On September 26, 2018, the Federal Communications Commission (FCC) adopted its Declaratory Ruling and Third Report and Order (“Declaratory Ruling and Order”) enacting significant regulatory changes that will impact local control over the deployment of wireless infrastructure. Aimed at streamlining the nationwide deployment of 5G wireless—the next generation of wireless technology—the Declaratory Ruling and Order contains several features that will have a direct impact on the validity of certain local code provisions and on the processes used by local boards when hearing and deciding small cell wireless applications. The following are some of the key provisions of the Declaratory Ruling and Order:

Fees.  Small cell wireless systems, including Distributed Antenna Systems (DAS), are a form of wireless equipment commonly deployed on utility and light poles along streets and other public right-of-ways. These are the boxes (cabinets), cylinders and antennae that can often be seen at or near the top of host poles.

In order to access the right-of-way to install, operate and maintain small cell systems, service providers and wireless infrastructure developers typically offer municipalities annualized compensation pursuant to certain terms and conditions laid out in a written right-of-way use agreement. Some providers have offered a flat annual fee per location, while others have offered a set percentage of annual profits based on a specified formula. Some have offered both. In some respects, these right-of-way use agreements have operated as rental arrangements.

Under the Declaratory Ruling and Order, the fees municipalities charge for access to their right-of-ways must bear a direct relationship to the “actual and reasonable cost” to the municipality in: (a) maintaining the right-of-way; (b) maintaining the host structure(s) in the right-of-way; or (c) processing an application or permit seeking to deploy in the right-of-way. (¶72).* Fee arrangements which seek to simply maximize a municipality’s profit without any correlation to a demonstrable cost could be deemed illegal barriers to access. (¶73).  The Declaratory Ruling and Order goes one step further on this subject by providing a set of fees and rates the FCC views as presumptively consistent with the Federal Telecommunications Act. (¶79).

Aesthetics.  The proliferation of small cell systems in public right-of-ways has resulted in frequent complaints from local officials and residents about negative impacts on community character and aesthetics. In response, many municipalities have enacted local zoning code provisions that include aesthetic standards for small cell installations. Examples of such standards include the requirement that small cell installations be placed within “stealth” poles or camouflaged, and that equipment be installed in underground vaults whenever possible (a/k/a undergrounding).

The Declaratory Ruling and Order states that, going forward, aesthetic standards affecting small cell deployments are permissible only if they are: (1) reasonable; (2) no more burdensome than those applied to other types of infrastructure deployments; and (3) objective and published in advance. (¶86). The Declaratory Ruling and Order expounds on its meaning of “reasonable” as “technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments”. (¶87). Its use of “objective” describes standards that are “clearly-defined and ascertainable” and “applied in a principled manner”. (¶88). What is meant by the second criterion—that aesthetic requirements be “no more burdensome than those applied to other types of infrastructure deployments”—is somewhat unclear, particularly so if one attempts to compare the characteristics of small cell wireless installations to those of traditional “utilities”, such as water, sewer, electric, and even cable.

What is clear from this newly minted test is that locally-enacted aesthetic standards will be facing heightened legal scrutiny, and standards that would render a deployment cost-prohibitive or ineffective are most likely to be viewed as an effective prohibition on service. The Declaratory Ruling and Order calls out, specifically, overly specific design and camouflaging requirements, excessive spacing requirements, and mandatory undergrounding requirements as potentially impermissible aesthetic standards. (¶¶84, 90-91).

Shot Clocks.  The Declaratory Ruling and Order takes two notable actions with respect to the shot clocks that apply to local decisions on telecommunications projects. First, it purports to codify the existing 90-day and 150-day shot clocks established in 2009 for non-small cell telecommunications projects. Second, it establishes two new shot clocks which apply to local decisions on small cell wireless applications. Under the new shot clocks, a government agency considering a small cell wireless application has 60 days to take action on a complete application for an installation on an existing structure and 90 days to take action on a complete application for an installation on a new structure. (¶105). A batched application (i.e. a single application covering multiple sites on both existing and new structures) is subject to the longer 90-day shot clock. (¶114).

