MAHOPAC, N.Y. - The Town Board is considering a new ordinance it hopes will give them more control over the appearance and placement of wireless equipment, such as antennae, around the community.
“We just felt having an ordinance to regulate this equipment and these communication companies that request to install it is important,” said Supervisor Ken Schmitt. “We should have some type of town code with respect to installing them on the roofs of buildings and things like that.”
At last week’s board meeting, Pat Cleary, the town’s planning consultant, gave a presentation on what the new law could and could not do.
“At the moment, we don’t have any regulations regarding wireless communications, so we are sort of at the mercy of these companies when they come into our communities and you have seen some of the consequences of that,” he said, referring to the antennae recently installed on the roof of the Joseph J. Smith Funeral Home on Route 6, which many have described as unsightly.
Cleary said the proposed law is based on a code that has been used in many communities throughout the state but has been modified to deal with some of the specific local issues the town has been dealing with. But, he noted, a federal law passed more than 20 years ago limits what local municipalities can do.
“The federal government, through the Federal Telecommunications Act of 1996, preempted local communities from dealing with a lot of regulatory issues that we usually deal with about land uses,” he said. “So, we don’t have any ability to prevent wireless communication from locating virtually anywhere. So, what this [proposed law] does, it says while we acknowledge that, we have priorities. We would rather you be in non-residential areas. Now when they come to us, they must justify why they are choosing to be in that particular location. So, while we can’t say no, we can make them go through a process.”
Cleary said the town doesn’t have the ability to regulate the environmental consequences, such as the radiation impact, but the proposed law would include a requirement that applicants must comply with the FCC’S environmental impact regulations.
Cleary also said the one aspect the town does have some control over is the aesthetics of the project.
“We had originally put in provisions [that the applicants must] provide simulations and models, but this [version of the] ordinance goes a bit farther than everyone else does in that it requires actual mock-ups to be constructed,” he said. “That comes as a consequence of the funeral home [antennae].”
Cleary said that under the new law, every application has to come with an actual-size mock-up of the equipment lay out exactly where it will be placed. He emphasized that the mock-ups are not going to be scale models.
“We are talking about actual physical plywood installations on the roof of the facility so it will be the exact height, size and shape and even the color [of the actual equipment],” he said. “It’s more than anything anyone else does. They will be required to take it down after a period of time. It’s a very important process.”
The mock-up and plan must come before the planning board meeting at least two weeks prior to installation.
“Then we will have a much better understanding of the aesthetic implications,” he said.
Cleary said the proposed law will also act as an incentive to keep applicants away from residential neighborhoods.
“One thing we have installed in this regulation is [the ability to] facilitate the hierarchy of the siting [of the equipment],” he explained. “If these facilities go in the commercial or non-residential areas, or onto existing towers or existing facilities, there will be an expedited process for them. That’s the incentive to get them to go where we want them to go. If they want to go anywhere else, there is now the 17-day special permit and going to a planning board public hearing. The process becomes the disincentive for them to go elsewhere.”
Board members asked Cleary if the proposed law would make the town vulnerable to lawsuits from communication companies looking to install equipment.
“Has there been any consequences in other towns who have tried to take these extra steps?” asked Councilman Frank Lombardi. “Has it passed muster? I just don’t want to be stuck in court the first time we do it.”
Cleary said there is case law to support the proposed ordinance.
“There is now case law that imposes something called a ‘shot clock’, which requires us to make these [application] determinations within 90 days,” he told the board. “The carriers have said they will go through any exercise we want as long as within 90 days they have a decision. If we do our job rapidly, they’ll build the models for us.”
The proposed law will now be forwarded to the Planning Board for its scrutiny and comments and then sent back to the Town Board, which will schedule a public hearing for it.