(A) Purpose. The purpose of this section is to designate certain areas within the incorporated areas of the Town of Newburgh as strictly for underground or buried utility areas in advance of the deadline for making such designation imposed by SEA 213 and to prohibit the placement of new utility pole or new wireless support structures in rights-of-way within the areas so designated in compliance with the requirements and conditions imposed by SEA 213.
(B) (1) Designation. The town hereby designates an area to include all existing and future town ROWs as strictly for underground or buried utilities, including:
(a) In all areas of the town where no overhead or above ground utilities, utility facilities, overhead lines, support structures, or associated overhead structures used or useful in supplying electric, communication or similar and associated services currently exist;
(b) In all areas of the town where current and future planned road projects, redevelopment areas and/or economic development areas provide for and require underground buried utilities and utility facilities, including but not limited to electric, communication or similar and associated services; and
(c) All other areas of ROW, proposed ROW, and subsequently acquired ROW throughout the town, whether or not above ground utilities or utility facilities currently exist.
(2) Notwithstanding divisions (a) through (c) above, any utility or wireless communication provider that seeks construction, placement, or use above ground in any portion of the area, may request a waiver from the Town Council to do so.
(3) The Board shall allow within the area:
(a) The collocation of small cell facilities on existing utility poles and wireless support structures; and
(b) The replacement of existing utility poles and wireless support structures.
(C) From and after the effective date of this section, no person, corporation, or utility shall erect or construct within the town's ROW, any pole, support structure, line, or associated overhead structure used or useful in supplying electric, communication, other utility or similar associated services without a waiver from the Board.
(D) Unless otherwise expressly authorized, all utilities located within the town's ROW shall be placed underground and/or buried.
(E) All existing overhead poles, support structures, wires, and/or utility transmission lines may remain within the town's ROW, but may not be replaced or relocated except as otherwise permitted by statute or ordinance or as authorized in writing by the Town Council. But in the case of conflict between this section and a statute or other ordinance this section shall control.
(F) If any portion of this section is for any reason declared to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this section so long as enforcement of same can be given the same effect.
(G) Restrictions. With respect to the construction, placement, or use of a small cell facility and the associated support structure, the Town Council hereby restricts and prohibits the placement of new utility poles or new wireless support structures in the designated areas of the town rights-of-way as outlined in division (B), except as otherwise permitted in division (H) of this section.
(H) Exceptions. Notwithstanding the restrictions and prohibitions contained in sections above, the following provisions shall be met and the following exceptions are hereby permitted:
(1) Repair and/or replacement of existing utility poles and wireless support structures within the incorporated areas of the town are allowed;
(2) A petition for a waiver to request to install new utility poles or new wireless support structures within the incorporated areas of the town may be filed with the Town Zoning Administrator. The Town Council shall hold a public hearing on any such petition within 30 days of filing, and a decision shall be made by the Town Council within 60 days of such filing;
(3) Upon receipt of a petition for waiver for the construction, placement, or use of a small cell facility on one or more new utility poles or one or more new wireless support structures in the incorporated areas of the town, the Town's Zoning Administrator shall post notice of the petition on the town's internet website, with a statement that the petition is available to public upon request;
(4) Neighborhood associations and homeowners associations may register with the Town's Zoning Administrator to receive notice by United States mail of any application filed with the town for the construction, placement, or use of a small cell facility on one or more new utility poles or one or more new wireless support structures in an area within the jurisdiction of the neighborhood association or homeowners association. The Zoning Administrator is hereby directed to post on the town's internet website instructions for how a neighborhood association or homeowners association may register to receive notice under this division; and
(5) The prohibition or other restrictions with respect to the placement of new utility poles or new wireless support structures within the incorporated areas of the town shall be applied in a nondiscriminatory manner.
(Res. 2017-02, passed 4-30-2017)