Remedies for Providers.  The Declaratory Ruling and Order provides teeth for the new shot clocks by articulating a new theory for legal recourse in the event a government agency fails to act on a small cell wireless application in a timely manner. Under existing FCC regulations, a wireless applicant may seek legal remedy in court if the government agency considering its application fails to act within the time prescribed under the shot clocks. Under the Declaratory Ruling and Order, such a failure is not only a “failure to act” but is also presumptively an “unlawful prohibition on service” by the government agency.  (¶¶116-120). The addition of this presumption places a new burden on the defending agency to demonstrate that its failure to act within the time allowed under the applicable shot clock was reasonable and that it did not materially limit or inhibit the applicant from introducing or improving service.

The full Declaratory Ruling and Third Report and Order contains in depth explanations and the reasoning behind each of the regulatory changes briefly addressed above. It further contains clarifications on when shot clocks start, pause, and restart, and when certain applications qualify as “collocations” for purposes of determining which shot clock applies to a given application.

A summary of the Declaratory Ruling and Order was published in the Federal Register on October 15, 2018. The new rules will therefore take effect on January 14, 2019 (90 days after publication).

The full Declaratory Ruling and Third Report and Order can be viewed on the FCC website at: https://www.fcc.gov/document/cellular-reform-third-report-and-order. The summary published in the Federal Register can be viewed on the Federal Register’s website at https://www.federalregister.gov/documents/2018/10/15/2018-22234/accelerating-wireless-and-wireline-broadband-deployment-by-removing-barriers-to-infrastructure.

If you have any questions concerning the subject of this post, please feel free to contact Philip at pbutler@farrellfritz.com.

*The ¶ symbol followed by a number refers to the paragraph with the same number in the full Declaratory Ruling and Third Report and Order.

In SEQRA parlance, a “Negative Declaration of Environmental Significance”, or “Neg. Dec.”, is a lead agency’s finding that the proposed Type I or Unlisted Action under review will not result in any significant adverse environmental impacts. An applicant whose project receives a Neg. Dec. is spared the (often) considerable time and expense of preparing an environmental impact statement (EIS) and the gauntlet of procedural steps that follow a positive declaration. However, a Neg. Dec. must be accompanied by a “reasoned elaboration” of the bases for the determination along with references to supporting documentation in the record. A Neg. Dec. which lacks a reasoned elaboration is invalid on its face, see, e.g., New York City Coal. to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337 (2003), and reviewing courts will not conduct an independent search of the record to discern the lead agency’s rationale and salvage the determination. See, e.g., Matter of Healy, 2018 N.Y. Slip Op. 28261, — N.Y.S.3d —- (Sup. Ct. Nassau Co. 2018) (wherein the court commended the lead agency on a thorough SEQRA review, but was constrained nonetheless to set aside the agency’s negative declaration because it did not contain a written reasoned elaboration).

In Vill. of Ballston Spa v. City of Saratoga Springs, 163 A.D.3d 1220, — N.Y.S.3d —- (Decided July 12, 2018), the Third Department struck a careful balance between SEQRA’s rigid “strict compliance” standard and consideration for practical mistakes that sometimes occur when a lead agency moves through the SEQRA process on a particular application. In 2017, the City of Saratoga Springs sought to condemn a stretch of land adjacent to a heavily-trafficked road for the creation of a new pedestrian/bicycle trail. The City Council, as lead agency, classified the project as a Type I Action and completed parts 1 and 2 of a full Environmental Assessment Form (EAF).

Eventually, the City Council adopted a resolution finding that the project would not result in any significant adverse environmental impacts and issued a negative declaration. It was then brought to the Council’s attention that its resolution did not include information explaining the basis for the determination. Two months later, the Council adopted a supplemental resolution reaffirming its Neg. Dec. for the project. This time, the resolution included specific information addressing each potential environmental impact identified in part 2 of the EAF and the Council’s rationale for why those issues would not result in any significant adverse environmental impacts. Opponents of the project challenged the Neg. Dec. contending that the supplemental resolution was not a permitted action under SEQRA.

On Appeal, the Appellate Division found that the City complied with SEQRA’s procedural requirements. In doing so, the Court expressly rejected the petitioners’ argument that the supplemental resolution would have been proper only under one of the enumerated situations set forth in 6 NYCRR 617.7(e) and (f) of the SEQRA regulations, which govern the amendment and rescission of negative declarations. The Court held that while 6 NYCRR 617.7(e) and (f) dictate a lead agency’s response to certain developments following the adoption of a Neg. Dec., those provisions are not exhaustive and do not preclude a lead agency from correcting a mistake in process under other circumstances.

