Trustees Issue Statement in Response to Installation of DAS Antennas in Scasrsdale

After much speculation it's been confirmed... telecommunications provider Crown Castle has already installed five DAS antennas in Scarsdale. They did the work without advising the town by installing the DAS antennas in the right of way on state-owned roads that run through Scarsdale.

Scarsdale10583 has obtained copies of applications filed by Crown Communications with the NYS Department of Transportation to install five DAS antennas in the right of way along state roads in Scarsdale. The applications were filed on May 24, 2012 to add DAS nodes to existing poles and add a cabinet onto each pole at these five locations:

• Post Road at Richbell Road
• Post Road at Edgewood Road (across from 2 Edgewood Road)
• Route 22 – Just North of Rugby Lane
• 125 Secor Road at Heathcote Bypass/Wildwood Road
• 60 Palmer Avenue

The estimated cost to install each node is $12,000.

The work was done without providing any notification to the Village of Scarsdale and residents and Village Managers were surprised to see these boxes going up – one in the right of way directly in front of a home on Palmer Road. Though Peter Heimdehl, Director of Government Relations for Crown Castle was in Scarsdale the week of the installation to discuss a proposal to amend the Village's zoning code, he never mentioned that these boxes were going up.

After the Village learned of the installations, Village Attorney Wayne Essanason contacted the Public Service Commission (PSC) to determine whether Crown Castle complied with it's Certificate of Public Convenience and Necessity, which the Village believes requires municipal approval. According to Village Manage Al Gatta, "the Village expects to receive an answer from the PSC shortly. If the decision is unfavorable to Scarsdale, the Village is prepared to pursue the PSC interpretation of the requirement." Village code prevents the installation of an antenna within 350 feet of a residence. However, since Crown Castle, operating as an agent of the State of New York, is exempt from local zoning requirements, the issue with Scarsdale is that under it's Certificate it should have gained local approval for the installations.

Crown Castle has also applied to the Village of Scarsdale to amend the current zoning code to allow for the installation of 15 more DAS antennas on residential streets. The application is now before the Scarsdale Village Planning Board who last considered the matter at their February 11 meeting.

Proposed locations are as follows:

• 181 Fox Meadow Road
• 1 Ogden Road
• 21 Autenrieth Road
• 149 Lee Road
• 252 Grand Boulevard
• 28 Heathcote Road
• 17 Heathcote Road
• 12 Ross Road
• 54 Claremont Road
• 12 Ridgecrest East
• 7 Sycamore Road
• 11 Wynmor Road
• 109 Mamaroneck Road
• 4 Drake Road
• 81 Brookby Road

In order to demonstrate that these 15 additional locations are needed, Crown Castles must show that these antennas will fill a significant gap in service. Now that they have already installed five antennas in Scarsdale, they may no longer be able to prove that more nodes are needed.

In response to questions raised by residents about the installation of these antennas, Trustee Stacey Brodsky read the following statement about DAS at the Village Board Meeting on Tuesday night April 9. In the statement she assured residents that all voices would be heard before the Planning Board recommends changes to the zoning code.  Here is her statement:

Questions have been raised in an email that is circulating in the Village about a proposed amendment to the zoning code relating to distributed antenna systems ("DAS"). This statement is an effort to explain the process that is underway with respect to this proposal. It is important to state at the outset that no change can be made to the zoning code without a process that provides ample opportunity for community input.

Crown Castle Corporation ("CCC") has proposed to amend Village zoning laws to allow for the installation of DAS technology in Scarsdale. For simplicity's sake, in this statement, the entity that is proposing these changes is consistently called CCC. The original corporate applicant was Next G, which was acquired by CCC shortly after the initial application was filed.

A DAS system is different from traditional wireless facilities that are typically located on tall cell towers. DAS uses smaller wireless antennas, sometimes referred to as nodes, that can be installed on existing or new utility poles, such as the Con Edison or Verizon poles that stand in the right of ways ("RoW") along roads, or on existing monopoles, building roofs, or other structures. CCC builds and installs DAS infrastructure, including the antennas and fiber connecting the antennas, for the delivery of broadband services. CCC leases its DAS infrastructure to wireless providers.

Under the existing zoning code, a wireless telecommunications facility cannot be located within 350 feet of "the nearest dwelling unit, school, day-care center, or place of worship as measured from the base of the support structure." Scarsdale Village Code Sec. 310-79D(2). CCC seeks to distinguish DAS from other wireless facilities and to allow installation of its nodes within the Village RoW.

