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HomeMy WebLinkAboutCOC Packet 2023-02-15 DEPARTMENT OF PLANNING 215 N. Tioga St 14850 607.273.1747 www.town.ithaca.ny.us 2/7/2023 TO: Codes and Ordinances Committee: William Goodman, Chair Rob Rosen Eric Levine Eva Hoffmann Chris Jung Ariel Casper FROM: Christine Balestra, Planner RE: Next Codes and Ordinances Committee Meeting – February 15, 2023 The next meeting of the Codes and Ordinances Committee is scheduled for Wednesday, February 15, 2023, at 5:30pm in the Shirley A. Raffensperger Board 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, and January 25, 2023, COC meetings. 2. Previously distributed telecommunication setback maps showing 250, 300, 1500-foot radius between facilities and residences in blue. 3. Draft New Telecom Provisions to Review. 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 C.J. Randall, 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 Shirley A. Raffensperger Board Room, Town Hall, located at 215 North Tioga Street, Ithaca, NY, with an option for members of the public to join the meeting via Zoom. The Zoom link is below. Members of the public who wish to view the meeting virtually may visit the Town of Ithaca YouTube Channel, where it will be uploaded after the meeting: https://www.youtube.com/channel/UCC9vycXkJ6klVIibjhCy7NQ/live Join Zoom Meeting: https://us06web.zoom.us/j/5063713554 Meeting ID: 506 371 3554 Dial in #: 1(929) 436-2866 Meeting of February 15, 2023– 5:30 P.M. AGENDA 1. Member comments/concerns. 2. Review of minutes from December 14, 2022, and January 25, 2023, COC meetings. 3. Review of revised draft New Telecommunications Provisions, prepared by Susan Brock. 4. Other business: • Next meeting date: March 8, 2023 • Next meeting agenda Town of Ithaca Planning Department February 7, 2023 1 TOWN OF ITHACA CODES AND ORDINANCES COMMITTEE (COC) Meeting of January 25, 2023 – 5:30 pm Town Hall Aurora Conference Room Draft Minutes Members Present: In person: Bill Goodman, Chair, Ariel Casper & Eric Levine. Excused: Eva Hoffmann & Rob Rosen. Zoom-participant/guest Chris Jung. Staff Present: Chris Balestra, Planner; Susan Brock, Counsel; and C.J. Randall, Director of Planning. Staff via Zoom: Marty Moseley, Director of Code Enforcement. Guests: None Bill reviewed the agenda aloud and mentioned possibly going into closed session at the end of the meeting to seek the advice of counsel. C. J. Randall was introduced and welcomed as the new Town of Ithaca Director of Planning. Bill also noted that the committee did not have a quorum of members, so there could not be a vote to approve minutes from the December 14, 2022 COC meeting. This will be done at the February COC meeting. 1. Member comments/concerns: None. 2. Continued review of revised draft local law - §270-219 Personal wireless service facilities: Susan Brock submitted the latest set of provisions for the committee to review. A summary of the discussion and COC changes are below: SUBSTANTIVE PROVISIONS RE: SIGNIFICANT GAPS/LEAST INTRUSIVE MEANS FINDINGS: Susan asked the committee if this finding should be made for every facility application or only those which require site plan review by the Planning Board. The committee agreed that these should be for those requiring site plan review, so all references to the Director of Code Enforcement should be deleted. Susan will make changes in the next revision to reflect this. • First paragraph under this section, last sentence: add “to and” between the words voice calls and landlines that are connected… • Page 2: o Item (c) - has some wording that needs to be revised and will be revised by counsel. o Item (d) - Susan will add language related to dropped call and failure rates, along with whether customers are affected for only a limited period. o Under 2, second paragraph – remove “Director of Code Enforcement,” change “and” to “or” just before item (ii). • Page 3 – at top. More research will be done regarding denying the application where safety standards are not met. FINDINGS ON APPLICATIONS: Page 3- The findings will need to be revised to show which apply to all applications, and which apply only to those applications requiring site plan review 2 (findings for applications requiring site plan review include whether there is a significant gap and the project is the least intrusive means to address the gap). The list of seven items under “C. General criteria” will be sorted out. • Number 7 - The committee agreed to keep the co-location design requirement for proposed towers (except towers that are small wireless facilities). REMOVAL PROVISIONS: The language in this section was sent to the Town Engineer for review and counsel is awaiting comments. There is reference to the value of the security bond for removal being determined by the Town Engineer. An alternative would be the value being provided by the applicant in a cost estimate, and a review of the amount by the Town Engineer or Town consultant. The committee agreed to the applicant providing the cost estimate for removal. • Regarding second paragraph – notice provisions. The current telecom law does not have this. Committee discussed whether it is necessary and how the Town would know if facilities were obsolete/unused. Final decision – if a facility becomes obsolete or ceases to be used for its intended function for 120 consecutive days, do not include a requirement that the Town notify the owner/operator of the obsolete or unused facility, but require owner/operator removal within 90 days after the 120 day period runs. The security could then be used to remove it, if necessary. VISUAL IMPACT ANALYSIS REVISIONS: The committee did not have any changes or comments to the proposed language. TOWN CONSULTANTS: • Revised wording in 270-219.K(4) - Keep or delete “attorneys” on the list of services