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HomeMy WebLinkAboutCOC Minutes 2021-11-10 TOWN OF ITHACA CODES AND ORDINANCES COMMITTEE (COC) Meeting of November 101", 2021—5:35 pm—Zoom, and live on YouTubel Final Minutes Members and Staff Present: Bill Goodman, Chair, and Eva Hoffmann, Bill King, Yvonne Fogarty, Pat Leary, and Eric Levine - Members. Marty Moseley, Director of Code Enforcement; Chris Balestra, Planner; Susan Brock, Counsel, Abby Homer, Planning Admin Asst -Staff. Bill G. set up the meeting to broadcast on YouTube along with the Zoom platform. 1. Member comments/concerns. There were none. 2. Minutes from October 2021, COC meeting. The first draft was circulated, minor changes were recommended by Susan Brock and Eva. All changes were accepted. Eva moved to approve the minutes as amended and Yvonne seconded. All members voted in favor of approval. 4. Discussion of Update Town of Ithaca &Town of Fishkill Telecommunications Laws. Susan Brock watched the video of the 10/20/21 Town of Fishkill public hearing on their proposed Telecommunications Ordinance, drafted by Attorney Andrew Campanelli. The Fishkill law still has some gaps. There were many questions and statements between the Board, Mr. Campanelli, and the public. One highlight from the hearing included Mr. Campanelli's statement that as the Second Circuit Court of Appeals law stands right now, and based on the facts on the ground in Fishkill, the proposed law would potentially cause a 95% denial rate for telecommunications applicants, since the law requires applicants to prove that there's a significant gap in service—and telecommunications services are apparently considered adequate in the Town of Fishkill. Susan quoted a statement that Mr. Campanelli made at the hearing that the Telecommunications Act of 1996 (TCA) does not guarantee carriers the right to put up wireless facilities at any frequency they want. Susan then provided details about her further review of a pivotal 1999 Second Circuit Court of Appeals opinion that governs federal courts in NYS (Sprint Spectrum v. Willoth). The TCA constrains local governments from prohibiting or having the effect of prohibiting personal wireless services (PWS). The Willoth opinion gave us the substantial gap/least intrusive means standards that federal courts in NYS apply to determine if a law prohibits or has the effect of prohibiting PWS. That opinion also tells us what types of services are covered by that TCA constraint and which types of services are not covered. The Court walked through the definitions Congress provided in the TCA and concluded Congress has defined "personal wireless services" for us, and that term means the ability of a cell phone to reach a cell site that is connected to the land-line exchanges. A person with a cell phone has to be able to connect to a cell site so they can make a voice telephone call to someone on a land- line—that is it. Susan quoted from the opinion: "In other words, local governments must allow service providers to fill gaps in the ability of wireless telephones to have access to land-lines." 1 Susan then talked about a 2012 federal district court case involving the Village of Lynbrook, NY where the wireless telecommunications provider wanted to roll out 4G. The only piece of 4G apparently at issue was wireless broadband Internet access service (such as streaming and the ability to surf the Web from a cell phone). The court said wireless broadband Internet access service is not PWS covered by the TCA. This means anything other than voice calls to landlines (such as data streaming, Internet browsing) is information services, not telecommunications services. The TCA constraint re: prohibition of PWS does not attach to anything other than the ability of a cell phone to make a voice call to someone on a landline. Susan also talked about a 2018 Town of Hempstead, NY federal district court case in which Crown Castle had 3G and some 4G service and wanted to install more 4G towers. The court followed the Willoth case law in denying the carrier's summary judgment motion. The judge said the carrier had failed to establish upon undisputed fact that the proposed nodes were designed to remedy a gap in cellular telephone service, as opposed to a deficit in 4G LTE service. Susan quoted from that case: "A gap in 4G coverage does not establish that the target area is underserved by voice cellular telephone service.... Such improvements may be desirable, but they are not protected from local decisionmaking under [the TCA.] This requisite of law squares with the needs of mobile telephone users, who, provided they can place calls successfully, have little concern for the nature of the technology responsible." The Court asked whether, factoring in existing 3G and 4G availability, does a deficit exist? The Court wanted to schedule a hearing on the issue of whether, in considering the availability of 3G and 4G LTE service in the target geography (as well as any other available mechanisms that provided connections between mobile phones and the national telephone network), there exists a deficit in voice communications service in that area. Besides a follow-up opinion denying certification of some questions to the Second Circuit, there is no reported case law on what happened in Hempstead. It would be interesting to ask that town what happened. Susan said the Fishkill law defines PWS in a perfect way by using the words from the statute and stating as "within the meaning of" the TCA. The Second Circuit has defined the TCA as meaning the ability to place voice calls from cell