[HISTORY: Adopted by the Town Board of the Town of Colonie 7-21-2022 by L.L. No. 3-2022; amended in its entirety 2-2-2023 by L.L. No. 1-2023.
Subsequent amendments noted where applicable.]
This chapter shall be known and may be cited as the "Town of
Colonie Small Cell Wireless Facilities Law," This Chapter shall be
applicable to all small cell facilities deployed within the Town's
right-of-way.
It is the purpose of this chapter to facilitate the deployment
of wireless telecommunications infrastructure in accordance with applicable
federal law and conform the procedural and substantive requirements
contained in the Code with controlling legal authorities, including,
but not limited to, federal statutory authority, as well as regulatory
authority and administrative guidance promulgated by the Federal Communications
Commission.
Chapter 89A shall adopt the definitions from Chapter 189, Wireless Telecommunications Facilities Siting, as set forth in Code § 189-4 and include the following definitions for purposes of this chapter only:
Any wireless telecommunication facility which has not been
operational for six consecutive months.
A license, right-of-way or other contract with a telecommunications
provider or wireless service provider for use of the Town's rights-of-way.
Any applicable state or federal law, rule, regulation, tariff,
administrative order, certificate, and all applicable laws, codes,
rules, regulations and other requirements of the Town, including all
applicable judicial decisions.
Mounting or installing an antenna facility on a structure,
pole or tower that already hosts an antenna facility and/or modifying
a structure for the purpose of mounting or installing additional antenna
facilities on that structure.
Placement, construction or modification of a personal wireless
service facility.
Shall have the same definition as provided in 47 C.F.R. § 1.6100.
Any pole, utility pole, Town pole or structure in the Town's
ROW that is in existence prior at the time an applicant submits its
application for small cell wireless facility permit.
Any tangible component of the telecommunications system,
including, but not limited to, an antenna, pole, wire, cable, electrical
conductor, conduit, equipment enclosure, cabling, manhole, handhole,
junction box and terminal block, fixture, appliance and apparatus
or other device that is used to provide telecommunication service.
A structure or use that does not conform to the regulations
of the Town or area in which it is situated.
A legally constructed pole, such as a utility, lighting,
traffic, or similar pole made of wood, concrete, metal or other material,
located or to be located within the public right-of-way. For purposes
of this chapter, a pole does not include a tower or structure.
A telecommunications service provider or a wireless services
provider, including any person who owns and/or operates any communications
facilities, wireless facilities, poles built for the sole or primary
purpose of supporting communications facilities or towers within the
public ROW.
A pole designed as an in-kind replacement of an existing
pole, support structure or tower that is substantially similar in
design, size, height, scale and location to the existing structure
and in conformance with this chapter and any other Town regulations,
including the aesthetic requirements contained in this chapter.
Any right-of-way owned or maintained within the Town of Colonie,
including Town-owned rights-of-way and those rights-of-way owned by
New York State or Albany County.
Shall have the same definition as provided in 47 CFR § 1.6002
A permit issued by the Department of Public Works allowing
a provider to deploy a small cell wireless facility.
Any structure built for the sole or primary purpose of supporting
any FCC-licensed or authorized antenna(s) and their associated facilities,
including structures that are constructed for wireless communications
services, including, but not limited to, private, broadcast, and public
safety services, as well as unlicensed wireless services and fixed
wireless services. Street light poles, public utility and traffic
light poles without an attached approved wireless telecommunications
facility or right-of-way structures shall not be considered a tower.
A.
Any provider seeking to install small cell facilities within any
Town-owned ROW shall enter into a right-of-way agreement with the
Town expressly authorizing the provider's non-exclusive use of
the public ROW for the sole purpose of deploying small cell communications
facilities. Any ROW agreement required hereunder shall be approved
by the Town of Colonie Town Board and such approval must be obtained
prior to the provider filing any application hereunder.
(1)
If the pole, tower or structure is not owned by the Town, the provider
shall provide the Town with proof that it has the license or authority
from the pole, tower or structure owner to use an existing pole, tower
or structure in the public ROW for a small cell wireless facility.
The deployment of a facility on a third-party owned structure must
comply with the Town's structural and aesthetic requirement as
set forth in this chapter.
(2)
A provider deploying facilities within the Town-owned ROW shall pay
an annual occupancy fee to the Town, the amount of which shall be
determined by the Town of Colonie Department of Public Works (DPW).
Such occupancy fee shall be paid per facility and shall be due no
later than January 31 of each year for all small cell wireless facilities
deployed as of December 31 of the previous year.
(3)
The terms and conditions set forth in this chapter are not exclusive
and the Town reserves the right to require additional terms and conditions
in the ROW agreement.
B.
Any provider seeking to install small cell facilities within any
ROW located within the Town, but not owned and/or maintained by the
Town shall obtain any requisite permissions from the owner of the
ROW and provide proof of same to DPW prior to the start of construction.
If the owner of the ROW requires any sort of regulatory approval for
use of the ROW, the provider shall furnish copies of any application
made therefore or permit issued by the owner of the ROW to DPW prior
to the start of construction.
A.
Small cell wireless facility permit applications.
(1)
Any application to deploy a small cell wireless facility or facilities
within any ROW within the Town shall require review and approval by
DPW.
(2)
No person, business, corporation or other entity may construct, maintain
or perform any other work within any ROW within the Town related to
the deployment of small wireless facilities without a small cell wireless
facility permit duly issued by DPW in accordance with this chapter.
(3)
No small cell wireless facility permit shall be issued for deployment
of small cells unless the applicant has obtained necessary access
permissions as required by this chapter and paid all applicable fees.
B.
To obtain a small cell wireless facility permit, an applicant must
submit an application to DPW that includes the following:
(1)
The applicant's name, address, telephone number(s) and email
address.
(2)
Emergency contact information for the provider where the provider
may be reached in the event of an emergency after construction is
completed.
(3)
The names, addresses, telephone numbers and email addresses of all
representatives acting on behalf of the applicant with respect to
the filing of the application.
(4)
A description of the proposed work, the purpose and intent of the
proposed facility, and an analysis detailing the facility's compliance
with this chapter.
(5)
Documentation demonstrating that the applicant and/or provider has
permission to access the ROW as required by this chapter.
(6)
If applicable, a copy of the authorization for use of the property
from the pole, tower or support structure owner on which the facility
will be placed or attached.
(7)
Stamped drawings completed by a professional engineer:
(a)
Containing a certification that the pole, tower or support structure
upon which the proposed facility is to be located is, and shall remain,
structurally sound after the deployment of the facility.
(b)
A detailed summary of the radio frequency power transmitted
from each proposed facility and the actual radiated power. These numbers
shall comply with the guidelines adopted by the FCC and the National
Council on Radiation Protection and Measurements (NCRP) for safe human
exposure to radio frequency emissions.
(c)
For any new facilities or structures, accurate visual depictions
or representations of the facility or facilities at full build out.
(d)
If new construction, a plan demonstrating the pole, tower or
support structure would be possible for other providers who may wish
to deploy small cell technology in the geographic area of the subject
application.
(e)
A comprehensive plan of any and all maintenance that shall be
performed by the provider on an annual basis to ensure that the small
cell wireless facility is properly and safely functioning.
(8)
Proposed location(s) for each small cell wireless facility to be
deployed, including the numbers of poles, towers or structures, or,
if numbers are not available the metes and bounds of each location.
Each proposed location of a facility must be reviewed and approved
by DPW prior to the issuance of a small cell wireless facility permit.
(9)
Insurance as required by this chapter.
(10)
Performance bond as required by this chapter, and
(11)
Applicable fees as required by the DPW fee schedule.
C.
DPW shall review applications to install all small cell wireless
facilities within the time frames as established by federal law.
D.
A small cell wireless facility permit is valid for 180 days after
issuance and may be extended for an additional 180 days upon written
request of the applicant if the failure to timely complete construction
is a result of circumstances beyond the applicant's control.
An applicant that fails to begin construction under a validly issued
small cell wireless facility permit within 180 days of issuance and
fails to qualify for extension thereof as provided herein shall forfeit
such small cell wireless facility permit and must apply for a new
small cell wireless facility permit.
E.
DPW shall review applications and, if the application conforms with
the provisions of this chapter, the DPW shall issue the small cell
wireless facility permit. In making such determination, DPW shall
consider:
(1)
The compatibility of the proposed facility with the surrounding area.
(2)
The compatibility of the proposed facility with other uses in the
ROW.
(3)
The impact of the proposed facility on traffic safety.
(4)
The aesthetic impact of the proposed facility, considering the compliance
of the facility with the following criteria:
(a)
Every small cell facility shall be installed at the minimum
height necessary for deployment of the small cell facility, but in
no event shall the height of such facility exceed 50 feet inclusive
of the facility.
(b)
Any pole improved with a small cell facility shall be substantially
similar in height and diameter to any surrounding poles and shall
be consistent with the appearance of any surrounding poles.
(c)
Any replacement pole installed in connection with the deployment
of a small cell facility shall be substantially similar in height,
diameter and design to the existing pole that it is designed to replace.
In no event may the replacement pole exceed 110% the height of the
existing pole that it is designed to replace.
(d)
No antenna or any other transmitting or receiving device used
in conjunction with a small cell wireless facility may extend more
than four feet above the top of the structure upon which it is placed.
This height shall be measured from the bottom of the antenna assembly
(including any masts, supports, etc., used to affix an antenna to
a pole, tower or support structure) to the top of the antenna.
(e)
Every small cell facility shall be sited to as to minimize the
visual impact to adjacent residential property owners and/or historic
or scenic resources.
(f)
Any additional electrical requirements, including, but not limited
to, wires, lines, boxes, meters, generators, etc., shall be concealed
and camouflaged.
(g)
All small cell wireless facilities must be of a neutral color
and similar material that is identical to, or closely compatible with,
the color and material of the supporting structure so as to make the
facility and antenna as visually unobtrusive as possible. Concealment
of facilities and antennas within existing poles, towers or support
structures should be used where possible to reduce visual impacts.
(h)
Existing on-site vegetation shall be preserved or improved,
and the disturbance of the existing topography shall be minimized.
(i)
Small cell wireless facilities shall not obstruct sight lines
to drivers, pedestrians or bicyclists.
(j)
No signage or other identifying markings of a commercial nature
shall be permitted upon any pole, tower or support structure, except
those required by law.
(k)
All cables or wires associated with a facility shall be concealed
within a sleeve.
(l)
DPW may, at its sole discretion, attach additional conditions
and safeguards to any small cell wireless facility and site development
plan as it feels necessary to ensure the initial and continued conformance
to all applicable Town standards.
(5)
To the extent that DPW determines a proposed facility does not meet
the criteria set forth herein, the applicant may apply to the Zoning
Board of Appeals for necessary variances.
A.
The permittee shall employ due care and safety during the installation,
maintenance or any other work in the public ROW, and shall comply
with all safety and public ROW protection requirements of applicable
laws, Town Codes and commonly accepted safety and public ROW protection
standards.
B.
Unless otherwise specified in the small cell wireless facility permit,
the permittee shall erect a barrier around the perimeter of any excavation
and provide appropriate traffic control devices, signs and lights
to protect, warn and guide the public through the work zone.
C.
The permittee shall not interfere with any existing facilities or
structures in the public ROW and shall locate its lines and equipment
in such a manner so as not to interfere with the usual traffic patterns
(vehicular or pedestrian) or with the rights or reasonable convenience
of owners of property that abuts any public ROW.
D.
Before beginning any excavation, the permittee shall comply with
Dig Safely New York, Inc.
E.
Bond, indemnification and insurance.
(1)
No small cell wireless facility permit shall be issued until an
adequate performance bond is provided in an amount to be fixed by
DPW in its sole discretion. To the extent that any bond is required
pursuant to any ROW agreement between the applicant and the Town,
the bond provided shall meet the requirements as stated in that ROW
agreement.
(2)
The telecommunications provider or wireless service provider shall
keep and maintain liability insurance with limits of not less than
$1,000,000 for each incident and $2,000,000 annual aggregate for each
communication facility in the public ROW. The Town shall be named
as an additional insured on each policy on a primary, noncontributory
basis. The provider shall provide the Town with proof of insurance
together with the submission of its application.
(3)
The telecommunications provider or wireless service provider shall
indemnify, defend and hold the Town, its employees, officers, elected
officials, agents and contractors (indemnified parties) harmless from
and against all injury, loss, damage, liability, costs or expenses
arising from any third-party claims resulting from the small cell
wireless facility permit holder's use or breach of the license
agreement. The provider's indemnity shall not apply to any liability
resulting from the negligence or willful misconduct of the Town or
other indemnified parties. The Town shall give prompt written notice
to the provider of any claim for which the Town seeks indemnification.
The provider shall have the right to investigate these claims and
shall not settle any claim without the consent of the Town Attorney's
office, unless the settlement: i) will be full funded by the provider
without seeking reimbursement from the Town; and ii) does not contain
an admission of liability or wrongdoing by any indemnified parties.
Neither party will be liable for consequential, special, punitive,
or indirect damages, whether under theory of contract, tort (including
negligence), strict liability or otherwise.
F.
Annual reporting requirements.
(1)
Each small cell wireless facility in the public ROW shall be inspected
by the provider on an annual basis to ensure that it is properly functioning
and safely mounted.
(2)
A small cell wireless facility permit shall not be required for ordinary
maintenance and repair.
(3)
The provider shall submit a report to the Town each year which shall
include the following information:
(a)
Contact information for the person(s) primarily responsible
for operating and maintaining the facility;
(b)
The status of all pending projects involving the ROW, including
estimated timetables and completion dates;
(c)
Summary of all work that was completed in the previous twelve-month
period, including installation, maintenance, repair or replacements;
(d)
Proof that all facilities are safely mounted and functioning
properly;
(e)
List of the facilities in the Town's right-of-way and their
compliance with federal emissions regulations;
(f)
Proposal for any work the provider intends, or deems necessary,
to complete;
(g)
Proof of compliance with insurance and bond requirements; and
(h)
A list of all active and inactive facilities in the public ROW.
(4)
The provider shall submit an annual report to the Town no later than
January 31 of each calendar year for the prior calendar year. If the
provider fails to submit an annual report to the Town, it shall be
considered in default and will have 60 days to cure. In the event
that the provider does not cure the default, the Town may terminate
the provider's access to the Town's right-of-way and terminate
any ROW agreement existing between the Town and provider.
G.
Abandoned or unsafe facilities.
(1)
If a small cell wireless facility has been abandoned as defined herein,
the small cell wireless facility permit for said facility shall be
immediately revoked and the telecommunications provider shall remove
the facility together with all of its components within 30 days of
revocation of the small cell wireless facility permit.
(2)
If an installed wireless facility no longer supports advancements
in wireless technology and is not operational or transmitting wireless
signals for the benefit of Town residents, the installed facility
shall be considered abandoned and must be removed.
(3)
If a small cell wireless facility has become unsafe, the Town shall
notify the permit holder and the latter shall have five days to repair
and reinforce the facility or remove the facility and all of its components.
(4)
In the event that a small cell wireless facility is not removed within
the prescribed timeframe stated above, the Town may remove the facility
and seek reimbursement from the former permit holder for reasonable
costs and fees associated with said removal.
A.
Any person, entity or corporation that attempts to erect, construct,
deploy or substantially modify a wireless telecommunications facility
without having first obtained the necessary work permits or permissions
described in this chapter shall be deemed in violation of this chapter
and the Code of the Town of Colonie. Any responsible party or other
persons convicted by a court of competent jurisdiction of having violated
any provision of this chapter shall be punished by a fine not to exceed
$10,000 for the first violation, $15,000 for the second violation
and $20,000 for each violation thereafter.
B.
If any structure is erected, constructed, reconstructed, deployed,
altered, repaired, converted or maintained in violation of this chapter,
or without obtaining the required permits or permissions, or if any
building, structure or land is used in violation of this chapter,
the Town Attorney, in addition to any other remedies, may institute
proceedings to prevent such unlawful violation or to correct or abate
such violations. Each day that such violation continues may be deemed
a separate offense.
C.
Any other violations of this chapter shall be punishable with a civil
penalty of $500 for each violation. Each day that a violation occurs
or is permitted to exist by the applicant or provider shall constitute
a separate offense.
