Rye, New York Proposed Ordinance Summary of Approach Presented to the City of Rye February 15, 2017 PRESENTED BY Joseph Van Eaton Partner 2016 Best Best & Krieger LLP
Summary of Presentation Background What Ordinance Does and Does Not Do Terms/Concepts Federal Law Approach in Draft Obligation To Obtain Consent Noise Ordinance Revisions Wireless Siting Revisions
Background What Ordinance Does and Does Not Do Ordinance Does Not Decide Whether Crown Castle Request Should or Should Not Be Granted Ordinance Does Not Decide Whether Crown Castle RUA Is or Is Not Valid Ordinance Would Apply To All Wireless Facilities Because FCC Rules Governing Expansion Of Wireless Apply to All Wireless Facilities Not Just Cellular
Ordinance Terminology Ordinance Does Not Use Terms in Ordinary, Common-sensical way Why? Because FCC Rules Governing Placement and Expansion Do Not Use Terms In Ordinary Way, e.g.: Base Station Tower Stealth v. Concealment Elements
So In Ordinance You May Need To: Treat nodes (Antenna Locations) differently from wireline elements; Treat towers differently than utility poles Make sure you cover all elements of a wireless facility and not just the antenna Use terms consistently With FCC usage (Because Staff will need to apply ordinance consistent with FCC terminology
Background: Law Local authority is confined by state and federal law Federal law does not grant any authority, or require regulation of wireless facilities. Rather, federal rules define circumstances under which local authority will be preempted State law defines your zoning authority, as well as your authority to require those using RoW to obtain your consent/pay for usage, and affirmative findings you must make (e.g. SEQRA)
Federal Law Three provisions will be cited (47 USC 253, 47 USC 332(c)(7), 47 USC 1455) 332(c)(7) preserves local authority to control placement of personal wireless facilities but: Local rules may not prohibit or effectively prohibit the provision of wireless services (2d Cir: significant gap; least intrusive alternative) Locality may not unreasonably discriminate among providers of functionally equivalent services Complete applications must be acted upon in 90/150 days; denials of applications must be in writing supported by substantial evidence in a written record; Local regulations may not consider the environmental effects of radio frequency emissions Rules do not apply to government acting in proprietary capacity (i.e., as owner of structures)
Federal Law 47 USC 253 (which may have no application to wireless facilities but may apply to DAS wired assets) Preempts local laws that prohibit or effectively prohibit any person s provision of telecommunications services But protects (among other things) local right to manage the rights of way on a non-discriminatory basis and to obtain compensation for use of rights of way on non-discriminatory basis Allows establishment of franchise conditions
Federal Law 47 USC 1455 (AKA Section 6409): Notwithstanding any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. For purposes of this subsection, the term eligible facilities request means any request for modification of an existing wireless tower or base station that involves (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment.
Substantial Change
Keys to Sec. 6409 Maximize concealment elements = minimizes growth Existing means [a] constructed tower or base station that has been reviewed and approved under the applicable zoning or siting process or under another State or local process, except towers not in a zoned area when built, but lawfully constructed i.e. if you don t review it, you may be able to review it later Modifications do not include replacement of the support structure Other conditions may also effectively minimize growth potential
State Law Issues State law generally requires providers of telecom services to obtain local consent before entering the rights of way In addition, case law suggests that zoning or land use principles may be applied to users of the rights of way but utilities must be granted exemptions from local requirements where proposed facility is a necessity
Background Under New York law, "cellular telephone companies... are classified as 'public utilities' for purposes of zoning applications." Town of Lagrange, 658 F. Supp. 2d at 555 Accordingly, "[a] zoning board of appeals has a narrower range of discretion " Town of Lagrange, 658 F. Supp. 2d at 555 Under the "public necessity" standard enunciated in Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 374 N.E.2d 105, 403 N.Y.S.2d 193 (1978), a public utility must demonstrate that "(1) its new construction 'is a public necessity in that it is required to render safe and adequate service;' and (2) 'there are compelling reasons, economic or otherwise," for its construction. Town of Lagrange, 658 F. Supp. 2d at 555 (quoting Rosenberg, 82 N.Y.2d at 372). Accordingly, "a local board must evaluate a cellular telephone company's application for a variance on the basis of whether the public utility has shown a need and whether the needs of the broader public would be served." Sprint Spectrum, L.P. v. Board of Zoning Appeals of Town of Brookhaven, 244 F. Supp.2d 108, 114 (E.D.N.Y. 2003). "[W]here the intrusion or burden on the community is minimal, the showing required by the utility should be correspondingly reduced." Hoffman, 43 N.Y.2d at 611. When weighing the extent of intrusion of a proposed facility, the municipality may consider, among other things, the aesthetic impact of a facility."). T-Mobile Ne. LLC v. Inc. Vill. of E. Hills, 779 F. Supp. 2d 256, 265 (E.D.N.Y. 2011)
Ordinance Actually proposing to amend several ordinance provisions First amendment: amend noise ordinance to ensure it applies to noise from communications facilities, including cell towers. Measures noise at same distance noise is measured from facilities like pool filters when facilities are close to sidewalks or to housing units
Ordinance (cont d) Second amendment: specifically requires those who place facilities in the right of way to obtain consent from locality Specifically prevents entry into an agreement that waives the City s police powers Prevents subleasing of rights but Creates an exception where a company like Crown Castle installs facilities that may include some structures owned by another company subject to certain protections Alternative would be to require everyone to obtain a consent from the City Requires compensation for use of rights of way, based for now on Crown Castle model (5% of gross) but it may make sense to alter that formula One reason to charge compensation: don t create disincentive to use of private property
Ordinance Wireless Siting Section 196-3 (definitions) Modified definitions to follow FCC terms for tower and base station and to include concealment elements and other terms relevant to 47 USC 1455. Distinguishes between nodes (antenna sites) and placement of wireline facilities in the rights of way by DAS providers; the former is handled like other wireline facilities, the latter requires a special use permit