Of particular relevance for the Court were the facts that the Council had conducted an earnest review of the relevant environmental issues; held another public meeting to discuss the contents of the supplemental resolution, and took additional procedural steps before reaffirming its negative declaration for the project. The supplemental resolution was also adopted before the Council took final action to approve the project. The Court observed that, as a practical matter, nullification of the Neg. Dec. would only have resulted in a redundant SEQRA process that would have undoubtedly reached the same conclusion. Thus, the Court ruled that the supplemental resolution was a proper means to correct the omission of the reasoned elaboration from the original Neg. Dec.

The Third Department’s decision in Ballston Spa lends itself to the proposition that a lead agency can, at times, correct the fatal defect of omitting a reasoned elaboration from a negative declaration.  This is not to say, however, that any writing presented after the adoption of a Neg. Dec. will be sufficient.  In Matter of Dawley v. Whitetail 414, LLC, 130 A.D.3d 1570, 14 N.Y.S.3d 854 (4th Dept. 2015) (cited in contrast in Ballston Spa), the Fourth Department ruled that a written attachment presented after the adoption of a negative declaration could not serve as a reasoned elaboration where the respondent town board, serving as the lead agency, never reviewed the attachment and never voted to have it included as a supplement to its negative declaration. See, also, Rochester Eastside Residents for Appropriate Dev., Inc. v. City of Rochester, 150 A.D.3d 1678, 54 N.Y.S.3d 484 (4th Dept. 2017) (also cited in Ballston Spa) holding that a document containing the purported reasoning for the lead agency’s determination, prepared subsequent to the issuance of the negative, did not fulfill the statutory mandate. It is therefore uncertain how another court might rule if presented with a similar set of facts.  Careful and thorough drafting continues to be the best hope of insulating a negative declaration from legal challenge.

If you have questions regarding SEQRA regulations or procedure, please contact me at pbutler@farrellfritz.com.

After six years and vigorous public comment, the New York State Department of Environmental Conservation (DEC) has adopted substantive amendments to the implementing regulations of the State Environmental Quality Review Act (SEQRA). The new regulations take effect on January 1, 2019 and will apply to all pending and future actions for which a determination of significance has not been made prior to the effective date.

The changes to the SEQRA regulations affect both substantive and procedural aspects of the SEQRA process. Of particular note are the changes to:  the list of Type I Actions (projects that carry a strong presumption of significant adverse environmental impact and typically result in the preparation of an Environmental Impact Statement [EIS]); the List of Type II Actions (projects that the DEC has pre-determined to not result in significant adverse environmental impacts and are exempt from environmental review); “scoping” (the procedural step which identifies the adverse environmental impacts to be studied in an EIS, and which will now be a mandatory step in the SEQRA process), and clarification on the requirements for preparing a Draft EIS (DEIS).

The amendments affecting Type I Actions (6 NYCRR §617.4) can be described generally as altering the thresholds which trigger certain Type I designations.

  • In cities, towns and villages having a population of 150,000 persons or less, the following are now Type I Actions:
    • The addition of 200 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 250 units.
    • The addition of parking for 500 vehicles or more.
  • In cities, towns and villages having a population of 150,001 persons or more, the following are now Type I Actions:
    • The addition of 500 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 1,000 units.
    • The addition of parking for 1,000 vehicles or more.

Long Island communities will be particularly interested in both of these thresholds. While the island is home to nearly 100 villages that will be subject to the lower threshold applied to municipalities of 150,000 persons or less, it is also the home to the Towns of Babylon, Brookhaven, Hempstead, Huntington, Islip, and Oyster Bay, all of which have populations in excess of 150,001 persons, according to recent census data. Projects in those town which have a large residential component (and are located outside of incorporated villages) will need to be mindful of the 500-unit threshold.

    • The amended SEQRA regulations preserve a limitation on the Type I designation for the creation of new residential units. As in the old SEQRA regulations, the number of new units alone is not the only factor in determining whether a Type I designation is appropriate. The project must also tie in to an existing community or public water or sewerage system. Thus, a project that proposes its own water and sewerage facilities will not necessarily trigger a Type I designation, even if the number of proposed units exceeds the numeric threshold.
  • Any Unlisted Action which exceeds 25% of any Type I threshold and which is located wholly or partially in, or contiguous to, a place or district that has been listed or has been determined to be eligible for listing on either the National or State Register of Historic Places is a Type I Action. This revision is something of a double-edged sword for developers in that while a project will no longer be Type I solely because of its proximity to a historic site—because the project must now also exceed 25% of some other Type I threshold under §617.4—the requirement that “eligible” sites also be considered increases the possibility that a project is located near a site capable of triggering a Type I designation.

The amendments affecting Type II Actions (6 NYCRR §617.5) add several new categories of actions that are exempt from environmental review going forward. They include:

  • Retrofitting an existing structure and its appurtenant areas with green infrastructure. While the phrase “green infrastructure” might evoke any number of green practices or technologies that have come to the forefront of eco-conscious design, the revised SEQRA regulations narrowly define the term as “practices that manage storm water through infiltration, evapo-transpiration and reuse…” The definition then includes an exclusive list of the specific practices that constitute “green infrastructure” for purposes of Type II exemption. Thus, the exemption is narrower than it would appear at first blush.
  • Installation of telecommunications cables in existing highway or utility rights of way and utilizing trenchless burial or aerial placement on existing poles. Notably, the exemption is limited to telecommunications “cables” and, therefore, does not include small cells, “nodes” or Distributed Antenna Systems (DAS), which have become prevalent in the telecommunications industry. Prior iterations of the Type II amendments did include co-location of telecommunications antennas as a new exempt category; however, that exemption was removed in response to public comment.
  • Installation of a solar array involving 25 acres or less of physical alteration and located on: a closed landfill; a commercial or industrial brownfield site or Environmental Restoration Project site that has received a certificate of completion; an inactive hazardous waste site (under certain conditions); or already disturbed area located within a publicly-owned wastewater treatment facility or an industrial zoned site.
  • Installation of a solar array on any existing structure, provided the structure is not listed on the Federal or State Register of Historic Places; determined to be eligible for listing on the historic registers; or within a district that has either been listed or determined to be eligible to be listed on the historic registers.
  • Reuse of a residential or commercial structure, or a mixed use residential and commercial structure, for a use which is permitted under applicable zoning, including uses by special permit, provided the reuse does not trigger any Type I threshold. Critics of this particular exemption argued that local zoning laws are often outdated; and as a result, the exemption may prevent environmental review of a use that, while legally permissible, is nonetheless out of touch with the present character of the district in which it is located. The DEC has countered that in almost all situations, a given project will be subject to some form of discretionary review, during which impacts of concern can be vetted and mitigated. Additionally, because the exemption encourages the reuse of structures, it will also reduce the use of virgin building materials and the creation of construction and demolition debris, which are deposited in landfills.

Under the current regulations, Scoping (6 NYCRR §617.8) is an optional step in the SEQRA process. However, as of January 1, 2019, scoping will be mandatory for “all” EISs, except for Supplement EISs prepared pursuant to 6 NYCRR §617.9(a)(7). Incidentally, lead agencies will no longer have the option of accepting a proposed DEIS in lieu of an environmental assessment form because submission of a DEIS must now be preceded by a scoping session and the lead agency’s acceptance of a final, written scoping document. Opponents of this change have argued that, for some projects receiving a positive declaration, the environmental assessment forms will be sufficient to identify the environmental impacts requiring study in an EIS. Therefore, for those projects, mandatory scoping prior to preparation of a DEIS will result in unnecessary delay of the SEQRA process and added expense for the project sponsor.

The amendments affecting DEIS preparation (6 NYCRR §617.9) seek to clarify the requirements for a complete DEIS and avoid undue delay of the SEQRA process while the sponsor, lead agency and public debate the adequacy of a DEIS’ contents. The regulations provide that a DEIS is complete when it: (1) meets the requirements of the written final scope and sections 617.8(g) and 617.9(b) of the SEQRA regulations; and (2) “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.” In addition, the regulations mandate that the completeness of a resubmitted DEIS be evaluated solely based on a list of written deficiencies provided by the lead agency during its review of the prior version of the DEIS (with some exceptions). Time will tell whether these particular amendments will have their desired effect of streamlining the DEIS phase of the SEQRA process. Reasonable minds may yet disagree on whether a DEIS “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.”

The 2018 SEQRA amendment contains additional changes, including additional Type II categories not discussed here and new publication requirements for SEQRA materials. A complete copy of the 2018 SEQRA amendment and related materials can be found on the DEC website at: https://www.dec.ny.gov/permits/83389.html.

If you have questions regarding SEQRA regulations, please contact me at pbutler@farrellfritz.com.

See also, related SEQRA topics written by blog-colleague Charlotte A. Biblow, by clicking here & here!