Federal law governs telecommunications issues. Local municipalities are barred from prohibiting an entity's ability to provide telecommunications services on any basis that discriminates between one entity and another with respect to the management of the local RoW or the regulation of the entity by means of other police powers. New York State law provides that a utility company must seek the consent of the local government to use the RoW. CCC has registered itself in New York State as "facilities-based provider and reseller of telephone services" and, as such, is claiming the right under federal law to be able to install its infrastructure in the Village RoW.

There are many other federal and state laws and standards that are implicated by any proposed amendments to the zoning code that would involve DAS technology. As is obvious, this is a complex issue that has already been extensively studied by the Planning Board and continues to be studied. The following is a brief chronology of what has taken place to date.
-- In late 2010, CCC approached the Village with a proposal to install DAS facilities within the Village RoW. Because this proposal did not meet the 350 foot distance requirement in the Village code, the issue was tabled. In late 2011, CCC submitted a proposed amendment to the zoning code to allow the installation of DAS technology within the Village RoW. This proposed amendment was submitted to the Village and considered by the Village Board on February 13, 2012. On that date, as is the case with all proposed amendments to the zoning code, the Village Board referred these proposed amendments to the Planning Board for review and recommendation.
-- The Planning Board first considered the referral of the proposed amendments at its March 21, 2012 meeting. At that meeting, CCC representatives made a presentation about DAS technology, the proposed amendments to the code, and its intention to seek to install DAS nodes at 15 locations in Scarsdale. In response to this presentation, the Planning Board sought additional information from CCC and decided to schedule a separate work session, which was then held on May 7, 2012.
-- To assist the Planning Board in understanding the framework of federal and state laws that are implicated by this proposal, the Planning Board requested the assistance of an attorney who specializes in telecommunications law. The Village retained Mr. Joe Van Eaton of Best, Best & Kreiger, to advise the Planning Board.
-- At the May 7, 2012 work session, Mr. Van Eaton explained the applicable laws and issues to the Planning Board. Mr. Van Eaton's presentation is available on the Village website. CCC representatives also spoke at the meeting. The Planning Board then requested that the Village retain an engineering firm to evaluate the wireless coverage and the potential to use existing sites for the DAS nodes without amending the zoning code. The Village retained Columbia Telecommunications Corp. ("CTC"), a firm with extensive experience advising municipalities in wireless matters.
-- CTC submitted a report dated December 12, 2012, that was transmitted to the Planning Board in January 2013. A copy of CTC's report is also available on the Village website.
-- On February 13, 2013, the Planning Board held another work session at which Mr. Lee Afflerbach of CTC presented CTC's report. Mr. Van Eaton made a second presentation, and this presentation is also available on the Village site. At the end of the meeting, the Planning Board requested that Mr. Van Eaton inform them of policy options and draft specific zoning language, which the Board could review at a future work session, that is anticipated to be scheduled later this spring.

Without notice to the Village about their activities, over a period of some months up to February 2013, CCC installed five DAS antennas on locations on New York State RoW:
Rte. 22 at Edgewood Road Rte. 22 at Richbell Road Rte. 22 at Rugby Lane
Rte. 125 at Secor Road
Rte. 125 at 60 Palmer Road.

According to CCC, these installations are in lieu of five specific locations that it had requested in the Village RoW. When the Village learned of these installations – through the complaints of residents – it requested that the New York State Public Service Commission determine whether CCC's actions comply with New York State law and with CCC's Certificate of Public Convenience and Necessity. If these installations are not in compliance with the law, Scarsdale will have the opportunity to seek a remedy. Scarsdale will also continue its careful review of the proposal to amend the zoning code. As has been the case with all Planning Board meetings and study sessions to date, future meetings about the proposed amendments will be publicly noticed and publicly held. In addition, no amendment to the Village Code can take place without a public hearing before the Village Board. Residents have spoken at the meetings that have already been held and are welcome at all future meetings.

The email correctly notes that federal law expressly prohibits municipalities from considering health concerns when determining whether to allow a telecommunications installation. However, aesthetic guidelines, including the appearance of any antenna, equipment, newly installed poles, height, and separation of nodes and poles, may be addressed through local zoning. Additionally, under existing law, all wireless installations require a Special Use Permit from the Planning Board. Applications for such permits are all publicly noticed and considered at public hearings. Factors that are considered by the Planning Board in issuing such Special Use Permits include what, if any, coverage gaps exist in Scarsdale for any wireless provider that seeks to install antennas or related equipment. Even if the zoning code were amended to permit DAS installations on the Village RoW, applications for each such installation would require the same notice and public hearing process that presently exists.

In short, the process triggered by the proposed zoning amendments related to DAS technology is ongoing and any decision-making by the Village Board will only occur after the issues raised have been fully vetted and comments from all parties have been heard and taken into account.