Wireless Siting Special use permits are not required for certain classes of wireless devices User (homeowner or business) antennas that are not above a certain size (size requirements established by federal law) Wireless facilities that are below a certain size (1 cu ft.) consistent with existing wireless installations Additions to existing, approved towers that don t substantially change the dimensions of those towers
Wireless Siting COWs Facilities that will not be visible (rooftops, inside other structures) and do not alter the supporting structure Routine maintenance City property (because City can grant/deny/condition through contract) Does not relieve of obligation to comply with safety codes (including RF) Does not approve the installation; avoids creating an existing facility for purposes of Sec. 6409
Wireless Siting For facilities that are subject to Sec. 6409 Establishes procedures for application But only permit granted is conditional permit is only valid for so long as feds require it to be valid Process is administrative, since complete application is deemed granted after 60 days. Real issue is whether application meets federal standards Applicant must provide info to show that Sec. 6409 does apply
Wireless Siting All other wireless facilities require a special use permit. Policy issue: should every facility require a showing that denial of a permit request would prohibit or effectively prohibit service?/ or a showing that facility is necessary? Significant gap Least restrictive alternative Alternative: if facility meets certain conditions, no showing is required; if it does not, the showings are required Ordinance based on the latter
Wireless Siting A special use permit will not be granted if The facility is speculative (no customer) Applicant must have an agreement with City for use of rights of way and all necessary state and federal authorizations The facility must be sized and placed to minimize impact on the community The facility may not significantly impact the site on which it is located or properties that will be disturbed in installation
Wireless Siting A special permit will not be granted Unless applicant can show need/prohibition except where there is no significant impact on the supporting structure and: the facility is not in an historic area/environmentally sensitive area AND it is a stealth facility; OR It contains concealment elements, will be placed or shielded on an existing structure so that it is not readily visible to surrounding properties, and will not be subject to modification except at City s discretion
Wireless Siting A permit is never issued, with or without a showing of need: If the facility is being built speculatively (no wireless provider has agreed to use it) If the applicant and any entity whose equipment would be included in the installations has all the authorizations required from state, City and locality and any private party (CPCN; local franchise; FCC licenses (if any are required), leases, easements, pole attachment agreements) Unless the facility is designed and placed to minimize the visual impact on the community (form factor; away from windows and front stoops). If the facility will significantly impact the site upon which it will be located or the properties that will be disturbed as a result of its installation (trenching impacts, use of property for its intended purposes)
What Happens If Need Must Be Shown? Ordinance attempts to define what would be the least intrusive alternatives generally, but to provide latitude to vary from standard in particular cases Goal is to set up a set of standards that result in the balancing of interests contemplated by state/federal law
Least Intrusive Means Applicant Must Show: It is installing Stealth Facilities to the extent possible; and It is otherwise installing facilities in the highest priority locations Existing Towers serving Rye. Existing Supporting Structures off the rights of way with Wireless Facilities Other City property (but no new non-stealth facilities that exceed 40 feet). [the footage is not a magic number] The proposed siting minimizes visual impacts considering the proposed facility and alterations that may be made as of right The design of the facility is consistent with the overall characteristics of the area The number of new supporting structures has been minimized The impact of a planned project as a whole, and the impact if others providers of Wireless Facilities or services may require similar facilities.
Least Intrusive Some Points Assumes City would prefer a stealth facility anywhere rather than a visible facility (even on an existing site) Why not simply prohibit placement is residential areas? Because most areas within Rye are zoned residential, and placement within residential areas will likely be necessary (this is a potential issue with the existing ordinance) So goal is to require placement on existing facilities and parks/muni property Elsewhere best option may vary
Wireless Siting Most of the remainder of the ordinance specifies what must be contained in an application It adds provisions to the recertification process that are intended to permit the City to require downsizing of facilities It also establishes some basic rules that will apply except where a restriction would violate federal or state law
Wireless Siting In the rights of way, no Towers are permitted except as part of a Stealth Facility. No Wireless Facilities are permitted in underground areas except Stealth Facilities. A new or replacement Supporting Structure, other than Stealth, street lighting or traffic control structure is height-limited to size of surrounding utility poles An extension of an existing pole is limited to the lesser of 20% or 6 feet The lowest edge of any component on a Utility Pole must be 8 feet aboveground unless concealed within the pole.
Wireless Siting All Wireless Facilities mounted to the side of a Supporting Structure in the right of way, other than in the communications space, must be flush-mounted, sized and painted so that the facility to the extent possible the facility is concealed; All facilities mounted to the top of a pole must be designed so that the facilities form a continuous line with the pole In placing facilities, following rules apply: Facilities should be at least 25 feet from any residential structure, and located so that the facilities are not directly in front of any front window or door of a residential Structure. Locations that are less visible from a residential structure are preferred over locations that are more visible.
Advantages Over Existing Ordinance Deals with Section 6409 (existing ordinance does not) Removes any question that ordinance applied to RoW Creates safe harbors to incentivize placement of facilities in certain locations, while limiting future expansion Recharacterizes priority locations to focus on existing facilities and City properties Addresses noise and franchising issues