Ithaca City Zoning Code
ARTICLE VA
Telecommunications Facilities and Services
§ 325-29.4 Legislative intent.
A.
The City of Ithaca Common Council, Ithaca, New York, finds that personal wireless communications services and personal wireless service facilities comprise a rapidly growing segment of the utilities and communications sector and have merit and value for the community as a whole. The United States Congress adopted the Telecommunications Act of 1996, including Section 704 which defines personal wireless service and personal wireless service facilities and preserves local zoning authority over decisions regarding the placement, construction and modification of personal wireless service facilities except for the following five limitations:
(1)
A local government shall not unreasonably discriminate among providers of functionally equivalent services.
(2)
A local government shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
(3)
A local government shall act on any requests for authorization to place, construct or modify personal wireless service facilities within a reasonable period of time after the request is filed.
(4)
A local government shall put any decision to deny a personal wireless service facility into writing and support such decision by substantial evidence contained in a written record.
(5)
A local government shall not regulate personal wireless service facilities on the basis of the environmental effects of radio frequency emission to the extent that such facilities comply with the Federal Communications Commission Guidelines for Evaluating the Environmental Effects of Radio Frequency Radiation (FCC Guidelines).
B.
The City of Ithaca is authorized to adopt laws to provide for the health, safety and welfare of the citizens of the City of Ithaca. The regulation of the placement, installation and construction of personal wireless service facilities preserves and protects the health, safety, welfare and general well being of the citizens of the City of Ithaca and protects the natural features and aesthetic character of the City of Ithaca. The City of Ithaca Department of Planning and Development and the City of Ithaca Common Council have, during the period of a current moratorium, undertaken a deliberative process to establish policy, standards and procedures related to the location, siting and design of mounts and antenna arrays for personal wireless services.
C.
The purpose and intent of this chapter is to establish standards for the location, siting and design of personal wireless service facilities, and the goals of this chapter are to:
(1)
Allow for alternative types of personal wireless service facilities in any location subject to standards.
(2)
Encourage the use of existing structures, including, but not limited to, rooftops, utility poles and steeples, for deploying personal wireless service facilities.
(3)
Expedite the review process for those applications choosing the least intrusive alternative of deploying personal wireless service facilities.
(4)
Encourage users of guyed and lattice towers, monopoles and antennas to locate, site and design them in a way that minimizes the adverse visual impact of the lattice or guyed towers, monopoles and antennas.
(5)
Enhance the ability of the providers of personal wireless services to provide such services to the community quickly, effectively and efficiently.
(6)
Promote personal wireless service facilities compatible with surrounding land uses and protect the attractiveness, health, safety, general welfare and property values of the community.
(7)
Achieve the simultaneous objectives of enabling wireless carriers to provide personal wireless services within the City while minimizing the number of facilities used to provide such coverage, avoid unnecessary, redundant wireless infrastructure, and avoiding to the greatest extent possible, any unnecessary adverse impacts upon residential homes and residential communities.
[Added 10-6-2021 by Ord. No. 2021-07]
(8)
Protect the interests of the public, property owners, communities, and the City against significant adverse impacts caused by the irresponsible placement of wireless facilities, including, but not limited to, adverse aesthetic impacts, reductions in property values of properties situated adjacent to, across from, or in close proximity to, a site for a proposed wireless facility, the potential dangers associated within structural failures, fire, icefall and debris fall from wireless facilities, adverse impacts upon historic resources and/or scenic views, and/or the use of properties which would be incompatible with nearby properties and thus be out-of-character with same.
[Added 10-6-2021 by Ord. No. 2021-07]
D.
Therefore, the Common Council of the City of Ithaca has prepared this chapter to revise the City of Ithaca Zoning Law to more clearly reflect the above facts.
§ 325-29.5 Definitions.
As used in this chapter, the following terms shall have the meanings indicated:
A.
Abbreviations.
AGL — At ground level. | |
AMSL — Above mean sea level. | |
CMRS — Commercial mobile radio services. | |
FCC — Federal Communications Commission. | |
PWSF — Personal wireless service facility. | |
RF — Radio frequency. | |
RFR — Radio frequency radiation. | |
SMR — Specialized mobile radio |
B. AGL ANTENNA ANTENNA ARRAY APPLICANT APPLICATION APPLICATION AUTHORITY BOARD CAMOUFLAGE CARRIER CELLULAR COAPPLICANT COLLOCATION COMMERCIAL MOBILE RADIO SERVICES (CMRS) CONCEAL DESIGN DIRECTOR DISGUISE ELEVATION ENHANCED SPECIALIZED MOBILE RADIO (ESMR) EQUIPMENT CABINET/EQUIPMENT SHELTER FALL ZONE FEDERAL COMMUNICATIONS COMMISSION (FCC) FUNCTIONALLY EQUIVALENT SERVICES GUYED TOWER HEIGHT LATTICE TOWER LICENSED CARRIER LOCATION MICROCELL MITIGATION MODIFICATION MONOPOLE MOUNT(1) (2) (3) (4) (5) PERSONAL WIRELESS SERVICE FACILITY (PWSF) PERSONAL WIRELESS SERVICES RADIO FREQUENCY (RF) ENGINEER RADIO FREQUENCY RADIATION (RFR) RADIO FREQUENCY (RF) SIGNAL SECURITY BARRIER SEPARATION SHORT MOUNTS SHOT CLOCK SIGNIFICANT GAP IN COVERAGE or SIGNIFICANT COVERAGE GAP SITE SITING SMALL WIRELESS FACILITY SPECIAL INTEREST AREAS SPECIALIZED MOBILE RADIO (SMR) STANDARDS TOWER TYPE I – IV APPLICATIONS (see, e.g., shot clocks, § 325-29.10.1)(1) (a) (b) (2) (a) (3) (a) (4) (a) UNDERGROUNDING DISTRICT UNLICENSED WIRELESS SERVICES WIRELESS COMMUNICATIONS
Definition of terms.
At ground level; the actual height of the PWSF from the ground to the highest part of the mount or the antenna, whichever is higher.
A whip (omnidirectional antenna), panel (directional antenna), disc (parabolic antenna) or similar device used for transmission and/or reception of radio frequency signals.
One or more whips, panels, discs or similar devices used for the transmission or reception of radio frequency signals, which may include omnidirectional antennas (whips), directional antennas (panels) and parabolic antennas (discs). The antenna array does not include the mount as defined herein.
A person or entity with an application before the City for a permit for a personal wireless service facility (PWSF).
All necessary and required documentation and evidence that an applicant must submit to receive all required permits or other necessary approvals for personal wireless service facilities from the City.
[Added 10-6-2021 by Ord. No. 2021-07]
The Director or the Board, as applicable, responsible for making an initial determination upon an application, prior to any applicable appeals.
[Added 10-6-2021 by Ord. No. 2021-07]
The Board of Zoning Appeals of the City of Ithaca.
[Added 10-6-2021 by Ord. No. 2021-07]
A way of painting and mounting a PWSF that requires minimal exterior changes to the host structure in order to accommodate the facility.
A company licensed by the Federal Communications Commission (FCC) that provides wireless services. A tower builder is not automatically a carrier.
A mobile telephone service operating in the 800 MHz spectrum.
Any person and/or entity joining with an applicant in an application for a permit for a PWSF, including the owner(s) of the PWSF, owner(s) of the subject property and any proposed tenant(s) for the PWSF.
The use of a common PWSF or common site by two or more wireless license holders or by one wireless license holder for more than one type of communications technology and/or placement or two or more PWSF's on adjacent properties.
Any of several technologies using radio signals at various frequencies to send and receive voice, data and video as per Section 704 of the Telecommunications Act of 1996, According to the FCC, these services are "functionally equivalent services." Section 704 of the Telecommunications Act prohibits unreasonable discrimination among functionally equivalent services.
To enclose a PWSF with a natural or manmade feature resulting in the facility being either invisible or made part of the feature enclosing it.
The appearance of PWSF's, such as their materials, colors and shape.
The Director of Planning and Development or designee.
[Added 10-6-2021 by Ord. No. 2021-07]
To design a PWSF to appear to be something other than a PWSF.
The measurement of height above sea level. Also "AMSL," or "above mean sea level."
Private land mobile radio with telephone services.
An enclosed structure at the base of the mount within which is housed the equipment for the PWSF, such as batteries and electrical equipment.
The area on the ground within a prescribed radius from the base of a PWSF. The fall zone is the area within which there might be a potential hazard from falling debris or collapsing material.
An independent federal agency charged with licensing and regulating wireless communications at the national level.
Cellular, PCS, enhanced specialized mobile radio, specialized mobile radio and paging. Section 704 of the Telecommunications Act prohibits unreasonable discrimination among functionally equivalent services.
A monopole or lattice tower that is anchored to the ground or to another surface by diagonal cables.
The distance measured from at ground level (AGL) to the highest point of a PWSF, including the antenna array. For purposes of measuring height, all antennas or other attachments mounted on a structure shall be included in the measurements to determine overall (i.e., combined) height.
A type of mount that is usually ground-mounted and self-supporting with multiple legs and cross-bracing of structural steel.
A company authorized by the FCC to construct and operate a commercial mobile radio services system. A licensed carrier must be identified for every PWSF application.
The area where a PWSF is located or proposed to be located.
Any PWSF that is designed and limited to generate lower power density than that limited by the FCC Guidelines for Evaluating the Environmental Effects of Radio Frequency Radiation.
The reduction or elimination of visual impacts by the use of one or more methods, including but not limited to concealment, camouflage and disguise.
The changing of any portion of a PWSF from its description in a previously approved permit. The FCC definitions for modification are different than local government rules, but for purposes of this article, the definition set forth herein applies.
The shape of mount that is self-supporting with a single shaft of wood, steel or concrete and antennas at the top and/or along the shaft.
The structure or surface upon which antennas are mounted, e.g.:
ROOF-MOUNTEDMounted on the roof of a building.
SIDE-MOUNTEDMounted on the side of a building.
GROUND-MOUNTEDMounted on the ground.
STRUCTURE-MOUNTEDMounted on a structure other than a building.
INTERIOR-MOUNTEDMounted within a building.
A facility for the provision of personal wireless services, as defined by Section 704 of the Telecommunications Act of 1996. A PWSF is any facility for the transmission and/or reception of personal wireless services, usually consisting of an antenna array, transmission cables, equipment shelter and a mount, including, but not limited to, small wireless facilities.
[Amended 10-6-2021 by Ord. No. 2021-07]
Any personal wireless service defined in the Federal Telecommunications Act, which includes Federal Communications Commission (FCC) licensed commercial wireless telecommunications services, including cellular, personal communications services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging as well as unlicensed wireless services, and common carrier wireless exchange access services.
Someone with a background in electrical engineering or microwave engineering who specializes in the study of radio frequencies.
The emissions from PWSF's which are by-products of the RF signal.
The actual beam or radio waves sent and received by a PWSF. A signal is the deliberate product of a PWSF. The RF radiation is the by-product.
A locked, impenetrable wall, fence or berm that completely seals an area from unauthorized entry or trespass.
The distance between one carrier's antenna array and another carrier's antenna array.
Alternatives to monopoles or guyed and lattice towers, such as masts or poles. For example, two short poles or three short masts might be an alternative to one tall lattice tower.
The applicable period which is presumed to be a reasonable period within which the City is generally required to issue a final decision upon an application seeking approval for the installation or substantial modification of a personal wireless services facility or structure, to comply with Section 47 U.S.C. § 332(c)(7)(B)(ii) of the TCA.
[Added 10-6-2021 by Ord. No. 2021-07]
A significant coverage gap exists when a remote user of those services is unable to either connect with the land-based national telephone network, or to maintain a connection capable of supporting a reasonably uninterrupted communication. A significant coverage gap exists when customers cannot receive and send signals, and when customers pass through a coverage gap their calls are disconnected. An applicant’s claim that it needs the proposed tower for “future capacity” or to “improve coverage” is not sufficient to establish that it suffers from a significant gap in service coverage.
[Added 10-6-2021 by Ord. No. 2021-07; amended 12-1-2021 by Ord. No. 2021-14]
That portion of a subject property where a PWSF is to be placed. Any acceptable location may have several potential sites within it.
The method and form of placement of PWSF's on a specific area of a subject property.
A facility that meets the definition of 47 CFR 1.312(e)(2). Facilities that meet this definition are typically low-powered antennas and related equipment providing cellular and data coverage to smaller geographic areas, supplementing the larger cellular network, and improving service for wireless customers. This term is used interchangeably with small cell infrastructure, equipment or facilities, and small wireless equipment.
[Added 10-6-2021 by Ord. No. 2021-07]
Areas within the City that have stricter aesthetic standards. These include the following:
[Added 10-6-2021 by Ord. No. 2021-07]
A form of dispatch or two-way communication used by companies that rent space or time from an SMR carrier, used primarily for data, delivery vans, truckers or taxis within a small, definable geographic area.
Rules or measures by which acceptability is determined. Personal wireless service facilities are measured by standards measuring visibility or safety. Wireless planning tends to regulate PWSF's on three levels: location (or where the PWSF site can go), siting (or how the PWSF is placed within its setting) and design (or what the PWSF looks like).
A term used as a modifier (e.g., tower builder) or when modified (e.g., lattice tower). A monopole is not a tower.
[Added 10-6-2021 by Ord. No. 2021-07]
TYPE I APPLICATIONSCollocations of small wireless facilities.
Type I applications shall be limited to applications wherein an applicant is seeking to collocate a new small wireless facility by installing such new personal wireless service equipment upon an already existing small personal wireless services facility structure.
If the completed facility would still meet the physical limits and requirements to meet the definition of a small wireless facility after the installation of the new equipment, then the application to install such new equipment is a Type I application.
TYPE II APPLICATIONSCollocations which do not meet the definition of a small wireless facility.
Type II applications shall be limited to applications wherein an applicant is seeking to collocate new personal wireless service equipment, by installing such new wireless equipment upon an already existing personal wireless services facility structure, tower, or complex, which does not meet the definition of a small wireless facility, either before, during, or after the installation of the new personal wireless service equipment.
TYPE III APPLICATIONSNew small wireless facilities.
Type III applications shall be limited to applications seeking to install and/or construct a new small wireless facility.
TYPE IV APPLICATIONSNew towers and all other wireless facilities.
Type IV applications shall include applications for the installation of a new cell tower, personal wireless service facility, complex, structure, or equipment, which does not meet the criteria for Type I, Type II, or Type III applications.
Areas of the City that historically had overhead utility lines but have now been undergrounded by either coordination with developments, by use of City funds, by resolution to enforce private property undergrounding of overhead services, or a combination of these means; or areas of the City in which all utility services are provided underground and the only poles in the area are either for streetlights or traffic signals. Districts presently meeting this definition include but are not limited to, and further subject to future additions: 1) 100 and 200 blocks of Dryden Road; 2) College Avenue running between Stone Bridge to Mitchell Street; 3) West State Street running between the Commons to Meadow Street, Warren Road, Richard Place, Brookfield Road, Campbell Ave., Oakwood Lane (between Cliff Street and Hector Street).
[Added 10-6-2021 by Ord. No. 2021-07]
Commercial mobile services that can operate on public domain frequencies and therefore need no FCC license for their sites.
Any form of signaling by wireless, including personal wireless services, that require a transmitter, a receiver and a path, sometimes straight, sometimes indirect, between them.
C.
Measurements. Whenever this chapter refers to horizontal feet, the distance shall be measured in all directions from the identified object.
§ 325-29.6 Purpose and intent; applicability.
[Amended 10-6-2021 by Ord. No. 2021-07]
A.
Purpose and intent. The purpose and intent of this article is to establish standards for the location, siting, and design of PWSFs, including those installed within right of way, other public lands, or on private buildings, homes, or lands and the goals of this article are to:
(1)
Allow for alternative types of PWSFs in any location subject to standards.
(2)
Encourage the use of existing structures, including but not limited to rooftops and utility poles, for deploying PWSFs.
(3)
Expedite the review process for those applications choosing the least intrusive alternative of deploying PWSFs.
(4)
Encourage users of guyed and lattice towers, monopoles, and antennas to locate, site and design them in a way that minimizes the adverse visual impact of the lattice or guyed towers, monopoles, and antennas.
(5)
Enhance the ability of the providers of personal wireless services to provide such services to the community quickly, effectively, and efficiently.
(6)
Promote PWSFs' compatibility with surrounding land uses, and protect the attractiveness, health, safety, general welfare, and property values of the community.
(7)
Enable wireless carriers to provide personal wireless services within the City while minimizing the number of facilities used to provide such coverage, avoid unnecessary, redundant wireless infrastructure, and avoiding to the greatest extent possible, any unnecessary adverse impacts upon residential homes and residential communities.
B.
Preexisting personal wireless service facilities.
(1)
Permits and renewals.
(a)
A PWSF for which a building permit has been issued prior to the effective date of this article shall be deemed a permitted use, subject to the conditions of that permit. When an unpermitted PWSF is identified by the City of Ithaca to be attached to a mount approved for another use or PWSF, a separate permit must be applied for it, even when:
(b)
The issuance of permit renewals or other new permits for such facilities shall be in accordance with the provisions of this article. PWSF upgrade or replacements for preexisting permitted PWSF shall require a new permit in accordance with the provisions of this article unless the replacement is a complete in-kind replacement of the PWSF, or any portion thereof, as originally permitted. Unpermitted PWSFs will be considered out of compliance with this article.
(2)
Placement of any attached array, microcell, small wireless facility, or any other portions of a PWSF on an existing structure, whether legally nonconforming or in, as well as out of, compliance, shall require a permit to be obtained for the PWSF under the terms of this article.
(3)
Any carrier with at least one preexisting PWSF in the City of Ithaca that is out of compliance with the City of Ithaca building or zoning requirements shall not be eligible for any new approvals of personal wireless service facilities by the City until the preexisting PWSF or PWSFs are brought into compliance with this article.
C.
Exclusions for amateur radio facilities. This article shall not govern the installation of any amateur radio facility that is owned and operated by a federally licensed amateur radio station operator or is used exclusively for noncommercial, receive-only antennas.
D.
Unpermitted facilities, mounts, or equipment ineligible for collocation.
(1)
No permit shall be issued under this article for a request to collocate, attach or share an existing PWSF site, mount, or facility when such existing site, mount or facility is found to have one or more PWSFs without permits and/or any structure, mount or facility is found to lack one or more building permits, electrical permits or any other permits required by the City of Ithaca.
(2)
Any application by a wireless carrier or other entity shall not be approved by the City of Ithaca if that wireless carrier has a preexisting PWSF on, or the other entity owns, a mount, rooftop, or tower, on which there is any unpermitted PWSF until that PWSF is brought into compliance with this article.
E.
Relationship to other laws. This article shall supersede conflicting requirements contained in any other provision of the City of Ithaca Code.
F.
Due to the limited visual impact of underground or cable-based broadband installations, such installations are not governed by the zoning requirements of this article.
§ 325-29.7 Land use and PWSF classifications.
[Amended 10-6-2021 by Ord. No. 2021-07]
A.
No PWSF shall be permitted except in accordance with the provisions of this article of the City of Ithaca Zoning Ordinance.
B.
All PWSFs shall be classified as follows:
(1)
Tier One. This tier is limited to applications that:
(a)
Place PWSFs on existing utility poles (telephone poles, utility distribution poles, streetlights, and traffic signal stanchions); or
(b)
Place PWSFs on new utility poles when the carrier specifies a utility pole that meets the City of Ithaca specifications for utility poles; and
(c)
Meet all location standards, siting standards, design standards and safety standards in this article. In the event that any of the standards in the article are in conflict for a particular application, one or the other conflicting standard shall be met. The decision of which standard shall be met shall be subject to the approval of the City of Ithaca.
(d)
Tier One applications meeting all criteria, with proof of required notice specified in § 325-29.15 specified herein may be approved by the Director. At any time in the application if the Director determines a proposal may cause public controversy, the Director may classify the application as Tier Two or Three and refer the proposal to the Board for full review.
(2)
Tier Two. This tier is limited to applications that:
(a)
Do not qualify for Tier One status; and
(b)
Propose to place PWSFs on or in buildings or propose to conceal PWSFs in natural or man-made features approved by the City of Ithaca Planning and Development Board; and
(c)
Meet all location standards, design standards and safety standards in this article. In the event that any of the standards in the article are in conflict for a particular application, one or the other conflicting standard shall be met. The decision of which standard shall be met shall be subject to the approval of the Director.
(3)
Tier Three. This tier is limited to applications that:
(a)
Do not qualify as either Tier One or Tier Two status; and
(b)
Require the erection, establishment, siting, location, construction, modification or development of a guyed tower, monopole, lattice tower or similar structure as determined by the City of Ithaca; and
(c)
Meet all location standards, design standards and safety standards in this article. In the event that any of the standards in the article are in conflict for a particular application, one or the other conflicting standards shall be met. The decision of which standard shall be met shall be subject to the approval of the Director.
C.
All Tier Two and Three PWSF installations require final approval of the Board of Zoning Appeals; Tier One applications are subject to staff approval of the zoning findings specified in this article. All PWSF require final approval pursuant to Chapter 276, Site Plan Review, and issuance of a building permit and certificate of building compliance from the Director.
§ 325-29.8 Standards.
[Amended 10-6-2021 by Ord. No. 2021-07]
The approval of PWSFs shall be subject to meeting or exceeding the following standards:
A.
Location standards.
(1)
Opportunity sites. A PWSF shall be located at one of the following opportunity sites:
(a)
Utility transmission towers.
(b)
Public water tanks.
(c)
Inside or concealed around steeples or similar architectural features.
(d)
Rooftops.
(e)
Utility poles in publicly owned rights-of-way or similar public properties as identified by the City of Ithaca. PWSF installations to be installed on new (where permitted) or replacement poles shall match existing pole types on the same block to the extent feasible, meeting City specifications with regard to paint and material. Notwithstanding the foregoing, where there are impending improvements that will impact the look of existing pole types, applicant shall comply with the specifications of the impending improvements to the maximum extent they are available.
(2)
Order of location preference. If a PWSF can be sited in an adjacent higher preferred zone that can accommodate similar coverage, the applicant shall be required to install in the higher preferred zone. Listed in order of most preferred location to least preferred: 1. Industrial zone; 2. Commercial zone; 3. Mixed commercial and residential zone; 4. Residential zone. An applicant who seeks to install a PWSF at a less desirable location must establish that no higher-ranking sites is available to satisfy whatever coverage needs the respective applicant is seeking to remedy.
(3)
Avoidance areas. PWSF shall not be located in the following avoidance areas:
(a)
Flood hazard zones.
(b)
Historically and culturally significant resources. PWSF installations shall not be located along the front or side boundary lines of a City, New York State, or National Landmark, or any property individually listed in the National Register of Historic Places. Any small wireless facility proposed to be installed within a historic district must be reviewed by the Director. If the Director determines that the proposed installation will result in public controversy or the applicant appeals any decision of the Director, the application will be referred to the Ithaca Landmarks Preservation Commission for a determination on a certificate of appropriateness.
(c)
Unique natural areas and/or critical environmental areas.
(d)
Parks, greenways, and natural areas.
(e)
Scenic or visual corridors as defined by the City and as defined in the Tompkins County Scenic Resources Inventory, January 2007, and other prominent views, such as on the Commons or views from the Cayuga Waterfront Trail, Cascadilla Creek trails, Cass Park, City Cemetery, Ithaca Falls, Stewart Park, or views within any other City park, natural area, or trail.
(f)
Wetlands.
(g)
Lakeshores and waterways.
(4)
Guidelines regarding areas of special interest.
(a)
In any special interest area, applicants are prohibited from installing new poles or support structures for the sole purpose of mounting PWSF. All PWSF installations in special interest areas must be installed on existing support structures; the foregoing does not prohibit replacement in kind of existing poles or support structures.
(b)
In any special interest area, PWSF equipment, other than the antenna, may be mounted on an existing or replacement pole or support structure, but in such situations, equipment shall be a minimum of 15 feet above ground or must be completely concealed or placed underground. If necessary, a meter may be placed near ground level for visibility and access by the electrical provider, provided that the meter does not violate any spacing requirements.
(c)
PWSF infrastructure that is to be collocated on an existing structure may be placed in a Special Interest Area provided that it meets the specified equipment height and pole spacing requirements, and does not block any entryways, views of the landmarked property, or any other prominent views or vistas.
(d)
To the extent technically feasible, new PWSF installations and infrastructure must have all equipment, other than the antenna, completely concealed. This may be within the pole and base, designed with decorative transitions and without exterior attachments, or equipment may be within a decorative street amenity, which would need to be owned and maintained by the carrier. Alternatively, the PWSF equipment may be installed in an underground vault. Any wiring is to be completely concealed. These requirements are consistent with the existing streetscape and other utilities placed in this area.
(e)
PWSF infrastructure located in unnamed alleys within a special interest area shall be setback a minimum of 20 feet from the inside edge of adjoining sidewalk.
(5)
Interpretation of opportunity sites and avoidance areas shall be based on maps or aerial photographs provided by the City of Ithaca Department of Planning and Development and/or the applicant.
(6)
Personal wireless service facilities may also be permitted in areas that are not opportunity sites subject to the following siting, design and safety standards and permitted in avoidance areas subject to the following siting, design, and safety standards. For PWSFs desiring to locate in avoidance areas as set forth in Subsection A(3)(b) above (historically and culturally significant resources), the City of Ithaca Landmarks Preservation Commission must approve the application.
(7)
These standards apply regardless of radio frequency (RF) engineering considerations.
B.
Siting standards.
(1)
Personal wireless service facilities shall meet the following siting standards:
(a)
To the greatest extent possible, PWSFs shall be concealed within existing structures or where the PWSF will be camouflaged, or on inconspicuous mounts.
(b)
Placement within trees shall be encouraged, but no antennas shall extend higher than 10 feet above the average tree height (within 300 horizontal feet when measured along the ground). Any trimming or pruning of City trees shall be subject to approval of the City Forester as indicated in Chapter 152.
(c)
Placement on existing roofs or nonwireless structures shall be favored over ground-mounted PWSFs.
(d)
Roof-mounted PWSFs shall not project more than 10 additional feet above the height of a building. If the roof-mounted PWSFs project above the height limit, they may be appropriately screened.
(e)
Side-mounted PWSFs shall not project more than 20 inches from the face of the mounting structure.
(f)
Alignment - PWSF and support structures, and utility poles are to be located in alignment with existing trees, facilities, support structures, towers, utility poles, and streetlights, and are to be spaced evenly between any buildings and other prominent architectural or vertical features.
(g)
Frontage - New or replacement small wireless facilities and support structures, and utility poles are to be located at or near the extension of property lines, whenever feasible, and are not to be located directly in front of a building entrance area such that the facility would interfere with ingress or egress. Existing support structures that do not conform to this guideline and will be replaced as part of the installation will be brought into conformity to the maximum extent feasible.
(h)
Permissible spacing - No new PWSF shall be placed closer than 1,500 feet from the nearest PWSF (whether proposed or existing unless the PWSF is placed on the same pole as another PWSF), regardless of carrier. Distance should be measured in a linear fashion between the two facilities' center points.
(2)
These standards shall apply regardless of RF engineering considerations.
C.
Design standards. Each new or modified PWSF must be compatible in size, mass, and color to similar facilities in the immediate area, with a goal of minimizing the physical and visual impact on the area.
(1)
Personal wireless service facilities shall meet the following design standards:
(a)
Color. All PWSFs shall be painted or complemented with colors that match or complement their surroundings.
(b)
Size. The silhouette of the PWSF shall be reduced to the minimum visual impact. The diameter of new PWSF support structures is to be minimized such that it is sufficient only for the structural support of the existing and currently proposed attachments. For small wireless facilities, antennas shall be sized and mounted in a manner in which either the antenna(s) are on top of and in line with its supporting pole or such that the antenna(s) do not protrude excessively off of the side of the pole. Antennas that are either mounted on top of the structure or on the side of the structure shall be mounted no further than twice the distance of the diameter of the pole or within the safe install specifications of the pole owner, and overall have the equivalent dimension of no more than three times the pole diameter, at the location of mounting.
(c)
Personal wireless service facilities near or within view of residences shall be no closer than 250 feet from any adjacent residence, school, or day care facility and either:
[1]
Provide underground vaults for equipment shelters; or
[2]
Place equipment shelters within enclosed structures approved by the City of Ithaca and the Planning and Development Board. All small wireless facility equipment is to be shrouded. Wiring and cabling shall be neat and concealed within or flush to the support structure, ensuring concealment of these components to the greatest extent feasible. Wiring to any antennas mounted on the side of the poles shall also be concealed, which may be within a shroud providing the visual appearance of a taper between the pole and the side-mounted antennas. Proposed wiring and concealment methods shall be shown on the documents submitted with the application for a small cell permit. To the extent technically feasible, the equipment is to be placed in cabinets, which shall be designed to match the shape of the pole. For example, if the pole is round, the cabinets shall be round, but may be a larger diameter than the pole. The transition between any pieces of equipment or cabinets and the upper pole shall also be considered. To the extent technically feasible, a decorative transition is to be installed over the equipment cabinet(s) to smoothly taper the cabinet back to the pole diameter. All hardware connections shall be hidden from view to the extent feasible. No horizontal flat spaces greater than 1.5 inches shall exist on the equipment cabinet to prevent cups, trash, and other objects from being placed on the equipment cabinet. Each pole component shall be architecturally compatible to create a cohesive aesthetic.
§ 325-29.9 Fall zone and setback requirements for PWSF's.
[Amended 10-6-2021 by Ord. No. 2021-07]
A.
The support structure of a proposed small cell wireless facility shall have a fall zone of no less than 110% of the height of the support structure to minimize the possibility of damage or injury resulting from facility or pole collapse or failure, ice fall or debris fall, and to avoid or minimize all other impacts upon adjoining properties. Any small cell wireless facility shall be 250 feet or more from any residence, school, or day-care facility, and 1,500 feet or more from any other small cell wireless facility proposed or installed.
B.
Tier Three applications shall meet the following standards:
(2)
Setback.
(a)
All PWSFs, including mounts and equipment shelters, shall comply with the minimum setback requirements of the applicable zoning district as set forth in the City of Ithaca Zoning Ordinance.
(b)
The antenna array for an attached PWSF, with the exception of a side-mounted PWSF on an existing building, is exempt from the setback requirements of this article and from the setback for the zoning district in which it is located, provided that no such antenna array shall project more than five feet horizontally from the attachment structure at the point of attachment.
(c)
No portion of any PWSF shall project into a required setback more than the maximum projection permitted in the zoning district in which the facilities are located, except as otherwise provided in this article.
(d)
On parcels with a principal building housing a principal use, all components of the PWSF shall be located behind the building line.
§ 325-29.10 Submittal requirements.
[Amended 10-6-2021 by Ord. No. 2021-07]
An applicant shall submit the following information as part of an application for a PWSF, which shall be submitted with the applicant verifying under penalties of perjury the truth of the representations made therein:
A.
Application information.
(1)
Name, address and telephone number of applicant and all applicants as well as any agents for the applicant or co-applicants.
(2)
The applicant shall provide a copy of the lease (or license as specified in Chapter 170 in the case of an installation on City property or within the City's right-of-way) between the applicant and co-applicant(s) and shall provide a description which shall include the following:
(3)
Original signatures for the applicant and all co-applicants applying for a building permit and/or site plan review; if the applicant or co-applicant will be represented by an agent, original signature of applicant and/or co-applicant authorizing the agent to represent the applicant and/or co-applicant. Photo reproductions of signatures will not be accepted.
B.
Location information. The following information is required for all applications:
(1)
Identification of the subject property by including the name of the nearest road or roads, and street address, if any.
(2)
Tax parcel number of subject property.
(3)
Zoning district designation for the subject parcel and for all parcels within 1,000 feet of the property lines of the subject parcel.
(4)
A line map to scale showing the subject property and all properties within 1,000 feet and the location of all buildings, including accessory structures, on all properties shown.
(5)
A City-wide map showing the other existing PWSFs in the City and outside the City within one mile of its corporate limits indicating coverage areas and gaps of the PWSFs shown on the map.
(6)
The specific locations for this carrier of all existing and future PWSFs indicating coverage areas and gaps of the PWSFs shown in the City on a City-wide map.
(7)
For purposes of submitting the maps required by Subsection B(5) and (6) above, the applicant shall demonstrate network performance based on a sample of on-the-ground testing (drive tests) data and certify the accuracy of the data under penalty of perjury and that the testing is statistically appropriate for the area tested. The applicant shall provide the hard data that was employed to create such map or maps, including drive test data demonstrating the existence, location, and geographic boundary of the gap in coverage which the PWSF is intended to remedy, or if demonstrating capacity deficiency, actual dropped call records from the carrier, and the location and geographic boundary of the capacity deficiency.
