Utica City Zoning Code
ARTICLE VIII
Telecommunications Facilities
Sec. 2-29-271 Purpose.
[Ord. No. 4, 2-3-2021]
The purpose of this section is to accommodate the need for telecommunication facilities in appropriate areas of the City of Utica, while protecting the public against any adverse impacts to aesthetic resources or the public safety and welfare.
Sec. 2-29-272 Intent.
[Ord. No. 4, 2-3-2021]
The intent of this section is to:
(a)
Preserve and enhance the positive aesthetic qualities of the natural and built environment in the City of Utica;
(b)
Accommodate the need for telecommunication facilities while regulating their location and number in the community;
(c)
Avoid potential damage to adjacent properties and structures from tower failure or falling ice through proper engineering and site planning;
(d)
Minimize adverse visual impacts of these facilities through careful design, siting and screening, and by encouraging attachment to existing tall structures and stealth design techniques; and
(e)
Minimize the total number of telecommunication facilities by strongly encouraging co-location on existing and future facilities. This section is not intended to prohibit or have the effect of prohibiting the provision of personal wireless services nor shall it be used to unreasonably discriminate among providers of functionally equivalent services consistent with current federal regulations.
Sec. 2-29-273 Definitions.
[Ord. No. 4, 2-3-2021]
As used in this article, the following terms shall have the meanings indicated:
Accessory telecommunications buildings and structures, including base stations designed and used to shelter equipment and/or to support telecommunication facility. The term “accessory structures” does not include offices, long-term storage of vehicles or other equipment storage or broadcast studios.
A device used to transmit and/or receive radio or electromagnetic waves, including but not limited to directional antennas, such as panels and microwave dishes, and omnidirectional antennas, such as whip antennas.
Commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services as defined by Section 704 of the Federal Telecommunications Act.
Any ground- or roof-mounted pole, spire, structure or combination thereof taller than 15 feet, including supporting lines, cables, wires, braces and masts, built for the purpose of mounting an antenna, meteorological device or similar apparatus aboveground.
Sec. 2-29-274 General criteria.
[Ord. No. 4, 2-3-2021]
(a)
Applicability. No telecommunication facility shall be erected, constructed, installed, operated or modified except as set forth below, and upon approval of a special permit and site plan by the Planning Board pursuant to this Zoning Chapter. Applicants for approval must be personal wireless service providers licensed by the Federal Communications Board (FCC), or must provide a copy of an executed contract to provide land or facilities to a licensed provider at the time that an application is submitted. No approval shall be granted for a tower or facility to be built on speculation. At the time of submission, the applicant shall pay an application fee in accordance with the fee schedule established the City of Utica.
(b)
Applicants shall provide 10 copies of the following documents:
(1)
Site plan. Plans, in conformance with applicable special permit and site plan provision of this chapter. The site plan shall show elevations, height, width, depth, type of materials, color schemes, and other relevant information for all existing and proposed structures, equipment, parking, and other improvements. The site plan shall also include a description of the proposed telecommunication facilities, and such other information that the Planning Board may require.
(2)
Environmental assessment form. A completed Part 1 of the Full Environmental Assessment Form (FEAF), including the Visual EAF Addendum. Particular attention shall be given to visibility from key viewpoints identified in the Visual EAF Addendum, existing tree lines and proposed elevations. The project description in Part 1 of the FEAF should include the anticipated five-year build-out of the provider’s telecommunications network in the City, including any future planned telecommunication facilities.
(3)
Landscape plan. A landscape plan delineating the existing trees or areas of existing trees to be preserved, the location and dimensions of proposed planting areas, including the size, type and number of trees and shrubs to be planted, curbs, fences, buffers, screening elevations of fences and materials used.
(4)
Documentation of proposed height. Documentation sufficient to demonstrate that the proposed height is the minimum height necessary to provide service to locations, which the applicant is not able to serve with existing facilities within and outside the City.
(5)
Statement regarding co-location. For new telecommunication facilities, a statement by the applicant as to whether construction of the facility will accommodate co-location of additional facilities for future users.
(6)
Structural engineering report. A report prepared by a New York State licensed professional engineer specializing in structural engineering as to the structural integrity of the telecommunication facility, and certifying that it is designed to meet all local, state and federal structural requirements for load, including wind and ice loads. In the case of a tower or monopole, the structural engineering report shall describe the structure’s height and design, including a cross section of the structure, demonstrate the structure’s compliance with applicable structural standards and describe the structure’s capacity, including the number of antennas it can accommodate and the precise points at which the antennas shall be mounted. In the case of an antenna mounted on an existing structure, the structural engineering report shall indicate the ability of the existing structure to accept the antenna, the proposed method of affixing the antenna to the structure, and the precise point at which the antenna shall be mounted.
(7)
Engineering analysis of radio emissions. An engineering analysis of the radio emissions, and a propagation map for the proposed telecommunication facilities. The analysis shall be prepared and signed by a New York State licensed professional engineer specializing in electrical engineering with expertise in radio communication facilities. The results from the analysis must clearly show that the power density levels of the electromagnetic energy generated from the proposed facility are within the allowable limits established by the Federal Communication Board (FCC), which are in effect at the time of the application. If the proposed telecommunication facilities would be co-located with an existing facility, the cumulative effects of the facilities must also be analyzed. The power density analysis shall be based on the assumption that all antennas mounted on the proposed facility are simultaneously transmitting radio energy at a power level equal to the maximum antenna power rating specified by the antenna manufacturer.
(8)
Map of proposed coverage and existing and future facilities. A map showing the area of coverage of the proposed facility and listing all existing telecommunication facilities in the City and bordering municipalities containing telecommunication facilities used by the applicant, and a detailed report indicating why the proposed telecommunication facilities is required to provide service to locations which the applicant is not able to serve with existing facilities which are located within and outside the City by co-location and otherwise. This coverage map should also delineate the anticipated five-year build out of the applicant’s network, including any future planned telecommunication facilities.
(9)
Visual impact analysis. The applicant shall prepare a visual impact analysis which includes the following items: (This requirement may be waived by the Planning Board at the sketch plan conference for applications which propose co-location on an existing telecommunication facility structure.)
a.
Viewshed Map based on a USGS 7.5 feet quadrangle map delineating potential visibility zones at foreground (0-0.5 miles), middle ground (0.5-3.5 miles) and background (3.5-5.0 miles) from the proposed facility. All public use area and visually sensitive resources should be identified. A minimum of eight line of sight profile transects should be delineated at 45° intervals.
b.
Balloon test. Within 30 days of submitting the application, the applicant shall fly a brightly colored weather balloon at least five feet in diameter at the maximum height of the proposed telecommunication facility, for four consecutive daylight hours. At least two weeks prior to the balloon test, the applicant shall mail notification of the date and time of the test to the Planning Board and to all landowners whose property is located within 1,000 feet of any property line of the parcel on which the facility is proposed. The applicant shall also advertise the date, time, and location of the balloon test in the City’s official newspaper 7 to 14 days in advance of the test.
c.
Photo simulation of “before and after” views of the proposed facility from key viewpoints both within and outside the City, including, but not limited to major roads, public land, historic sites, or other locations where the site is visible to a large number of residents, visitors, or travelers.
(10)
Escrow account. An applicant shall deposit with the City funds sufficient to cover the reasonable costs of expert engineering evaluations and consultation in connection with the application review. These independent engineering evaluations may include site plan, structural, radio frequency, and other reviews as necessary. The City will maintain a separate escrow account for these funds. An initial deposit of $7,500 shall accompany the filing of the application, and subsequent deposits may be required to maintain a balance of no less than $2,500. At the conclusion of the review, any excess funds in the escrow account will be promptly refunded to the applicant.
(11)
Inter-municipal notification for new telecommunication facilities. In order to facilitate inter-municipal cooperation, and the possible shared use of telecommunication facilities, an applicant for a new telecommunication facility must notify in writing the legislative body of each municipality that borders the City of Utica of their intended application. Notification must include a map showing the exact location of the proposed facility and a general description of the project, including, but not limited to, the height of the facility and its capacity for future shared use. Documentation of this notification must be submitted to the City with the initial application.
(12)
Performance bond or other security. Prior to site plan approval, a performance bond or other security sufficient to cover the full cost of the removal and disposal of the telecommunication facility upon abandonment of said facility shall be provided by the owner/operator. This cost shall be determined by an estimate of the City designated engineer. Any such security must be provided pursuant to a written security agreement with the City, approved by the Common Council and also approved by the City attorney as to form, sufficiency and manner of execution. The form of security shall be limited to those permissible under NYS General City Law Section 33, Subsection 8(c)IV.
(c)
Tower building requirements.
(1)
The use of guyed towers is prohibited. Towers must be self-supporting without the use of wires, cables, beams or other means. The design should utilize an open framework or monopole configuration. Permanent platforms or structures exclusive of antennas that would serve to increase off-site visibility are prohibited, without a separate variance.
(2)
The base of the tower shall occupy no more than 500 square feet and the top of the tower shall be no larger than the base.
(3)
Minimum spacing between tower locations is 1/4 mile.
(d)
Setbacks for towers and telecommunication accessory structures. Towers and all accessory telecommunication accessory structures shall conform with each of the following minimum setback requirements:
(1)
The minimum setbacks of the underlying zoning district shall be met with the exception of industrial zoning districts, where towers and accessory structures may encroach into the rear setback area, provided that the rear property line abuts another industrially zoned property and the tower does not encroach upon any easements.
(2)
Towers and accessory structures shall be set back from the planning public rights-of-way as shown on the most recently adopted plan or map of the City showing such rights-of-way, by a minimum distance equal to 1/2 of the height of the tower, including all antennas and attachments.
(3)
A tower’s setback may be reduced in the sole discretion of the ZBA to allow the integration of a tower into an existing or proposed structure, such as a church steeple, light pole, power line or similar structure.
(e)
Criteria. Applicants shall meet all of the following criteria:
(1)
Necessity. The applicant must prove that the proposed telecommunication facility is necessary in order to provide service to locations which the applicant is not able to serve with existing facilities which are located within and outside the City by co-location and otherwise. Furthermore, the applicant must demonstrate that the proposed facility is the least intrusive means available to fill a significant gap in coverage. The application must document good faith efforts to secure co-location on existing telecommunication facilities, and to secure shared use from owners of all existing tall structures in the coverage area. Any physical, technical and/or financial reasons, which make co-location or shared use unfeasible, must be documented.
(2)
Co-location. The co-location on existing telecommunication facilities shall be strongly preferred to the construction of new telecommunication facilities. If a new site for a telecommunication facility is proposed, the applicant shall submit a report setting forth in detail:
a.
An inventory of existing telecommunication facilities which are within a reasonable distance from the proposed facility with respect to coverage,
b.
An inventory of existing telecommunication facilities in other municipalities which can be utilized or modified in order to provide coverage to the locations the applicant is seeking to serve, and
c.
A report on the possibilities and opportunities for co-location as an alternative to a new site.
d.
The applicant must demonstrate that the proposed telecommunication facilities cannot be accommodated on an existing facility or on an existing facility in another municipality due to one or more of the following reasons:
1.
The proposed equipment would exceed the existing and reasonably potential structural capacity of existing and approved telecommunication facilities, considering existing and planned use for those facilities.
2.
The existing or proposed equipment would cause interference with other existing or proposed equipment which could not reasonably be prevented or mitigated.
3.
Existing or approved telecommunication facilities in neighboring municipalities do not have space on which the proposed equipment can be placed so it can function effectively and reasonably, and the applicant has not been able, following a good faith effort, to reach an agreement with the owners of such facilities.
4.
Other reasons make it impractical to place the proposed equipment on existing and approved telecommunication facilities in other municipalities.
5.
Service to the locations to which the applicant seeks to provide service cannot be provided by existing facilities within or outside the City.
(3)
Minimum lot size. The minimum lot size for a tower or monopole shall be equal to 1.5 the tower’s or monopole’s height, or the minimum lot size required by the underlying zoning district, whichever is greater.
(4)
Setbacks.
a.
Unless the FCC promulgates rules to the contrary, all personal wireless service facilities shall be separated from all existing residential dwellings by a distance of no less than 500 feet. telecommunication facilities must comply with all setback requirements of the underlying zoning district, or must be located with a minimum setback from any property line equal to two times the height of the tower, whichever is greater. Setbacks from towers or monopoles shall be measured from the base of the structure.
b.
The Planning Board may grant a waiver from the property line setback if such waiver would allow the new facility to be located on an existing tall structure or tower.
(5)
Security fencing. Security fencing shall be provided, around each tower or monopole to secure and visually screen the site. Access to the structure shall be through a locked gate.
(6)
Architectural compatibility. Whenever feasible, telecommunication facilities shall locate on existing structures, including, but not limited to buildings, silos, water towers, utility structures, and existing communication facilities, provided that such installation preserves the character and integrity of these structures. Where a telecommunication facility is to be attached to an existing building or structure, such facility shall be integrated into such existing building or structure in such a manner, which blends with the architectural characteristics of the building or structure to the maximum extent practicable.
(7)
Placement. Unless wall-mounted on an existing roof-mounted mechanical enclosure or similar appurtenance, all antennas mounted on a roof shall be located so that visibility of the antenna is limited to the greatest extent practicable. Antennas wall-mounted on a roof-mounted mechanical enclosure or similar appurtenance shall not extend above the height of the appurtenance at the attachment location.
(f)
Design guidelines. The proposed telecommunication facility shall meet the following applicable design guidelines:
(1)
Finish/colors. Towers or monopoles not requiring Federal Aviation Administration (FAA) painting or marking shall either have a galvanized finish or be painted to blend with their surroundings. Accessory telecommunication structures shall maximize the use of building materials, colors and textures designed to harmonize with the natural or man-made surroundings.
(2)
Illumination. No signals, lights or illumination shall be permitted on telecommunication facilities unless required by the FAA or other federal, state or local authority.
(3)
Landscaping for towers or monopoles. For towers or monopoles, vegetative screening shall be provided to effectively screen the tower base and accessory facilities. At a minimum, screening shall consist of one row of native evergreen shrubs or evergreen trees capable of forming a continuous hedge at least 10 feet in height within two years of planting. Existing vegetation shall be preserved to the maximum extent practicable and may be used as a substitute of or in supplement toward meeting landscaping requirements. Additional screening may be required to screen portions of the structure from nearby residential property or important views. All landscaping shall be properly maintained to ensure good health and viability, for the life of the facility.
(4)
Visibility. All telecommunication facilities shall be designed and sited to have minimum adverse visual effect on residential areas, parks or major roadways. Attachment to existing structures and stealth design techniques, which mimic or integrate antenna into man-made structures such as steeples, cupolas, farm structures, flagpoles, etc. are highly encouraged. When this is not feasible, tower structures offering slender silhouettes (i.e., monopoles) are preferable to freestanding lattice style structures.
(5)
Signage. Signage shall be prohibited on telecommunication facilities except for signage to identify the facility, which is located along the right-of-way frontage. Except as specifically required by a federal, state or local authority, no signage shall be permitted on equipment mounting structures or antennas.
(g)
Construction and maintenance.
(1)
Time limit for completion. A building permit must be obtained within six months after approval of a site plan for a telecommunication facility and construction of such facility must be completed within 12 months of such approval. The site plan approval shall automatically expire in the event that the Building Code Enforcement Officer has not granted such permit and construction of the facility is not completed with the periods set forth above.
(2)
Annual inspections.
a.
Unless otherwise preempted by federal or state law, telecommunication facilities, including towers, monopoles and antennas, shall be inspected annually at the applicant’s expense for structural integrity, and a copy of the inspection report shall be promptly transmitted to the Building Code Enforcement Officer. A New York State licensed professional engineer specializing in structural engineering shall perform the structural inspection. The structural inspection report shall describe the structural integrity of the telecommunication facility, maintenance issues and repairs needed or made, if any. In the event that the structural inspection indicates structural deficiencies, then the applicant must remedy the deficiencies at the applicant’s expense within the time reasonably set by the Building Code Enforcement Officer.
b.
Unless otherwise preempted by federal or state law, telecommunication facilities, including towers, monopoles and antennas, shall be inspected annually at the applicant’s expense for radio emissions, and a copy of the inspection report shall be promptly transmitted to the Building Code Enforcement Officer. A New York State licensed professional engineer specializing in electrical engineering with expertise in radio communication facilities shall perform radio emission inspection. The radio emission inspection shall describe the power density levels of the electromagnetic energy generated from the facility, including the cumulative effects of co-located antennas. In the event that the radio emission inspection indicates that the electromagnetic energy generated from the facility are above the allowable limits stated within applicable FCC or ANSI standards or other applicable state or federal guidelines in effect at the time of the inspection, the applicant shall cease all use of the facility until such time as it proves to the satisfaction of the Building Code Enforcement Officer that the power density levels of the electromagnetic energy to be generated at the facility are below the applicable standards.
(3)
Abandonment. In the event that the use of any telecommunication facility has been discontinued by all operators on such facility for a period of 180 consecutive days or more, the facility shall be deemed to be abandoned. Determination of the date of abandonment shall be made by the Building Code Enforcement Officer, who shall have the right to request documentation from the owner/operator of the facility regarding usage. Upon such abandonment, the owner/operator shall remove the facility at its own expense, and failing prompt removal; the City may remove the facility at the owner/operator’s expense. At the applicant’s expense, the site shall be returned to the maximum extent practicable, to its original condition. All site plan approvals, variances and approvals of any nature granted by the City shall automatically expire as of the date of abandonment of the facility.
(h)
Alteration of an existing antenna. Alteration of an existing antenna, which results in an increase in the size or height of the equipment mounting structure, may be permitted only after application to the Planning Board which shall review the matter as if the alteration were an entirely new application for a site plan approval. Site plan review is not required in the case of minor modifications to antennas, which do not result in an increase to the overall height of the structure. However, the following documents must be submitted to the City Clerk for review and approval by the City’s expert engineering consultant(s) at the applicant’s expense:
(1)
Plans, elevations and details of the proposed alterations. Certification by a New York State licensed engineer specializing in structural engineering that the structure is capable of carrying the design load of the proposed alterations, and that the modifications will not result in an increase in the overall height of the structure.
(2)
Certification by a New York State licensed engineer with expertise in radio communication facilities that the total radio frequency emissions generated after modification are within the allowable limits established by current FCC regulations.
(i)
Effect of law on existing towers and antennas. Antennas and towers in existence, which do not conform to or comply with this section, are subject to the following provisions:
(1)
Antennas and towers may continue in use for the purpose now used and as now existing but may not be replaced or structurally altered without complying in all respects with this law.
(2)
If such antennas or towers are hereafter damaged or destroyed due to any natural reason or cause whatsoever, the antenna or tower may be repaired and restored to its former use, location and physical dimensions without complying with this law; provided, however, that, if the cost of repairing the tower to the former use, physical dimensions and location would be 10% or more of the cost of a new tower of like kind and quality, then the tower may not be repaired or restored except in full compliance with this law. Proof of such cost shall be submitted to the City of Utica Building Inspector prior to commencement of any construction.
(j)
Exemption from this section. The following are exempted from the provisions of this section:
(1)
Machines and equipment designed and marketed as consumer products, such as walkie-talkies, ham radios not used commercial purposes, remote control toys, and cellular phones;
(2)
Hand-held, mobile, marine, and portable radio communication transmitters and/or receivers;
(3)
Two-way radios utilized for temporary or emergency service communications;
(4)
Two-way radios utilized for government service communications;
(5)
Back-up wireless transmitters connected to an alarm monitoring service that transmits to a remote monitoring center in the event of an emergency when the telephone lines are inoperable, and
(6)
Over-the-air receive only devices in compliance with FCC rules and standards.