[HISTORY: Adopted by the Common Council of the City of Buffalo 6-28-2022, effective 6-28-2022.
Amendments noted where applicable.]
The purpose of this chapter is to establish a process for managing
uniform standards, per requests for the placement of wireless facilities
within the public right-of-way of the City consistent with the City's
obligation to promote the public health, safety, and welfare, to manage
the public right-of-way, and to ensure that the public is not incommoded
by the use of the public right-of-way for the placement of wireless
facilities. The City recognizes the importance of wireless facilities
to provide high-quality communication services to residents and businesses
within the City, and recognizes its obligation to comply with applicable
federal and state law regarding the placement of personal wireless
services facilities in its public right-of-way. This chapter shall
be interpreted consistent with those provisions.
The terms used in this chapter shall have the following meanings:
A person or entity filing an application for placement or
modification of a wireless facility in the public right-of-way.
A formal request, that includes all required and requested
documentation and information, submitted by an applicant to the City
for a wireless facility permit.
Shall have the meaning as set forth in 47 CFR 1.6100(b)(1),
or any successor provision.
Shall have the meaning of a wireless telecommunication facility
being attached to a preexisting utility pole that, at the time of
co-location (attachment), serves some other purpose, such a lighting
pole.
The Commissioner of the Department of Public Works, Parks
and Streets or Commissioner's designee.
Shall have the meaning as set forth in 47 CFR 1.6100(b)(3),
or any successor provision.
The Federal Communications Commission or its lawful successor.
Any equipment associated with installation of a wireless
facility and/or support structure that will be located on the surface
of the ground with some or all the facility located above grade.
City-owned or controlled property structures, objects, and
equipment in the ROW, including, but not limited to, streetlights,
traffic control structures, banners, street furniture, bus stops,
billboards, or other poles, lighting fixtures, or electroliers located
within the ROW.
Any person or entity granted a wireless facility permit pursuant
to this chapter.
Shall have the same meaning as set forth in 47 U.S.C. § 332(c)(7)(C)(i)
or its successor.
Shall have the meaning set forth in 47 U.C.S. § 332(c)(7)(C)(ii)
or its successor.
The surface of, as well as the spaces above and below, highways,
roads, streets, alleys, sidewalks, skyways, public ways, utility easements
and public easements in the City of Buffalo, and any other property
within the City to the extent to which there exist, now or hereafter,
public easements or public right-of-way.
Allows for review of work or activity within an existing
or proposed public ROW.
Shall have the same meaning as "small wireless facility"
in 47 CFR 1.6002(l), or any successor provision (which is a personal
wireless services facility that meets the following conditions that,
solely for convenience, have been set forth below):
The facility:
Is mounted on a structure 50 feet or less in height, including
antennas, as defined in 47 CFR 1.1320(d), or
Is mounted on a structure no more than 10% taller than other
adjacent structures, or
Does not extend an existing structure 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;
The facility does not require antenna structure registration
under 47 CFR Part 17;
The facility is not located on tribal lands, as defined under
36 CFR 800.16(x); and
The facility does not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified in
47 CFR 1.1307(b).
Any structure capable of supporting a base station.
Any structure 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 personal wireless 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. This
definition does not include utility poles.
Those areas where there are no electrical facilities or facilities
of the incumbent local exchange carrier in the right-of-way; 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
in excess of 35,000 volts.
A structure in the ROW designed to support electric, telephone
and similar utility lines. A tower is not a utility pole.
The transmitters, antenna structures and other types of installations
used for the provision of wireless services at a fixed location, including,
without limitation, any associated tower(s), support structure(s),
and base station(s).
A permit issued pursuant to this chapter authorizing the
placement or modification of a wireless facility of a design specified
in the permit at a particular location within the ROW; and the modification
of any existing support structure to which the wireless facility is
proposed to be attached.
A person or entity that owns, controls, operates or manages
a wireless facility or portion thereof within the ROW.
Those regulations adopted pursuant to § 442-5 and implementing the provisions of this chapter.
An entity that provides personal wireless services to end
users.
A.
In general. Providers seeking an encroachment permit entitled a "wireless facility permit" shall be subject to all of the same requirements as a telecommunications license would under City Code § 440-13 in addition to all of the requirements of this chapter. Unless exempted, every person or entity who desires to place a wireless facility in the public ROW or modify an existing wireless facility in the public right-of-way must obtain a wireless facility permit authorizing the placement or modification in accordance with this chapter. Except for small cell facilities, qualifying eligible facilities requests, or any other type of facility expressly allowed in the public ROW by state or federal law, no other wireless facilities shall be permitted pursuant to this chapter.
B.
Exemptions. This chapter does not apply to:
(1)
The placement or modification of facilities by the City or by any
other agency of the state solely for public safety purposes.
(2)
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.
C.
Other applicable requirements. In addition to the wireless facility
permit required herein, the placement of a wireless facility in the
ROW requires the persons who will own or control those facilities
to obtain all permits required by applicable law, and to comply with
applicable law, including, but not limited to, applicable law governing
radio frequency (RF) emissions.
D.
Preexisting facilities in the ROW. Any properly permitted wireless
facility already existing in the ROW as of the date of this chapter's
adoption shall remain subject to the standards and conditions of the
City Code in effect prior to this chapter, unless and until a renewal
of such facility's then-existing permit is granted, at which
time the provisions of this chapter shall apply in full force going
forward as to such facility. The review of any request for a renewal
of a permit for such preexisting facilities shall be conducted pursuant
to this chapter, rather than the portion(s) of the City Code that
it was previously reviewed under.
E.
Public use. Except as otherwise provided by New York law, any use
of the ROW authorized pursuant to this chapter will be subordinate
to the City's use and use by the public.
A.
Commissioner of Public Works, Parks and Streets. The Commissioner
of Public Works, Parks and Streets ("Commissioner") is responsible
for administering and interpreting this chapter. As part of the administration
of this chapter, the Commissioner may:
(1)
Interpret the provisions of this chapter;
(2)
Develop and implement standards governing the placement and modification
of wireless facilities consistent with the requirements of this chapter,
including regulations governing co-location and resolution of conflicting
applications for placement of wireless facilities;
(3)
Develop and implement acceptable designs and development standards
for wireless facilities in the public right-of-way, taking into account
the zoning districts bounding the public right-of-way;
(4)
Develop forms and procedures for submission of applications for placement
or modification of wireless facilities, and proposed changes to any
support structure consistent with this chapter;
(5)
Determine the amount of and collect, as a condition of the completeness
of any application, any fee established by this chapter or Master
License Agreement;
(6)
Establish deadlines for submission of information related to an application,
and extend or shorten deadlines where appropriate and consistent with
state and federal laws and regulations;
(7)
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;
(8)
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 facility and proposed changes to any
support structure;
(9)
Subject to appeal as provided herein, determine whether to approve,
approve 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 facilities, including issuing
written decisions and entering into agreements to mutually extend
the time for action on an application.
A.
Generally. Wireless facilities in the ROW shall meet the minimum
requirements set forth in this chapter and the wireless regulations,
in addition to the requirements of any other applicable law.
B.
Regulations. The City of Buffalo's Department of Public Works,
Parks and Streets may promulgate a set of rules to govern the installation
of attachments to poles, other support structures, and ground-based
equipment in the City right-of-way which, shall, at a minimum, ensure
that the requirements of this section are satisfied, unless it is
determined that 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. If that determination is made,
the requirements of this chapter may be waived, but only to the minimum
extent required to avoid the prohibition or violation.
C.
Minimum standards. Wireless 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 public right-of-way,
and otherwise maintains the integrity and character of the neighborhoods
and corridors in which the facilities are located; ensures that installations
are subject to periodic review to minimize the intrusion on the right-of-way;
and ensures that the City bears no risk or liability as a result of
the installations, and that such use does not inconvenience the public,
interfere with the primary uses of the right-of-way, or hinder the
ability of the City or other government agencies to improve, modify,
relocate, abandon, or vacate the public right-of-way or any portion
thereof, or to cause the improvement, modification, relocation, vacation,
or abandonment of facilities in the right-of-way.
D.
Location preferences. All applicants should, to the extent feasible,
co-locate new facilities on a preexisting structure and/or modify
a structure for the purpose of mounting or installing a wireless facility
on that structure.
E.
New poles. The City will consider new poles only if the applicant
can demonstrate that utilizing or replacing an existing pole is not
feasible.
F.
Design standards. Permits for personal wireless services facilities
shall incorporate specific concealment elements to minimize visual
impacts and design requirements ensuring compliance with all standards
for noise emissions. The Commissioner shall develop and maintain a
set of written design criteria available to the public.
A.
Submission. Unless the wireless regulations provide otherwise, 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 Department of Public
Works, Parks and Streets ("Department").
B.
Pre-application meeting. Prior to filing an application for a wireless
facility permit, an applicant is encouraged to schedule a pre-application
meeting with the Department to discuss the proposed facility, the
requirements of this chapter, and any potential impacts of the proposed
facility.
C.
Content. An applicant shall submit an application on the form approved
by the Commissioner which may be updated from time-to-time, but in
any event shall require the submission of all required fee(s), documents,
information, and any other materials necessary to allow the Department
to make required findings and ensure that the proposed facility will
comply with applicable federal and state law, the City Code, and will
not endanger the public health, safety, or welfare.
D.
Fees. Application fee(s) shall be required to be submitted with any
application for a wireless facility permit. The fee and any related
fee provisions shall be established in the Master License Agreement
subject to approval by Common Council. No application fee shall be
refundable, in whole or in part, to an applicant for a wireless facility
permit unless paid as a refundable deposit.
E.
Incompleteness. For personal wireless facilities and eligible facilities
requests, applications will be processed, and notices of incompleteness
provided, in conformity with state, local, and federal law. If such
an application is incomplete, the Commissioner may notify the applicant,
in writing, and specifying the material omitted from the application.
A.
Findings required for approval.
(1)
Except for eligible facilities requests, the Commissioner, as the
case may be, shall approve an application if, on the basis of the
application and other materials or evidence provided in review thereof,
it finds the following:
(a)
The facility is not detrimental to the public health, safety,
and welfare;
(b)
The facility complies with this chapter and all applicable design
and development standards; and
(c)
The facility meets applicable requirements and standards established
by the Commissioner and required in state and federal law.
(2)
For eligible facilities requests, the Commissioner, as the case may
be, shall approve an application if, on the basis of the application
and other materials or evidence provided in review thereof, it finds
the following:
(3)
An application for Wireless Facility uses may include but is not
limited:
(a)
Co-location on an existing City-owned Support Structure;
(b)
Co-location on an existing Support Structure not owned by the
City, provided that carrier has submitted sufficient proof of permission
from the owner thereof;
(c)
Co-location on a City-owned Support Structure following the
replacement of such Support Structure, provided that: 1) Carrier shall
be solely responsible for all costs and expenses related to such replacement;
2) the replacement Support Structure shall be designed to match as
closely as feasible the existing City-owned Support Structure with
regard to size, color, materials, etc.; and 3) Carrier shall not retain
any ownership rights in the Support Structure following its replacement;
(d)
Co-location on a Support Structure not owned by the City following
the replacement of such Support Structure, provided that carrier has
submitted sufficient proof of permission from the owner thereof, and
provided that: 1) the City shall not be responsible for any costs
and expenses related to such replacement; 2) the replacement structure
shall be designed to match as closely as feasible to the existing
Support Structure with regard to size, color, materials, etc.; or
(e)
Installation of a new Support Structure where, as determined
by carrier in consultation with the CPO, no other existing Support
Structure in the City ROW can be used for co-location and provided
that, where feasible, such Support Structure is designed in a manner
that can accommodate at least one additional small wireless facility.
B.
Decisions. The Commissioner shall issue reasoned elaboration, in
writing, on each decision.
C.
Independent consultants. The Commissioner, from time-to-time, may,
in its discretion, to select and retain independent consultant(s)
with expertise in telecommunications in connection with the review
of any application under this chapter. Such independent consultant
review may be retained on any issue that involves specialized or expert
knowledge in connection with an application, including, but not limited
to, application completeness or accuracy, structural engineering analysis,
or compliance with FCC radio frequency emissions standards.
Within 60 days after receiving an application under § 442
of this chapter and applicable requirement by § 442, unless
extended by a City request for additional information, the City shall
issue a written determination of approval or denial following proper
review from the Common Council.
A.
Generally. In addition to any existing and supplemental conditions
imposed by the Commissioner, as the case may be, all permits granted
pursuant to this chapter shall be subject to the following conditions,
unless modified by the approving authority:
(1)
Code compliance. The permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations and other rules, including, without limitation, those applying to use of public right-of-way specific to small cells. Wires and conduits that are installed as part of wireless facility installation are subject to the regulation thereof as contained in Chapter 330 of City Code.
(2)
Permit duration. A wireless facility permit shall be valid for a
period of 10 years, unless pursuant to another provision of the Code
or these conditions, it expires sooner or is terminated. At the end
of 10 years from the date of issuance, such Permit shall automatically
expire, unless an extension or renewal has been granted. A person
holding a wireless facility permit must either 1) remove the facility
within 30 days following the permit's expiration (provided that
removal of support structure owned by City, a utility, or another
entity authorized to maintain a support structure in the right-of-way
need not be removed, but must be restored to its prior condition,
except as specifically permitted by the City): or 2) at least 90 days
prior to expiration, submit an application to renew the permit, which
application must, among all other requirements, demonstrate that the
impact of the wireless facility cannot be reduced. The wireless facility
must remain in place until it is acted upon by the City and all appeals
from the City's decision exhausted. Any wireless facility permit
shall automatically expire if the corresponding Master License Agreement
expires.