to be covered in the escrow fee? The committee agreed to keep attorneys on the list. • Revised wording in 270-219.K(5) - Remove “or any” seven lines into the paragraph, after the exceeding 50 feet language. The committee discussed the minimum deposit amount and ultimately agreed to not put a dollar amount in the local law, rather reference the fee schedule where the amount would be set by Town Board resolution and could be revisited. The total would not be more than the greater of any required escrow or 5% of the project cost, not including SEQRA. On the topic of town consultants, Chris Balestra reported a conversation with a local resident who has sat in on the City of Ithaca ‘s recent AT&T telecommunications proposals. It was observed that large amounts of data were submitted by AT & T and that most of the data did not include the information required by the city requirements, e.g., dropped call logs. She noted that FCC shot clock requirements could prohibit internal staff from conducting a thorough review. The local resident suggested that the town consider hiring an independent consultant expert to review the applications. The committee agreed that this was a good idea and considered setting up a system with a list of consultants/contracts ahead of time, so if this 3 situation occurs at the town, then the town would have a list on call who could review applications in a way that would not conflict with the shot clock. PERSONAL WIRELESS SERVICE FACILITY PERMIT: Based on recommendation by the Director of Code Enforcement, the committee agreed that this definition should read that the permit be issued by the Director of Code Enforcement, after recommendation by the Director of Planning, only where site plan review is not required. SETBACK-this language was related to events where an applicant leases only a portion of the lot. The committee agreed with staff to delete the following sen tence “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.” The review of the revised telecommunications provisions concluded. Additional sections will be provided for committee review at the next meeting. 3. Other Business: Next meeting: February 15, 2023, at 5:30 p.m. Bill noted he would allow public comment at the beginning of the meeting. He also mentioned that he intends this to be the final review of the telecommunications law language for the committee before recommending it to the town board. Note: Eva is excused from the 2/15 meeting. Chris B will check in with the member not in attendance to confirm for 2/15. Next meeting agenda: Final review and discussion of draft §270-219 Personal wireless service facilities. Minutes-tabled from previous meeting due to no quorum. No changes noted. The meeting concluded at 6:41 p.m. 250-foot Radius Around Residences in the Town of Ithaca Map prepared by Town of Ithaca Engineering with data from Tompkins County GIS, October 20, 2021 0 1 20.5 Miles (Blue circles indicate 250-foot radius) 300-foot Radius Around Residences in the Town of Ithaca Map prepared by Town of Ithaca Engineering with data from Tompkins County GIS, November 18, 2021 0 1 20.5 Miles 1500-foot Radius Around Residences in the Town of Ithaca Map prepared by Town of Ithaca Engineering with data from Tompkins County GIS, October 20, 2021 0 1 20.5 Miles (Blue circles indicate 1500-foot radius) New telecom law provisions to review at 2/15/23 COC meeting 1 Application Requirements 1. The draft law currently includes submission of “Information required by, and proof of compliance with, subsection H (Co-location) below," which requires an inventory and analysis of opportunities to co-locate onto existing telecommunications facilities and other structures. Where co-location is not proposed or feasible, add a submission requirement for analysis of less intrusive alternate sites that do not afford a co-location opportunity: (2) Applications for all other PWSFs must include: …. New provision: (r) If site plan approval is required, and if co-location is not proposed and is not feasible, an alternative site analysis of all potentially less intrusive alternative sites not involving co-location which the applicant has considered. This alternative site analysis shall document each site’s respective location, elevation, and suitability to remedy a significant gap in the coverage of the applicant’s Personal Wireless Services. For suitable alternative sites that an applicant claims are unavailable, the applicant shall submit evidence of good-faith efforts to secure use of each such site from its owner. 2. Add this submission requirement: Where site plan review is required, evidence of the existence of 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). Such evidence shall include the nature of each gap and its geographic location and boundaries. [Immediately after the above new provision, insert the wording COC reviewed on 01/25/23 re: evidence that a gap exists. Evidence to be submitted with application includes In-Kind Call Testing, test maps, dropped call records, and denial of service records.] Will also add wording in the Adequate Coverage definition (if it is retained) or elsewhere in the law to make it clear that a claim of a need for “future capacity” does not establish a significant gap in coverage. 3. Add this submission requirement: A noise study or written statement, prepared by a qualified engineer, assessing the proposed Personal Wireless Service Facility’s compliance with the noise requirements in section __. The assessment shall include noise from equipment, such as air conditioning units and back-up generators. 