[HISTORY: Adopted by the Lewiston Town Board
as indicated in article histories. Amendments noted where applicable.]
[Adopted 10-25-2021 by L.L. No. 3-2021]
A.
The Town of Lewiston ("Town") finds a growing need to address small
cell telecommunications facilities (SCTFs). Prior to the adoption
of this article, no specific procedures or requirements existed to
address issues related to siting SCTFs. Accordingly, the Town Board
finds that the promulgation of this article is necessary to direct
the location, construction, and maintenance of these facilities while
encouraging investment in small cell technology in the Town which
is consistent with the Town's Comprehensive Plan and the anticipated
communication needs of the residents of the Town of Lewiston.
B.
Therefore, it is the intent of this article to regulate the siting,
location, construction and modification of SCTFs in accordance with
the Federal Telecommunications Act of 1996[1] and its most recent updates, and other applicable laws
and rulings, by:
(1)
Establishing reasonable and uniform standards and procedures for
small cell personal telecommunications facilities' (SCTFs')
deployment, construction, installation, design, co-location, modification,
operation, relocation and removal within or outside the public rights-of-way
(PROW), public and private properties, and other areas of the Town
when mounted on buildings or other approved structures, consistent
with and to the extent permitted under federal and New York State
law.
(2)
Accommodating the need for SCTFs in accordance with federal law.
(3)
Balancing the provision of personal wireless services (PWS) that
meet the community's needs while promoting and protecting public
health, safety, welfare and community and neighborhood character,
by requiring that personal cellular service carriers utilize careful
siting, state-of-the-art technology, advanced design, innovative concealment,
camouflage, or stealth techniques, sufficient screening and buffering,
and adequate setbacks from residential uses.
(4)
Conserving the limited physical capacity of those public rights-of-way
held in trust by the Town by assuring that any such facilities in
the public rights-of-way are limited to those for which the petitioner
can demonstrate a legitimate need primarily within the Town, by substantial
evidence in a written record.
(5)
Ensuring that the Town's current and ongoing costs of granting
and regulating private access to and the use of the public rights-of-way
and facilities are fairly and fully compensated by the petitioners
seeking such access and causing such costs.
(6)
Encouraging the use of Town-owned infrastructure for co-location
opportunities as a siting priority, and to provide an administrative
review for those facilities that will pose fewer aesthetic impacts
to the community.
(7)
Recognizing that the Town cannot deny any request for authorization
to place, construct or modify SCTFs on the basis of environmental
effects of radio frequency emissions so long as such facilities comply
with the Federal Communication Commission's regulations concerning
such emissions.
[1]
Editor's Note: See 47 U.S.C. § 251 et seq.
As used in this article, the following terms shall have the
definitions which follow:
A height measured with respect to the underlying ground surface
(as opposed to altitude/elevation above mean sea level (AMSL), or
(in broadcast engineering) height above average terrain (HAAT).
Any equipment serving or being used in conjunction with a
SC-PWSF, including, but not limited to, utility or transmission equipment,
power supplies, generators, batteries, cables, equipment buildings,
cabinets, storage sheds, shelters, vaults, or other structures.
A device used to transmit and/or receive radio or electromagnetic
waves for the provision of services, including, but not limited to,
cellular, paging, personal communications services (PCS) and microwave
communications. Such devices include, but are not limited to, directional
antennas (such as panel antennas), microwave dishes, and satellite
dishes; omnidirectional antennas; wireless access points (Wi-Fi);
and strand-mounted wireless access points. This definition does not
apply to broadcast antennas, antennas designed for amateur radio use,
or satellite dishes designed for residential or household purposes.
The Building Inspector is responsible for review and approval
or denial of building permit applications. The Planning Board is responsible
for the review and approval or denial of zoning and special use permit
applications. The Zoning Board of Appeals is responsible for reviewing
applications for reconsideration of an application or for requesting
exceptions to the application of the Code.
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 under Chapter 320 of the Town of Lewiston Code, Towers, or any accessory equipment associated with a tower, as defined therein.
Base station includes, without limitation:
Equipment associated with personal 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 Town under this section, supports or
houses equipment described in Subsection B(1) and (2) in this definition
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 Town under this section, does
not support or house equipment described in this Code.
Concealment or stealth techniques that result in a SCTF that:
Blends in with the underlying support structure and the surrounding
area; or
Appears to be an object that is congruent with its environment,
but the equipment or the concealment technique is readily apparent
to the observer. Examples include, but are not limited to:
Facade or rooftop-mounted popout screen boxes;
Antennas mounted within a radome and a cable skirt above a streetlight
standard, traffic light standard, or utility pole;
Faux trees either as the only tree in the vicinity or consistent
with other tree species in the vicinity; or
A minaret.
For the purposes of this article, the term "Code" refers
to Chapter 285, Small Cell Telecommunications Facilities Law.
Concealment techniques include, but are not limited to:
The use of RF-transparent screening;
Approved specific colors and textures;
Minimizing the size of the site;
Integrating the installation into existing utility infrastructure;
Installing new infrastructure that matches existing infrastructure
in the area;
Controlling the installation location.
A certificate of public convenience and necessity granted
pursuant to Title 16 of the New York Codes, Rules and Regulations.
A network of spatially separated antenna nodes connection
to a common source via a transport medium that provides personal wireless
services within a geographic area.
Any tower or base station as defined in this section or under the Chapter 320 of the Town of Lewiston Code, Towers, provided that it is existing at the time the relevant application is filed with the Town hereunder.
As defined by the FCC in 47 CFR 1.6100(b)(5), as may be amended,
which provides that "[a] constructed tower or base station is existing
for purposes of [the FCC's Section 6409(a) regulations] if it
has been reviewed and approved under the applicable zoning or siting
process, or under another state or local regulatory review process,
provided that a tower that has not been reviewed and approved because
it was not in a zoned area when it was built, but was lawfully constructed."
This term also includes co-location installations as previously defined.
The height of the structure as originally approved or as
of the most recent modification that received regulatory approval
prior to February 22, 2012, the date that Congress passed Section
6409(a) of the Middle Class Tax Relief and Job Creation Act.[1] Height shall be measured from preexisting grade level
to the highest point on the tower or structure, including any antenna
or lightning protection device.
The surface elevation of any lawn, public right-of-way, or
other improved or unimproved surface.
The distance measured from the preexisting grade level to
the highest point on the tower or structure, including any antenna
or lightning protection device.
Physically or electronically affecting the operation, views,
signals or functions of another party's equipment.
A macrocell provides the largest area of coverage within
a mobile network. The antennas for macrocells can be mounted on ground-based
masts, rooftops or other existing structures. They are generally positioned
at a height that is not obstructed by terrain or buildings. They provide
radio coverage over varying distances depending on the frequency used,
the number of calls made and the physical terrain. Macrocell base
stations typically occupy space greater than eight cubic feet for
station equipment, greater than three cubic feet per antenna and three
or more antennas. Macrocell have a typical power output in hundreds
or thousands of watts.
Installation of any form of SCTF at any location where there
is not currently a SCTF.
An abbreviation for nonionizing electromagnetic radiation.
The following districts: I-1 Districts: Light Industrial;
I-2 Districts: Industrial; OSPR Districts: Open Space Preservation
and Recreation Districts; and PO Districts: Publicly Owned Districts.
The New York Public Service Commission, or its duly appointed
successor agency.
An abbreviation for "over-the-air reception device" which
includes satellite television dishes not greater than one meter in
diameter.
Any individual, corporation, estate, trust, partnership,
joint-stock company, an association of two or more persons having
a joint common interest, or any other entity.
Any person or entity submitting an application to install
SCTFs within the public right-of-way or outside of the public right
of way.
Real property owned or otherwise controlled or maintained by
the Town of Lewiston, Niagara County or the State of New York which
is devoted to:
In addition to the foregoing, the definition of right-of-way
includes, without limitation, the area on, below, or above public
highways, streets, avenues, alleys, sidewalks, bridges, aqueducts,
and viaducts within the Town which are owned, controlled, or maintained
by the Town, Niagara County or the State of New York.
An abbreviation for "personal wireless services." This term
shall have the same meaning as defined and used in the Telecommunications
Act of 1996.[2]
An abbreviation for "personal wireless services facility/facilities."
A weatherproofed enclosure that and conceals an antenna or
antennas contained therein.
An abbreviation for "radio frequency."
Refers to the Middle Class Tax Relief and Job Creation Act
of 2012, 47 U.S.C. § 1455(a).
The area occupied by the structure supporting the antenna,
the accessory equipment and the path of the wires and cable connecting
the antenna to the accessory equipment.
An umbrella term for low-powered radio access nodes, including
those that operate in licensed spectrum and unlicensed carrier-grade
Wi-Fi. Small cells occupy no more than 28 cubic feet for all base
station equipment, and no more than three cubic feet per antenna and
typically have a range from 10 meters to several hundred meters. Types
of small cells include femtocells, picocells and microcells, broadly
increasing in size from femtocells (the smallest) to microcells (the
largest).
Pursuant to CFR Title 47, this definition includes facilities
that meet each of the following conditions:
Are mounted on structures 50 feet or less in height including
their antennas as defined in 47 CFR 1.1320(d); or
Are mounted on structures no more than 10% taller than other
adjacent structures; or
Do not extend existing structures on which they are located
to a height of more than 50 feet or by more than 10%, whichever is
greater;
Each antenna associated with the deployment, excluding associated
antenna equipment [as defined in the definition of "antenna" in 47
CFR § 1.1320(d)], is no more than three cubic feet in volume;
All other wireless equipment associated with the structure,
including the wireless equipment associated with the antenna and any
preexisting associated equipment on the structure, is no more than
28 cubic feet in volume;
Do not require antenna structure registration under 47 CFR Part
17;
Are not located on tribal lands, as defined under 36 CFR 800.16(x);
and
Do not result in human exposure to RF radiation in excess of
the applicable safety standards specified in 47 CFR § 1.1307(b).
The official document or permit by which a petitioner is
allowed to construct and use SCTFs as granted or issued by the Town
(see "zoning authorization" definition below).
State-of-the-art concealment techniques that completely screen
the SCTF/PWSF and all associated equipment from public to the extent
that the observer does not recognize the structure as a wireless facility.
Examples include, but are not limited to:
Wireless equipment placed completely within existing architectural
features such that the installation causes no visible change to the
underlying structure;
New architectural features that match the underlying building
in architectural style, physical proportion and construction materials
quality;
Flush-to-grade underground equipment vaults with flush-to-grade
entry hatches, with wireless equipment placed completely within.
The same as defined by the FCC in 47 CFR 1.40001(b)(3), as
may be amended from time to time.
Any structure as defined under Chapter 320 of the Town of Lewiston Code, Towers, or built for the sole or primary 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.
The set of entities charged by the Town of Lewiston with
implementing the provisions of this article, and related elements
of the Town Code, including but not limited to the Town Board, Zoning
Board of Appeals, Planning Board, Town Attorney, Building Department,
and Highway Department.
Infrastructure that is maintained, owned, or operated by
the Town including, but not limited to:
A SCTF/PWSF that is not a stealth facility and has no or
effectively no camouflage techniques applied such that the wireless
equipment is plainly obvious to the observer.
An administrative zoning approval issued by the Planning
Board.
A.
This Code applies to all SCTFs/PWSFs within the PROW of the Town's territorial boundaries, and all applications and requests for approval to construct, install, substantially modify, co-locate, relocate, or otherwise deploy SCTFs/PWSFs within the Town's territorial boundaries, unless exempted pursuant to § 355-3(B).
C.
All application requests for approval submitted pursuant to Section 6409(a) will be first evaluated pursuant to the zoning provisions of Chapter 360 of the Town Code to confirm that such request is an eligible facility request.
D.
No person shall be permitted to site, place, build, construct, modify
or prepare any site for the placement or use of a SCTF/PWSF, as of
the effective date of the Code, without having first obtained a special
use permit (SUP) and/or zoning authorization as provided herein. For
any proposed SCTFs/PWSFs to be located in the PROW or on Town-owned
land and/or attached to a Town-owned facility, a license agreement
with the Town will be required.
A.
The Town has jurisdiction and exercises regulatory control over all
PROWs:
B.
The Town shall have the right, in its sole discretion, to limit the
placement of new or additional equipment in its PROW if there is insufficient
space to reasonably accommodate all requests to occupy and use the
PROW.
C.
No person may occupy or encroach on a PROW without the permission
of the Town. The Town grants permission to use its PROW by permits
and license agreements, which shall be in the general form as developed
by the Town.
(1)
Authority. The Town Board is the officially designated body of the
Town to whom applications for license agreements must be made to establish
a SCTF/PWSF within the PROW. PROWs are valuable public properties,
acquired and maintained by the Town at great expense to its taxpayers,
and the grant to a licensee of the use of the PROW is a valuable property
right without which the licensee would be required to invest substantial
capital in PROW costs and acquisitions.
(2)
Compensation. Therefore, a licensee shall pay the Town as general
compensation, no later than January 31 of each calendar year for the
duration of the license agreement, an amount equal to the annual fee
as set by the terms of the license agreement. Interest at 18% per
annum will be payable on late payments. License fees collected under
this Code shall be placed in an account to be determined by the Town
Board and used to reimburse the Town's costs in managing the
PROW with respect to each special use permit holder. Such costs include,
but are not limited to, inspection costs, administrative costs, costs
of maintaining the PROW, costs of degradation of streets and PROW
property, and monitoring installation and maintenance of SCTFs/PWSFs
in the PROW pursuant to this Code.
A.
Prior to the installation of all new SCTFs/PWSFs, a special use permit (SUP) shall be obtained. Applications for SUPs shall be filed with the Building Department and thoroughly reviewed by the Planning Board. Every application for a SUP shall meet the minimum application requirements listed in § 355-6 below. The fee for a SUP shall be in an amount to be determined by the Town Board by resolution which may be amended from time to time.
B.
Exemptions to the SUP requirement: Upon compliance with the substantive
requirements of this article, the following activities shall not require
the issuance of a SUP, but shall require a zoning authorization from
the Planning Board, the fee for which review shall be in an amount
to be determined by the Town Board by resolution which may be amended
from time to time:
(1)
New SCTFs/PWSFs that will not be located in the PROW and will be
located on a building situated within a nonresidential zoning district
and which is currently being utilized for nonresidential purposes,
as long as such installation is concealed or camouflaged and a minimum
of 100 feet away from a residential use and/or residentially zoned
property (as measured from the closest point of a SCTF-PWSF to the
nearest residential use property line).
(2)
New SC-PWSFs that will be on an existing or replacement utility pole,
traffic signal/traffic signage support mast, or light pole within
a PROW that is situated within a nonresidential zoning district, as
long as such installation is a minimum of 100 feet away from a residential
use and/or residentially zoned property (as measured from the closest
point of a SCTF-PWSF to the nearest residential use property line).
(3)
New SC-PWSF that will be located on a new tower/structure within
a PROW that is within a nonresidential zoning district, as long as
such installation is a minimum of 100 feet from a residential use
and/or residentially zoned property (as measured from the closest
point of a SCTF-PWSF to the nearest residential use property line.
(4)
Modification of an existing SCTF/PWSF that is exempt pursuant to
the provisions of Section 6409 of 47 U.S.C. § 1455.
C.
A holder of a SUP for a SCTF/PWSF shall construct, operate, maintain,
repair, remove, modify or restore the permitted SCTF/PWSF in strict
compliance with all applicable technical, safety and safety-related
codes adopted by the Town, New York State and/or any nationally recognized
standards.
D.
A holder of a SUP granted under this Code shall obtain, at its own
expense, all construction permits and licenses required by applicable
law, rule, regulation or code, and must maintain the same, in full
force and effect, for as long as required by the Town or other governmental
agency having jurisdiction over the petitioner.
E.
A SUP shall not be granted for a tower or utility pole to be built
on speculation. If the petitioner is not installing a SCTF/PWSF on
a tower or utility pole already existing or under construction, it
shall provide:
(1)
A true and correct copy of the petitioner's certificate of public
convenience and necessity (CPCN) granted by the New York State PSC;
and
(2)
A binding written commitment or executed lease from an FCC-licensed
PWS provider to utilize or lease space on the proposed tower/utility
pole(s); or
(3)
Notice to proceed or other regulatory authorization that supports
the petitioner's right to install a SCTF/PWSF on the proposed
tower/utility pole. Said FCC-licensed PWS provider must be the petitioner
or the co-petitioner for any proposed new SCTF/PWSF, co-location or
substantial modification and shall provide all necessary data to comply
with the terms of this article as part of the application for a SUP,
or the SUP or zoning authorization shall not be granted.
F.
Petitioner shall commence installation no later than two years after
the issuance of an applicable SUP, and shall commence operation no
later than six months after installation. These dates may be extended
by mutual written agreement of the parties in the event of force majeure
events. If petitioner fails to commence installation and operation
of any applicable SCTF/PWSF, after providing 30 days' notice
and opportunity to cure, the Town may terminate the SUP or zoning
authorization.
B.
License agreement. If the installation will be in the PROW, the applicant
must first obtain a nonexclusive, revocable license agreement with
the Town by making a written request with the Town Attorney to enter
into a license agreement.
(1)
The license fees shall be in an amount established by the Town Board
by resolution, which may be amended, in the Town's sole discretion,
from time to time.
(2)
The Town shall not discriminate among competing service providers
in its administration of license agreements.
(3)
No exclusive, irrevocable property right or any other interest is
created by the license. There is no right to convey, express or implied,
with the license.
(4)
The license may not be assigned, except upon written consent of the
Town, which shall not be unreasonably withheld, provided the assignee
assumes all obligations of the license, agrees in writing to abide
by its terms, and meets all other criteria as set forth in this section.
(5)
A general license will be granted per petitioner for all SCTFs/PWSFs
to be located in the PROW, provided that the applicant meets the requirements
for such a license.
(6)
A petitioner shall demonstrate the entitlement to use the land for
the designated purpose, e.g., through demonstration that the Town
owns the fee of the highway at issue, through the grant of an easement
or a pole attachment agreement, and/or other legal mechanism. The
petitioner bears any and all risk that it has the legal right to construct
the SCTF/PWSF in the location that it has chosen.
(7)
The license agreement shall be in the general form as developed and
required by the Town.
(8)
Each license agreement is subject to approval by the Town Board.
(9)
By issuance of a license, the Town does not represent or warrant
title or ownership of the PROW. The petitioner proceeds at its own
risk.
(10)
Indemnification. Any license agreement shall contain indemnification
provisions, indemnifying the Town for the licensee's use of the
Town PROW and related activities, to the maximum extent permitted
by law.
(11)
Performance bond/surety. Any license agreement shall require
that the licensee provide a performance bond or other appropriate
surety, as approved by the Town Board in an amount equal to or greater
than a written estimate from a New York licensed engineer with experience
in SCTF/PWSF removal. The written estimate must include the cost to
remove all equipment and other improvements, which includes without
limitation all antennas, radios, batteries, generators, utilities,
cabinets, mounts, brackets, hardware, cables, wires, conduits, structures,
shelters, towers, poles, footings, and foundations, whether aboveground
or below ground.
(12)
The license shall require compliance with this article, as may
be amended from time to time by the Town Board.
(13)
Insurance. In addition to and without limiting the indemnification
and performance bond/surety requirements herein, the license agreement
shall contain a requirement that the licensee procure, at the licensee's
expense, insurance in an amount sufficient as determined by the Town
Board, with the Town to be included as an additional insured.
C.
Written statement. The petitioner's application shall include
a statement in writing that includes the following:
(1)
The name and service address of all parties who have a legal interest
in the application including the property owners, PROW owners, equipment
owners, FCC licensed carriers, design professionals, consultants and
building contractors.
(2)
Agreement that the proposed SCTF/PWSF shall be maintained in a safe
manner, and in compliance with all conditions of the SUP, zoning authorization,
and/or license agreement, without exception, unless specifically granted
a waiver by the Planning Board or ZBA in writing, as well as all applicable
local codes, ordinances, and regulations, including any and all applicable
Town, state and federal laws, rules, and regulations.
(3)
That the construction or modification of the SCTF/PWSF is legally
permissible, including, but not limited to, the fact that the petitioner
is authorized to do business in New York State, and that the petitioner
and/or co-petitioner is licensed by the FCC to provide PWS in the
Town.
(4)
That the petitioner has owner authorization and/or property rights to install and/or modify, maintain and operate SCTFs/PWSFs and equipment in, under and above the PROW or on private property. This statement must be supported by documentation, which includes, but is not limited to, owner authorization, an easement, a lease, and/or a license issued pursuant to § 355-6(B) above. The petitioner bears all risk that it has the legal right to construct the SCTF/PWSF in the designated location.
(5)
That the person preparing the request for a SUP is preparing such
request with the petitioner's knowledge of the contents and representations
made therein and attesting to the truth and completeness of the information.
The property owner (or in the case of a utility pole, the utility
owner), if different than the petitioner, shall also sign application
statement, or shall provide a letter or other written authorization
allowing the petitioner to file the application.
D.
Radio frequency analysis (RF study). All applications for a SUP shall
provide a RF analysis. Such analysis shall be prepared by a radio
frequency engineer and shall demonstrate the necessity for the proposed
service and the desired coverage objective. The analysis shall include:
(1)
Full-color signal propagation maps which shall include a narrative
description summarizing the findings in layman's terms. Existing
obstacles such as buildings, topography, or vegetation that cannot
adequately be represented in the propagation maps, yet may cause significant
signal loss and therefore require additional facility height, and/or
a specific site location should be clearly described and/or illustrated
through additional visual analyses, such as line-of-sight or Fresnel
zone modeling diagrams.
(2)
Information demonstrating how the chosen location meets the applicant's
need to improve and/or provide service. Such report shall also demonstrate,
if applicable, why an alternative preferred site, which may provide
greater aesthetic benefits, cannot be utilized.
E.
RF exposure compliance. A RF compliance report shall be prepared
by a NYS licensed engineer expert in the field of RF emissions that
states that the proposed SCTF/PWSF, as well as any co-located SCTFs/PWSFs,
will comply with applicable federal RF threshold levels, exposure
standards, and exposure limits.
F.
Site plan. A site plan shall be provided that shows the dimensioned
location of the proposed or existing SCTF/PWSF structure, any support
equipment, the geographic coordinates of the proposed facility, adjacent
buildings labeled by use, existing above- and below-grade improvements,
easements of record, trees to be impacted and any other existing SCTF/PWSFs
within the area of disturbance.
G.
Elevation drawing. An elevation drawing to scale, showing the support
structure; the proposed antenna, remote radio units, support cabinets,
AC power connections, electric meter sockets, backup power supply,
mounting hardware, cable runs, cable shrouds, antennas shrouds or
other concealment/camouflage elements; maximum height of the antenna;
and the lowest mounting height of any equipment. All elements shown
must identify make and manufacturer, the actual color of each component,
the actual frequency, and class of service radio or other transmitting
equipment. If utilizing an existing utility pole, the utility pole
number, installation date of the utility pole, estimated remaining
service life of the utility pole, and the material type of the utility
pole.
H.
Visual assessment. The applicant shall furnish information to conduct
a visual impact assessment, and which shall include at minimum:
(1)
"Before" and "after" photo simulations from key viewpoints, residences
within 100 feet of the SCTF/PWSF, and from any other location where
the site is visible to a large number of visitors, travelers or residents.
Petitioners may seek guidance regarding site-specific appropriate
vantage points for photo simulations at a voluntary preapplication
meeting. Such viewpoints shall be from a publicly accessible location.
(2)
Petitioner shall identify the location, dimension and types of all
trees within or adjacent to the PROW which the petitioner seeks to
substantially trim, remove or replace. The petitioner shall submit
a landscape plan, satisfactory to the Town, for the replacement of
such trees.
I.
SEQRA. The applicant shall submit, with the application or at a voluntary
preapplication meeting, all information necessary to satisfy the State
Environmental Quality Review Act (SEQRA), including but not limited
to a complete full environmental assessment form.
J.
Twelve-month build-out plan required. The applicant shall submit
a buildout plan which shall include a description, maps, and data
of the carrier's existing SCTFs/PWSFs within the Town and all
SCTFs/PWSFs within 500 feet of the Town's boundary, together
with the carrier's intentions for additional facilities within
the Town for the ensuing 12 months; indicating whether each proposed
facility is for initial coverage or capacity building purposes, showing
proposed general locations or areas in which additional facilities
are expected to be needed, and shall also certify whether any existing
SCTFs/PWSFs of the petitioner are in active use and necessary for
its telecommunications operations. Such build out plan shall reflect
changes as new installations are installed. In the event a freedom
of information (FOIL) request is made for the twelve-month plan, the
applicant will be notified of the same so that appropriate objections
to disclosure can be lodged consistent with applicable law.
K.
Acoustic analysis. The applicant must provide a written report that
analyzes acoustic levels for the proposed SCTFs/PWSFs and all associated
equipment. The acoustic analysis must be prepared and certified by
an engineer and include an analysis of the manufacturer's specifications
for all noise-emitting equipment and a depiction of the proposed equipment
relative to all adjacent property lines. This requirement may be satisfied
by providing manufacturer's specifications demonstrating that
the equipment does not generate noise, or generates noise at an imperceptible
level.
L.
Alternatives analysis. The petitioner must list all existing structures
considered as alternatives to the proposed location, together with
a general description of the site design considered at each location.
The petitioner must also provide a written explanation for why the
alternatives considered were not chosen. This explanation must include
a comparative analysis and such technical information and factual
justification as are necessary to document the reasons why each alternative
is not feasible, unavailable, or not as consistent with the design
standards as set forth in this article as the proposed location. This
would include an analysis of the siting preferences set forth in this
article.
A.
To minimize visual impacts, the Town establishes siting priorities
for SCTFs/PWSFs. The following site location types ranked from most
preferred to least preferred shall be considered by carriers when
seeking the establishment of a SCTF/PWSF.
(1)
Building-mounted installations on nonresidential buildings in nonresidential
zoning districts.
(2)
Existing traffic signal or traffic signage support mast standards
within nonresidential zoning districts.
(3)
Replacement traffic signal or traffic signage support mast standards
within nonresidential zoning districts.
(4)
Existing or replacement utility poles within a PROW in nonresidential
zoning districts.
(5)
Replacement streetlights within a PROW in nonresidential zoning districts.
(6)
Existing streetlights within a PROW in nonresidential zoning districts.
(7)
Existing utility structures with a minimum height of 30 feet not
in a road right of way within nonresidential zoning districts.
(8)
Nonreplacement support structures within the public road right of
way in nonresidential zoning districts.
(9)
Existing utility poles within a public road right of way within the
RR Rural Residential District and not fronting an existing residential
use.
(10)
Existing utility structures with a minimum height of 30 feet
not in a road right of way within the RR Rural Residential District
and not contiguous to a residential use.
(11)
Existing traffic signal standards or traffic signage support
mast standards within residential zoning districts.
B.
Locations requiring mitigation. The Town discourages new support
structures and siting in residential zoning districts, although siting
in residential districts may be necessary if no alternatives are available.
Where technically feasible, efforts should be made to co-locate or
to locate in business or rural business zoning districts. If location
in a residential zoning district is necessary, techniques to minimize
aesthetic impacts are mandatory, including camouflage and/or concealment.
C.
Prohibited locations. The Town prohibits any structures or parts
of structures associated with SWF placement from obstructing access
to above- or underground traffic control infrastructure, public transportation
vehicles, shelters, street furniture, or other improvements, above-
or underground utility infrastructure, fire hydrants, doors, gates,
or other ingress and egress points to any building appurtenant to
the PROW, or any fire escape. Ground-mounted equipment shall not be
closer than 12 feet from any existing lawful encroachment in the PROW
and driveway aprons.
A.
Concealment/camouflage.
(1)
All new SCTFs/PWSFs and substantial changes/modifications to any
SCTFs/PWSFs shall maximize the use of concealment or camouflaging
techniques to blend the equipment and other improvements with the
support structure, and to blend into the surrounding environment in
a manner consistent with the uses within the adjacent zoning district(s)
and immediate vicinity. The use of state-of-the-art technology and
best practices shall be required to ensure high quality design. Economic
considerations alone are not justification for failing to employ such
techniques. Concealment/camouflaging techniques include, but are not
limited to:
(a)
RF-transparent screening;
(b)
Use of approved, specific colors and textures;
(c)
Minimizing the size of the site;
(d)
Integrating the installation into existing utility infrastructure;
(e)
Installing new infrastructure that matches existing infrastructure
in the area surrounding the proposed site. The new infrastructure
may then be dedicated to the Town and the SCTF/PWSF installation is
integrated into the new infrastructure.
(2)
In circumstances where a proposed SCTF/PWSF is easily visible or
within a nonpreferred location, the Town may, in its sole discretion,
require additional concealment, camouflage, or stealth techniques
for the proposed SCTF/PWSF.
B.
Antennas. The antenna shall be the smallest possible volume but in
no case greater than three cubic feet. Antenna installations on existing/replacement
utility poles or traffic signal standards/traffic signage sign support
masts shall be located at the top of the pole unless the petitioner
demonstrates that such location is not feasible or practical. The
antenna should not increase the height of the existing structure by
more than 10% or 10 feet, whichever is greater, in no event shall
the installation exceed 50 feet in height. Antennas shall be fully
enclosed in a nonreflective radome, cap, cantenna, or other RF-transparent
panel covering or shield of a diameter no more than 50% greater than
that of the pole. Antennas shall be painted, coated, and/or textured
using nonreflective materials and color to match the predominant color
of the support structure. When mounted on top of wooden utility pole,
such cap shall also extend to the pole top, covering any antenna mounting
hardware.
(1)
Offset mounting of an antenna on a utility pole may be considered
if technical justification is provided, and it has been demonstrated
that alternative sites have been exhausted.
(2)
Strand mounted antenna installations may be considered if technical
justification is provided and it has been demonstrated that alternative
sites have been exhausted, and such installation resembles similar
utility equipment in proximity to the installation.
C.
Utility-pole-mounted accessory equipment. All utility-pole-mounted
equipment, mast arms, electric meters, and other facilities shall
be sized to minimize visual clutter and be installed as close to the
utility pole as technically feasible to minimize visibility from the
public view to the greatest extent feasible. All pole-mounted accessory
equipment shall maximize the use of RF-transparent screening, building
materials in a neutral, nonreflective color consistent in color and
texture with other new and existing poles and equipment in the general
geographic area so as to reduce visual intrusiveness. This shall include
the utilization of concealment or stealth techniques as required by
the Town. No accessory equipment associated with any SCTF/PWSF shall
impair pedestrian use of sidewalks, pathways, or public or private
trail systems. The accessory equipment shall not be located in a manner
that violates the current or proposed Americans with Disabilities
Act[1] accessibility guidelines. This equipment must be high
enough that the equipment boxes cannot be reached from the ground
so as to prevent vandalism.
(1)
Cabinets, meter sockets, electrical disconnects and other accessory
equipment shall be positioned on the utility pole side which is with
the direction of vehicle travel for the nearest travel lane.