(3)
Right-of-way work permit required for installation. The Right-of-Way
Work Permit authorized by the Department shall be valid for one year
after its issue date. The permittee shall request a new Right-of-Way
Work Permit if the installation and construction will exceed the year
time frame and/or the locations are modified on the issued permit.
(4)
Timing of installation. The installation and construction authorized
by a wireless facility permit shall begin within one year after its
approval, or it will expire without further action by the City. The
installation and construction authorized by a wireless facility permit
shall conclude, including any necessary post-installation repairs
and/or restoration to the ROW, within 90 days following the day construction
commenced, except that reasonable extensions shall be granted by the
Department of Public Works, Parks and Streets in cases where delay
is caused by factors outside the permit holder's control. Following
all active construction activities in the ROW, the permit holder shall
promptly remove obstructions and implement any measures necessary
to ensure public safety until construction is complete and the ROW
fully restored.
(5)
Commencement of operations. The operation of the approved facility
shall commence no later than three months after the completion of
installation, or the wireless facility permit will expire without
further action by the City.
(6)
As-built drawings. The Permittee shall submit an as-built drawing
within 90 days after installation of the facility. As-builts shall
be in an electronic format acceptable to the City.
(7)
Inspections; emergencies. The City or its designee may enter onto
the facility area to inspect the facility upon 48 hours' prior
notice to the permittee. The permittee shall cooperate with all inspections
and may be present for any inspection of its facility by the City.
The City reserves the right to enter or direct its designee to enter
the facility and support, repair, disable, or remove any elements
of the facility in emergencies or when the facility threatens imminent
harm to persons or property. The City shall make an effort to contact
the permittee prior to disabling or removing any facility elements,
but in any case, shall notify permittee within 24 hours of doing so.
(8)
Contact. The permittee shall at all times maintain accurate contact
information for all parties responsible for the facility, which shall
include a phone number, street mailing address and email address for
at least one natural person.
(9)
Agreement with City. If not already completed, permittee shall enter
into A Maser License Agreement with the City, as determined by the
City, prior to constructing, attaching, or operating a facility on
Municipal infrastructure.
(10)
Conflicts with improvements. For all facilities located within
the ROW, the permittee shall remove or relocate, at its expense and
without expense to the City, any or all of its facilities when such
removal or relocation is deemed necessary by the City by reason of
any change of grade, alignment, or width of any right-of-way, for
installation of services, water pipes, drains, storm drains, power
or signal lines, traffic control devices, traffic sign installation,
right-of-way improvements, or for any other construction, repair,
or improvement to the right-of-way.
(11)
Abandonment. If a facility is not operated for a continuous
period of six months, the wireless facility permit and any other permit
or approval therefor shall be deemed abandoned and terminated automatically,
unless before the end of the six-month period i) the Commissioner
has determined that the facility has resumed operations, or ii) the
City has received an application to transfer the permit to another
service provider. No later than 90 days from the date the facility
is determined to have ceased operation or the Licensee has notified
the Commissioner of its intent to vacate the site, the permittee shall
remove all equipment and improvements associated with the use and
shall restore the site to its original condition to the satisfaction
of the Commissioner. The Licensee shall provide written verification
of the removal of the facilities within 30 days of the date the removal
is completed. If the facility is not removed within 30 days after
the permit has been discontinued pursuant to this subsection, the
site shall be deemed to be a nuisance, and the City may cause the
facility to be removed at the licensee's expense or by calling
any bond or other financial assurance to pay for removal. If there
are two or more users of a single facility or support structure, then
this provision shall apply to the specific elements or parts thereof
that were abandoned, but will not be effective for the entirety thereof
until all users cease use thereof.
(12)
Encourage co-location. Where the facility site is capable of
accommodating a co-located facility upon the same site in a manner
consistent with the permit conditions for an existing use, the owner
and operator of the existing facility shall allow co-location of third-party
facilities, provided the parties can mutually agree upon reasonable
terms and conditions.
(13)
Records. The permittee must maintain complete and accurate copies
of all permits and other regulatory approvals issued in connection
with the facility, which includes without limitation this approval,
the approved plans and photo simulations incorporated into this approval,
all conditions associated with this approval and any ministerial permits
or approvals issued in connection with this approval. If the permittee
does not maintain such records as required in this condition or fails
to produce true and complete copies of such records within a reasonable
time after a written request from the City, any ambiguities or uncertainties
that would be resolved through an inspection of the missing records
will be construed against the permittee.
(14)
Attorney's fees. In the event the City determines that
it is necessary to take legal action to enforce any of these conditions,
or to revoke a permit, and such legal action is taken, the Permittee
shall be required to pay any and all costs of such legal action, including
reasonable attorney's fees, incurred by the City, even if the
matter is not prosecuted to a final judgment or is amicably resolved,
unless the City should otherwise agree with permittee to waive said
fees or any part thereof. The foregoing shall not apply if the permittee
prevails in the enforcement proceeding.
(15)
FCC licensed carrier. Wireless facility attachment system and/or
component installation and maintenance shall only occur where an FCC
licensed carrier of mobile services, owns or maintains the wireless
facility or sponsors the owner of a facility. Wireless facility providers
shall provide written verification, from a FCC licensed wireless carrier,
that the wireless facility is providing service to that carrier at
the time of cell installation. The Commissioner shall order the removal
of any wireless facility that is not sponsored by a FCC licensed carrier.
B.
Eligible facilities requests. In addition to the conditions provided in § 442-9A of this chapter and any supplemental conditions imposed by the Commissioner, as the case may be, all permits for an eligible facility request granted pursuant to this chapter shall be subject to the following additional conditions, unless modified by the approving authority:
(1)
Permit subject to conditions of underlying permit. Any permit granted
in response to an application qualifying as an eligible facilities
request shall be subject to the terms and conditions of the underlying
permit.
(2)
No permit term extension. The City's grant or grant by operation
of law of eligible facilities request permit constitutes a federally
mandated modification to the underlying permit or approval for the
subject tower or base station. Notwithstanding any permit duration
established in another permit condition, the City's grant or
grant by operation of law of eligible facilities request permit will
not extend the permit term for the underlying permit or any other
underlying regulatory approval, and its term shall be coterminous
with the underlying permit or other regulatory approval for the subject
tower or base station.
(3)
No waiver of standing. The City's grant or grant by operation
of law of an eligible facilities request does not waive, and shall
not be construed to waive, any standing by the City to challenge Section
6409(a) of the Spectrum Act, any FCC rules that interpret Section
6409(a) of the Spectrum Act, or any modification to Section 6409(a)
of the Spectrum Act.
C.
Small cell facilities requests. In addition to the conditions provided in § 442-9A of this chapter and any supplemental conditions imposed by the Commissioner, as the case may be, all permits for a small cell facility granted pursuant to this chapter shall be subject to the following condition, unless modified by the approving authority:
(1)
No waiver of standing. The City's grant of a permit for a small
cell facility request does not waive, and shall not be construed to
waive, any standing by the City to challenge any FCC orders or rules
related to small cell facilities, or any modification to those FCC
orders or rules.
A.
For breach. A wireless facility permit may be revoked for failure
to comply with the conditions of the permit or applicable law. Upon
revocation, the wireless facility must be removed; provided that removal
of a support structure owned by City, a utility, or another entity
authorized to maintain a support structure in the right-of-way need
not be removed, but must be restored to its prior condition, except
as specifically permitted by the City. All costs incurred by the City
in connection with the revocation and removal shall be paid by entities
who own or control any part of the wireless facility.
B.
For installation without a permit. A wireless facility installed
without a wireless facility permit (except for those exempted by this
chapter) must be removed; provided that removal of support structure
owned by City, a utility, or another entity authorized to maintain
a support structure in the right-of-way need not be removed, but must
be restored to its prior condition, except as specifically permitted
by the City. All costs incurred by the City in connection with the
revocation and removal shall be paid by entities who own or control
any part of the wireless facility.
In establishing the rights, obligations and conditions set forth
in this chapter, it is the intent of the City to treat each applicant
or public right-of-way 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 public right-of-way.
If any section, subsection, provision, sentence, clause, phrase
or word of this chapter is for any reason held to be illegal or otherwise
invalid by any court of competent jurisdiction, such invalidity shall
be severable, and shall not affect or impair any remaining section,
subsection, provision, sentence, clause, phrase or word included within
this chapter, it being the intent of the City that the remainder of
the ordinance shall be and shall remain in full force and effect,
valid, and enforceable.