4. Add this submission requirement: Proof of compliance with applicable National Environmental Policy Act requirements. If NEPA review requirements apply and the applicant asserts the proposed Personal Wireless Service New telecom law provisions to review at 2/15/23 COC meeting 2 Facility falls under any categorical exclusions, the applicant shall identify which categorical exclusion(s) the applicant is asserting applies, and submit proof that the Facility falls under the categorical exclusion(s). 5. Add this submission requirement: Proof of compliance with applicable National Historic Preservation Act requirements. NOISE The Town of Ithaca’s current law does not mention noise. Add a reference to the Town’s Noise chapter, which was adopted after the current telecom law was put in place: No Personal Wireless Service Facility shall produce noise in violation of Town of Ithaca Code Chapter 184 (Noise). If COC wants to be more specific, could add: In addition, noise from a Personal Wireless Service Facility shall at no time be audible at the property line of any lot (i) zoned Residential or Conservation, or (ii) on which a dwelling unit exists. HEIGHT The Town of Ithaca’s current telecom law says this about height: “If the proposed height of the telecommunications facility exceeds the permitted height of structures in the zoning district in which the facility is proposed to be located, notwithstanding any other provisions of this chapter, a height variance from the Board of Appeals shall also be required.” Keep or change this? VISUAL IMPACT ANALYSIS COC approved visual impact analysis wording that requires things like line-of-sight drawings; detailed elevation maps; visual simulations, including photographic images; before and after renderings; alternate Facility designs and color schemes; and analysis of impacts on important/scenic views. Does COC want to add a balloon test requirement, at least under the situation contemplated in the City of Ithaca’s law? City’s wording: 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. New telecom law provisions to review at 2/15/23 COC meeting 3 RF EMISSIONS At its 12/14/22 meeting, COC reviewed Certification of Compliance with RF Emission Limits provisions that require the owner and operator to submit initial and annual certifications and allow the Town to do random and unannounced testing. Add a provision directly requiring compliance with RF emissions limits: A PWSF must comply at all times with applicable FCC Maximum Permissible Exposure (MPE) limits for General Population/Uncontrolled Exposure codified in 47 CFR § 1.1310(e)(l), Table 1 or any successor regulation. FINDINGS WHERE SITE PLAN IS REQUIRED Add these to the findings the Planning Board must make (these are in addition to other findings COC has reviewed): [1] Potential adverse aesthetic impacts: whether the proposed installation will inflict a significant adverse aesthetic impact upon properties that are located adjacent to, or in close proximity to, the proposed site, or any other properties situated in a manner that would sustain significant adverse aesthetic impacts by the installation of the proposed facility. [2] Potential adverse impacts upon real estate values: whether the proposed installation will inflict a significant adverse impact upon the property values of properties that are located adjacent to, or in close proximity to, the proposed site, or properties that are otherwise situated in a manner that would cause the proposed installation to inflict a significant adverse impact upon their value. [3] Potential adverse impact upon the character of the surrounding community: whether the proposed installation will be incompatible with the use and/or character of properties located adjacent to or in close proximity to the proposed site or other properties situated in a manner that would cause the proposed installation to be incompatible with their respective use. [4] Potential adverse impacts upon historic properties or historic districts: whether the proposed installation will be incompatible with and/or would have an adverse impact upon, or detract from the use and enjoyment of, and/or character of a historic property, historic site, and/or historic district, including but not limited to historic structures, properties and/or districts which are listed on, or are eligible for listing on, the National Register of Historic Places. [5] Potential adverse impacts upon ridgelines or other aesthetic resources of the Town: whether the proposed installation will be incompatible with and/or would have an adverse aesthetic impact upon or detract from the use and enjoyment of, and/or character of, recognized aesthetic assets of the Town including, but not limited to, scenic areas and/or scenic New telecom law provisions to review at 2/15/23 COC meeting 4 ridgelines, scenic areas, public parks, and/or any other traditionally or historically recognized valuable scenic assets of the Town. [6] Sufficient fall zones: whether the proposed installation shall have a sufficient fall zone and/or safe zone around the facility to afford the general public safety against the potential dangers of structural failure, icefall, debris fall, and fire. [7] Mitigation: whether the applicant has mitigated the potential adverse impacts of the proposed facility to the greatest extent reasonably feasible. To determine mitigation efforts on the part of the applicant, the mere fact that a less intrusive site, location, or design would cause an applicant to incur additional expense is not a reasonable justification for an application to have failed to propose reasonable mitigation measures. REASONABLE DELAYS THAT EXTEND THE SHOT CLOCK If the Planning Board and/or Director of Code Enforcement acts with reasonable diligence to complete its SEQRA review and to ascertain the applicant’s compliance with the National Environmental Policy Act, and these actions require a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such shot clock period attributable to such actions shall be deemed reasonable. If the Planning