(2)
Wiring and cabling. All cabling and wiring must be contained in a
cable skirt, conduit, cover, or cable shield and affixed directly
to the face of the pole. No exposed slack or extra cable will be allowed.
(3)
The use of existing utility poles shall be permitted only if the
pole is plumb. Utility poles which are not plumb shall be avoided,
and/or replaced with new utility poles.
[1]
Editor's Note: See 42 U.S.C. § 12101 et seq.
D.
Underground accessory equipment. When existing utility infrastructure
is currently underground, or when approved but not yet constructed
development will require the installation of utilities underground,
petitioners for a proposed SCTF/PWSF within a PROW, or within a private
street in Town's retrofit districts, shall, to the maximum extent
practicable, conceal all electric service, cable runs, remote radio
units and other support equipment either within the support structure
itself, or within underground vaults/distribution boxes. All new SCTFs/PWSFs
shall be designed to match the existing street infrastructure or infrastructure
that will be proposed.
E.
Ground-mounted accessory equipment. Ground-mounted equipment may
be installed when associated with a building-mounted application,
and when not visible from a public view shed. Such equipment installations
shall be consistent in color with the adjacent building and shall
be screened with landscaping if deemed necessary to further mitigate
aesthetic impacts. Applications shall include proposed camouflage
techniques for ground-mounted equipment, which may include, but are
not limited to, strategic choice of color, paint, and/or materials,
landscaping, placement in less visible locations, and placement within
existing or replacement street furniture.
F.
Lighting. SCTFs/PWSFs in the PROW shall not be illuminated by artificial
means, except when mounted on an existing light pole or where the
illumination is specifically required by the Federal Aviation Administration
or other federal, state or local regulations. Any permitted lighting
shall be consistent in design and bulb type with other lighting fixtures
in the vicinity.
G.
Utilities. Where other utility infrastructure is underground, all
utilities at a SCTF/PWSF site shall also be installed underground
to the extent technologically feasible and to the extent other utility
providers located within the same PROW have installed or are required
to install their infrastructure underground. The Town shall not approve
new overhead utility lines or service drops merely because compliance
with the undergrounding requirements would increase the project cost.
H.
Signage. All SCTFs/PWSFs must include signage that accurately identifies
the equipment owner/operator, the owner/operator's site name
or identification number and a toll-free number to the owner/operator's
network operations center. SCTFs/PWSFs may not bear any other signage
or advertisements unless expressly approved by the Town, required
by law or recommended under FCC or other federal agencies for compliance
with RF emissions regulations. The sign shall not be lighted, unless
lighting is required by applicable law, rule or regulation. Signage
shall be maintained in legible condition at all times.
I.
Improving technologies. In the event that improving technologies
permit the installation of smaller or lower antennas without degradation
of their capabilities and without excessive replacement cost, the
SCTF/PWSF carrier shall use the smallest equipment that is necessary
when modifying or replacing an existing SCTF/PWSF.
J.
Siting. All SCTFs/PWSFs shall be sited to avoid or minimize obstruction
of views from public vantage points, to minimize the negative aesthetic
impacts of the PROW, and to be the least visually intrusive as practicable.
(1)
Spacing. All SCTFs/PWSFs within residential PROWs shall not be closer
than 500 feet to another SCTF/PWSF operated by the same carrier.
(2)
Absent petitioner's demonstration that such siting is the only
technologically feasible option for achieving coverage goals, SCTFs/PWSFs
shall not be situated in front of a dwelling. All installations along
a PROW near residential uses shall be situated opposite an interior
property line.
A.
NIER certification (nonionizing electromagnetic radiation). Prior
to installation and upon any modification to a SCTF/PWSF, the PCS
carrier/owner of the SCTF/PWSF shall provide to the Town Building
Inspector a NIER certification report prepared by a third-party inspection
firm affirming that the facility is in compliance with the FCC maximum
allowable exposure limits. Failure to provide a NIER certification
report shall be considered a violation and subject to the penalties
available to the Building Inspector for the enforcement of such provisions
under this article.
(1)
For SCTFs/PWSFs that have been constructed within residential zoning
districts or fronting residential uses, the Town may require that
the PCS carrier produce its maintenance records for such facilities
if complaints are received that such facilities are being inordinately
serviced.
B.
Engineering requirements. The proposed SCTF/PWSF shall be designed
by a New York State licensed professional engineer. The design must
include calculations that demonstrate sufficient strength of the pole
to be used.
C.
Emergency power. The Town strongly disfavors backup power sources
mounted on the ground or on poles in the PROW. The use of battery
and other alternative backup power sources adds to the size of the
facility, thus adding to the aesthetic impact within a right of way.
The need for emergency power on a facility within a PROW shall be
clearly demonstrated by an applicant. Any proposed backup power source
shall be shown on the elevation drawing and in the photo renderings,
and shall meet the minimum requirements of the New York State Building
Code.
D.
Security. All sites shall be reasonably protected against unauthorized
climbing. The bottom of the tower, measured from ground level to 12
feet AGL, shall be designed in a manner to discourage unauthorized
climbing.
A.
The maximum permitted height of a new SCTF/PWSF in the PROW including
the antenna, lightening rod or other extensions shall be limited to
the height necessary to deliver the desired service to the area, as
demonstrated by the petitioner, but in no case shall exceed 40 feet
AGL.