phones. Both Mr. Campanelli (at the Fishkill meeting) and Susan Brock (at the COC meeting) clearly stated —and repeated -that a municipality cannot legally regulate telecommunications based on health concerns, if a facility is FCC-compliant. Susan quoted Mr. Campanelli as saying "I want to make this crystal clear on the record. Under the Telecommunications Act of 1996, one of the constraints it imposes on local governments, it says local governments may not regulate wireless facilities based on environmental concerns, which federal courts in NY have ruled means health concerns, to the extent that a facility is FCC-compliant." If an applicant shows FCC compliance, Mr. Campanelli said "the local government cannot regulate based on health concerns. That's law. Period. End of story." Susan said the COC already knew municipalities could not regulate based on health concerns where the facility is FCC-complaint, but she was mentioning this because some people are watching or will watch the COC meeting on YouTube, and she wants them to know this is what Andrew Campanelli told the Town of Fishkill. Some people have talked with COC about other things Mr. Campanelli has brought up, and she wanted to emphasize that Mr. Campanelli was unambiguous on the health concern point. 2 The setback distances in the Fishkill law between telecommunications facilities and residences were left blank at the time of the Fishkill hearing, so their Town Board could decide on the setback. One of the public commenters pushed on him and asked about 1,000 feet and 500 feet, and he said no to both. He suggested different setbacks based on districts, but the Town Board wanted the same setback everywhere. Mr. Campanelli said a blanket setback of 200-300 feet could be used as long as that did not wipe out all residential districts. Mr. Campanelli said if a carrier does not meet the setback, all that means is it would need to apply for a variance. Ironically, it might be easier to get a variance than people want. Someone asked if the law could say wireless facilities are not allowed at all. Mr. Campanelli said you cannot outlaw wireless facilities in residential districts. He said "300 feet is probably safe unless that would wipe out the entire residential district." After some discussion, the Fishkill Town Board ultimately settled on 300-foot setbacks and asked him to put that in the Fishkill law. The Town of Fishkill did not take formal action at the public hearing. The Fishkill Town Board continued the public hearing to their December 1 meeting. The version of the law on the web has some sections reserved, such as those for bonding and the ZBA process, although it sounded as those Mr. Campanelli had already drafted those provisions. Susan then answered clarifying questions of the Codes and Ordinance Committee, including: * Were larger setbacks discussed in the Town of Fishkill meeting? Yes, although none as large as 1500 feet or 1640 feet. Andrew Campanelli said carriers used to say they needed 200-300 feet, but now he is hearing they want to go as low as 100 feet in residential neighborhoods. Susan noted that the setbacks can't prohibit all wireless facilities, but aesthetics can be considered as a factor in regulating the placement of facilities. • Will the Willoth case re: land-lines hold up, since not many people have them anymore? Some people do. It is up to Congress to change the TCA. Cases say that even though technology has moved on, the law has not changed, and the courts must enforce the law as written. This is how the law defines it, and the courts must apply it that way. This is what the Second Circuit says right now, although anything could change. • If the applicant has proven that there's a significant gap in coverage, found that no less intrusive means are available to close the gap, and the setbacks are met, can the project be denied? No, that would be an effective prohibition of PWS. • How is the setback distance factored, if not for health/environmental reasons? One can factor in things like visual impacts and aesthetics. Is 300-feet defensible under aesthetics? Yes, 300-feet is defensible from an aesthetics standpoint. It is up to the Town Board to determine, but there would be a rational basis for 300 feet. But there cannot be an effective prohibition. We look at what the applicant proposes, they have to show us the technical limitations on what they are proposing, and we then apply the Second Circuit test. Bill reminds COC that in addition to setbacks from residences, the COC's prior draft law and the City of Ithaca's recently adopted law have 1500 between small cells because Verizon said they could go that far. For aesthetic reasons, we do not want a lot of clutter. • Is the town prohibited from considering health just for the voice communication piece of services? No, while the TCA's prohibition on considering environmental effects covers only PWS, the applicants likely will want to provide both voice calls and other services through 3 their facilities. Susan does not see the door open to regulate anything based on health effects. • Does the town have cell coverage maps to see if there is adequate coverage in the town? No. Maps provided by carriers may not be current or accurate. The FCC will not accept coverage maps anymore for the reasons Andrew Campanelli has told us and as explained in the FCC report that he attached to Fishkill's law. The town could hire a consultant to determine coverage, but the consultant would need to know the equipment and parameters to apply. The applicant needs to prove a significant gap in coverage through dropped call data and other data as set out in our proposed law. * Can the carriers just upgrade the existing facilities when/if needed? Modifications and upgrades have taken place on the sites around town throughout the years. Some have required permit modifications or additional review/site plan approval under the town's existing telecommunications law and the TCA. Town approvals are for specific equipment, so our law will tell us what triggers the need to come back for a modified permit or additional approval. Applicants will need to submit information certifying the proposed facilities would meet FCC standards. The TCA requires approval of a very limited subset of facility changes. • If the applicant cannot prove a significant gap in coverage, can applications/permits be denied? Yes, if the language in the law were crafted that way. Standard zoning considerations would apply—whether the facility is out of character with the area, its impact on property values, aesthetics impacts. A brief review of the Town of Fishkill Law indicated that their Planning Board makes local zoning determinations first based on impacts on aesthetics, real estate values, community character, historic properties/historic districts, and ridgelines, and fall zone sufficiency. If the facility would be denied based on those factors, then the Planning Board goes on to the Telecommunications Act determination to determine whether there is a significant gap in coverage, and if the proposal is the least intrusive means to remedy the gap. • Is there a way to differentiate between 3G, 4G, 5G? Can we approve one type but deny others? No, they are all technology that is protected under the Telecommunications Act. We have to look at the functionality of the service to see if people with cell phones can make calls to people with land-lines. Chris Balestra presented two maps requested by the committee at the last meeting. The committee asked for maps that showed the setbacks surrounding residences. One map showed a 250-foot radius setback from all residential buildings in the town. The other map showed a 1500-foot radius. Chris clarified that most telecommunications facilities were located along roads (linear layouts), whereas these maps showed a distance around each residence, whether along a road or not (radial layout). Chris also pointed out the approximate locations of the three current telecommunication towers in the town, along with smaller free-standing cell antennas on many buildings and businesses. The committee thanked Susan for her time, research, and presentation of the information and will continue the discussion on setbacks for telecommunications facilities at the December COC meeting. 4 Bill G. asked the committee to turn their attention to the annotated Town of Fishkill telecommunications law provisions that were provided in the previous COC mail out. Susan had added red text boxes to the law, with questions for the committee to consider. Given the late hour, the committee only focused on the following: • Who initially reviews the telecommunications applications and determines completeness? Is it the Codes, Planning, Engineering Departments? The Planning Board? The committee generally agreed that staff should conduct the initial review but did not decide which department. Planning and Codes staff will get together to discuss this before the next COC meeting. • The "Adequate Coverage" and "Effective Prohibition" definitions were noted as relevant to the significant gap/least intrusive means determination and findings. • Should the Planning Board make the factual determinations for ALL facilities or should staff members handle the small stand-alone antennas, co-location modifications, etc., and have the large proposals referred to the Planning Board?There was general agreement that the small stand-alone antennas and small modifications should be made by staff. But the committee wants to look at the previous flow charts that were prepared that showed internal review for some circumstances and Planning Board review for other circumstances. The committee will discuss this at the next meeting. S. Other business. Yvonne recommended the Planning Board receive training on the updated regulations before applications with specific parameters come before them. Bill G. reported briefly on information he received from Marty Moseley before the meeting regarding FAA concerns related to 5G frequencies interfering with air traffic control/airplane safety equipment. Some companies are pausing their 5G rollout as this is researched. Susan stated AT&T and Verizon are delaying their 5G rollouts until January 5, 2022 because of this. The FAA is concerned these frequencies may interfere with airplane altimeters. She will forward the FAA bulletin issued on 11/2/2021 to the committee. The FAA is conducting a risk assessment. There are a lot of articles on the internet for anyone interested. It is not clear at this time what effect this will have on the town. • Next meeting: December 8t", 2021 • Agenda: -Report on Town of Fishkill December meeting (December 1, 2021) -Discussion of new map that shows a 300' setback radius from all residences -Continued discussion of Town of Fishkill law excerpts, specifically the assignment of a "gatekeeper" (staff or board), who would review applications for completeness, and which applications go to the Board or staff for factual determinations. -Discussion of Susan Brock's ADA memo to the COC [attorney-client privileged and not subject to FOIL, do not distribute externally). The meeting adjourned at 7:21 pm. 5