The Town of LaFayette hereby finds:
A. The wireless telecommunications industry has expressed interest in
submitting applications to lease space within municipalities such
as the Town for the installation of "small cell" wireless telecommunications
facilities (hereinafter "small cell installations") in the Town.
B. The installation of small cell facilities may have both positive
and negative impacts on our community. Multiple installations can
impact property values; pose a threat to the public health, safety
and welfare; create traffic and pedestrian safety hazards; impact
trees where proximity conflicts may require trimming of branches or
require removal of roots; create visual and aesthetic blights and
potential safety concerns from excessive size, height, weight, noise
or lack of camouflaging of wireless facilities including the associated
pedestals, meters, equipment and power generators which negatively
impact the quality and character of the Town.
C. The Town currently regulates wireless telecommunications facilities through zoning and the special permit process (Chapter
249, Article
III). The existing standards have not been updated to reflect current telecommunications trends or necessary legal requirements. Further, the primary focus of zoning regulations has been on wireless telecommunications facilities located on private property, and the existing Code provisions were not specifically designed to address the unique legal and practical issues that arise in connection with multiple small cell installations deployed in the public rights-of-way.
D. Federal regulations have changed substantially since the Town last
adopted regulations on wireless telecommunications. The current FCC
Order provides that all local jurisdictions must comply with various
restrictions on the exercise of local aesthetic, zoning, public works,
and fee restrictions when dealing with wireless installation siting
applications. The Order also include modifications to "shot clocks"
which require the Town to approve or deny applications within certain
periods of time and may actually deem an application approved when
a failure to act occurs. Thus, the Town is in clear need of updated
regulations for small cell installations.
E. The Town recognizes its responsibilities under the Federal Telecommunications
Act of 1996 and state law, and believes that it is acting consistent
with the current state of the law in ensuring that development activity
does not endanger public health, safety, or welfare. The Town intends
these code provisions to ensure that the installation, augmentation
and relocation of small cell installations are conducted in such a
manner as to lawfully balance the legal rights of applicants under
the Federal Telecommunications Act and New York State with the rights,
safety, privacy, property and security of residents of the Town.
F. This article is not intended to, nor shall it be interpreted or applied
to: (1) prohibit or effectively prohibit any personal wireless service
provider's ability to provide personal wireless services in the
Town; (2) prohibit or effectively prohibit any entity's ability
to provide any interstate or intrastate telecommunications service,
subject to any competitively neutral and nondiscriminatory rules or
regulation; (3) unreasonably discriminate among providers of functionally
equivalent services; (4) deny any request for authorization to place,
construct or modify personal wireless service facilities on the basis
of environmental effects of radio frequency emissions so long as such
wireless facilities comply with the FCC's regulations concerning
such emissions; (5) prohibit any collocation or modification that
the Town may not deny under federal or state law; or (6) otherwise
authorize the Town to preempt any applicable federal or state law.
G. Based on the foregoing, the Town Board finds and determines that the preservation of public health, safety and welfare requires that this Article
V of Chapter
249 of the Town Code be enacted.
As used in this article, the following terms shall have the
meanings indicated:
ADMINISTRATIVE REVIEW
Ministerial review of an application by the Town relating
to the review and issuance of a permit, including review by the Code
Enforcement Officer to determine whether the issuance of a permit
is in conformity with the applicable provisions of this article.
ANTENNA
Communications equipment that transmits and/or receives electromagnetic
radio frequency signals used in the provision of wireless services.
This definition does not apply to broadcast antennas, antennas designed
for amateur radio use, or satellite dishes for residential or household
purposes.
APPLICABLE CODES
Uniform building, fire, safety, electrical, plumbing, or
mechanical codes adopted, or incorporated, by the Town.
APPLICANT
Any person who submits an application under this article.
APPLICATION
A written request, on a form provided by the Town, for a
permit.
AUTHORITY or TOWN
The Town of LaFayette or any agency, subdivision or any instrumentality
thereof.
COLLOCATE
To install or mount a small wireless facility in the public
ROW on an existing support structure, an existing tower, or on an
existing pole to which a small wireless facility is attached at the
time of the application. "Collocation" has a corresponding meaning.
COMMUNICATIONS FACILITY
Collectively, the equipment at a fixed location or locations
within the public ROW or on private property that enables communications
services, including: (i) radio transceivers, antennas, coaxial, fiber-optic
or other cabling, power supply (including backup battery), and comparable
equipment, regardless of technological configuration; and (ii) all
other equipment associated with any of the foregoing. A communications
facility does not include the pole, tower or support structure to
which the equipment is attached.
COMMUNICATIONS SERVICE
Cable service, as defined in 47 U.S.C. § 522(6);
information service or broadband, as defined in 47 U.S.C. § 153(24);
or telecommunications service, as defined in 47 U.S.C. § 153(53).
DECORATIVE POLE
A pole that is specially designed and placed for aesthetic
purposes.
DISCRETIONARY REVIEW
Review of an application by the Town Planning Board relating
to the review and issuance of a permit that is other than an administrative
review.
ELIGIBLE FACILITIES REQUEST
An eligible facility request as set forth in 47 C.F.R. Section
1.40001(b)(3), as that section may be amended from time to time.
