antenna or tower that is not operated for a continuous period of twelve (12) months shall be considered abandoned and hazardous to the public health and safety, unless the owner of said tower provides proof of quarterly inspections to the Planning Board. The owner shall remove the abandoned structure within ninety (90) days of receipt of a declaration of abandonment from the Town notifying the owner of such abandonment. A declaration of abandonment shall only be issued following a public hearing, noticed according to RSA 676:4, with notice to abutters and the last known owner/operator of the tower. If the abandoned tower is not removed within ninety (90) days, the Town may execute the security and have the tower removed. If there are two or more users of a single tower, this provision shall not become effective until all users cease using the tower.

IX.  Waivers

General

The Planning Board may approve waivers to the requirements of these standards where it finds that extraordinary hardships or practical difficulties would result from strict compliance with the foregoing terms, or the purposes of these regulations may be served to a greater extent by an alternative proposal. The purpose of granting waivers under the provisions of this ordinance shall be to insure that an applicant is not unduly burdened as opposed to merely inconvenienced by the terms of the ordinance. The Board shall not approve any waiver(s) unless a majority of those present and voting shall find that all of the following apply:

A.     The granting of the waiver will not be detrimental to the public safety, health, or welfare or be injurious to other property and will promote the public interest.

B.     The waiver will not, in any manner, vary the provisions of the Town's Zoning Ordinance or     Master Plan.

C.     The waiver will substantially secure the objectives, standards, and requirements of these standards.

D.     A particular and identifiable hardship exists or a specific circumstance warrants the granting of a waiver. Factors to be considered in determining the existence of a hardship shall include, but not be limited to:

1)       Topography and other site features.

2)       Availability of alternative site locations.

3)       Geographic location of the property.

4)       Size/magnitude of the project being evaluated and availability of co-location.

Conditions

In approving waivers, the Board may impose such conditions, as it deems appropriate to substantially secure the objectives of the standards or requirements of this ordinance.

Procedures

A petition for any such waiver shall be submitted in writing by the applicant with the application for Planning Board Review. The petition shall state fully the grounds for the waiver and all of the facts relied on by the applicant. Failure to submit a petition in writing shall require an automatic denial of the waiver request.

Revised and adopted by the Planning Board on 6/5/01.   Voted by the town on: