[Added 8-16-2021 by Ord. No. 13.21.21]
A.
The purpose of this article is to establish uniform standards for
the deployment and installation of small wireless facilities in rights-of-way
within the City's jurisdiction, including, without limitation,
to:
(1)
Prevent interference with the use of streets, sidewalks, alleys,
parkways and other public ways and places;
(2)
Prevent the creation of visual and physical obstructions and
other conditions that are hazardous to vehicular and pedestrian traffic;
(3)
Prevent interference with existing facilities and operations
of facilities presently lawfully located in rights-of-way or public
property;
(4)
Ensure that reasonable efforts are made to preserve the character
of neighborhoods in which facilities are installed;
(5)
Protect against environmental damage, including damage to trees;
and
(6)
Facilitate rapid deployment of small wireless facilities to
provide the benefits of reliable access to wireless telecommunications
technology, broadband, and emergency services to homes, businesses,
schools, and other uses within the City.
B.
The City recognizes the importance of small wireless facilities to
provide high-quality communications and internet access to residents
and businesses within the City. The City also recognizes its obligation
to comply with applicable federal and state laws regarding the placement
of small wireless facilities within the City's rights-of-way,
including, without limitation, the federal Telecommunications Act,
as codified at 47 U.S.C. §§ 253 and 332(c), and the
federal Spectrum Act, as codified at 47 U.S.C. § 1455, and
this article shall be interpreted consistent with those provisions.
C.
To the extent that this article may conflict with other sections
of the Code of the City of Albany, this article shall be controlling
to the extent of such conflict.
D.
In establishing the rights, obligations, and conditions set forth
in this article, it is the intent of the City to treat each applicant
and right-of-way user in a competitively neutral and nondiscriminatory
manner, to the extent required by law, while taking into account the
unique technologies, situations, and legal status of each applicant
or request for use of the right-of-way.
As used in this article, the following terms shall have the
meanings indicated:
Such standards as may be published from time to time by the
CPO, as consistent with this article, which shall set forth rules
and regulations for the siting and construction of small wireless
facilities within the City ROW.
The uniform master license agreement to be executed by each applicant seeking to deploy small wireless facilities in the City ROW, as described and laid out in § 323-102 of this article.
All federal, state, and local laws, statutes, codes, ordinances,
resolutions, orders, rules, and regulations.
Any person or entity who applies to the City of Albany for
a license to deploy small wireless facilities.
Any person or entity engaged in or who seeks to engage in
the provision of a commercial mobile service in the City of Albany.
To attach, install, mount, maintain, modify, operate, and/or
place one or more facilities on an existing support structure.
The Commissioner of the Department of General Services, or
the Commissioner's designee.
The Chief Planning Official of the City of Albany, as that
term is defined in the City of Albany Unified Sustainable Development
Ordinance.[1]
The construction, repair, replacement, maintenance, attachment,
installation, removal, reattachment, reinstallation, relocation, and/or
operation of facilities within the City ROW.
The radios, antennas, transmitters, and other wireless transmission
or transport devices attached, mounted, or installed in the City ROW,
including but not limited to control boxes, fiber optic and other
cables, wires, conduit, power sources, grounding equipment, battery
backup and other equipment, structures, and appurtenances which may
be installed, maintained, operated and/or used for the purpose of
small wireless facilities deployments. This definition shall include
new types of telecommunications equipment that are substantially similar
to small wireless facilities existing as of the effective date of
this article, or that have reduced or less adverse impacts on the
City ROW with respect to size, coverage/spacing requirements, and
general physical characteristics.
Any and all equipment and installations of any kind owned
and/or controlled by the carrier that are reasonably necessary and
appropriate for the provision of services.
The Federal Communications Commission of the United States.
The Declaratory Ruling issued by the FCC on September 27,
2018, in WT Docket Nos. 17-79 and 17-84 (FCC 18-133, 33 FCC Rcd 9088).
A nonexclusive right granted by the City to an applicant
to deploy small wireless facilities on, over, under, upon, across,
and/or along the City ROW.
Electromagnetic energy, including radio waves and microwaves
that are transmitted or received by facilities.
The space in, upon, above, under, along, across, and over
the public streets, roads, highways, sidewalks, and public ways owned
or controlled by and under the jurisdiction of the City, as the same
now or may hereafter exist. This term shall not include: a) any county,
state, or federal ROW; b) public utility easements, whether owned
by the City or others, except as provided by applicable laws or pursuant
to any agreement between the City and any such person or entity; or
c) any property owned by the City that is not a public street, road,
highway, sidewalk, or other public way, such as parks, City buildings,
and property on which City buildings are located.
Any telecommunications service provided by means of the facilities
installed by the carrier in accordance with this article, for which
the carrier holds a valid authorization issued by the FCC; or the
leasing, operation, or maintenance of the same by the carrier in accordance
with this article. "Services" do not include cable service or open
video services.
A facility that meets the definition of "small wireless facility"
set forth in 47 CFR § 1.6002. The term "small wireless facility"
includes associated equipment and facilities as those terms are defined
in this section, but does not include support structures to which
such equipment and facilities are attached.
The authorization granted after review and approval by the
CPO of an application for a small wireless facility.
A structure to which a small wireless facility is or may
be attached, including, but not limited to, existing support structures,
support structures where facilities may be co-located, and support
structures to be installed by the carrier.
A.
The Commissioner shall, in consultation with other City departments,
develop and make available a uniform master license agreement to be
executed by each applicant seeking to deploy small wireless facilities
in the City ROW. The uniform master license agreement shall include
all provisions necessary to ensure the overall interests of public
health, safety, and welfare, including, but not limited to, the following
provisions:
(1)
An acknowledgement that the licensee may not place a small wireless
facility in the ROW without first obtaining any and all necessary
permits;
(2)
A requirement that all small wireless facilities and related
equipment must comply with FCC safety rules, regulations, and standards
for RF emissions;
(3)
A requirement that the installation, operation, and maintenance
of small wireless facilities shall adhere to all provisions of this
Code, the aesthetic, safety and operating standards, and all other
applicable laws and regulations;
(4)
A requirement that small wireless facilities may not obstruct,
impede, or hinder the usual travel or public safety of pedestrians
or vehicles on or in the ROW, and may not obstruct the legal use of
the ROW by lawfully present utility providers;
(5)
A requirement that small wireless facilities may not be installed
or operated in a manner that violates the Americans with Disabilities
Act;
(6)
A requirement that any licensee whose actions cause damage or
interfere with the use of the ROW, or any objects located within the
ROW, shall be responsible for any necessary repairs and/or restoration
at the licensee's sole expense;
(7)
A requirement that the licensee shall be responsible for the
payment of an annual fee for access to the ROW and/or attachment to
City-owned structures in the ROW;
(8)
No exclusive, irrevocable property right or any other interest
shall be created by the licensee;
(9)
The license agreement shall be in the general form as developed
by the City;
(10)
The City, in applying the provisions of this article, will act
in a competitively neutral manner with regard to all other users of
the right-of-way.
B.
A permit application for each small wireless facility shall be submitted
to the Commissioner for administrative review in accordance with this
article, the Unified Sustainable Development Ordinance,[1] and all other applicable provisions of the Code. This
application shall be made on a form promulgated by the Commissioner.
C.
Applicants seeking a permit or permits shall:
(1)
Provide, in a format acceptable to the City, notification to
all affected property owners within a 250-foot radius of the proposed
installation that an application has been submitted for review. The
notification must be postmarked within seven days of the submission
of the application. Applicants must provide proof of notification
to the Commissioner within seven days from the date such notifications
are postmarked. Such proof of notification shall include:
(a)
A map showing a 250-foot buffer drawn around the proposed pole,
with all parcels even partially within the radius identified;
(b)
A copy of the notification that was mailed out to the owners of the properties identified on the map described in Subsection C(1)(a), above; and
(c)
A list of mailing addresses of those property owners.
(2)
Submit proof of insurance for the carrier licensed by the FCC
and each contractor that will work on the project for which the application
is sought, as follows:
(a)
Proof of commercial general liability insurance with completed
operations, to which the City of Albany has been added as additional
insured;
(b)
Certificates or affidavits approved by the State Workers'
Compensation Board pursuant to Workers' Compensation Law § 57,
Subdivision 2, evidencing proof of workers' compensation insurance
or proof of the applicant not being required to secure same.
A.
All applicants shall initiate an informal pre-application meeting
with the Commissioner to expedite the application review and permitting
process by identifying and preliminarily addressing any significant
issues or concerns the City or the applicant may have. Participation
in a pre-application meeting shall not commence the applicable review
period.
B.
An applicant may combine into a single-batch application up to 10
individual applications for permits for new small wireless facilities
to be located in the City ROW, provided that the proposed small wireless
facilities are of substantially the same design and style and are
located within a single two-mile radius.
C.
The Commissioner shall review each application to determine whether it is complete and whether it complies with all terms and conditions of the agreement and this article, including the aesthetic, safety, and operating standards laid out in § 323-106 of this article, as well as all other applicable rules, regulations and guidelines promulgated pursuant to this article.
D.
The Commissioner shall review each application on an expedited basis
so as to comply with the "shot clocks" set forth in the FCC Wireless
Infrastructure Order and all other requirements of the federal Telecommunications
Act, as codified at 47 U.S.C. § 253 and 332(c), and the
federal Spectrum Act, as codified at 47 U.S.C. § 1455.
E.
The Commissioner shall review the permit application and shall prepare
any findings and proposed conditions. The Commissioner shall, upon
receipt of an application, forward copies to, and coordinate with,
all other impacted City departments and agencies.
F.
Within the time allowed under the "shot clocks" for approval or denial
of a permit application, the Commissioner shall issue a decision that
either approves, approves with conditions, or denies the requested
permits, with the reasons for such decision set forth in writing and
supported by specific findings of substantial evidence.
G.
In the event that an application is denied, the applicant may appeal such denial within 30 days to the Board of Zoning Appeals of the City of Albany, pursuant to § 375-504(12)(b) of the City's Unified Sustainable Development Ordinance.
A.
The City shall have the authority to adopt regulations governing
the placement, modification, and maintenance of small wireless facilities
in the City ROW in addition to but consistent with the requirements
of this article, including regulations related to co-location, the
resolution of conflicting applications for placement of wireless telecommunications
facilities, and aesthetic standards. The Commissioner shall have the
authority to develop forms and procedures for submission of applications
for small wireless facilities permits.
B.
The City shall have the power to establish reasonable and nondiscriminatory
limitations on the deployment of new or additional small wireless
facilities within the City ROW if there is insufficient space to accommodate
all of the requests of providers or other persons or entities seeking
to occupy and use the City ROW. In making such decisions, the Commissioner
shall accommodate, to the extent possible, all existing small wireless
facilities and those for which an application has been submitted but
not yet determined. In determining priority beyond those applicants
with vested interests, the City shall be guided by the following criteria,
but may consider any other relevant criteria not here enumerated:
(1)
The width and physical condition of the City ROW;
(2)
The time of year with respect to essential utilities;
(3)
The protection of existing City facilities, utility infrastructure,
and small wireless facilities in the City ROW;
(4)
The availability of services and any gaps in service;
(5)
Established plans for public improvements and development projects
that have been determined to be in the public's interest; and
C.
In addition to obtaining a small wireless facility permit, applicants
may be required to obtain additional permits, including, but not limited
to, building permit(s), electrical permit(s), grading permit(s), tree
trimming application(s), street opening permit(s), sidewalk barricade
permit(s), and/or certificate(s) of appropriateness.
A.
The following nonrecurring fees are required for each small wireless
facility and shall be due upon submission of the application therefor:
C.
The first year's annual fee shall be due within 90 days of when
the installation is complete and shall not be prorated, regardless
of the date of such completion. For each subsequent year, the annual
fee shall be due on or before January 31.
The City shall adopt aesthetic standards for small wireless
facilities consistent with the following requirements:
A.
Small wireless facilities shall not interfere with pedestrian or
vehicle safety, the use of streets, sidewalks, alleys, parkways, and/or
other public ways and places, the operation of traffic control equipment
or sightlines at intersections, and shall not obstruct or hinder the
usual travel use or public safety of the City ROW, or obstruct the
legal use of the ROW by utilities.
B.
Small wireless facilities shall not violate or materially interfere
with compliance with the federal Americans with Disabilities Act of
1990 or similar federal or state standards regarding pedestrian access
or movement.
C.
The color of small wireless facilities shall reasonably match the
color of the support structure upon which they are attached. Reasonable,
technically feasible, nondiscriminatory, and technologically neutral
design and stealth concealment measures shall be required. New poles
shall match the color and finish of existing decorative lighting or
other poles in the area (or black where no nearby poles exist).
D.
Ground equipment should be minimal and the least intrusive.
E.
The City desires and encourages co-locations between multiple wireless
service providers on the same support structure whenever feasible.
If the applicant chooses to not co-locate when options appear available,
demonstrative proof must be provided as to why co-location is not
feasible.
F.
The following are the most preferred locations for the siting of
new small wireless facilities:
(1)
Nonhistoric buildings upon which the small wireless facility
can be camouflaged to match existing materials and texture;
(2)
Industrial zoning districts that are not adjacent to City parks,
residential zones, or historic districts; or
(3)
Mixed-use Community Highway (MU-CH) zoning districts that are
not adjacent to City parks, residential zones, or historic districts.
H.
The following list indicates the order of preference for support
structures for small wireless facilities:
(1)
Co-locations on an existing small wireless facility Support
Structure;
(2)
Existing utility poles;
(3)
New poles;
(4)
Nondecorative municipal service poles;
(5)
Sign poles or other structures that are at least 15 feet tall;
or
(6)
Decorative municipal service poles, which are the least preferred
option.
Any person or entity who violates this article or fails to comply
with the provisions of this article shall be subject to a penalty
of not less than $250 nor more than $1,000. Each day such violation
or failure to comply continues shall be considered a separate offense.