Board and/or Director of Code Enforcement acts with reasonable diligence to ascertain the applicant’s compliance with the National Historic Preservation Act, and these actions require a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such shot clock period attributable to such actions shall be deemed reasonable. If an applicant tenders eleventh-hour submissions to the Town in the form of: a) expert reports; b) expert materials; or c) materials which require a significant period for review due either to their complexity or their sheer volume, the Planning Board and/or Director of Code Enforcement shall be afforded a reasonable time to review such late-submitted materials. If the Planning Board and/or Director of Code Enforcement acts with reasonable diligence to complete such review, and the review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such shot clock period attributable to such review shall be deemed reasonable. Force majeure. In the event that the rendering of a final decision upon a site plan application or a PWSF permit application is delayed due to events and/or forces which are not within the reasonable control of the Town (including reasonable control of the Planning Board or Town officers and employees), including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock-outs, strikes or other labor disputes (whether or not relating to the Town’s workforce), or power outage, such delays shall constitute reasonable delays and shall be New telecom law provisions to review at 2/15/23 COC meeting 5 recognized as acceptable grounds for extending the period for review and the rendering of final determinations and permit issuance beyond the period allotted under the applicable shot clock. SAFETY/MAINTENANCE Add from the Town of Ithaca’s current law: Every Personal Wireless Service fFacility shall be inspected at least every second year for structural integrity by a New York State licensed engineer. A copy of the inspection report shall be submitted to the Building and Zoning Enforcement OfficerDirector of Code Enforcement. Any unsafe condition revealed by such report shall be corrected within 10 days of notification of same to the record landowner on which the fFacility is constructed. The time period for correction may, on application of the landowner or owner of the fFacility, be extended by the Planning Board Director of Code Enforcement if it is impracticable to complete the correction within said 10 days and if there is no imminent danger to life, limb, or other person's property. If the unsafe condition is not corrected within the applicable time period, or if the required inspection is not provided to the Town, the special Personal Wireless Service Facility permit for construction of the fFacility may, after a hearing by the Planning Town Board on at least 10 days' prior notice to the landowner of record given by overnight mail, certified mail, return receipt requested, or other equally effective manner of providing notice, be revoked by such the Town Board. Revocation may occur only if the Town Board finds either a) that the required inspection has not been provided or b) that there is an unsafe condition which poses a risk of bodily injury or significant property damage. Upon such revocation, the fFacility shall be removed or dismantled to the point of removing all unsafe conditions. MISCELLANEOUS Add from the Miscellaneous section of the Town of Ithaca’s current law: Any special permit or site plan or Personal Wireless Service Facility pPermit granted hereunder shall be valid only for the dimensions and number of structures for the telecommunications fFacility contained in the original application as so approved. Any subsequent changes or modifications shall require a new application for same following the procedures set forth in this section. ------------------------- Whenever reference is made to an engineer's certificate or report in this section, the same shall be provided by a professional engineer licensed in the State of New York. who is reasonably satisfactory to the Planning Board. PURPOSE The City of Ithaca’s law includes in its purposes clauses “minimizing the number of facilities used to provide such coverage, avoid unnecessary, redundant wireless infrastructure”. Add this? The Town’s draft law purposes include “Encourage the co-location of personal wireless New telecom law provisions to review at 2/15/23 COC meeting 6 service facilities on existing structures rather than the construction of new support structures,” which may achieve the same thing with more precise wording. Also, depending on circumstances, two shorter facilities may sometimes be preferable to one taller facility. INSURANCE The following wording is from the City of Ithaca’s law—will wordsmith this if COC wants to include an insurance provision. Wording should account for the fact that general liability policies are likely to exclude coverage for radiation and electromagnetic field emissions, so a separate pollution liability policy likely would be needed. Also need to check whether the Town can be listed as a “coinsured” on the policy, or if instead the Town would be covered as an “additional insured.” 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. SEVERABILITY (IN CASE JUDGE FINDS A PROVISION CONFLICTS WITH FEDERAL OR STATE LAW) This is the wording in the Town’s Sign Law and it can be used for the telecom law. Severability. If any clause, sentence, paragraph, section or part of this article § 270-219 shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remaining portions hereof, but shall be confined to the clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered. PWSF PERMIT RENEWALS Town staff will work on a provision about PWSF Permit duration and renewal procedures. SETBACKS Any setbacks from dwelling units are TBD.