FCC
The Federal Communications Commission of the United States.
LAWS
Collectively, any and all federal, state, or local law, statute,
common law, code, rule, regulation, order, or ordinance.
ORDINARY MAINTENANCE AND REPAIR
Inspections, testing and/or repair of existing communication
facilities that maintain functional capacity, aesthetic and structural
integrity of a communications facility and/or the associated support
structure, pole or tower, that does not require blocking, damaging
or disturbing any portion of the public ROW.
PERMIT
A written authorization (in electronic or hard copy format)
to install, at a specified location(s) in the public ROW or at a specific
location on private property, a communications facility, tower or
a pole to support a communications facility.
PERMITTEE
An applicant that has received a permit under this article.
PERSON
An individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including a governmental
entity.
POLE
A legally constructed pole, such as a utility, lighting,
traffic, or similar pole made of wood, concrete, metal or other material,
located or to be located within the public right-of-way. A pole does
not include a tower or support structure.
PROVIDER
A communications service provider or a wireless services
provider, and includes any person that owns and/or operates within
the public ROW any communications facilities, wireless facilities,
poles built for the sole or primary purpose of supporting communications
facilities, or towers.
PUBLIC RIGHT-OF-WAY or PUBLIC ROW
The area on, below, or above property that has been designated
for use as or is used for a public roadway, highway, street, sidewalk,
alley or similar purpose, and for purposes of this article shall include
public utility easements, but only to the extent the Town has to permit
use of the area or public utility easement for communications facilities
or poles, towers and support structures that support communications
facilities. The term does not include a federal interstate highway
or other areas that are not within the legal jurisdiction, ownership
or control of the Town.
PUBLIC UTILITY EASEMENT
Unless otherwise specified or restricted by the terms of
the easement, the area on, below, or above a property in which the
property owner has dedicated an easement for use by utilities. Public
utility easement does not include an easement dedicated solely for
Town's use, or where the proposed use by the provider is inconsistent
with the terms of any easement granted to the Town.
REPLACE or REPLACEMENT
In connection with an existing pole, support structure or
tower, to replace (or the replacement of) same with a new structure,
substantially similar in design, size and scale to the existing structure
and in conformance with this article and any other applicable Town
charter/code regulations, in order to address limitations of the existing
structure to structurally support collocation of a communications
facility.
SMALL WIRELESS FACILITY
A wireless facility that meets both of the following qualifications:
A.
Each antenna could fit within an enclosure of no more than six
cubic feet in volume; and
B.
All other wireless equipment associated with the antenna, including
the provider's preexisting equipment, is cumulatively no more
than 28 cubic feet in volume.
STATE
The State of New York.
SUPPORT STRUCTURE
A structure in the public ROW other than a pole or a tower
to which a wireless facility is attached at the time of the application.
TOWER
Any structure in the public ROW built for the sole or primary
purpose of supporting a wireless facility. A tower does not include
a pole or a support structure.
WIRELESS FACILITY
The equipment at a fixed location or locations in the public
ROW that enables wireless services. The term does not include: (i)
the support structure, tower or pole on, under, or within which the
equipment is located or collocated; or (ii) coaxial, fiber-optic or
other cabling that is between communications facilities or poles or
that is otherwise not immediately adjacent to or directly associated
with a particular antenna. A small wireless facility is one type of
a wireless facility.
WIRELESS SERVICES
Any wireless services using licensed or unlicensed spectrum,
whether at a fixed location or mobile, provided to the public.
All other uses within the public ROW or on private property not expressly set forth or referenced in §
249-26A shall require compliance with, and issuance of, a site plan approval pursuant to Chapter
249 and Chapter
290 of the Town Code. In determining the deployment and placement of communication facilities, the Planning Board shall consider the following criteria and its impact on the surrounding neighborhood during the site plan review process: (i) the design standards set forth in §
249-26D of this article; (ii) the compatibility of further deployments and their potential impact on the surrounding neighborhood; (iii) the potential for collocation of other provider's communication facilities; (iv) the density fulfillment needs of the neighborhood.
Notwithstanding anything to the contrary in this article, an
applicant may not install a small wireless facility on a decorative
pole, or replace a decorative pole with a new decorative pole unless
the Town has determined, in its sole discretion, that each of the
following conditions has been met:
A. The application qualifies for issuance of a permit under §
249-26A;
B. The attachment and/or the replacement pole is in keeping with the
aesthetics of the decorative pole; and
C. Notwithstanding anything to the contrary in this article, an applicant
may not install a small wireless facility on a decorative pole, replace
a decorative pole with a new decorative pole, or install new aboveground
communications facilities in a Residential Zoning District unless
the Town has determined, in its sole discretion, that each of the
following conditions has been met:
(1) The application qualifies for issuance of a permit under §
249-26A;
(2) The attachment and/or the replacement pole is in keeping with the
aesthetics and character of the decorative pole and/or the Residential
Zoning District.
Violation of any of the provisions of this article shall be
a violation punishable with a civil penalty of $250 for each violation.
Each day that a violation occurs or is permitted to exist by the applicant
or provider constitutes a separate offense.