[Added 4-11-2019 by L.L.
No. 2-2019]
This article establishes a process for managing and uniform
standards for acting upon requests for the placement of wireless telecommunications
facilities within the rights-of-way of the Village of Port Chester
consistent with the Village's obligation to promote the public
health, safety and welfare, and for those purposes, to regulate and
manage the public rights-of-way. The Village recognizes the importance
of wireless telecommunications facilities to provide high- quality
communications service to the residents and businesses within the
Village, and the Village also recognizes its obligation to comply
with applicable federal and state law regarding the placement of wireless
telecommunications facilities in its rights-of-way, and this article
shall be interpreted consistent with those provisions.
A.
In general. Unless exempted, every person who desires to place a
wireless telecommunications facility in the streets or modify an existing
wireless telecommunications facility must obtain a wireless placement
permit authorizing the placement or modification.
B.
(1)
The placement or modification of wireless facilities by the Village
or by any other agency of the state solely for public safety purposes.
(2)
Modifications to an existing wireless telecommunications facility
that makes no material change to the footprint of a facility or to
the surface or subsurface of a public street if the activity does
not disrupt or impede traffic in the traveled portion of a street,
and if the work activity does not change the visual or audible characteristics
of the wireless telecommunications facility.
(3)
Installation of a "cell on wheels," "cell on truck" or a similar
structure for a temporary period in connection with an emergency or
event, but no longer than required for the emergency or event, provided
that installation does not involve excavation, movement or removal
of existing facilities.
(4)
Installation of a wireless facility on the strand between two utility
poles, provided that the cumulative volume of all wireless facilities
on the strand shall not exceed one cubic foot and provided further
that the installation does not require replacement of the strand,
or excavation, modification or replacement of the utility poles, or
touch other wires on the same pole, or otherwise violate or cause
a violation of applicable safety codes.
(5)
The Village, by wireless regulation, may also exempt wireless telecommunications
facilities that otherwise are subject to the provisions of this section
from the obligation to obtain a permit to install or modify a wireless
telecommunications facility where it is determined that because of
the physical characteristics of the proposed facilities, and the work
associated with them, such a permit is not required to protect the
public health, welfare or safety, to maintain the character of a neighborhood
or corridor, or to otherwise serve the purposes of this article.
C.
Other applicable requirements. In addition to the wireless telecommunications
permit required herein, the placement of a wireless telecommunications
facility in the public- rights-of-way requires the persons who will
own or control those facilities to obtain the permission of the City
to use the streets, to obtain other permits required by applicable
law, and to comply with applicable law.
D.
Public use. Except as otherwise provided by state law, any use of
the streets authorized pursuant to this article will be subordinate
to the Village's use and use by the public.
In addition to those definitions contained in § 283-1, terms used in this article shall have the following meanings:
A formal request, including all required and requested documentation
and information submitted by an applicant to the Village for a wireless
placement permit.
A structure or equipment at a fixed location that enables FCC-licensed
or authorized wireless communications between user equipment and a
communications network. The term does not encompass a tower as defined
herein or any equipment associated with a tower. "Base station" includes,
without limitation:
Equipment associated with wireless communications services such
as private, broadcast, and public safety services, as well as unlicensed
wireless services and fixed wireless services such as microwave backhaul.
Radio transceivers, antennas, coaxial or fiber-optic cable,
regular and backup power supplies, and comparable equipment, regardless
of technological configuration [including distributed antenna systems
("DAS") and small-cell networks].
Any structure other than a tower that, at the time the relevant
application is filed with the Village under this section, supports
or houses equipment defined as a "wireless telecommunications facility"
that has been reviewed and approved under the applicable zoning or
siting process, or under another state or local regulatory review
process, even if the structure was not built for the sole or primary
purpose of providing that support.
The term does not include any structure that, at the time the
relevant application is filed with the Village under this article,
does not support or house equipment defined as a "wireless telecommunications
facility."
A document that is required from and issued by the Village
confirming all work described in the application, as approved:
Was properly permitted, including, without limitation, all required
permits for building, electrical work, street or curb cutting, and
excavation;
Was done in compliance with and fulfillment of all conditions
of all permits, including all stated deadlines;
Was fully constructed or placed as approved and permitted; and
Was finally inspected by the Village and was approved by the
Village after said final inspection.
The Director of Planning and Economic Development, or its
designee.
Any structure capable of supporting a base station.
Any structure built for the sole purpose of supporting any
FCC-licensed or authorized antennas and their associated facilities,
including structures that are constructed for wireless communications
services, including, but not limited to, private, broadcast, and public
safety services, as well as unlicensed wireless services and fixed
wireless services such as microwave backhaul, and the associated site.
A utility pole is not a tower.
Those corridors where there are no electrical facilities
or facilities of the incumbent local exchange carrier in the streets;
or where the wires associated with the same are or are required to
be located underground; or where the same are scheduled to be converted
from overhead to underground. Electrical facilities are distribution
facilities owned by an electric utility and do not include transmission
facilities used or intended to be used to transmit electricity at
nominal voltages more than 35,000 volts.
A person that owns, controls, operates or manages a wireless
telecommunication facility or portion thereof within the streets.
A permit issued pursuant to this article and authorizing
the placement or modification of a wireless telecommunications facility
of a design specified in the permit at a particular location within
the streets; and the modification of any existing support structure
to which the wireless telecommunications facility is proposed to be
attached.
Any regulations adopted pursuant to § 283-39A(1) and implementing the provisions of this article.
An entity that provides wireless services to end users.
Any facility for the receiving or transmitting of wireless
signals for commercial purposes, such as cellular telephone services,
personal communication services (PCS), specialized mobile radio (SMR),
enhanced mobile radio (ESMR), paging, satellite digital audio radio
service (SDARS), fleet communication systems and similar commercial
facilities, whether operated in support of another business activity
or available for the transmission of signals on a sale or rental basis.
As used herein, the term shall include any necessary support structure,
connection cables and equipment buildings as well as towers or monopoles.
A.
Director of Planning and Economic Development. The Director is responsible
for administering this article. As part of the administration of this
article, the Director may:
(1)
Adopt regulations governing the placement and modification of wireless
telecommunications facilities consistent with the requirements of
this article, including regulations governing co-location and resolution
of conflicting applications for placement of wireless telecommunications
facilities:
(2)
Interpret the provisions of this article;
(3)
As part of the foregoing, develop acceptable designs for wireless
telecommunications facilities in particular corridors, taking into
account the zoning districts bounding the streets;
(4)
Issue any notices of incompleteness, requests for information, or
conduct or commission such studies as may be required to determine
whether a permit should be issued;
(5)
Develop forms and procedures for submission of applications for placement
or modification of wireless telecommunications facilities, and proposed
changes to any support structure consistent with this article;
(6)
Collect, as a condition of the completeness of any application, any
fee established by the Board of Trustees;
(7)
Require, as part of, and as a condition of completeness of, any application,
notice to members of the public that may be affected by the placement
or modification of the wireless telecommunications facility and proposed
changes to any support structure;
(8)
Establish deadlines for submission of information related to an application,
and extend or shorten deadlines where appropriate and consistent with
federal laws and regulations;
(9)
Subject to appeal as provided herein, determine whether to grant,
grant subject to conditions, or deny an application; and
(10)
Take such other steps as may be required to timely act upon
applications for placement of wireless telecommunications facilities,
including issuing written decisions and entering into agreements to
mutually extend the time for action on an application.
B.
Appeal.
(1)
Any person adversely affected by the decision of the Director may
appeal the decision to the Board of Trustees, which may decide the
issues de novo, and whose written decision will be the final decision
of the Village. An appeal by a wireless infrastructure provider must
be taken jointly with the wireless service provider that intends to
use the wireless telecommunications facility.
(2)
Where the Director grants an application based on a finding under § 283-40B, that denial would result in a violation of applicable law, the decision shall be automatically appealed to the Board of Trustees. Otherwise, appeals that involve eligible facilities requests, as defined in 47 CFR 1.40001, as may be amended, must be filed within five business days of the written decision of the Director; all other appeals must be filed within 10 business days of the written decision of the Director, unless the Director extends the time therefor. An extension may not be granted where extension would result in approval of the application by operation of law.
(3)
Any appeal shall be conducted so that a timely written decision may
be issued in accordance with applicable law.
A.
Generally. Wireless telecommunications facilities shall meet the minimum requirements set forth in this article and any wireless regulations, in addition to the requirements of any other applicable law, specifically including but not limited to the general requirements for permits to excavate in the streets as established in Chapter 283, Part 2, Article I of this Code, and the conditions contained in any agreement for use of the streets.
B.
Regulations. Wireless regulations and decisions on applications for
placement of wireless telecommunications facilities in the streets
shall, at a minimum, ensure that the requirements of this section
are satisfied, unless it is determined that the applicant has established
that denial of an application would, within the meaning of federal
law, prohibit or effectively prohibit the provision of personal wireless
services or otherwise violate applicable laws or regulations, including,
to the extent applicable, New York State laws governing placement
of facilities by public utilities. If that determination is made,
the requirements of this article and any wireless regulations may
be waived, but only to the minimum extent required to avoid the conflict
with law.
C.
Standards. Wireless telecommunications facilities shall be installed
and modified in a manner that minimizes risks to public safety, avoids
placement of aboveground facilities in underground areas, avoids installation
of new support structures or equipment cabinets in the streets and
otherwise maintains the integrity and character of the neighborhoods
and corridors in which the facilities are located. The Village shall
ensures that wireless telecommunications facilities are subject to
periodic review to minimize the intrusion on the streets; that the
Village bears no risk, liability, or expense as a result of the installations;
that the facilities do not inconvenience the public or interfere with
the primary uses of the streets; and that the facilities do not hinder
the ability of the Village or other government agencies to improve,
modify, relocate, abandon or vacate the streets, or any portion thereof,
or damage or otherwise unduly interfere with other structures in the
streets.
D.
Concealment. Permits for wireless telecommunications facilities shall
incorporate specific concealment elements to minimize visual impacts,
and design requirements ensuring compliance with all standards for
noise emissions. Unless it is determined that another design is less
intrusive for the particular location proposed; or placement is required
under applicable law; or the placement proposed is for a design preapproved
for a corridor:
(1)
Antennas located at the top of support structures shall be incorporated
into the structure or placed within shrouds of a size such that the
antenna appears to be part of the support structure.
(2)
Antennas placed elsewhere on a support structure shall be integrated
into the structure or be designed and placed to minimize visual impacts.
(3)
Radio units or equipment cabinets holding radio units and mounted
on a utility pole shall be placed as high as possible on a support
structure, placed to avoid interfering or creating any hazard to any
other use of the streets, and located on one side of the utility pole.
Unless the radio units or equipment cabinets can be concealed by appropriate
traffic signage, radio units or equipment cabinets mounted below the
communications space on utility poles shall be designed so that the
largest dimension is vertical, and the width is such that the radio
units or equipment cabinets are minimally visible from the opposite
side of the support structure on which they are placed.
(4)
Wiring and cabling shall be neat and concealed within or flush to
the support structure, ensuring concealment of these components to
the greatest extent possible.
(5)
Ground-mounted equipment associated with a wireless telecommunications
facility shall be permitted only where consistent with the portion
of the corridor in which it is to be placed and may be required to
be underground, located in alleys or otherwise shielded. In no event
may ground-mounted equipment interfere with pedestrian or vehicular
traffic.
(6)
No permit shall be issued or effective unless it is shown that the
wireless telecommunications facility will comply with FCC regulations
governing radio frequency ("RF") emissions. Every wireless facility
shall at all times comply with applicable FCC regulations governing
RF emissions, and failure to comply shall be a treated as a material
violation of the terms of any permit or lease.
(7)
No towers shall be permitted in the streets, and no wireless telecommunications
facilities shall be permitted aboveground in underground areas, provided
that the Village may permit placements where all elements of the wireless
telecommunications facility are concealed and the facility does not
appear to a casual observer to be a wireless telecommunications facility.
(8)
No permit shall issue except to wireless service providers with immediate
plans for use of the proposed wireless telecommunications facility;
or wireless infrastructure providers with contracts with wireless
service providers which require the service provider immediately to
use the proposed wireless telecommunications facility.
E.
Preapproved designs.
(1)
Designs for wireless telecommunications facilities may be preapproved
for use on streets as part of a franchise, license or similar agreement
authorizing occupancy of the streets; or by the City, after review
of designs on its own initiative or on petition of any person.
(2)
A petition for preapproval shall be submitted to the Director, specifying
the design proposed; detailed specifications for the wireless facility
(including information regarding the foundation that would be required
for the facility, the dimensions of the facility, and the weight of
the major elements of the facility); the areas where the petitioner
believes the preapproval would be appropriate; and whether the other
entities that install wireless facilities could utilize the same design
in the same area.
(3)
The Director shall review the application considering whether the
design is consistent with the design of other facilities in the areas
proposed; whether concealment elements minimize the intrusiveness
of the facility and ensure that future changes in design will be subject
to the City's discretionary approval; whether it appears the
proposed design can be installed safely, without undue disruption
or interference with other uses of the property or adjacent property;
whether the design can be used by others, so that, if approved as
a standard, it will result in deployment of networks that are aesthetically
harmonious; and the opinion of other departments and agencies whose
activities may be affected by the design.
(4)
The Director shall recommend approval or denial to the Board of Trustees,
which may approve, deny, or approve subject to conditions. Each approval
shall identify areas within the City (by category or geographically)
where deployment may be appropriate.
(5)
The Director may recommend that the Board of Trustees remove a preapproved
design from the preapproved list if the design no longer appears appropriate
for use, considering the same factors used in the approval; and considering
actual experience in deployment of the design. The Board of Trustees,
based on that recommendation or on its own initiative, remove a preapproved
design from the list of preapproved designs.
F.
Height limits. In order to maintain uniform appearances in any corridor,
wireless telecommunications facilities permitted under this article
shall not exceed the height of other similar structures in the same
corridor, except that an existing supporting structure may be extended
or a replacement supporting structure installed that exceeds the height
of the existing structure (measuring from ground level to the highest
point, including any extensions or antennas mounted thereon) by up
to six feet. Notwithstanding the foregoing, in no event shall any
wireless telecommunications facility exceed 50 feet in height, except
as otherwise required by law.
G.
Any wireless telecommunications facility permitted under this article
shall not be considered located on property of the Village for purposes
of the zoning provisions of the Village Code.
A.
Submission. Unless wireless regulations otherwise provide, the applicant
shall submit a paper copy and an electronic copy of any application,
amendments or supplements to an application, or responses to requests
for information regarding an application to the Director, in a form
specified by the Director. In the event no form is specified, the
applicant is responsible for ensuring the Director receives all information
necessary to act on the application.
B.
Content. An application must contain:
(1)
Any information required pursuant to the wireless regulations.
(2)
The name of the applicant, its telephone number and contact information,
and if the applicant is a wireless infrastructure provider, the name
and contact information for the wireless service provider that will
be using the wireless telecommunications facility.
(3)
Documentation establishing that the applicant has been granted permission by the City to use and occupy the streets in the City pursuant to Chapter 297 of this Code; if the applicant is a wireless infrastructure provider, the applicant must establish that the applicant and any wireless service provider that will use the wireless telecommunications facility possess the necessary authorizations under that section, except as the applicant's Chapter 297 authorization otherwise provides.
(4)
A complete description of the proposed wireless telecommunications
facility and the work that will be required to install or modify it
(including, but not limited to, detail regarding proposed excavations,
if any); detailed site plans showing the location of the wireless
telecommunications facility, and specifications for each element of
the wireless telecommunications facility and associated supporting
structures, clearly describing the site and all structures and facilities
at the site before and after installation or modification; and describing
the distance to the nearest residential dwelling unit and any historical
structure within 500 feet of the facility. Before and after 360-degree
photo simulations must be provided. The electronic version of an application
must be in a standard format that can be easily uploaded on a web
page for review by the public. If the applicant is using a preapproved
design, it may refer to the preapproved design in satisfying requirements
of this section.
(5)
Information needed to meet the requirements of the New York State
Environmental Quality Review Act (SEQR). The Village may hold a joint
public hearing under the provisions of SEQR and this article whenever
practicable. In the event that a final SEQR determination has not
been made, no application for a permit under this article shall be
granted.
(6)
Except for preapproved designs, if the application is a request for
approval of a small wireless facility within the meaning of 47 CFR
1.6002(1), the application must also demonstrate that the proposed
wireless telecommunications facility and support structure qualify
as small wireless support structures, and in addition to the other
information required herein must:
(a)
Provide measurements for, and the total volume of, each antenna
that will be at the site after construction is completed;
(b)
Provide measurements for all other elements of the wireless
telecommunications facilities, including, but not limited to, conduit,
cabling, vaults and other structures, and provide the total volume
of each element. For purposes of this calculation, the volume must
include the space occupied by mounting brackets and extenders, calculated
by drawing an imaginary cylinder or cube around the structure;
(c)
State clearly whether the application is for a new, existing
or replacement supporting structure. Provide measurements for the
proposed supporting structure; if the supporting structure involves
an extension or replacement of an existing structure, the height of
the existing structure must be provided;
(d)
Provide a statement identifying the facts upon which the applicant
relies for its claim that the facility is a small wireless facility.
(7)
If the application is an eligible facilities request, within the meaning of 47 CFR 1.6100, as may be amended, the application must contain information sufficient to show that the application qualifies as an eligible facilities request, which information must include all the information required by § 283-41B(1) through (4) and must:
(a)
Include the permit that was granted for the existing facility;
(b)
Show compliance with all conditions associated with that permit;
(c)
Identify all changes to the facility from the date of the issuance
of the permit;
(d)
Provide before-and-after 360-degree photo simulations;
(e)
Specify the excavation, if any, that will be associated with
the facility;
(f)
Specify whether the supporting structure will be replaced or
a new supporting structure installed;
(g)
Identify the number of ground cabinets and their sizes associated
with the existing wireless telecommunications facility and the number
and sizes of all ground cabinets that will be associated with the
wireless telecommunications facility after modification; and
(h)
Identify changes to the height of the support structure; identify
what, if any, horizontal additions will be attached to the support
structure; and identify the size and volume of all components of the
wireless telecommunications facility before and after modification.
(8)
If the applicant contends that denial of the application would prohibit
or effectively prohibit the provision of service in violation of federal
law, or otherwise violate applicable law, the application must provide
all information on which the applicant relies in support of that claim.
If the applicant contends that denial of the application would violate
state law, the application must provide all information on which the
applicant relies in support of that claim. Applicants are not permitted
to supplement these showings if doing so would prevent the Village
from complying with any deadline for action on an application and
the applicant does not agree to toll such deadline for the time necessary
to accomplish review of the supplemental materials.
(9)
Proof that notice has been mailed to owners of all property within
500 feet of the proposed wireless telecommunications facility and
that any other notice required under the design manual has been provided.
(10)
Any required fees.
(11)
To the extent that the applicant contends that filing of the
wireless application establishes a deadline for action on any other
permit that may be required in connection with the facility, the application
shall include complete copies of applications for every required permit,
including, without limitation, electrical permits, building permits,
traffic control permits, and excavation permits, with all engineering
completed, and with all fees associated with each permit included
with the application, provided that the applicant need not provide
all applications if it agrees that deadlines for action on those permits,
if any, will not begin to run until the applications are submitted.
It is the applicant's sole responsibility to determine which,
if any, additional permits are required in connection with the facility.
D.
An applicant shall be required to provide sufficient funds to an
escrow account to allow the Village to retain such technical experts
as may be necessary to review the proposal. The initial deposit shall
be a minimum of $3,500. A larger deposit may be required if, in the
judgment of the Village, the complexity and scope of the proposal
requires additional expert review. The applicant shall maintain the
escrow account at the amount of the initial deposit and replenish
same in a timely manner. Payment in full thereto shall be a condition
precedent to any approval by the Village. Any unused funds will be
returned to the applicant upon completion of the review. The withdrawal
of an application shall not relieve the applicant of the payment obligations
of this section. The funds shall be managed and disposed of as otherwise
required by the Village Code.
