Village Board Examines Changes to Strengthen Telecommunications Code

At a work session on Tuesday November 16, the Village Board focused on changes to the telecommunications law that would strengthen the code, regulate antenna placement and ensure compliance. The Village Attorney, Village Planner and a telecommunications consultant recommended these updates to the code and addressed technical, legal, aesthetic, and health related issues.

Daniel Pozin, the Village Attorney, explained that the changes to the code would ensure the Village maximizes local authority, and “makes the process and implementation of the law easier and more consistent and also to be legally compliant.” He explained that there are now two laws, one regulating telecommunications equipment inside the Village right of way and the other outside the Village right of way. However, he said the two laws would be combined under the same heading and chapter. The Planning Board will be the review authority for all applications and the Zoning Board of Appeals would act as the appellate authority. Currently permits for telecommunications equipment are granted for 10 years, but based on feedback, the legal team decided to shorten the permit length to five years.

Village Planner Greg Cutler gave a presentation of the substantive proposed changes as outlined here:

-Currently a special use permit is required. In the new law, an encroachment permit from the Planning Board would be required to place an antenna in the Village right of way.

-For compliance with RF (Radio Frequency) standards, pre-testing, post testing and annual monitoring will be required, all to be done by an independent RF (Radio Frequency) consultant.

-Eligible facility requests will be handled by the Planning Board.

For placement inside the right of way, here are some of the new requirements:

-Location criteria: a preference will be given to existing facilities. There will be a disincentive to have the infrastructure located inside the right of way, within the Village Center, or the Five Corners area. In terms of the lighting criteria, there are more prohibitions within the design requirements.

-Height: The height or any new poles will be required to be 35 feet or less. The old code has no height provisions.

-Setbacks: The new law imposes setback requirements for equipment inside the right of way:

-500 feet from schools or daycare facilities
-100 feet from residential structures
-200 fee from other wireless telecommunications located within the street.

Outside the right of way the provisions are similar:

-A wireless permit will need to be issued by the Planning Board.

-The RF compliance will be the same as inside right of way.

-While the previous law had no location requirements for outside the Village right of way, the new law includes location requirements, gives the Planning Board discretion on the design and prohibits on floodlights.

-The height is limited to 35 feet unless it prohibits service.

-Setbacks will be the same as inside the right of way: 500 feet from schools and daycares, 100 feet from residential structures and 200 feet from other wireless facilities, while the existing code is 350 feet from all of the above.

Trustee Comments and Questions:
Several Trustees spoke after the presentation, asking for clarification or commenting on different aspects of the project.

Trustee Ahuja inquired about the cost and transparency in selecting a consultant. Village Planner, Greg Cutler, assured him that the consultant will be chosen wisely and all costs will be reviewed and tracked.

Trustee Crandall brought up concerns with regards to noise from the antennas, the need to respect the tree laws during the installation of antennas, and the preservation of parks and green spaces. She also voiced concerns about radiation and the need to hire outside consultants to do inspections so that Scarsdale employees are not exposed to any potential radiation. She also wanted to be sure that the permittee would pay for these inspections and any legal costs. In addition, Trustee Crandall brought up concerns about compliance and legal penalties for installation without a permit.

Daniel Pozin reaffirmed that a 48 hour notice to the company, for inspections related to compliance issues, was reasonable. Gerard Lederer, the Village’s telecommunications counsel, confirmed that there is “no mandate for us to allow small cells within our parks,” and there is no need to add that provision in the draft code.

Finally, Mrs. Crandall, emphasized issues of future liability, the need for the lease agreements to be tight, and the expectation that it is the responsibility of the permittee to follow all of the FCC regulations concerning human exposure.

Mayor Veron inquired about the 100 foot setback in residential areas. Gerard Lederer responded that due to different levels of density, it may be more challenging to conform to the setback, hence the 100 foot setback minimum threshold for setbacks.

Trustee Whitestone voiced support for the process. He raised concerns about the code change causing an additional workload for the Planning Board and a potential work backlog from the revisions? Cutler responded by saying he doesn’t “foresee the code creating any additional work for the Planning Board,” or any backlog.

Trustee Lewis underlined the importance to have the consultants lined up at the same time that the new code is implemented in case work needs to be done on short notice. He also voiced disagreement with the low penalties ($1,000 a day and 15 days of jail time.) He reasoned that due to the size of these telecommunications companies, the penalties should be more meaningful, (suggesting “10 grand a day”) and the person liable for jail time should be specified. Finally, Lewis iterated similar concerns as Trustee Crandall in regard to the 48 hour notice timeframe, arguing that the timeframe should be shorter, especially “should there [be] something really bad going on something that I guess meets or threatens imminent harm.” Pozin and Lederer responded that a requirement for a letter of credit and collateral could be added to the code to increase the penalties for non-compliance.

Village Manager, Robert Cole spoke about a prioritization scheme suggested by Zoe Berg. He said, “The telecom company should demonstrate that there's a coverage gap whether that's vis-à-vis a propagation map,” to prioritize coverage. He said, “Co-location at an existing site should be prioritized along with deployment at state, county or arterial streets rather than residential streets.”

Deputy Mayor Arest stressed that “Schools need to be involved -- they've already told us they want to be involved or at least have the ability to comment and have input.”

Trustee Brew suggested setting a time to review the new code, perhaps six months down the road to see how it is working.

Public Comments
Jeffrey Steinberg brought up concerns about new rules, asking if the placement of his antenna on the roof of his house would be grandfathered as he is an amateur radio broadcaster. Mr. Lederer responded that the rules will be tightened, with more clarity, but that the intent is to “apply rules across the board to all wireless devices, but to specifically exclude both OTARDS which are over the air receptacle devices” and amateur radio. He assured Steinberg that he would not be subject to the new rules.

Robert Berg, criticized the process, claiming it is being rushed, and that there is not adequate time for the public to comment on proposed changes. He was pleased that the attorney had taken his suggestions for code revisions. However, he said, “there are no provisions for public hearings on the applications.” He asked neighbors to have more notice and the opportunity to comment on the potential placement of antennas. Additionally, Mr. Berg pushed back on the installation of antennas in residential areas and asked for larger setbacks. He said that 5G service was not necessary for high speed internet in Scarsdale and questioned the need for these antennas in residential areas. He said, “residents flip out” when they see the installations.

In contrast to Berg, Jeremy Gans spoke in favor of the antennas. He lamented the poor service in many parts of the town, and the importance of reliable wireless for the residents and medical needs: “People need to dial 911, people need to get in touch with caregivers.” In addition, Mr. Gans strongly pushed back against health concerns surrounding the antennas, drawing from a New York Times article in 2019, debunking many of the health scares, and another article from the same paper, proving the claims to be mostly Russian hoaxes. Mr. Gans concluded by saying: “I think that there's a balance here that delivers wireless service to our residents, keeping the residents first, not the interest of wireless companies to residents who have been begging for years for improved wireless service, while at the same time balancing aesthetic and health concerns.”

The Mayor concluded the discussion by highlighting the importance of changing the code in a helpful way and moving the process forward to address residents' concerns. It is the “overarching goal we need to improve cell service in our town. It is you know 2021 [...] and that is precisely why we are having this discussion.”

Watch the meeting here: