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HomeMy WebLinkAboutCOC Packet 2023-01-25 DEPARTMENT OF PLANNING 215 N. Tioga St 14850 607.273.1747 www.town.ithaca.ny.us 1/18/2023 TO: Codes and Ordinances Committee: Rob Rosen, Chair William Goodman Eric Levine Eva Hoffmann Chris Jung Ariel Casper FROM: Christine Balestra, Planner RE: Next Codes and Ordinances Committee Meeting – January 25, 2023 The next meeting of the Codes and Ordinances Committee is scheduled for Wednesday, January 25, 2023, at 5:30pm in the Aurora Conference Room, located in Town Hall at 215 North Tioga Street. A quorum of the Town of Ithaca Town Board may be present at this meeting. However, no official Town Board business will be conducted. The following items are attached: 1. Minutes from the December 14,2022, COC meeting 2. Draft New Telecom Provisions to Review at 1/25/23 COC meeting (prepared by Susan Brock, Attorney for the Town) If you cannot attend this meeting, please notify Abby Homer as soon as possible at (607) 273- 1747, or ahomer@town.ithaca.ny.us. cc: Susan H. Brock, Attorney for the Town Susan Ritter, Director of Planning Marty Moseley, Director of Code Enforcement Abby Homer, Administrative Assistant Paulette Rosa, Town Clerk (email) Town Administrative staff (email) Town Board Members (email) Town Code Enforcement staff (email) Town Planning staff (email) Town Public Works staff (email) Media TOWN OF ITHACA CODES AND ORDINANCES COMMITTEE 215 North Tioga Street Ithaca, New York 14850 (607) 273-1747 PLEASE NOTE: This meeting will be held in person in the Aurora Conference Room of Town Hall, located at 215 North Tioga Street, Ithaca, NY. Members of the public who wish to view the meeting virtually may visit the Town of Ithaca YouTube Channel, where it will be recorded: https://www.youtube.com/channel/UCC9vycXkJ6klVIibjhCy7NQ/live Meeting of January 25, 2023– 5:30 P.M. AGENDA 1. Member comments/concerns. 2. Review of minutes from the December 14, 2022, COC meeting. 3. Review of revised draft New Telecom Provisions, prepared by Susan Brock. 4. Other business:  Next meeting date: February 15, 2023  Next meeting agenda Town of Ithaca Planning Department January 18, 2023 1 TOWN OF ITHACA CODES AND ORDINANCES COMMITTEE (COC) Meeting of December 14, 2022 – 5:30 pm Town Hall Aurora Conference Room Draft Minutes Members Present: In person: Ariel Casper, Eva Hoffmann, Rob Rosen & Chris Jung. Bill Goodman, Chair & Eric Levine (via Zoom). Staff Present: In person: Chris Balestra, Planner & Susan Brock, Counsel. Marty Moseley, Director of Code Enforcement, Sue Ritter, Director of Planning & Nick Goldsmith, Sustainability Planner (via Zoom). Guests: None. The meeting was broadcasted on YouTube and the Zoom platform was used for two COC members and some staff. Bill reviewed the agenda aloud. 1. Member comments/concerns: None. 2. Town Energy Code Supplement proposed revisions: Nick Goldsmith prepared an additional memo outlining the proposed amendments to the ECS that were introduced at the last COC meeting. The full code was not provided, just the redlined sections being proposed to be amended. The Town and City are both proposing the same five amendments. If approved, they will be filed with NYS along with the 2023 version of the law. The HEATING PLANT definition had two minor words changes from the language in the memo, “main” was removed and “space” was moved to come after “building” to read “building or space”. The definition MAJOR RENOVATION was also proposed to be amended but was not included in the memo. Nick showed the proposal on his screen and explained the changes to the committee. No changes were proposed other than switching “and” to “or” in 2) B. Nick said that town and city staff were still working out changes to the FLOOR AREA definition. The changes will be ready by the time the local law is prepared. Nick explained that the proposed change to the Biomass Space Heating System provisions is being pulled and will be incorporated into other changes that will be proposed later in 2023. Once the local law formatting is finalized and submitted, the Town Board could set the public hearing for the January 9th, 2023, meeting. All agreed that the timeline should work out for the updates to be filed with New York State before the January 2023 deadline. The committee was in favor of all the amendments proposed, with minor changes to be put into a local law format for action at the Town Board. 2 3. Minutes: Eric moved to approve the 11/2/2022 COC minutes with minor changes; Ariel seconded. All members voted in favor of approval. 4. Continued review of revised draft local law - §270-219 Personal wireless service facilities: Susan Brock submitted the latest set of revisions, and the committee began where they left off at the bottom of page 19 (hard copy) in the aesthetic criteria for small wireless facility nodes. The committee focused on the yellow highlighted sections. L. Design Standards (1) Aesthetic Criteria applicable to Small Wireless Facilities For small wireless facility nodes: (i) 4. “frontage” was clarified to mean the entire front property line - additional wordsmithing may be needed to make the intent clear. (i) 5. Setbacks still to be discussed. (j) Delete—no internal/administrative review. M. Dimensional standards (3) Delete “together with any land over which the applicant has obtained an easement” (3) Regardless of tower/facility size, all lots containing PWSF’s must be large enough to contain the entire fall zone (e.g., the fall zone must be on one lot, no spillover to adjacent lots). N. Accessways and parking. Delete, covered elsewhere. O. Security (1). Add a word or two that clarifies that this provision applies to non-small Wireless Facilities (>50 ft tall). (1) (again). COC accepted the staff recommendation to delete any discretion by the PB or staff for fencing and just allow the fence provision. (4) Delete. Code Director recommended that this be removed, as the provision is regulated under the NYS Fire Code. P. Removal Chris explained that this language, as written, was taken from the Town of Fishkill law, and was loosely approved by the COC at a previous meeting for the process only - not the content. After reading the content, staff realized that removal bonds would be required for any personal wireless facility, small or large. Is that what the committee intended? The COC asked Chris to check the City of Ithaca’s provisions and consult with the Town Engineer and possibly the Town Finance Department. She will continue to research this and report back to the committee with a recommendation. The committee then reviewed the new RF emission provisions that were provided by Susan Brock in redlined format. The term “and/or” was discussed, as it appears in every paragraph and applies to the 3 owner and/or operator of the PWSF (Personal Wireless Service Facility). The committee decided to change the wording to “owner and operator (if different from owner)”. The final discussion was a yellow highlighted noted on page 26 (printed copy) related to whether specific enforcement provisions needed to be added, or whether existing Town Code provisions covered enforcement of RF emission standards. Susan Brock provided example language from Fishkill’s enforcement provisions. Marty agreed that specific provisions would be appropriate to add to what is not already covered in Town Code Chapter 125. Marty and Susan will collaborate to develop language, using Fishkill as reference. The committee agreed it would be the Town Board holding the hearing when/if the town finds there is good cause to believe antennas are emitting RF radiation at levels more than the legal limits, not the Planning Board (as in the example language given). The committee ended their review of the draft law. Susan Brock will provide more sections for the committee to review at the next meeting. 5. Other Business: Next meeting: January 25, 2023, at 5:30 p.m. The February meeting was moved to February 15, 2023, to allow time for staff to prepare materials after the January meeting. Eva noted she would not be available for the January meeting. Next meeting agenda: 1. Continued discussion of draft §270-219 Personal wireless service facilities. 2. Discussion of 2023 meeting schedule. The meeting concluded at 7:00 p.m. New telecom law provisions to review at 1/25/23 COC meeting 1 DEFINITIONS (NEW OR REVISED) IN-KIND CALL TESTING-Testing designed to measure the gap in Personal Wireless Service coverage asserted by an applicant. In-Kind Call Testing for a claimed gap in Personal Wireless Services in buildings means call testing performed in buildings to establish the existence or absence of such a gap, unless the applicant provides an affidavit sworn under penalties of perjury demonstrating good faith but unsuccessful attempts to secure access to buildings to conduct such testing. In-Kind Call Testing for a claimed gap in Personal Wireless Services in vehicles or in the open air means call testing performed in vehicles or in the open to establish the existence or absence of such a gap. LEAST INTRUSIVE MEANS-the location and design of a Personal Wireless Service Facility that would remedy a significant gap in Personal Wireless Service coverage and (1) does the least disservice to the objectives stated in § 270-219A(2), and (2) deviates as little as possible from (a) the preferential order of location in subsection K (Priority of siting locations) and (b) applicable design standards in subsection __. EFFECTIVE PROHIBITION- Denial by the Town of a PWSF