[Amended 12-1-2021 by Ord. No. 2021-14]
C.
Siting information.
(1)
A one-inch-equals-two-hundred-feet scale vicinity plan showing the following:
(a)
Property lines for the subject property.
(b)
Property lines of all properties adjacent to the subject property.
(c)
Tree cover on the subject property and all properties adjacent to the subject property, by species and average height, as measured by or available from a verifiable source.
(d)
Outline of all existing buildings, including purpose (e.g., residential buildings, garages, accessory structures, etc.), on subject property and all properties adjacent to the subject property.
(e)
Proposed location of antenna, mount, and equipment shelter(s).
(f)
Location of all roads, public and private, on the subject property and on all properties adjacent to the subject property, including driveways proposed to serve the PWSF.
(g)
Distances, at grade, from the proposed PWSF to each building on the vicinity plan.
(h)
Contour lines.
(i)
Lines representing the sight line showing viewpoint (point from which view is taken) and visible point (point being viewed) from "sight lines" subsection below.
(2)
Sight lines and photographs as described below:
(a)
Sight line representation. A sight-line representation shall be drawn from the closest facade of each residential building (viewpoint) included on the vicinity plan to the highest point (visible point) of the PWSF. Each sight line shall be depicted in profile, drawn at one-inch-equals-forty-feet scale. The profiles shall show all intervening trees and buildings. In the event that there is only one (or more) residential building on the vicinity plan, there shall be at least two sight lines from the closest habitable structures, if any.
(b)
Existing (before condition) photographs. Each sight line shall be illustrated by one four-inch-by-six-inch color photograph taken from the perspective of the nearest homes or properties which happen to be situated in closest proximity to the proposed PWSF site and depicting what can currently be seen from the building(s).
(c)
Proposed (after condition). Each of the existing-condition photographs shall have the proposed PWSF superimposed on them to show the perspective of the nearest homes or properties which happen to be situated in closest proximity to the proposed PWSF site, and what will be seen from residential building(s) if the proposed PWSF is built.
(d)
The photographs described in Subsection C(2)(b) and (c) must be taken from the interior perspective of the properties situated in closest proximity to the proposed installation, unless the applicant can show proof that it attempted to secure such images, but that the owners of such properties refused to grant them access to obtain such images. If the owners of such properties have refused to grant the applicant access, the applicant may depict the height, distance from the property, and sight line representation by balloon test.
§ 325-29.10.1 Shot clock periods.
[Added 10-6-2021 by Ord. No. 2021-07]
To comply with the requirements of Section 47 U.S.C. 332(c)(7)(B)(ii), the following shot clock periods set forth herein below shall be presumed to be reasonable periods within which the City shall render initial determinations upon special permit applications for personal wireless service facilities, provided that any subsequent amendment of said federal law that would have the effect of extending the shot clock presumptions herein shall take precedence over the following periods. The Director or the Board, as applicable, shall in the first instance (i.e., prior to any permitted appeals therefrom) render determination upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period list below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Application Authority's control, as addressed within § 325-29.10.2 hereinbelow.
A.
Type I applications. Colocations of small wireless facilities - 60 days.
(1)
Unless extended by agreement, tolled, or subject to reasonable delays, the Application Authority shall issue a written decision upon a Type I application within 60 days from the date when the City receives a Type I application.
(2)
Upon receipt of a Type I application, the Director shall review the application for completeness. If the Director determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within 10 days of the City's receipt of the application, the Director shall mail the applicant a notice of incompleteness by first class mail, to the notice address provided by the applicant.
(3)
Within such notice of incompleteness, the Director shall advise the applicant, with reasonable clarity, the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or defective.
(4)
The mailing of a notice of incomplete application by the Director shall toll the sixty-day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues the Director identified in the notice of incomplete application, which the Director had mailed to the applicant.
(5)
The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running.
(6)
If upon receipt of any additional materials from the applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again, mail a notice of incompleteness within 10 days of the applicant having filed its supplemental or corrected materials to the City and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated.
B.
Type II applications. Colocations on existing towers, structures or other facilities which do not meet the definition of a small wireless facility - 90 days.
(1)
Unless extended by agreement, tolled, or subject to reasonable delays, the Application Authority shall issue a written decision upon a Type II application within 90 days from the date when the City receives a Type II application.
(2)
Upon receipt of a Type II application, the Director shall review the application for completeness. If the Director determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within 30 days of the City's receipt of the application, the Director shall mail the applicant a notice of incompleteness by first class mail, to the notice address provided by the applicant.
(3)
Within such notice of incompleteness, the Director shall advise the applicant, with reasonable clarity, the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or defective.
(4)
The mailing of a notice of incomplete application by the Director shall toll the ninety-day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues the Director identified in the notice of incomplete application, which the Director had mailed to the applicant.
(5)
The submission of any responsive materials by the Applicant shall automatically cause the shot clock period to resume running.
(6)
If upon receipt of any additional materials from the Applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again, mail a notice of incompleteness within 10 days of the applicant having filed its supplemental or corrected materials to the City and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated.
C.
Type III applications. New small wireless facilities - 60 days.
(1)
Unless extended by agreement, tolled, or subject to reasonable delays, the Application Authority shall issue a written decision upon a Type III application within 60 days from the date when the City receives a Type III application.
(2)
Upon receipt of a Type III application, the Director shall review the application for completeness. If the Director determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within 10 days of the City's receipt of the application, the Director shall mail the applicant a notice of incompleteness by first class mail, to the notice address provided by the applicant.
(3)
Within such notice of incompleteness, the Director shall advise the applicant, with reasonable clarity, the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or defective.
(4)
The mailing of a notice of incomplete application by the Director shall toll the sixty-day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues the Director identified in the notice of incomplete application, which the Director had mailed to the applicant.
(5)
The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running.
(6)
If upon receipt of any additional materials from the applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again, mail a notice of incompleteness within 10 days of the applicant having filed its supplemental or corrected materials to the City and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated.
D.
Type IV applications. New towers and all other wireless facilities - 150 days.
(1)
Unless extended by agreement, tolled, or subject to reasonable delays, the Application Authority shall issue a written decision upon a Type IV application within 150 days from the date when the City receives a Type IV application.
(2)
Upon receipt of a Type IV application, the Director shall review the application for completeness. If the Director determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within 30 days of the City's receipt of the application, the Director shall mail the applicant a notice of incompleteness by first class mail, to the notice address provided by the applicant.
(3)
Within such notice of incompleteness, the Director shall advise the applicant, with reasonable clarity, the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or defective.
(4)
The mailing of a notice of incomplete application by the Director shall toll the 150-day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues the Director identified in the notice of incomplete application, which the Director had mailed to the applicant.
(5)
The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running.
(6)
If upon receipt of any additional materials from the applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again, mail a notice of incompleteness within 10 days of the applicant having filed its supplemental or corrected materials to the City and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated.
§ 325-29.10.2 Shot clock tolls, extensions and reasonable delay periods.
[Added 10-6-2021 by Ord. No. 2021-07]
Consistent with the letter and intent of Section 47 U.S.C. § 332(c)(7)(B)(ii), each of the shot clock periods set forth within § 325-29.10.1 hereinabove shall generally be presumed to be sufficient periods within which the Application Authority shall render decisions upon applications. Notwithstanding same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Application Authority, and the Application Authority shall not be required to render its determination within the shot clock period presumed to be reasonable for each type of application, where the processing of such application is reasonably delayed, as described hereinbelow.
A.
Tolling of the applicable shot clock due to incompleteness and/or applicant error.
(1)
As provided for within § 325-29.10.1 hereinabove, in the event that the Application Authority deems an application incomplete, the Application Authority shall send a notice of incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application.
(2)
If the Application Authority mails a notice of incompleteness as described hereinabove, the applicable shot clock shall automatically be tolled, meaning that the applicable shot clock period within which the Application Authority is required to render a final decision upon the application shall immediately cease running, and shall not resume running, unless and until the City receives a responsive submission from the applicant.
(3)
If and when the applicant thereafter submits additional information in an effort to complete its application, or cure any identified defect(s), then the shot clock shall automatically resume running, but shall not be deemed to start running anew.
(4)
The applicable shot clock period shall, once again, be tolled if the Application Authority thereafter provides a second notice that the application is still incomplete or defective, despite any additional submissions which have been received by the City, from the applicant, up to that point.
B.
Shot clock extension by mutual agreement.
(1)
The Application Authority, in its sole discretion, shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Application Authority shall include the Application Authority's authority to request, at any time, and for any period of time the Application Authority may deem reasonable or appropriate under the circumstances, consent from a respective applicant, to extend the applicable shot clock period, to enable the Application Authority, the applicant, or any relevant third party, to complete any type of undertaking or task related to the review, analysis, processing, and determination of the particular application, which is then pending before the Application Authority, to the extent that any such undertaking, task or review, is consistent with, or reasonably related to, compliance with any federal, state, or local law, and/or the requirements of any provision of the City Code, including but not limited to this article.
(2)
In response to any request by the Application Authority, the applicant, by its principal, agent, attorney, site acquisition agent or other authorized representative can consent to any extension of any applicable shot clock, by affirmatively indicating its consent either in writing or by affirmatively indicating its consent on the record at any public hearing or public meeting. The Application Authority shall be permitted to reasonably rely upon a representative of the applicant indicating that they are authorized to grant such consent on behalf of the respective applicant, on whose behalf they have been addressing the Application Authority within the hearing process.
C.
Reasonable delay extensions of shot clock periods.
(1)
The City recognizes that there may be situations wherein, due to circumstances beyond the control of the City and/or the Application Authority, the review and issuance of a final decision upon an application for a personal wireless facility cannot reasonably be completed within the application shot clock periods delineated within § 325-29.10.1 hereinabove.
(2)
If, despite the exercise of due diligence by the City and the Application Authority, the determination regarding a specific application cannot reasonably be completed within the applicable shot clock period, the Application Authority shall be permitted to continue and complete its review, and issue its determination at a date beyond the expiration of the applicable period, if the delay of such final decision is due to circumstances including, but not limited to, those enumerated hereinbelow, each of which shall serve as a reasonable basis for a reasonable delay of the applicable shot clock period.
(3)
Reasonable delays which may constitute proper grounds for extending the presumed sufficient periods for rendering determinations under the applicable shot clock periods may include, but are not necessarily limited to:
(a)
Environmental and/or historic site impacts:
[1]
To the extent a proposed installation bears the potential for a significant adverse impact upon (i) the environment within the meaning of SEQRA and/or the NEPA (National Environmental Policy Act, 42 U.S.C. § 4321 et seq.) and/or (ii) a historic site or a historic district within the meaning of SEQRA and/or the NHPA (The National Historic Preservation Act, 54 U.S.C. 300101 et seq., and 36 CFR Part 800 et seq.);
[2]
Processes to comply with the requirements of SEQRA (and/or NEPA and/or NHPA), including necessary engagement with and/or review under NSDEC, FCC, SHPO and NHPA, in determining both: (i) the extent of adverse impacts, and (ii) what mitigation measure might the applicant be required to undertake to minimize the adverse environmental impacts and/or adverse impacts upon historic sites, structures and/or district.
[3]
So long as the Application Authority acts with reasonable diligence in completing such necessary review(s), if compliance with the statutory requirements for environmental or historic preservation review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable.
(b)
Force majeure.
[1]
In the event that the rendering of a final decision upon an application under this article is delayed due to natural and/or unnatural events and/or forces which are not within the control of the City and/or the Application Authority, such as the unavoidable delays experienced in government processes due to the COVID-19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of final determinations beyond the period allotted under the applicable shot clock.
(c)
Eleventh-hour submissions.
[1]
In the event that an applicant tenders eleventh-hour submissions to the City and/or the Application Authority in the form of (a) expert reports, (b) expert materials, and/or (c) materials which require a significant period for review due either to their complexity or the sheer volume of materials which an applicant has chosen to provide to the Application Authority at such late point in the proceedings, the Application Authority shall be afforded a reasonable time to review such late-submitted materials.
[2]
If reasonably necessary, the Application Authority shall be permitted to retain the services of an expert consultant to review any late-submitted expert reports which were provided to the Application Authority, even if such review or services extend beyond the applicable shot clock period, so long as the Application Authority completes such review and retains and secures such expert services within a reasonable period of time thereafter, and otherwise acts with reasonable diligence in completing its review and rendering its final decision.
§ 325-29.11 Alternatives analysis and comparison.
Each application for a PWSF should also contain at least two alternatives that differ from the PWSF proposed in the application.
A.
Differences. The alternatives need not be totally different from the proposed PWSF; however, the alternatives should contain measurable differences, such as:
(1)
Height. An alternative can be identical to the proposed PWSF but for a shorter height.
(2)
Number. An alternative could be for two or more PWSF's that are shorter than the proposed PWSF.
(3)
Location. An alternative could be located on a different property than the proposed PWSF.
(4)
Siting. An alternative could be in a different place on the same property as the proposed PWSF.
(5)
Design. An alternative could be of the same height, location and siting as the proposed PWSF, but be designed to appear differently.
B.
Submittal requirements for alternatives. The materials submitted for each alternative should show only the differences between each of the alternatives and the proposed PWSF.
C.
Comparison of proposed personal wireless service facility and alternatives. The City of Ithaca Department of Planning and Development staff shall compare the proposed PWSF to the two required alternatives on the basis of the following:
(1)
Change in community scale, as exhibited in relative height, mass or proportion of the PWSF within its proposed surroundings.
(2)
New visible elements proposed on a contrasting background.
(3)
Different colors and textures proposed against a contrasting background.
(4)
Use of materials that are foreign to the existing built environment.
(5)
Conservation of opportunities to maintain community scale, not compromising buffering areas and low-lying buildings so as to start a trend away from the existing community scale.
(6)
Amount and diversity of landscaping and/or natural vegetation.
(7)
Preservation of view corridors, vistas and view sheds.
(8)
Continuation of existing colors, textures and materials.
D.
Ranking of proposed personal wireless service facility and alternatives. The City of Ithaca Department of Planning and Development staff shall rank the proposed PWSF and each alternative based on the above criteria. The ranking of the proposed PWSF and each alternative shall be submitted to the appropriate review board along with each application. The reviewing board shall consider the alternatives along with the proposed PWSF.
§ 325-29.12 Tiered permit process.
[Amended 10-6-2021 by Ord. No. 2021-07]
A.
Department of Planning and Development. After assigning each application to a tier, the City of Ithaca Department of Planning and Development shall:
B.
Findings. All decisions resulting in approvals or denials by the Board of Zoning Appeals shall be in writing and supported by findings of fact and conclusions of law based upon competent substantial evidence in the record, and shall specify:
(1)
Whether the applicant has proven, based upon the evidence presented to the Board that an identified wireless carrier suffers from a "significant gap" in its personal wireless service coverage by demonstration of the following:
(a)
Reliable drive test data to demonstrate the significant gap in coverage or actual dropped call records to demonstrate a capacity deficiency, including the location and geographic boundaries of such, that the PWSF proposes to remedy;
[Amended 12-1-2021 by Ord. No. 2021-14]
(b)
That the proposed installation will remedy that significant gap or gaps in an identified wireless carrier's personal wireless coverage;
(c)
The installation will not create an unnecessary redundancy in wireless infrastructure within the city;
(d)
The proposed height proposed for the PWSF is the minimum height necessary to remedy any significant gap in personal wireless coverage for any identified wireless carrier.
(2)
Whether or not any gaps in coverage are limited in size, or confined to a limited number of homes, or are situated in a rural sparsely populated area, or that any lack in coverage would be de minimis.
(3)
Whether the applicant has proven, based upon the evidence presented to the Board that its proposed installation is the least intrusive means of remedying any such significant gap in coverage.
(a)
Whether or not the proposed facility presents a minimal intrusion on the community;
(b)
Whether or not the proposed installation will, or will not, inflict a significant adverse aesthetic impact upon adjacent or nearby properties or surrounding neighborhood or community, specifically:
[1]
Inflict a significant adverse impact to the property values of adjacent or nearby properties;
[2]
Inflict a significant adverse impact upon historic resources or scenic views;
[3]
Whether the proposed siting of the PWSF, both in terms of site location and the specific area upon the site where the installation is proposed, would minimize the adverse visual impact of the facility;
[4]
Whether or not the proposed installation will, or will not, provide and maintain a sufficient fall zone and/or safe zone around the facility to protect the public from the potential dangers of structural failures, icefall, debris fall and/or fire;
[5]
Whether there are potential, less intrusive, alternative locations for the placement of a wireless facility which would fill any significant gap(s) in coverage;
[6]
That a facility of a lesser height, or multiple shorter facilities at less intrusive sites, would be sufficient to remedy any significant gap(s) in coverage.
(4)
Whether or not the granting of the application at issue would be consistent with the legislative intent of the telecommunications facilities and services section.
§ 325-29.13 Application procedures.
Applicants shall use the following procedure when applying for PWSFs, although City staff may waive some steps if they are redundant.
A.
D.
Application and review process – Public ROW permit. Notwithstanding the location preference guidelines indicated in this document, for each application proposing an installation within a residential zone or within 200 feet of a residential zone, no less than five days prior to installation, applicant shall mail or hand deliver notice to all residences within 300 feet of the proposed installation, and no less than 30 days prior to installation, post the location with a sign providing information as to where the application may be viewed and how the public may contact the applicant about the proposed installation. Signs can be obtained from the Planning and Economic Development Division at a cost of $15 per sign (checks payable to "City of Ithaca"). Proof that the sign(s) have been posted will be required in the form of a date-stamped photograph(s). Applicant shall provide proof of mailing and a list of addresses receiving the notification with the application.
[Amended 10-6-2021 by Ord. No. 2021-07]
§ 325-29.14 Staff reports.
§ 325-29.15 Notice.
[Added 10-6-2021 by Ord. No. 2021-07[1]]
For all PWSF applications, the applicant is responsible for demonstrating compliance with the following:
A.
Upon submission of the application, the applicant shall, no less than 30 days prior to installation, post the location with a sign providing information as to where the application may be viewed and how the public may contact the applicant about the proposed installation.
B.
The applicant shall provide the City with the names and addresses of all property owners and provide written notice of the public hearing, by certified mail, return receipt requested as follows:
§ 325-29.16 Modifications.
The City of Ithaca shall require the review and approval of all modifications to PWSF's.
A.
Types of modification. A modification of a PWSF is any of the following:
B.
Applications for modification. Applicants for modifications shall submit an application to the City for a modified PWSF. The application shall include all materials required in § 325-29.10 that would change due to the modification.
C.
Subsequent ownership. Any permit issued pursuant to this article shall not be transferable in any way. Any subsequent owner of the PWSF or the subject property shall be required to obtain a permit in accordance with this article.
§ 325-29.17 Collocations/Public sites.
A.
Worst-case review. The City of Ithaca shall review applications for collocations on the basis of all positions on the mount, i.e., the cumulative, worst-case condition.
B.
Collocation review includes entire facility. Applications for collocations on mounts, when they are constructed prior to the effective date of this article, require review of the existing mount as well as collocation under the requirements of this article.
C.
Collocations not previously reported. Applications for collocations on mounts constructed after the effective date of this article, when they did not previously show the proposed collocation, require review of the existing mount as well as collocation under the requirements of this article.
D.
Public sites. The City of Ithaca shall work with carriers to consider the siting of PWSF's on appropriate City-owned or other publicly owned property, by identifying existing structures, the appropriate contact persons and the appropriate leasing procedures.
E.
Collocation generally. Collocation of facilities is generally preferred over new support structures if it can be accomplished in a way that better compliments the character of the surrounding area. The order of preference for the configuration for PWSFs from most preferred to least preferred is: (a) collocation with existing PWSFs; (b) roof-mounted; (c) building-mounted; (d) mounted on an existing pole or utility pole; (e) mounted on a pole or utility pole that will replace an existing pole or utility pole; (f) mounted on a new telecommunication tower. Where an existing facility or support structure can potentially accommodate collocation of a new wireless facility, collocation will be required unless the applicant submits evidence that the collocation will not remedy a significant gap in coverage, or the owner of the existing facility or support structure is unwilling to accommodate the applicant’s equipment and cannot be required to cooperate.
[Added 10-6-2021 by Ord. No. 2021-07]
§ 325-29.18 Registry, monitoring, inspection, abandonment and obsolescence.
[Amended 10-6-2021 by Ord. No. 2021-07]
A.
Registry. Each carrier shall file the following information with the City on an annual basis, beginning with the date of approval:
(1)
Owner/lessee/intermediary/agent and carrier(s) at the site.
(2)
Location by latitude and longitude, addresses and parcel numbers.
(3)
Height, AGL.
(4)
Collocation status and capability (including if a former collocation has been removed).
(5)
Last date at which site was modified and the nature of the modification.
(6)
A list of toxic/hazardous materials at the PWSF (including in the equipment shelter).
(7)
Instructions for emergency personnel on the approach/action to be taken in case of an emergency involving any toxic/hazardous substances.
(8)
The name and telephone number of a representative of the carrier to be contacted in the event of any emergency at the PWSF site. The contact representative is to be available on a twenty-four-hour-a-day, seven-days-a-week, three-hundred-sixty-five-days-a-year basis.
B.
Signage.
(1)
Every pole or structure in the public rights of way that holds a 5G antenna be labeled indicating RF radiation being emitted above. This label should be at eye level and legible from nine feet away. Radio frequency warning or alerting signs should be used to provide information on the presence of RF radiation or to control exposure to RF radiation within a given area. Standard radio frequency hazard warning signs are commercially available from several vendors.
(2)
Appropriate signs should incorporate the format recommended by the Institute for Electrical and Electronics Engineers (IEEE) and as specified in the IEEE standard: IEEE Std C95.2-1999 (Web address: http://www.ieee.org). Guidance concerning the placement of signs can be found in the IEEE Standard: IEEE Std C95.7-2005 (available for free through the IEEE Get Program). When signs are used, meaningful information should be placed on the sign advising affected persons of: (1) the nature of the potential hazard (i.e., high RF fields), (2) how to avoid the potential hazard, and (3) whom to contact for additional information. In some cases, it may be appropriate to also provide instructions to direct individuals as to how to work safely in the RF environment of concern. Signs should be located prominently in areas that will be readily seen by those persons who may have access to an area where high RF fields are present.
C.
Inspection.
(1)
The owner or operator of PWSF shall provide for and conduct an inspection of mounts at least once every five years. A report shall be provided to the Department of Planning and Development verifying compliance with previous approvals and the City Code. Licensee shall maintain accurate maps and other appropriate records of its small cell equipment as they are actually constructed in the right-of-way and will provide GIS location and information data to the City upon application. Licensee's location and information data provided to the City shall be GIS compatible and include exact locations of and information concerning all components of a small cell installation, including to the extent available to the licensee, wire, fiber optic strands, innerduct or other items supporting licensee's equipment. Such maps and records shall be promptly updated and provided to the City in the event of relocation or removal of any small cell equipment.
(2)
The owner or operator of PWSF shall provide for and conduct an inspection of radio frequency radiation at least once annually by a licensed radio frequency engineer. Three copies of a report shall be provided to the Department of Planning and Development, verifying that the radio frequency radiation is in compliance with FCC Guidelines.
(3)
The City shall have the right to employ a qualified RF engineer to conduct an annual random and unannounced test of PWSF and small cell wireless installations located within the City to certify their compliance with all FCC radio-frequency emission limits as they pertain to exposure to the public. The reasonable cost of such tests shall be paid by the carriers as a pro rata percentage based on the carrier's total number of PWSF installed within the City and the total number of PWSF installations within the City.
D.
Abandonment and removal. Any PWSF that is out of peroration for a continuous period of 12 months shall be considered abandoned, and the owner of such PWSF shall remove same within 90 days of notice from the Department of Planning and Development that the PWSF is abandoned. If such PWSF is not removed within said 90 days, the City of Ithaca may have the PWSF removed at the PWSF owner's expense.
E.
Hazardous materials. A PWSF shall be registered as a hazardous facility if petroleum products are used to fuel power supplies, or any toxins are contained in equipment cabinets or shelters or alternative power sources.
F.
All PWSF and small wireless facility attachments shall meet the following requirements:
(1)
Be reviewed and approved by a licensed professional structural engineer in the State of New York, which shall include review of any structures and foundations. All pertinent calculations shall be stamped by a professional engineer and submitted to the City as part of the permit application and review process.
(2)
All installations shall meet or exceed all applicable structural standards, clearance standards, and provisions of the latest National Electrical Safety Code (NESC).
§ 325-29.19 Radio frequency radiation emissions.
[Amended 10-6-2021 by Ord. No. 2021-07]
A.