B.
The petitioner shall submit to the Town sufficient technical evidence
and documentation justifying the total height of any proposed SCTF/PWSF.
Such evidence and documentation will be analyzed in the context of
the height needed to provide service primarily and essentially within
the Town, to the extent practicable, unless good cause is shown.
C.
Where antennas are moved to lower heights on an existing SCTF/PWSF
and the full height is no longer needed, the overall height of the
structure shall be reduced. No antenna support structure shall remain
at a height that is taller than that required by installed and operational
antennas.
A.
An application to site a SCTF/PWSF will be reviewed to confirm that
the proposed facility meets the zoning standards set forth in this
article. Once a SUP is granted, a separate building permit shall be
issued by the Building Department for those installations mounted
on buildings or other eligible support structures on private land
or within a Town PROW. Construction in PROWs controlled by governmental
entities other than the Town of Lewiston shall be authorized by such
other governmental entities.
(1)
The Planning Board will review all SUP applications for SCTFs/PWSFs,
consistent with the timeframes permitted by the FCC. Except for qualified
eligible facilities applications, the Planning Department may reject:
(2)
The Planning Board shall provide an advisory report to the Building
Department prior the issuance of any permit. The Planning Board may
rely on experts to assist in a review and evaluation of PWS facilities.
RF analysis is highly specialized and confirming the accuracy of an
applicant's demonstration of need for the proposed SCTF/PWSF
cannot ordinarily be done by Town staff. Therefore, the Town may hire
any consultant, attorney and/or expert necessary to assist the Town
in reviewing and evaluating the application, including the construction
and modification of the site, technical aspects of the proposed facility
or modification of an existing facility. The review shall address
the following:
(a)
The accuracy and completeness of submission;
(b)
Compliance with applicable RF emission standards and determination
based upon FCC OET Bulletin 65, as amended from time to time;
(c)
Whether the proposed SCTF/PWSF is necessary to meet the carrier's
service requirements and is the least intrusive means of doing so;
(d)
Technical demonstration of the unavailability of alternate sites
or configurations and/or coverage analysis;
(e)
The appropriateness of granting any requested variances;
(f)
The applicability of analysis techniques and methodologies;
(g)
The validity of conclusions reached; and
(h)
Any specific technical issue designated by the Town.
(3)
Deposit.
(a)
The petitioner shall deposit with the Town in escrow funds sufficient
to reimburse the Town for all reasonable costs of consultant, attorney
and expert services in connection with the review of any application,
including the construction and modification of the site once permitted.
The initial deposit shall be determined by the Town's fee schedule,
as may be amended time to time by resolution of the Town Board, in
its sole discretion. The placement of the initial deposit with the
Town shall be submitted with the application. If there is a question
regarding the necessity of an escrow deposit, the petitioner may seek
clarification at a voluntary preapplication meeting.
(b)
The Town reserves the right to request a deposit after acceptance
of a formal application if during the course of its review, the Town
deems that additional expertise will be necessary. The Town will maintain
a separate escrow account for all such funds per application. The
Town's consultants/experts shall invoice the Town for their services.
If at any time during the process this escrow account has a balance
less than the minimum amount determined by the Town's fee schedule,
the petitioner shall, upon notification by the Town, replenish said
escrow account so that it has a minimum balance as determined by the
Town's fee schedule, or a lesser amount if stipulated by the
Town. Such additional escrow funds shall be deposited with the Town
before any further action or consideration is taken on the application.
In the event that the amount held in escrow by the Town is more than
the amount of the actual invoicing at the conclusion of the project,
the remaining balance shall be promptly refunded to the petitioner.
(4)
The
Planning Board shall conduct a public hearing and render a decision
within the time frames prescribed by the FCC. The time within which
the decision shall be rendered may be extended by mutual consent of
the petitioner and the Planning Board. Such agreement may be requested
by the petitioner or the Planning Board. Any resulting agreement shall
be in writing and ultimately approved by resolution of the Planning
Board.
(5)
In
rendering its decision the Planning Board shall consider:
(a)
Whether the applicant has demonstrated that the site selected is of the highest preference available as established by § 355-7;
(c)
Whether the applicant has sufficiently demonstrated a need to improve
service coverage and/or capacity, or provide a new service not yet
provided, by providing a competent RF analysis;
(d)
Whether the applicant has demonstrated that the carrier's gap
in service and/or capacity issues, or proposed new service, cannot
be mitigated or delivered by any technologically feasible means other
than the proposed SCTF/PWSF; and
(e)
That the applicant has mitigated the aesthetic impacts of the proposed
SCTF/PWSF to the maximum extent practical, taking into consideration
the existing context of the community/neighborhood character and the
existence of any other similar utility infrastructure of nearby.
Where the petitioner demonstrates sufficient evidence that strict
compliance with one or more of the provisions of this section would
result in extraordinary hardship to the petitioner, the Planning Board
and/or the Town Zoning Board of Appeals may grant a waiver of any
of the provisions of this section. The burden of demonstrating hardship
is on the petitioner.
The invalidity of any section or provision of this article shall
not invalidate any other section or provision of this article.
This article shall take effect immediately and be filed in the office of the Secretary of State in accordance with Municipal Home Rule Law § 27 and published pursuant to Chapter 51 of the Town of Lewiston Code.