E.
Waivers. Requests for waivers from any requirement of this section
shall be made, in writing, to the Director or designee. The same may
grant a request for waiver if it is demonstrated that, notwithstanding
the issuance of a waiver, the Village will be provided all information
necessary to understand the nature of the construction or other activity
to be conducted pursuant to the permit sought.
F.
Rejection for incompleteness. For personal wireless facilities, as
that term is defined under federal law, and eligible facilities requests,
as that term is defined under federal law, applications will be processed,
and notices of incompleteness provided, in conformity with state,
and local and federal law. If such an application is incomplete, it
may be rejected by a written order specifying the material omitted
from the application, or the Village may notify the applicant of the
material omitted and provide an opportunity to submit the missing
material.
A.
For breach. A wireless telecommunications permit may be revoked for
failure to comply with the conditions of the permit, applicable law,
or any other authorization issued by the Village. Upon revocation,
the wireless telecommunications facility must be removed, provided
that a support structure owned by the Village, a utility, or another
entity authorized to maintain a support structure in the streets need
not be removed, but must be restored to its prior condition, except
as specifically permitted by the Village. All costs incurred by the
Village in connection with the revocation and removal shall be paid
by entities who own or control any part of the wireless telecommunications
facility.
B.
For installation without a permit. A wireless telecommunications
facility installed without a wireless permit (except for those exempted
by this article) must be removed, provided that a support structure
owned by the Village, a utility, or another entity authorized to maintain
a support structure in the streets need not be removed, but must be
restored to its prior condition, except as specifically permitted
by the Village. All costs incurred by the Village in connection with
the revocation and removal shall be paid by entities who own or control
any part of the wireless telecommunications facility.
C.
Term. A wireless permit, other than a permit issued pursuant to an
eligible facilities request, shall be valid for a period of five years.
An eligible facilities permit shall expire at the same time the permit
for the underlying existing wireless telecommunications facility expires.
A person holding a wireless telecommunications permit must either
remove the wireless telecommunications facility upon expiration (provided
that a support structure owned by the Village, a utility, or another
entity authorized to maintain a support structure in the streets need
not be removed, but must be restored to its prior condition, except
as specifically permitted by the Village); or, at least 90 days prior
to expiration, must submit an application to renew the permit, which
application must demonstrate that the impact of the wireless telecommunications
facility cannot be reduced. The wireless telecommunications facility
may remain in place until the renewal application is acted upon by
the Village, and any appeals from the Village's decision exhausted.
The Village, as a matter of policy, will negotiate agreements
for use of Village-owned or -controlled light standards, traffic signals,
and other vertical infrastructure, such as signage, in the streets.
The placement of wireless telecommunications facilities on those structures
shall be subject to the agreement. The agreement shall specify the
compensation to the Village for use of the structures. The person
seeking the agreement shall additionally reimburse the Village for
all costs the Village incurs in connection with its review of, and
action upon, the person's request for an agreement. As a general
matter, the Village will apply the same standards in considering a
request for use of the vertical infrastructure that it uses to determine
whether or not to grant an application for placement of wireless telecommunications
facilities on vertical infrastructure it does not own or control but
in addition will consider:
A.
Impact on public uses: whether granting the application will have
an adverse effect on current or future public uses of the light standards
or traffic signals.
B.
Consistency of design: whether the proposed modifications are consistent
with the design of the existing structure in terms of height, physical
dimensions and overall visual appearance, and consistent with the
design of similar structures in the same corridor.
In establishing the rights, obligations and conditions set forth
in this article, it is the intent of the Village to treat each applicant
or street user in a competitively neutral and nondiscriminatory manner,
to the extent required by law, and with considerations that may be
unique to the technologies, situation and legal status of each particular
applicant or request for use of the streets.