FCC Guidelines. A statement certifying that, as proposed, the PWSF complies with the FCC Guidelines for Evaluating the Environmental Effects of Radio Frequency Radiation (FCC Guidelines) concerning radio frequency radiation and emissions shall be provided at the time of final site plan review or building permit application for facilities not requiring site plan review.
B.
The statement shall include FCC compliance report, verified under oath, and under penalties of perjury, by the person who prepared any such report. The cover page shall specify the following:
(1)
Whether the PWSF complies with the FCC standards for General Population Exposure Limits or the Occupational Exposure Limits; and
(2)
The minimum distance factor, measured in feet, which the applicant used to calculate the radiation emission levels to which the proposed facility would expose members of the general public or others.
C.
No contravention of FCC Guidelines. A PWSF that meets the FCC Guidelines shall not be conditioned or denied on the basis of radio frequency impacts.
D.
If the compliance report as described in this section or the results of any inspection or reporting as required by § 325-29.18 demonstrates that a PWSF is not compliance with the relevant FCC Guidelines for RF Emissions, the City shall notify the carrier of the findings. Upon such a finding:
(1)
The City may in the City's sole discretion test and inspect any or all of the carrier's PWSF within the City at the carrier's sole cost.
(2)
Upon proper written notice, not less than 30 days delivered to the most recent contact on file for the PWSF or carrier, the City shall promptly schedule a public hearing before the Board of Zoning Appeals in which the carrier must show cause why the noncompliant PWSF and related equipment should not be removed at the carrier's cost.
(3)
The Board of Zoning Appeals, upon hearing the evidence and arguments of the carrier in the public hearing, may require replacement, removal, or any other remedy reasonably necessary to bring the PWSF(s) into compliance with FCC guidelines.
(4)
A carrier's failure to appear before the Board of Zoning Appeals and/or comply with the remedy ordered, if any, by the Board of Zoning Appeals, may result in revocation of any license or franchise granted by the City pursuant to Chapter 170, the City's removal of noncompliant PWSF and equipment by the City at the carrier's cost.
(5)
A carrier's failure to comply with the findings and order of the Board of Zoning Appeals shall constitute a violation of this article, and the City reserves the right to impose any and all other penalties or other remedies specified in this article.
§ 325-29.20 Noise.
§ 325-29.21 Lighting and security.
A.
A PWSF shall not be artificially lighted, except for:
(1)
Security and safety lighting of equipment buildings if such lighting is shielded and directed downward to keep light within the boundaries of the site; and
(2)
Such lighting of the PWSF as may be required by the Federal Communications Commission, Federal Aviation Administration (FAA) or other applicable authority installed in a manner to minimize impacts on adjacent residences. Only red lighting shall be utilized unless otherwise recommended by FAA guidelines.
B.
Security barriers. A security barrier, conforming to the City of Ithaca Zoning Ordinance, may be required around the perimeter of mounts(s) or equipment structure, and any anchor points. In the case of a roof-mounted PWSF, the security barrier may need only be around the antenna. The security barrier shall be maintained by the operator of the PWSF or mount for the life of the installation. No security barrier is needed around side-mounted PWSF's, but distances from windows and balconies should conform to Subsection C(2) below.
C.
Security barriers for certain populations. The security barriers around all PWSF's shall be reviewed by the Planning and Development Board and found to be acceptable for:
(1)
Controlled population: those persons who are trained in procedures for working near or around radio frequency radiation.
(2)
General population: All other persons, some of whom have no concept of what radio frequency radiation is or how it can cause harm. Members of the general population should not be allowed within 10 meters of any antenna.
§ 325-29.22 Signs/Identification plaques.
No signage shall be permitted on any PWSF other than that required for public safety purposes or by the FCC or FAA, except that each PWSF shall have a weatherproof plaque appropriately sized to the site and size of the PWSF mounted at eye level identifying the carrier, frequency and date of permit approval.
§ 325-29.23 Screening and landscaping.
A.
Natural vegetation. Existing natural vegetation shall be undisturbed to the greatest extent practicable.
B.
Landscaping. Landscaping of disturbed areas of the PWSF site and security barriers shall be required as follows:
(1)
At least one row of evergreen shrubs capable of forming a continuous hedge at least five feet in height within two years of planting shall be spaced not more than five feet apart within 15 feet of the site boundary; and
(2)
At least one row of evergreen trees or shrubs, at least four feet in height when planted and spaced not more than 15 feet apart, shall be located interior to the perimeter of the shrubs required in Subsection B(1) above; and
(3)
For ground mounts greater than 200 feet tall, at least one row of deciduous trees, not less than 1 1/2 inches' diameter measured three feet above grade and spaced not more than 20 feet apart, shall be located within the perimeter of the evergreen trees or shrubs required in Subsection B(2) above.
(4)
All security barriers for guy-wire anchor points shall be screened from view by at least one row of evergreen shrubs spaced not more than five feet apart and capable of forming a continuous hedge at least five feet in height within two years of planting.
(5)
Existing vegetation, topography, walls and fences combined with shrubs or other features may be substituted for the required buffers if the Planning and Development Board finds they:
(6)
Landscaping materials shall consist of xeric or drought-resistant native species and shall be maintained by the operator of the PWSF for the life of the installation.
§ 325-29.24 Access and parking.
A.
Parking. Areas sufficient for the temporary off-street parking of at least two vehicles shall be provided for mounts. The type and configuration of parking shall be subject to approval by the Planning and Development Board.
B.
Private access. A copy shall be provided to the City of Ithaca Department of Planning and Development of any road maintenance agreement for any site accessed by private easement.
§ 325-29.25 Certificate of insurance required.
[Amended 10-6-2021 by Ord. No. 2021-07]
The applicant shall maintain adequate and sufficient liability insurance during the construction period and thereafter, the carrier shall maintain liability insurance meeting the criteria of this section throughout the life of any PWSF erected within the City of Ithaca. Prior to the issuance of any necessary permit, whether special permit or building permit, documentation that liability insurance in the amount of at least $1,000,000 single occurrence, $3,000,000 aggregate has been secured identifying the City as coinsured shall be submitted to the Department of Planning and Development, such policy shall not include a pollution exclusion. The carrier’s maintenance without interruption of liability insurance in like or greater amount with the City named as coinsured is a continuing condition of any permit or certificate of building compliance.
§ 325-29.26 Reasonable accommodations requests.
[Added 10-6-2021 by Ord. No. 2021-07[1]]
A resident with a disability as defined by the Americans with Disabilities Act may petition the Board of Zoning Appeals to consider any requested reasonable accommodation and file a complaint for lack of accommodations with the City’s chief executive officer.
§ 325-29.27 Penalties for offenses; other remedies.
A.
Each violation of this article, any regulation, order or ruling promulgated hereunder or any permit issued hereunder shall be punishable by a fine of not more than $2,500 or imprisonment not exceeding 15 days, or both; a separate offense shall be deemed committed on each day during which a violation occurs or continues. In addition to such a fine, the defendant shall pay all costs and expenses incurred by the City in determining such violation. The foregoing shall be in addition to all other remedies available under the law to the City or the Common Council.
B.
In the event of any actual or impending violation of this article, the City, in addition to other remedies, may institute any appropriate action or proceedings to prevent, restrain, correct or abate such violation.
C.
In addition to other remedies by law, any appropriate action or proceeding, whether by legal process or otherwise, may be instituted or taken to prevent the unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use to restrain, correct or abate such violation, to prevent the use of said structure or land or to prevent any illegal act, conduct, business or use in or about such premises.
D.
If a PWSF is found to have RF emissions exceeding general population exposure limits, this code provision enables a private right of action by any City resident against the facility owner to secure its removal with reimbursement of attorneys' fees and costs in the event that the resident prevails.
[Added 10-6-2021 by Ord. No. 2021-07]
§ 325-29.28 Appeals and variances.
[Added 10-6-2021 by Ord. No. 2021-07]
Any applicant may seek appeal of any order, requirement, decision, interpretation, or determination and/or seek a variance from the provisions of this article in accordance with § 325-40, Board of Appeals; variances.
§ 325-29.29 Revocability.
[Added 10-6-2021 by Ord. No. 2021-07]
In the event of a change in federal or state regulations or statutes governing telecommunications rendering any PWSF installation authorized in accordance with this article invalid, illegal, or otherwise unauthorized, the City may require that the effected PWSF installation be removed and replaced in accordance with the then-current federal, state, and local regulations and statutes.