approval or permit for a Personal Wireless Service Facility that is the Least Intrusive Means of remedying a significant gap in Personal Wireless Service coverage. SUBSTANTIVE PROVISIONS RE: SUBSTANTIAL GAPS/LEAST INTRUSIVE MEANS FINDINGS The Planning Board (where site plan is required) or Director of Code Enforcement (where no site plan is required) shall determine if a proposed project for which a PWSF permit is required is the Least Intrusive Means to close a significant gap in the coverage of the applicant's Personal Wireless Services (the ability of wireless telephones to make and receive voice calls from land- lines that are connected to the national telephone network). In addition to the other findings required in subsection _____, no PWSF permit may be issued unless the Planning Board (where site plan is required) or Director of Code Enforcement (where no site plan is required) finds as follows: 1. The applicant has demonstrated by clear and convincing evidence that the Personal Wireless Service Facility project is necessary to close a significant gap in the applicant’s Personal Wireless Services coverage. (a) Evidence that a gap exists shall include In-Kind Call Testing for each frequency at which the applicant provides Personal Wireless Services. The applicant shall provide the Town with the actual testing data recorded during such tests, in a simple format which shall include for each frequency, in table format: (i) the date and time for the test, New telecom law provisions to review at 1/25/23 COC meeting 2 (ii) the location, in longitude and latitude, of each point at which signal strength was recorded, and (iii) each signal strength recorded, measured in DBM, for each frequency. (b) The applicant shall also submit test maps, depicting the actual signal strengths recorded during all In-Kind Call Testing, for each frequency at which the applicant provides Personal Wireless Services. (c) If an applicant claims that it suffers from a Personal Wireless Service capacity deficiency, or a gap in service that renders it incapable of providing Adequate Coverage of its Personal Wireless Services, the applicant shall provide dropped call records and denial of service records evidencing the number, percentage and locations of voice calls that were unable to be initiated or maintained between wireless telephones and land-lines connected to the national telephone network. (d) To determine whether a gap is significant, the Planning Board or Director of Code Enforcement shall consider, among other things, whether a gap is relatively large or small in geographic size, whether the number of the applicant’s customers affected by the gap is relatively small or large, and whether or not the location of the gap is situated on a lightly or heavily traveled road, or in a sparsely or densely occupied area. A significant gap cannot be established simply because the applicant’s Personal Wireless Services operate on a frequency which is not the frequency most desired by the applicant. 2. The applicant has demonstrated by clear and convincing evidence that the Personal Wireless Service Facility is the Least Intrusive Means of remedying the significant gap. The Planning Board or Director of Code Enforcement shall consider, among other things, (a) whether the proposed site is the least intrusive location at which a Personal Wireless Service Facility that remedies an identified significant gap may be located, and the applicant has reasonably established a lack of potential alternative less intrusive sites and lack of sites available for co- location, (b) whether the specific location on the proposed portion of the selected site is the least intrusive portion of the site for the proposed installation (c) whether the Height proposed for the Personal Wireless Service Facility is the minimum Height necessary to remedy an established significant gap in service, (d) whether a pre-existing Structure can be used to camouflage the Personal Wireless Service Facility and/or its antennas, (e) whether the installation mitigates adverse impacts to the greatest extent reasonably feasible, through the employ of stealth design, screening, use of color, and noise mitigation measures, and (f) whether there is a feasible alternative to remedy the gap through alternative, less intrusive substitute facilities, such as the installation of more than one shorter facility instead of a single facility. If when applying the standards set forth in subparagraphs (1) and (2) above, the Planning Board or Code Enforcement Officer affirmatively determines that the applicant has failed to establish that (i) it has a significant gap in its Personal Wireless Services coverage, and (ii) the proposed installation is the Least Intrusive Means of remedying any such gap, then the Planning Board or Code Enforcement Officer shall deny the application. New telecom law provisions to review at 1/25/23 COC meeting 3 If when applying the standards set forth in subparagraphs (1) and (2) above, the Planning Board or Code Enforcement Officer affirmatively determines that the applicant has established that (i) it has a significant gap in its Personal Wireless Services coverage, and (ii) the proposed installation is the Least Intrusive Means of remedying any such gap, then the Planning Board or Code Enforcement Officer shall grant the application (regardless of other findings made under subsection __) to avoid an Effective Prohibition. [Determine whether the Town may nonetheless deny the application where safety standards are not met.] --------------------------------------------------------------------------------------------------------------------- FINDINGS ON APPLICATIONS (revisions to current §270-219C) C. General criteria. No special permit or renewal thereof or modification of a current special permit relating to a telecommunications facility shall be authorized by the Planning Board unless it finds that such telecommunications facility No site plan relating to a Personal Wireless Service Facility or PWSF permit, or renewal or modification thereof, shall be approved or issued unless the Planning Board (where site plan is required) and Director of Code Enforcement (for PWSF permits) find that such Personal Wireless Service Facility: (1) Is necessary to meet current or reasonably expected demands for servicesIs necessary to close a significant gap in the applicant’s Personal Wireless Services coverage, and the Personal Wireless Service Facility is the Least Intrusive Means of remedying the significant gap, as set forth in subsection __; (2) Conforms with all federal and state laws and all applicable rules or regulations promulgated by the Federal Communications Commission (the FCC), Federal Aviation Administration (the FAA), orand any other federal agencies having jurisdiction; (3) Is considered a public utility in the State of New York; (4) Is sited, designed and constructed in a manner which complies with this section; minimizes i) visual impact to the extent practical and ii) adverse impacts upon migratory and other birds and other wildlife; [The deleted wording is included at the beginning of the Design Standards—so “compliance with this section” means compliance with the Design Standards (including this wording about visual impact and birds)] (5) Complies with all other requirements of this chapter, unless expressly superseded herein; and (6) Is the most appropriate site among those available within the technically feasible area for the location of a telecommunications facility; (7) When including the construction of a tower, such a tower is designed to accommodate future shared use by at least two other telecommunications service providers. [Keep or delete? If keep, limit this requirement to towers over x feet high?] --------------------------------------------------------------------------------------------------------------------- New telecom law provisions to review at 1/25/23 COC meeting 4 REMOVAL PROVISIONS  Replace placeholder wording in Section G(2)(o) (requirement to include removal agreement as part of application) with: An agreement by the owner and operator (if different from owner) to remove all Personal Wireless Service Facilities and restore the site to its original condition if the facility becomes obsolete or ceases to be used for its intended purpose for 120 consecutive days, as set forth in subsection __ below.  Add these removal and financial security provisions later in the law: The Personal Wireless Service Facility owner and operator (if different from owner) shall agree in writing to remove all Personal Wireless Service Facilities (including towers, poles, antennas, driveways, structures, lighting, utilities, fencing, gates, and accessory equipment) and restore the site to its original condition (including where applicable the seeding of exposed soils), and to incur all expenses therefor, if the facility becomes obsolete or ceases to be used for its intended purpose for 120 consecutive days. [Current Town of Ithaca and City of Ithaca laws say 12 months; Town of Lansing law says 120 days—decide on time period.] Removal of such obsolete or unused facilities and restoration of the site to its original condition shall take place within 30 days of receipt of written notice from the Town. [The City’s law says within 90 days’ notice, Lansing’s says 30 days’ notice, and the Town of Ithaca’s current law does not provide for Town notice. Decide if the Town should give notice and the time period for removal that runs from notice.] As security for the performance of the requirements set forth above, the owner and operator (if different from owner) shall, upon the granting of required approvals and permits under this section and prior to the installation of any Personal Wireless Service Facilities, execute and file with the Town Clerk a bond or other form of security or undertaking which shall be approved as to form, manner of execution, and sufficiency for surety, by the attorney for the Town and the Town Engineer. Any bond or guaranty shall be provided by or placed with a solvent surety corporation duly licensed in the State of New York. Such bond or undertaking shall be conditioned upon the faithful performance of the provisions of this section, and in the event of default the bond or undertaking shall be forfeited to the Town, which shall be entitled to maintain an action thereon. The bond or undertaking shall remain in full force and effect until the removal of all Personal Wireless Service Facilities (including towers, poles, antennas, driveways, structures, lighting, utilities, fencing, gates, and accessory equipment), and all site restoration has been completed. The value of the bond shall be equal to 125% of the cost of facility removal and restoration of the site, as determined by the Town Engineer, and no such decommissioning or removal bond shall be secured by an indemnity agreement with the owner or operator or any party affiliated with them. At least once every three years after any approval or permit is issued by the Town, the owner and operator (if different from owner) of the Personal Wireless Service Facility shall provide updated certified cost estimates for removal of all Personal Wireless Service Facilities and all site restoration, and if the resulting 125% cost requirement shows that the exiting security or bond is New telecom law provisions to review at 1/25/23 COC meeting 5 monetarily insufficient, then the owner and operator (if different from the owner) shall update such bond or undertaking, or see to its replacement or supplementation in an amount to equal such updated 125% cost number. --------------------------------------------------------------------------------------------------------------------- VISUAL IMPACT ANALYSIS REVISIONS TO CLARIFY WORDING & FIX GARBLED LANGUAGE (STAFF PREPARED, AND SUSAN B REVISED, THE CHANGES) J. Visual impact analysis. Each application shall include a visual impact analysis that contains an assessment of the proposed Facility’s visual impact on abutting properties and streets, taking into consideration any supporting structure that is to be constructed, as well as its base, guy wires, accessory structures, buildings, and overhead utility lines. The visual impact analysis shall, at a minimum, include the following: (a) Small Wireless Facilities: (i) line-of-sight drawings (ii) detailed elevation maps (iii) visual simulations, including photographic images, depicting the height at which the proposed Facility shall stand when completed (including all portions and attachments to the Facility), taken from the perspectives of the public right of way, and of any properties situated in closest proximity to the location being proposed for the Facility siting., as well as those Photos should also be taken from the perspectives of any properties which that would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, or the Facility location and their the property location. (iv) before and after renderings (v) alternate Facility designs and color schemes (vi) possible impacts to any important/scenic views listed in the Tompkins County or Town of Ithaca Scenic Resources Inventories (b) Personal Wireless Service Facilities which do not meet the definition of a Small Wireless Facility: (i) A “Visibility Map” to determine locations from where the Facility will be seen. (ii) line-of-sight drawings (iii) detailed elevation maps (iv) visual simulations, including photographic images, depicting the height at which the proposed facility shall stand when completed (including all portions and attachments to the Facility), taken from the perspectives of the public right of way, and of any properties situated in closest proximity to the location being proposed for the Facility siting. of the Facility, as well as those Photos should also be taken from the perspectives of any properties which that would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, or the facility location and the property.the existence or Tower location and their location. New telecom law provisions to review at 1/25/23 COC meeting 6 (v) before and after renderings (vi) alternate Facility designs and color schemes (vii) possible impacts to any important/scenic views listed in the Tompkins County or Town of Ithaca Scenic Resources Inventories --------------------------------------------------------------------------------------------------------------------- TOWN CONSULTANTS Revise wording in current § 270-219.K(4) and (5) as follows: “The Town, at the expense of the applicant, may employ its own consultants to examine the application and related documentation. In addition, the applicant shall reimburse the Town for the costs of the Town, including the time of the Building and Zoning Enforcement Officer, in reviewing the application. The consultants that the Town may retain include, but are not limited to, professional structural and/or electrical engineers, attorneys, and other experts reasonably required by the Town to competently and fully evaluate any application and the resulting construction. Such consultants may be requested, among other matters, to make recommendations as to whether the criteria for granting the special permit approvals and permits have been met, including whether the applicant's conclusions regarding needa significant gap in coverage, co-location, safety analysis, visual analysis, and structural inspection, are valid and supported by generally accepted and reliable engineering and technical data and standards, and whether the telecommunications Personal Wireless Service fFacility as constructed is will be in compliance with the approved plans and in accordance with generally accepted good engineering practices and industry standards. [Keep or delete “attorneys” in the list of services to be covered by the escrow fee? The Town has not charged telecom applicants for attorney review in over 15 years, if ever.] To assure sufficient funds are available to the Town to pay for the consultants referred to in the preceding subsection, any applicant shall be required to deposit review fees in escrow, in accordance with the terms of Town Code § 153-2D, any Town of Ithaca law, ordinance or resolution, as the same may be amended from time to time. Notwithstanding the provisions of any such Town law, ordinance or resolution regarding fees, the minimum initial escrow deposit for any telecommunication Personal Wireless Service fFacility application which anticipates construction of any type of tower exceeding 50 feet or any shall be $5,000 or the minimum prescribed by such law, ordinance or resolution as in effect at the date of the application, whichever is greater. In no case shall the total fees and charges payable by an applicant be more than 5% of the total project cost as determined for building permit fee assessment purposes, but SEQRA costs shall not count towards such 5% limit and shall be separately assessable pursuant to the statutes and regulations of SEQRA.” [Keep the minimum deposit level at $5,000, or raise it?] --------------------------------------------------------------------------------------------------------------------- *There are a few more provisions to come* --------------------------------------------------------------------------------------------------------------------- Questions on the 12/14/22 version of the laws that COC still needs to address: New telecom law provisions to review at 1/25/23 COC meeting 7 PERSONAL WIRELESS SERVICE FACILITY PERMIT-The permit granted by the Director of Code Enforcement pursuant to which an Applicant is allowed to construct and use a Personal Wireless Service Facility. [Should the Planning Board issue this permit where the PB issues site plan approval? This is a permit with terms and conditions, so it seems more appropriate to have the Director of Planning (or perhaps Director of Code Enforcement) issue this permit even if the Planning Board does site plan review.] [UPDATE FOR 11/02/22 VERSION: Marty Moseley and Sue Ritter recommend the permit be issued by the Director of Code Enforcement, after recommendation by Director of Planning (same process as that used for the sign law). COC to decide.] [UPDATE FOR 12/14/22 VERSION: COC decided at its 11/02/22 meeting to accept the above staff recommendation. Should the Planning Director review and make a recommendation only where the Planning Board does not do site plan review, or in all instances?] SETBACK-The distance between any portion of a Personal Wireless Facility, including any and all accessory facilities and/or structures, and the lot line of the parcel on which the proposed Facility will be placed. In the event that an Applicant leases only a portion of the lot, the Setback shall be measured from the Facility to the line of that portion of the real property which is leased by the Applicant. [These are staff-recommended changes. Staff also recommends deleting the last sentence. Keep or delete it?] [UPDATE FOR 12/14/22 VERSION: COC discussed the last sentence but still needs to decide whether to keep or delete it.]