[HISTORY: Adopted by the Town Board of the
Town of Copake 10-11-2001 by L.L. No. 3-2001. Amendments noted where
applicable.]
GENERAL REFERENCES
Zoning — See Ch. 232.
The purpose of this chapter is to:
A.
Preserve the character and appearance of the Town
of Copake while allowing adequate telecommunications services to be
developed.
B.
Protect the scenic, historic, environmental, and natural
or man-made resources of the Town of Copake.
C.
Locate towers and/or antennas in a manner which protects
property values, as well as the general safety, health, welfare and
quality of life of the citizens of the Town of Copake and all those
who visit this community.
D.
Minimize the total number and height of towers throughout
the Town of Copake.
E.
Provide standards and requirements for the regulation,
placement, design, appearance, construction, monitoring, modification
and removal of telecommunications facilities and towers.
F.
Require the sharing of existing towers, and the clustering
of new facilities/towers where possible.
G.
Locate towers so that they do not have negative impacts
such as, but not limited to, attractive nuisance, noise, and falling
objects.
H.
Provide a procedural basis for action within a reasonable
period of time for requests for authorization to place, construct,
operate or modify telecommunications facilities.
This chapter is intended to be consistent with
the Telecommunications Act of 1996 in that:
A.
They do not prohibit, or have the effect of prohibiting,
the provision of personal wireless services;
B.
They are not intended to be used to unreasonably discriminate
among providers of functionally equivalent services;
C.
They do not regulate personal wireless services on
the basis of the environmental effects of radio frequency emissions
to the extent that the regulated services and facilities comply with
the FCC's regulations concerning such emissions.
A.
The following terms shall have the meanings indicated.
The word "shall" or "will" indicates mandatory requirements; "may"
is advisory and indicates recommendations which are not mandatory.
B.
ADEQUATE COVERAGE
ADEQUATE CAPACITY
ANTENNA
AVAILABLE SPACE
BASE STATION
BULLETIN 65
CAMOUFLAGED FACILITY
CHANNEL
COLLOCATION
DBM
ELECTROMAGNETICALLY ABLE
ELEVATION
EMF
ENVIRONMENTAL ASSESSMENT (EA)
ERP
EQUIPMENT SHELTER
FACILITY SITE
FALL ZONE
FCC
FCC-97-326
GHZ - GIGAHERTZ
GRADE OF SERVICE
HEIGHT OF TOWER
HERTZ
LICENSED CARRIER
LOCATION
MAJOR MODIFICATION OF AN EXISTING FACILITY
MAJOR MODIFICATION OF AN EXISTING TOWER
MHZ - MEGAHERTZ
MONITORING
MONITORING PROTOCOL
MONOPOLE
MOUNT
(1)
(2)
(3)
(4)
OMNIDIRECTIONAL (WHIP) ANTENNA
PANEL ANTENNA
PERSONAL WIRELESS SERVICES
PERSONAL WIRELESS SERVICE FACILITY
PERSONAL WIRELESS SERVICE PROVIDER
PLANNING BOARD
RADIAL PLOTS
RADIATED-SIGNAL PROPAGATION STUDIES OR COVERAGE PLOTS
RADIO FREQUENCY ENGINEER
REGULATED FACILITY, SERVICE, AND/OR SITE
REPEATER
SECURITY BARRIER
SEPARATION
STANDING WAVE PHENOMENON
STRUCTURALLY ABLE
TELECOMMUNICATIONS FACILITY
TELEPORT
TILED COVERAGE PLOTS
TOWER
(1)
(2)
(3)
As used in this chapter, the following terms shall
have the meanings indicated:
Coverage is considered to be "adequate" within that area
surrounding a base station where the predicted or measured median
field strength of the transmitted signal is such that the majority
of the time, transceivers properly installed and operated will be
able to communicate with the base station. in the case of cellular
communications in a rural environment like Copake, this would be a
signal strength of at least -90 dBm for at least 75% of the coverage
area. It is acceptable for there to be holes within the area of adequate
coverage where the signal is less than -90 dBm, as long as the signal
regains its strength to greater than -90 dBm further away from the
base station. For the limited purpose of determining whether the use
of a repeater is necessary or desirable, there shall be deemed not
to be adequate coverage within said holes. The outer boundary of the
area of adequate coverage, however, is that location past which the
signal does not regain strength of greater than -90 dBm.
Capacity is considered to be "adequate" if the grade of service
(GOS) is p.05 or better for median traffic levels offered during the
typical busy hour, as assessed by direct measurement of the personal
wireless service facility in question. The GOS shall be determined
by the use of standard Erland B Calculations. As call blocking may
occur in either the land line or radio portions of a wireless network,
adequate capacity for this chapter shall apply only to the capacity
of the radio components. Where capacity must be determined prior to
the installation of the personal wireless services facility in question,
adequate capacity shall be determined on the basis of a 20% busy hour
(20% of all offered traffic occurring within the busiest hour of the
day), with the total daily traffic based on aggregate estimates of
the expected traffic in the coverage area.
A device which is attached to a tower or other structure
for transmitting or receiving electromagnetic waves. Examples include,
but are not limited to, whip, panel, and dish antennas.
The space on a tower or structure to which antennas of a
telecommunications provider are both structurally able and electromagnetically
able to be attached.
The primary sending and receiving site in a wireless telecommunications
network. More than one base station and/or more than one variety of
telecommunications provider can be located on a single tower or structure.
Published by the FCC Office of Engineering and Technology
specifying radiation levels and methods to determine compliance.
Any telecommunications facility that is designed to blend
into the surrounding environment, such as towers and/or attached equipment
designed to look like trees or barn silos, etc.
The segment of the radiation spectrum from an antenna which
carries one signal. An antenna may radiate on many channels simultaneously.
The use of a single mount on the ground by more than one
carrier (vertical collocation) and/or several mounts on an existing
structure by more than one carrier.
Unit of measure of the power level of an electromagnetic
signal expressed in decibels referenced to one milliwatt (1/1000th
watt); correctly written as "dBm."
The determination that the new signal from and to the proposed
new antennas will not significantly interfere with the existing signals
from and to other facilities located on the same tower or structure
as determined by a qualified professional telecommunications engineer.
The use of available technologies to alleviate such interference shall
be considered when making this determination.
The elevation at grade or ground level shall be given in
above mean sea level (AMSL). The height of the wireless service facility
shall be given in above ground level (AGL). AGL is a measurement of
height from the natural grade of a site to the highest point of a
structure. The total elevation of the wireless service facility is
AGL plus AMSL.
Electromagnetic fields, often expressed in wavelengths or
frequencies to indicate their placement on the electromagnetic spectrum.
The radio frequencies usually radiate away from their generating source,
hence wireless capability. The radio frequencies are identified between
three kilohertz to 300 gigahertz and include AM and FM radio, TV,
radar, cellular/PCS technologies, emergency fire and police, paging
services, and satellite broadcasting among many others. Microwaves
are a portion of the radio frequencies.
An EA is the document required by the Federal Communications
Commission (FCC) and the National Environmental Policy Act (NEPA)
when a wireless communication facility is placed in certain designated
areas such as wetlands and sensitive habitats.
Effective radiated power.
An enclosed structure, cabinet, shed or box located at the
base station designed principally to house batteries, electrical,
and electronic equipment used in connection with personal wireless
service transmissions.
A property, or any part thereof, which is owned or leased
by one or more telecommunications providers and upon which one or
more telecommunication facility(s) and required landscaping are located.
This includes any lot or location, having met all other criteria in
this telecommunication facilities regulation, which may be able to
provide adequate coverage and adequate capacity to a significant portion
of the Town of Copake.
The area on the ground within a prescribed radius from the
base of a wireless communications facility. The fall zone is the area
within which there is a potential hazard from falling debris (such
as ice) or collapsing material.
Federal Communications Commission. The government agency
responsible for regulating telecommunications in the United States.
A report and order which sets new national standards for
exposure to radio frequency emissions from FCC-regulated transmitters.
A measure of electromagnetic radiation equaling one billion
hertz.
A measure of the percentage of calls which are able to connect
to the base station, during the busiest hour of the day. Grade of
service is expressed as a number, such as p.05, which means that 95%
of callers will connect on their first try. A lower number (p.04)
indicates a better grade of service.
The vertical distance from the highest point of the structure,
plus any device attached, to the grade before construction.
One hertz is the frequency of an electric or magnetic field
which reverses polarity once each second, or one cycle per second.
A company authorized by the FCC to construct and operate
a wireless communications facility.
References to site location as the exact longitude and latitude,
to the nearest tenth of a second, with bearing or orientation referenced
to true North.
Any change, or proposed change, in power input or output,
number of antennas, change in antenna(s) type or model, repositioning
of antenna(s), change in number of channels per antenna above the
maximum number approved under an existing approved site plan.
Any increase, or proposed increase, in dimensions of an existing
and permitted tower or other structure designed to support telecommunications
transmission, receiving, and/or relaying antennas, and/or equipment.
A measure of electromagnetic radiation equaling one million
hertz.
The measurement, by use of instruments in the field, of nonionizing
radiation exposure at a site as a whole, or from individual telecommunications
facilities, towers, antennas, or repeaters.
The testing protocol, such as the Cobbs Protocol, or the
FCC Regulations (Title 47, Part 1, Section 1.1307 referenced as IEEE
C95.3 1991), or one substantially similar, including compliance determined
in accordance with the National Council on Radiation Protection and
Measurements (Reports 86 and 119), which is to be used to monitor
emissions and determine exposure risk from existing and new telecommunications
facilities. The Copake Planning Board may, as the technology changes,
require by written regulation the use of other testing protocols.
A copy of the monitoring protocol shall be on file with the Town Clerk.
A single self-supporting vertical pole with no guy-wire anchors,
usually consisting of a galvanized or other unpainted metal, or a
wooden pole with below-grade foundations. (See "towers.")
The structure or surface upon which antennas are mounted,
including the following four types of mounts:
ROOF-MOUNTEDOn the roof of a building.
SIDE-MOUNTEDOn the side of a building.
GROUND-MOUNTEDMounted on the ground (see "tower.")
STRUCTURE-MOUNTEDMounted on a structure other than a building.
A thin rod that transmits and receives signals in all directions.
A flat surface antenna usually developed in multiples.
Commercial mobile services, unlicensed wireless services,
and common-carrier wireless exchange access services. These services
include cellular services, personal communications systems (PCS),
specialized mobile radio services, and paging services.
All equipment (including repeaters) with which a personal
wireless service provider broadcasts and receives the radio frequency
waves which carry their services, and all locations of said equipment
or any part thereof. This facility may be sited on one or more towers
or structures(s) owned and permitted by another owner or entity.
An entity, licensed by the FCC to provide personal wireless
services to individuals or institutions.
The Planning Board of the Town of Copake.
The result of drawing equally spaced lines (radials) from
the point of an antenna, calculating the expected signal and indicating
this graphically on a map. The relative signal strength may be indicated
by varying the size or color at each point being studied along the
radial; a threshold plot uses a mark to indicate whether that point
is strong enough to provide adequate coverage, i.e., the points meeting
the threshold of adequate coverage. The drawback is the concentration
of points close to the antenna and the divergence of points far from
the site near the ends of the radials.
Computer-generated estimates of the signal emanating, and
prediction of coverage, from antennas or repeaters sited on a specific
tower or structure. The height above ground, power input and output,
frequency output, type of antenna, antenna gain, topography of the
site and its surroundings are all taken into account to create these
simulations. They are the primary tool for determining whether a site
will provide adequate coverage for the telecommunications facility
proposed for the site.
An engineer specializing in the design, review, and monitoring
of radio frequency technologies.
The equipment, towers, mount, antennas and other structures
subject to local regulation. This includes all telecommunication services
not exempt from local regulation pursuant to the Telecommunications
Act of 1996, or other such federal legislation or federal authority.
A small receiver/relay transmitter of not more than 20 watts'
output designed to provide service to areas which are not able to
receive adequate coverage directly from a base station.
A locked, impenetrable wall, fence or beam that completely
seals an area from unauthorized entry or trespass.
The distance between one carrier's array of antennas and
another carrier's array.
A localized concentration of energy. This can occur, for
instance, when radio frequencies that are supposed to take off into
space concentrate around metal objects instead (metal roofs, certain
architectural supports, water towers, guy wires, etc.), creating "RF
hot-spots" that exceed federal guidelines.
The determination that a tower or structure is capable of
carrying the load imposed by the proposed new antennas under all reasonably
predictable conditions as determined by professional structural engineering
analysis.
All equipment (including repeaters) with which a telecommunications
provider broadcasts and receives the radio frequency waves which carry
their services and all locations of said equipment or any part thereof.
This facility may be sited on one or more towers or structures owned
and permitted by another owner or entity.
A facility utilizing satellite dishes of greater than 2.0
meters in diameter designed to uplink to communications satellites
for transmitting in the C-Band (four to six GHz) spectrum.
Tiled plots result from calculating the signal at uniformly
spaced locations on a rectangular grid, or tile, of the area of concern.
Unlike radial plots, tiled plots provide a uniform distribution of
points over an area of interest; usually the same grid will be used
as different sites are examined, and it is not necessary that the
transmitter site be within the grid or area of interest. As with radial
plots, the graphic display or plot can be either signal strength or
adequate threshold. This method requires substantially more topographic
data and longer (computer) execution time than radial plots, but is
preferable for comparative analysis.
A support structure intended to support antennas and associated
equipment. This includes:
GUYED TOWERA monopole tower or lattice tower that is tied to the ground or other surface by diagonal cables.
LATTICE TOWERA type of mount that is self-supporting with multiple legs and cross bracing of structural steel.
MONOPOLE TOWERThe type of mount that is self-supporting with a single shaft of wood, steel, fiberglass, or concrete, and a platform (or racks) for panel and whip antennas arrayed at the top.
The following wireless telecommunications facilities
are exempt: police, fire, ambulance and other emergency dispatch;
amateur (HAM) radio, citizens band radio; any existing commercial
radio tower, and radio dispatch services for local businesses. Also
exempt from this chapter are antennas used solely for residential
household television and radio reception, and satellite dishes measuring
two meters or less in diameter. No personal wireless service facility
shall be considered exempt from this chapter for any reason, whether
or not said facility is proposed to share a tower or other structure
with such exempt uses. Teleports utilizing satellite dishes of greater
than 2.0 meters in diameter designed to uplink to communications satellites
are not allowed in the Town of Copake.
A.
Due to the complex technical character of the information
to be provided by an applicant pursuant to this chapter and the monitoring,
testing and inspection of facilities and operation provisions, the
Planning Board, with the approval of the Town Board, shall hire such
consultants as it deems reasonably necessary to assist it with such
determinations as are to be made by it concerning such matters. All
expenses incurred by the Planning Board for such services as part
of an application process shall be deemed to be part of the application
fee and paid by the applicant. All expenses incurred by the Planning
Board for such consultation services incurred in performing its monitoring,
testing and inspection shall be paid by the applicant or current permittee.
Any failure to pay such expenses shall constitute a violation of the
permit and automatically cause the revocation of the permit and all
rights thereunder.
B.
These consultants shall be qualified professionals
with an appropriate combination of training, record of service, and/or
certification in one of the following fields:
C.
Upon submission of a complete application for a site
plan permit, the Planning Board will provide its independent consultant(s)
with the full application for their analysis and review.
D.
Applicants for any site plan permit shall obtain written
permission from the owners of the proposed property(s) or facility(s)
site(s) for the Town's independent consultant(s) to conduct any necessary
site visit(s).
E.
Upon submission of a complete application, the independent
consultant(s) will provide an estimate for the cost of reviewing the
application to the Planning Board. The Planning Board will forward
this estimate in writing to the applicant. The applicant will pay
this fee during the review process, separate from the federal application
fee, and include this fee as part of the application process. No application
will be processed without full payment. In lieu of estimates, the
Planning Board may require the applicant to fund an account which
the Town may draw upon to insure reimbursement of those fees.
F.
The consultants shall work under the direction of
the Copake Planning Board. Copies of the consultant's findings and
reports shall be made available to the applicant not less than seven
days prior to any meeting of the Planning Board to consider the consultant's
report, and the applicant shall be given opportunity to respond to
said report in writing and at the next hearing when the consultant's
report(s) will be considered.
A.
Site plan permits. No tower or telecommunications
facility shall be erected, constructed, installed, or majorly modified
without first obtaining a site plan permit from the Planning Board.
A site plan permit is required for:
B.
Site plan review/public hearing. Upon receipt of a
complete application, the Planning Board shall conduct a public hearing
on the same in accordance with the provisions of § 274-a
of the Town Law.
C.
Findings by the Planning Board. The applicant shall comply with the requirements set forth in §§ 230-5 to 230-15B, inclusive, and shall provide all information reasonably required by the Planning Board. The Planning Board shall, in consultation with independent consultants, make all of the following applicable findings before granting a site plan permit.
(1)
Applicant is not already providing adequate coverage
and/or adequate capacity to the Town of Copake.
(2)
Applicant is not able to use an existing tower/facility,
either within or outside of the Town of Copake, either with or without
the use of repeaters, to provide adequate coverage and/or adequate
capacity to the Town of Copake.
(3)
Applicant has endeavored to provide adequate coverage
and adequate capacity to the Town of Copake with the least number
of towers and antennas which is technically and economically feasible.
(4)
Applicant will be providing at least 50% of its coverage
to the Town of Copake.
(5)
Efforts have been made to locate new towers adjacent
to existing towers.
(6)
Applicant has agreed to rent or lease available space
on the tower under the terms of fair-market lease, with reasonable
conditions and without discrimination to other telecommunications
providers.
(7)
Proposed telecommunications facility(s) or tower(s)
should make use of available municipal lands if those lands conform
with appropriate setbacks for this chapter, and where visual impact
can be minimized.
(8)
The proposal shall comply with rules as adopted in
FCC-97-326 and procedures outlined in FCC Bulletin 65 regarding emissions
and exposure to electromagnetic radiation, and that the required monitoring
program shall be paid for by the applicant.
(9)
Towers and telecommunications facilities shall be
located so as to minimize the following potential impacts:
(a)
Visual/aesthetic. Unless adequate coverage and
adequate capacity cannot otherwise be achieved, towers shall be sited
off ridgelines and where their visual impact is least detrimental
to scenic areas and highly populated areas. In determining whether
or not a tower will have an undue adverse visual impact on the scenic
or natural beauty of a ridge or hillside, the Planning Board shall
consider, but not be limited to:
[1]
The period of time, and the frequency of viewing,
during which the proposed tower would be seen by the traveling public
on a public highway.
[2]
The degree to which the tower is screened by
topographic features;
[3]
Background features in the line of sight to
the proposed tower that obscure the facility or make it more conspicuous;
[4]
The distance of the proposed tower from the
viewing vantage point and the proportion of the facility that is visible
above the skyline:
[5]
The number of vehicles traveling on a public
highway or waterway at or near the critical vantage point;
[6]
The sensitivity or unique value of the particular
view affected by the proposed development.
(b)
Devaluation of property. Siting shall be in
as low population density areas as possible.
(c)
Safety hazards. In cases of structural failure,
ice accumulation and discharge, and attractive nuisance.
(d)
Electromagnetic radiation, in case the tower,
guy wires, or telecommunications facility is found to exceed the FCC
guidelines.
D.
Documentation of denial. Any decision of the Copake
Planning Board to deny an application for a site plan permit under
this chapter shall be in conformance with 47 U.S.C. 332(7)(B)(iii)
of the Telecommunications Act of 1996, in that it shall be in writing
and supported by substantial evidence contained in a written record.
A.
Applicants. If the applicant is not the landowner, the landowner will be considered a co-applicant and must submit the required documentation under § 230-8B of this chapter.
B.
Access road and underground utilities. Where new telecommunications
towers and facilities require construction of, or improvements to,
access roads, to the extent practicable roads shall follow the contour
of the land and be constructed or improved within existing forest
fringe areas, and not in open fields. Access roads must be minimal,
and must be designed to mitigate erosion and other damage to existing
topography. Utility or service lines shall be buried underground.
The Planning Board may request input from the Town Highway Superintendent
regarding the adequacy of emergency access for the planned drive or
roadway to the site. The Planning Board may waive the underground
requirement at its discretion.
C.
Landscaping/screening.
(1)
Screening shall be required at the perimeter of the
site. If the tower or facility site is in a wooded area, a natural
vegetated buffer strip of undisturbed trees shall be retained for
at least 100 feet in depth, and at least 15 feet in height, at all
times around the perimeter and only minimally disturbed where the
access drive is located.
(2)
If the tower or facility site is not in a wooded area,
a vegetated barrier at least 50 feet deep by 10 feet high around the
perimeter shall be planted by the applicant. It shall be of a type
that has the potential to reach a height of at least 15 feet at maturity.
Existing vegetation surrounding the site shall be preserved and maintained
to the greatest extent possible. All landscaping shall be properly
maintained to ensure its good health and viability at the expense
of the owner(s). All areas disturbed during project construction shall
be replanted with vegetation. Applicant shall obtain a financial surety
(to be determined by the Planning Board) to cover the cost of the
remediation of any damage to the landscape which occurs during the
clearing of the site. The Planning Board may require landscaping in
excess of any written requirements as is deemed reasonably necessary
in order to enhance compatibility with adjacent residential and nonresidential
land uses.
D.
Fencing and signs. The area around the tower and communication
equipment shelter(s) shall be completely fenced for security to a
height of not less than eight feet or more than 12 feet and gated.
Use of razor wire is not permitted. A sign of no greater than two
square feet indicating the name of the facility owners(s) and a twenty-four-hour
emergency telephone number, either local or toll-free, shall be posted
adjacent to the entry gate. In addition, "No Trespassing" or other
warning signs, and the federal registration plate (where applicable),
shall be posted on the fence or as required to meet federal requirements.
E.
Building design. Communication equipment shelters
and accessory buildings shall be designed to be architecturally similar
and compatible with each other, and shall be no more than 12 feet
high or 750 square feet. The buildings shall be used only for the
housing of equipment related to this particular site. Whenever possible,
the buildings shall be joined or clustered so as to appear as one
building. Buildings and related structures shall use materials and
textures that will blend them into the natural setting to minimize
the visual impact. Buildings shall be finished or painted in stealth
or neutral color tones.
F.
Height of towers. New towers shall not exceed the
minimum height necessary to provide adequate coverage of the telecommunications
facilities proposed for use on the tower. Applicant may submit a request
for additional height to accommodate future sharing, and shall provide
design information to justify such additional height. In no event
shall towers exceed 125 feet in height measured from the grade at
the base of the tower before construction to the highest point shown
on the facility plan. The Planning Board shall hire an independent
consultant to verify adequate coverage and justify tower height.
G.
Tower finish. New tower(s) shall have a galvanized
finish unless otherwise required by the Planning Board. The Planning
Board may require the tower(s) to be painted or otherwise camouflaged
to minimize the adverse visual impact.
H.
Tower sharing/camouflaging. tower(s) must be of a
structural type which will maximize potential sharing. Lattice-type
structures are preferred, but where a monopole is required, applicant
must demonstrate the future utility of such structure for expansion
of service for applicant and other future applicants. The Planning
Board reserves the right to require stealth designs, such as towers
made to resemble trees or other structures.
I.
Use of repeaters. The applicant shall demonstrate
that it is not reasonably able to assure adequate coverage or to create
adequate coverage in the Town of Copake from base stations located
in other towns or to fill holes within the area of otherwise adequate
coverage by use of repeaters. Applicants shall detail the number,
location, power output, and coverage of any proposed repeaters in
their systems and provide engineering data to justify their use.
J.
Coverage area. If primary coverage (greater than 50%)
from proposed telecommunications facility is outside of the Town of
Copake, then the permit may be denied unless the applicant can demonstrate
an inability to locate within the town which is primarily receiving
service from the proposed facility.
K.
Commercial advertising. Commercial advertising shall
not be allowed on any antenna, tower, or accessory building or communications
equipment shelter.
L.
Lighting. No external lighting is permitted, except
for manually operated emergency lights for use only when operating
personnel are on site.
M.
Noise. Noise-producing equipment shall be sited and/or
insulated to guarantee that no increase in noise above ambient levels
measured at the property line occurs.
N.
Air navigation. No tower or telecommunications facility
that would be classified as a hazard to air navigation, as defined
by the Federal Aviation Regulations (Title 14 CFR), is permitted.
O.
Lot size/setback requirements. Tower setbacks shall
be measured from the base of the tower (unless guy-wired) to the nearest
point along each property line of the parcel on which it is located.
(1)
The minimum lot size for any telecommunications tower(s)
or facilities shall be 10 acres.
(2)
No repeater shall be closer than 200 feet to a dwelling
unit measured at ground level, nor less than 35 feet above the ground.
(3)
Where guy wire supports are used, setbacks will begin
at the base of the guy wire anchor(d) to the ground, not at the base
of the tower.
(4)
Location; fall zones.
(a)
No telecommunications facility or tower, including
guy-wire anchors and protective fencing, if any, shall be located:
[1]
Closer than 1,500 feet horizontally to any structure
existing at the time of application which is used as a primary or
secondary residence; to the property of any school (both public and
private); to any church; or to any other public building. Primary
or secondary residences are those dwelling units that include toilet
facilities, and facilities for food preparation and sleeping.
[2]
Closer than 750 feet horizontally to any boundary
line of the property upon which the tower(s) or facilities are located,
except this restriction may be reduced to 200 feet if the applicant
has obtained an easement from the owners of all properties located
within 750 feet, precluding such owners, their heirs successors, administrators
and assignees from locating any structure used for a primary or secondary
residence, private or public school, church or other public structures
within 750 feet of such towers or facility.
[3]
Within the habitat of any state-listed rare
or endangered wildlife or species.
[4]
Within 300 feet horizontally of any state or
federally regulated wetlands.
[5]
Within 300 feet horizontally of any lake, state
regulated stream, or perennial stream.
[6]
Within 1,500 feet of any historic building or
property listed on the State or Federal Register of Historic Places.
[7]
Within 500 feet horizontally of any known archaeological
site.
(b)
Fall zones.
[1]
The fall zones area for guy-wire towers shall
be at least four times the tower height; and for nonguyed towers,
2 1/2 times the tower heights.
[2]
In reviewing site plan applications, the Planning
Board may allow the fall zones to extend within a neighboring property
if it finds that a substantially better design will result from such
a reduction. Such neighboring property shall not be developed and
will be subject to a legally binding agreement, secured by the applicant,
preventing development during the time the tower is in place.
The following shall be required in all applications:
A.
Contract with provider. Applicants for a telecommunications
tower or facility site plan permit must be a telecommunications provider,
and/or must provide a copy of its lease/contract with an existing
telecommunications provider. A site plan permit will not be granted
for a tower/facility to be built on speculation. Copies of all lease/contracts
must be provided with the application. The applicant will also provide
copies of any applications in other towns within a ten-mile radius
of the proposed site. The Planning Board may submit this copy to any
other host town for review and comment.
B.
Appropriate signatures/contacts. All applications
shall require that the landowners, if separate from the tower owners
and/or service providers, be co-applicants. Required documents include
one each displaying original signature(s), and five photocopies. The
following shall be provided:
(1)
Signature(s) of landowner(s), applicant(s), tower
owner(s).
(2)
An affidavit from the owner of the property acknowledging
responsibility for the removal of a tower or facility that is deemed
"abandoned" or unsafe by the Planning Board, or is in violation of
this section.
(3)
Landowners shall also provide an affidavit expressing
written consent for co-application and copies of any and all leases
or other agreements with tower owners, applicant(s) or other service
providers.
(4)
Contacts. The applicant shall submit the exact legal
name, address or principal place of business and phone number of the
following:
(a)
Applicant. If any applicant is not a natural
person, it shall also give the type of business entity and the state
in which it is registered. If any applicant is a corporation, trust,
association, or other organized group or legal entity, it shall also
provide the state under which it was created or organized and the
date of such creation.
(b)
Person to whom correspondence or communications
in regard to the application are to be sent. Notice, orders and other
papers may be served upon the person so named and service shall be
deemed to be service upon the applicant.
(c)
Person to be contacted in the event of an emergency
involving the facility. This should be someone available on a twenty-four-hour
basis who is authorized by the applicant to act on behalf of the applicant
regarding an emergency situation.
(d)
Owner of the property on which the proposed
tower shall be located, and of the owners(s) of the tower on which
the proposed facility shall be located; written permission of the
owner(s) to apply for the site plan permit on the proposed property
or facility site(s) and for the Town's independent consultant(s) to
conduct any necessary site visit(s).
(e)
Identification, address, phone number and contact
person for each proposed service provider who might be named as an
applicant, in addition to the landowner.
(5)
The names and addresses of the record owners of all
abutting properties.
C.
Evidence of need.
(1)
Existing coverage. Applicant shall provide written
documentation demonstrating that existing telecommunications facility
sites in Copake, in abutting towns, and within thirty-mile radius
of the proposed site cannot reasonably be made to provide adequate
coverage and/or adequate capacity to the Town of Copake. The documentation
shall include, for each facility site listed which is owned or operated
by the applicant, the exact location (in longitude and latitude, to
degrees, minutes and seconds to be nearest tenth of a second), ground
elevation, height of the tower or facility, type of antennas, antenna
gain, height of antennas on tower(s), output frequency, number of
channels, power output and maximum power output per channel. Potential
adjustments to these existing facility sites (including changes in
antenna type), orientation, gain, height or power output shall be
specified. Radial or tiled coverage plots showing each of these facility
sites, as they exist, and with adjustments as above, shall be provided
as part of the application.
(2)
Repeater. Applicant shall demonstrate with written documentation that they have analyzed the feasibility of repeaters in conjunction with all facility sites listed in compliance with § 230-7I (above) to provide adequate coverage and/or adequate capacity to the Town of Copake. Radial or tiled coverage plots of all repeaters considered for use in conjunction with these facility sites shall be provided as part of the application.
(3)
Indirect service. Applicant shall demonstrate which portion of a tower or facility and which antennas, if any, are to reduce or eliminate reliance on land-lines, or otherwise provide communications capability to the applicant, as opposed to providing direct service to customers. Such provision of indirect service may be considered if reasonable alternatives are not available and the overall effect is consistent with the purposes set for in § 230-1 of this chapter.
(4)
Five-year plan. All applications shall be accompanied
by a written five-year plan for the utilization of the proposed facilities.
This plan should include justification for capacity in excess of immediate
needs, as well as plans for any further development within the Town
of Copake.
(5)
The applicant shall further demonstrate with written
documentation that it has investigated all available state-of-the
art alternative technologies which might be effectively employed to
provide adequate coverage and/or adequate capacity to the Town of
Copake in lieu of its proposed facility.
The following documents are required in all
applications:
A.
Federal permits. Applicant shall submit copies of
all pertinent submittals and showings pertaining to: FCC permitting/licensing;
environmental assessments and environmental impact statements; FAA
notice of construction or alteration; aeronautical studies; all pertinent
data, assumptions and calculations relating to service coverage; and
all pertinent calculations and/or measurements data related to nonionizing
radiation emissions and exposure, regardless of whether categorical
exemption from routine environmental evaluation under the FCC rules
is claimed.
B.
Surety. Details of proposed method of financial surety as required in §§ 230-7C (Landscaping/Screening), 230-16 (Abandonment), 230-17 (Duty to remove) and 230-18 (Failure to remove) of this chapter.
C.
Commitment to available space. Applicants for new
tower construction or modification permits shall provide a written,
irrevocable commitment, valid for the duration of the existence of
the tower, to rent or lease available space for collocation on the
tower at fair market prices and terms, without discrimination to other
telecommunications providers.
D.
Lease of tower. Applicants for a site plan permit
for a facility to be installed on an existing tower shall provide
a copy of its lease/contract with the owner of the existing structure.
E.
Applications/plans for other facility sites. Applicants
shall submit any applications or plans for other facility sites within
a ten-mile radius of the Town of Copake. Applicants shall submit a
list of existing facility sites within a thirty-mile radius of the
Town of Copake.
F.
Site plans and maps. Physical plant plans, prepared,
stamped and signed by a professional engineer, are required. Survey
plans shall be stamped and signed by a land surveyor licensed in New
York. Signal propagation and radio-frequency studies, plots and related
material shall be prepared, clearly identified and signed by a qualified
radio-frequency engineer. Power density calculations shall be in accordance
with "worst case" formulas in the Office of Engineering and Technology
(FCC Bulletin 65, August 1997). Radial plots shall be in bright colors,
showing clear demarcations between signals strengths. Plans shall
be on twenty-four-inch by thirty-six-inch sheets, on as many sheets
as necessary, and at scales which are no smaller (i.e., no less precise)
than listed below. Each plan sheet shall have a title block indicating
the project title, sheet title, sheet number, date, revision dates,
scale(s), and original seal(s) and signature(s) of the professional(s)
who prepared the plan. Proposed site plans (include five copies) require
the following:
(1)
Location map. Copy of a portion of the most recent
U.S.G.S. Quadrangle Map, at a scale of 1:25:000, and showing the area
within at least two miles from the proposed tower site; indicate the
tower location and the exact latitude and longitude (degrees, minutes,
and seconds to the nearest tenth).
(2)
Vicinity map. At a scale of one inch equals 416 feet
(1:5000) with contour intervals no greater than 10 feet (three meters)
showing the entire vicinity within a radius of 2,500 feet of the tower
site, and including the topography, public and private roads and driveways,
buildings and structures, bodies of water, wetlands, landscape features,
historic and archaeological sites, and habitats for endangered or
threatened species; indicate the property lines of the proposed tower
site parcel and of all abutters to the tower site parcel (from assessors'
maps or available surveys); indicate any access easement or right-of-way
needed for access from a public way to the tower and/or facility site,
and the names of all abutters or property owners along the access
easement or who have deeded rights to the easement; locate all residential
or commercial structures, schools, churches, or public buildings within
1,750 feet of the proposed base of the tower.
(3)
Existing conditions plan. A recent survey of the area
within 500 feet of the tower site at a scale no smaller than one inch
equals 40 feet with topography drawn with a minimum of two-foot contour
intervals, showing existing utilities, property lines, existing buildings
or structures, stone wall or fence lines, wooded areas, existing water
wells and springs, individual trees with diameters greater than 12
inches within a radius of 200 feet from the base of the proposed tower
(labeled with their current heights); show the boundary of any wetlands
or floodplains or watercourses, and of any bodies of water within
500 feet from the tower or any related facilities or accessways, or
appurtenances. The survey must have been completed, on the ground,
by a land surveyor licensed in New York within two years prior to
the application date.
(4)
Proposed site plan. Proposed facility site layout,
grading and utilities at the same scale or larger than the existing
conditions plan (above).
(a)
Proposed tower location and any appurtenances,
including supports and guy wires, if any, and any accessory building
(communication equipment shelter or other); indicate property boundaries
and setback distances to the base(s) of the tower and to the nearest
corners of each of the appurtenant structures to those boundaries,
and dimensions of all proposed improvements. Where protective fencing
is proposed, indicate setback distances from the edge of the fencing.
(b)
Indicate proposed spot elevations at the base
of the proposed tower and at the base of any guy wires, and the corners
of all appurtenant structures.
(c)
Proposed utilities, including distance from
source of power, sizes of service available and required, locations
of any proposed utility or communication lines, and exact locations
of the underground route. Detailed plans for emergency power generation,
including:
[1]
Demonstration of percent of electrical demand
being proposed in event of loss of commercial power.
[2]
Type of fuel, storage method and expected means
and frequency of fuel delivery to the site for power generation.
[3]
Amount of generator time based on historic power
reliability for the area of the facility, proposed frequency and duration
of tests, and description of muffler system and methods for noise
abatement.
[4]
Feasibility of wind and/or solar power in conjunction
with storage batteries.
(d)
Limits of areas where vegetation is to be cleared
or altered, and justification for any such clearing or alteration.
(e)
Any direct or indirect wetlands alteration proposed.
(f)
Detailed plans for drainage of surface and/or
subsurface water; plans to control erosion and sedimentation both
during construction and as a permanent measure.
(g)
Plans indicating locations and specifics of
proposed screening, landscaping, ground cover, fencing, etc.; any
exterior lighting or signs.
(h)
Plans of proposed access driveway or roadway
and parking area at the tower site; include grading, drainage, traveled
width; include a cross section of the access drive indicating the
width, depth of gravel, paving or surface materials.
(i)
Plans showing any changes to be made to an existing
facility's landscaping, screening, fencing, lighting, drainage, wetlands,
grading, driveways or roadways, parking or other infrastructure as
a result of a proposed modification of the facility.
(5)
Proposed tower and appurtenances plan (include five
copies).
(a)
Plans, elevations, sections and details at appropriate
scales, but not smaller than one inch equals 10 feet.
(b)
Two cross sections through proposed towers drawn
at right angles to each other, and showing the ground profiles to
at least 100 feet beyond the limit of clearing, and showing any guy
wires or supports; dimension the proposed height of tower above average
grade at tower base; show all proposed antennas, including their location
on the tower.
(c)
Details of proposed tower foundation, including
cross sections and details; show all ground attachments, specifications
for anchor bolts and other anchoring hardware.
(d)
Detail proposed finish of the tower.
(e)
Indicate relative height of the tower to the
tops of surrounding trees as they currently exist, and the height
to which they are expected to grow in 10 years.
(f)
Illustration of the modular structure of the
proposed tower indicating the heights of sections which could be removed
or added in the future to adapt to changing communications conditions
or demands.
(g)
A professional structural engineer's written
description of the proposed tower structure and its capacity to support
additional antennas or other communications facilities at different
heights and the ability of the tower to be shortened if future communications
facilities no longer require original height.
(h)
A description of available space on the tower,
providing illustrations and examples of the type and number of telecommunications
facilities which could be mounted on the structure.
(6)
Proposed communications equipment shelter plan.
(7)
Proposed equipment plan.
(a)
Plans, elevations, sections and details at appropriate
scale, but no smaller than one inch equals 10 feet.
(b)
Number of antennas and repeaters, as well as
the exact locations of antennas and of all repeaters (if any) located
on a map as well as by degrees, minutes and seconds to the nearest
tenth of latitude and longitude.
(c)
Mounting locations on tower or structure, including
height above ground.
(d)
A recent survey of the facility site at a scale
no smaller than one inch equals 40 feet showing horizontal and radial
distances of antenna(s) to nearest point on property line, and to
the nearest dwelling unit.
(e)
Antenna(s) types, manufacturer(s), model number(s).
(f)
For each antenna, the antenna gain, and antenna
radiation pattern.
(g)
Number of channels per antenna, projected and
maximum.
(h)
Power input to the antenna(s).
(i)
Power output, in normal use and at maximum output
for each antenna and all antennas as an aggregate.
(j)
Output frequency of the transmitter(s).
(k)
For modification of an existing facility with
multiple emitters, the results of an intermodulation study to predict
the interaction of the additional equipment with existing equipment.
(8)
Visibility maps/sight lines.
(a)
A minimum of eight view lines in a zero-to-two
mile radius from the site, shown beginning at true North and continuing
clockwise at forty-five-degree intervals.
(b)
Applicant shall utilize the U.S.G.S. quadrangle
map, at a scale of one inch equals 400 feet, with vertical scale of
one inch equals 40 feet. Trees shall be shown at existing heights
and at projected heights in 10 years.
(c)
A map of the Town of Copake on which any visibility
of the proposed tower from a public way (including all existing public
rights-of-way) shall be indicated.
G.
Balloon tests. Within 35 days of submitting an application,
the applicant shall arrange to fly, or raise upon a temporary mast,
a three-foot-diameter brightly colored balloon at the maximum height
of the tower and within 50 horizontal feet of the center of the proposed
tower. The dates (including a second date, in case of poor visibility
on the initial date), times and location of this balloon test shall
be advertised by the applicant at seven and 14 days in advance of
the first test date. Such notice will be printed in a newspaper with
a general circulation in the Town of Copake such as The Independent
or The Hudson Register Star. The applicant shall inform the Planning
Board, the Town Board, and all abutting property owners, in writing,
of the dates and times of the test, at least 14 days in advance. The
balloon shall be flown for at least four consecutive hours sometime
between 9:00 a.m. and 5:00 p.m. on the dates chosen.
H.
Visual analysis. The applicant shall develop and submit
a written analysis of the visual impact of the proposed tower. This
analysis shall include photographs of the balloon test taken from
at least 10 different perspectives within the Town of Copake.
The Town of Copake Planning Board and the Zoning
Enforcement Officer, with the approval of the Town Board, shall have
authority over the hiring of independent engineers to enforce monitoring
and compliance with this section.
A.
Monitoring protocol. The Planning Board will consult
with an independent engineer regarding the choice of a monitoring
protocol to be used. This may include the Cobbs Protocol, the FCC
OET Bulletin 65, Edition 97-01, August 1997, referenced in FCC Regulations,
Title 47, Part 1, Section 1.1307 as IEEE C95.3 1991, or any other
protocol that the Planning Board adopts as the technology changes.
The same protocol will be used from year to year until such time as
new protocols are developed.
B.
Pre-testing. After the granting of a special permit
and before the facility begins transmission, the applicant shall pay
for an independent consultant RF engineer, chosen and hired by the
Planning Board, to monitor the background levels of EMF radiation
around the proposed facility site and at appropriate distances from
it, and/or at any repeater locations to be utilized for the applicant's
wireless facilities. The independent consultant shall use the specified
monitoring protocol. A report of the monitoring results shall be prepared
by the independent consultant and submitted to the Town Board, the
Planning Board, the Building Inspector, and the Town Clerk.
C.
Post-testing. Within 30 days after transmission begins,
the owner(s) of any wireless services located on the tower/facility
site shall pay for an independent consultant RF engineer, chosen and
hired by the Planning Board, to conduct testing and monitoring of
EMF radiation emitted from said site, and to report results of said
monitoring as follows:
(1)
There shall be routine annual monitoring of emissions
by the independent RF engineer using actual field measurements of
radiation, utilizing the monitoring protocol. This monitoring shall
measure levels of EMF radiation from the facility site's primary antennas
as well as from repeaters (if any). A report of the monitoring results
shall be prepared by the RF engineer and submitted to the Town Board,
the Planning Board, the Building Inspector, and the Town Clerk.
(2)
Any major modification of an existing facility, or
the activation of any additional permitted channels, shall require
new monitoring.
D.
Excessive emissions. Should the monitoring of a facility site reveal that the site exceeds the current FCC standards and guidelines, then the owner(s) of all facilities utilizing the site shall be notified. In accordance with FCC requirements, the owner(s) must immediately reduce power or cease operation as necessary to protect persons having access to the site, tower, or antennas. In addition, the owner(s) shall submit to the Planning Board and the Building Inspector an analysis of what caused the problem and a plan for the reduction of emissions to a level that complies with the FCC standards within 10 business days of noncompliance. Failure to accomplish this reduction of emissions within 15 business days of initial notification of noncompliance shall be a violation of this chapter subject to fines and such other remedies as are otherwise available to the Town, pursuant to § 230-19 hereafter. Such fines shall be payable by those providers with antennas on the facility site, until compliance is achieved.
E.
Structural inspection. Tower owner(s) shall pay for
an independent consultant, a licensed structural engineer chosen and
hired by the Planning Board, to conduct inspections of the tower's
structural integrity and safety. Guyed towers shall be inspected every
three years. Monopoles and non-guyed lattice towers shall be inspected
every five years. A report of the inspection results shall be prepared
by the independent consultant and submitted to the Town Board, the
Planning Board, the Building Inspector, and the Town Clerk. Any major
modification of an existing facility which includes changes to the
tower dimensions or antenna numbers or type shall require a new structural
inspection.
F.
Unsafe structure. Should the inspection of any tower reveal any structural defect(s) which, in the opinion of the independent consultant, renders that tower unsafe, the following actions must be taken: within 10 business days of notification of unsafe structure, the owner(s) of the tower shall submit a plan to remediate the structural defect(s). This plan shall be submitted within 10 business days of the submission of the remediation plan, and completed as soon as reasonably possible. Failure to accomplish this remediation of structural defect(s) within 10 business days of initial notification shall be a violation of this chapter subject to fines and such other remedies as are available to the Town, pursuant to § 230-19 hereafter. Such fines shall be payable by the owner(s) of the tower until compliance is achieved.
G.
Public safety and welfare review. For the purpose
of ensuring the continued public safety and welfare, the applicant/provider
shall comply with the following post-approval provisions for the site
plan:
(1)
No changes shall be made to the approved site plan
without an application for the same having been made to and approved
by the Town Planning Board.
(2)
On or before the fifth anniversary date of the issuance
of the site plan permit, the applicant/provider shall submit a certification
to the Town Planning Board that there has been no change, or unapproved
change, to the site plan for which the permit was issued. Included
with the five-year certification from the applicant/provider will
be the following:
(a)
A set of currently dated site plan maps showing
the site plan in its "as built" condition, which plans shall be stamped
and signed by a land surveyor licensed in the State of New York.
(b)
Signal propagation and radio frequency studies,
plots and related material for the site signed by a qualified radio-frequency
engineer. Power density calculations shall be in accordance with "worse
case" formulas of the Office of Engineering and Technology (FCC Bulletin
65, August 1997). Radial plots shall be in bright colors, shall be
clear demarcations between signal strengths.
(c)
A description of the existing usage of the tower
and a description of the type and number of telecommunications facilities
which can still be mounted on the existing tower structure.
(d)
A description of each antenna type, manufacturer,
and model number mounted on the tower.
(e)
For each such antenna, the antenna game and
antenna radiation pattern.
(f)
The number of channels per antenna.
(g)
The power input to the antennas.
(h)
The power output in normal use and at maximum
output for each antenna and all antennas as an aggregate.
(i)
Output frequency of the transmitters.
(j)
Copies of all required insurance policies and
bonds, including performance bonds, surety bonds, and demolition bonds,
as required by the original site plan permit.
(3)
The applicant shall pay for an independent consulting
radio-frequency engineer chosen and hired by the Planning Board to
review the materials submitted by the applicant, including a review
of the background levels of EMF radiation around the facility and
at appropriate distances from it and/or any repeater locations utilized
in connection with the applicant's wireless facilities.
Licensed carriers shall share facilities and
sites with other licensed carriers where feasible, thereby reducing
the number of stand-alone facilities. The conversion of a single-use
facility to a collocation shall be considered a modification. The
Planning Board may require as a condition of approval of the site
plan that the tower/facility owner(s) dedicate a space on the facility
for the Town of Copake's municipal emergency services for public health
and safety purposes. Any such dedications and/or improvements to existing
emergency services will be negotiated prior to approval of the site
plan permit.
A.
Separation distances between communications towers
shall be applicable for and measured between the proposed tower and
those towers that are existing and/or have received site plan approval.
The separation distances shall be measured by drawing a straight line
between the base of the existing tower and the base of the proposed
tower pursuant to the site plan. The separation distance (listed in
linear feet) shall be as follows:
|
Type of Tower
|
Separation Distance
(linear feet)
| |
|---|---|---|
|
Lattice
|
5,000
| |
|
Guyed
|
5,000
| |
|
Monopole
| ||
|
150 feet high
|
3,500
| |
|
80 to 150 feet high
|
2,500
| |
|
Less than 80 feet high
|
500
| |
B.
The separation distances listed above may be modified
by the Planning Board depending on other site criteria in collocations.
A.
NEPA applies to all applications for wireless communications
facilities. NEPA is administered by the FCC via procedures adopted
as Subpart 1, Section 1.1301 et seq. (47CRF Chl). The FCC requires
that an environmental assessment (EA) be filed with the FCC prior
to beginning operations for any wireless communications facility proposed
in, or involving, any of the following:
B.
At the time of application, an environmental assessment
that meets FCC requirements shall be submitted to the Planning Board
for each regulated facility site that requires such an environmental
assessment to be submitted to the FCC. At the time of the application,
the applicant shall also submit a long-form environmental assessment
form under the provisions of the New York State Environmental Quality
Review Act.
C.
The applicant will also list the location, type, and
amount (including tract elements) of any materials proposed for use
within the facility that are considered hazardous by federal, state,
or local governments.
A.
Application fees. Upon submission of a signed application that meets all of the criteria herein described, including all supporting documents and maps, an application fee shall be submitted to the Town of Copake in the amount of $2,500, which fee shall be in addition to the independent consultant's fees incurred by the Town and/or the Town Planning Board and as provided for under this Chapter 230 of the Town Code.
B.
Financial surety. As a condition of approval of a site plan, the applicant shall provide a separate demolition bond in an amount determined and approved by the Planning Board. The bond shall be for a duration, and in a form and manner of surety as determined by the Planning Board, with provision for inspection and Town removal of facilities in the event of failure to perform by the responsible parties as defined in § 230-17 (Duty to remove).
C.
Performance bonds. The Planning Board will require
additional performance bonding, payable at the time of application,
as deemed necessary to protect facility building site(s) during construction;
and to hire independent consultants/engineers to review applications
and monitor facilities.
D.
Independent consultants fees. At the time of application,
the Planning Board may require a separate escrow fund, in an amount
to be determined, to cover independent consultants' fees.
A.
Insurance. The Planning Board shall not authorize
a tower site or facility by any telecommunications service provider
until and unless the Planning Board obtains assurance that such operator
(and those acting on its behalf) have adequate insurance as determined
by the Planning Board. At a minimum, the following insurance requirements
shall be satisfied:
(1)
A telecommunications facility operator shall not commence
construction or operation of the facility without obtaining all insurance
required under this section and approval of such insurance by the
Planning Board, nor shall a telecommunications facility operator allow
any contractor or subcontractor to commence work on its contract until
all similar such insurance required of the same has been obtained
and approved by the Planning Board. The required insurance must be
obtained and maintained for the entire period the telecommunications
facility is in existence. If the operator, its contractors or subcontractors
do not have the required insurance, the Town will order such entities
to cease operation of the facility until such insurance is obtained
and approved by the Planning Board.
(2)
Certificate(s) of insurance verifying such insurance
shall be filed with the Planning Board at the time of application.
For entities that are entering the market, the certificate(s) shall
be filed prior to the commencement of construction and once a year
thereafter, and as provided below in the event of a lapse of coverage.
Such certificate(s) should provide the name, address and phone number
of the insurance carrier; and identify an agent in case of inquiries.
(3)
The certificate(s) of insurance shall contain a provision
that coverages afforded under such policies shall not be canceled
until at least 30 days' prior written notice has been given to the
Town. All insurance policies shall be issued by companies authorized
to do business under the laws of the State of New York.
(4)
Where applicable, in the event that the insurance
certificate(s) provided indicates that the insurance will terminate
or lapse during the term of the lease agreement with the Town, then
in that event the telecommunications facility(s) operator shall furnish
a renewed certificate of insurance as proof that equal and like coverage
remains in effect for the balance of the lease term, at least 30 days'
prior to the expiration of the date of such insurance.
(5)
A telecommunications facility operator and its contractors
or subcontractors engaged in work on the operator's behalf shall maintain
minimum insurance in the amounts determined by the Planning Board
to cover liability, bodily injury, and property damage. The insurance
shall cover, but not be limited to, the following exposures: premises,
operations, and certain contracts. Such coverage shall be written
on an occurrence basis and shall also be required under any lease
agreement between the Town and the telecommunications facility operator.
B.
Indemnification. The Planning Board shall not authorize
tower siting by a telecommunications service provider until and unless
the Planning Board obtains an adequate indemnification from such provider.
This indemnification must at least:
(1)
Release the Town of Copake from, and against, any
and all liability and responsibility in or arising out of the construction,
operation, or repair of the telecommunications facility. Each telecommunications
facility operator must further agree not to sue or seek any monies
or damages from the Town in connection with the above mentioned matter.
(2)
Indemnify and hold harmless the Town of Copake, its
elected and appointed officers, agents, servants, and employees, from
and against any and all claims, demands, or causes of action of whatsoever
kind or nature, and the resulting losses, costs, expenses, reasonable
attorney's fees, liabilities, damages, orders, judgments or decrees,
sustained by the Town or any third party arising out of, or by any
reason of, or resulting from, or out of each telecommunications facility(s)
operator's, agent's, employee's, or servant's negligent acts, errors,
or omissions.
(3)
Provide that the covenants and representations relating
to the indemnification provision shall survive the term of any agreement
and continue in force and effect as to the responsibility of the party
to indemnify.
Any telecommunications facility which ceases to operate for six consecutive months shall be deemed to be abandoned and removed within 90 days. "Cease to operate" is defined as not performing the normal functions associated with a telecommunications facility and its equipment on a continuous and on-going basis for a period of six consecutive months. Determination of the date of abandonment shall be made by the Zoning Enforcement Officer who shall have the right to request documentation and/or affidavits from the telecommunications tower owner/operator/service provider(s) regarding the subject of tower usage. Failure or refusal for any reason by the owner/operator/service provider(s) to respond within 20 days to such a request shall constitute prima facie evidence that the communications tower has been abandoned. Upon a determination of abandonment and notice thereof to the owner/operator/service provider(s), the owner(s) and all others listed as responsible parties in § 230-17 (below) shall remove the tower and all facilities, and remediate the site within 90 days. At the time of removal, the facility site shall be remediated such that all telecommunications facility improvements which have ceased to be utilized are removed. If all facilities on a tower have ceased to operate, the tower shall also be removed, and the site shall be revegetated. Existing trees shall only be removed if necessary to complete the required removal. Applicant shall, as a condition of the site plan permit, provide a financial surety bond payable to the Town of Copake and acceptable to the Planning Board to cover the cost of removal of the telecommunications facility, and the remediation of the landscape, should the facility cease to operate. (See § 230-14, Fee Schedule/Banding.)
The following are considered jointly and severally
to be the responsible parties for tower/facility removal and site
remediation:
A.
The owner of the abandoned tower (and, if different,
the operator of the abandoned tower).
B.
The owner of the land upon which the abandoned tower
is located.
C.
The lessee, if any, of the land upon which the tower
is located.
D.
The sublessee or sublessees, if any, of the land upon
which the tower is located.
E.
Any communications service provider who, or which,
by ceasing to utilize the tower or otherwise failing to operate any
of its transmitters or antennas on the tower for which it leased space
or purchased the right to space on the tower for its transmitters
or antennas, and by such ceasing or failure to utilize the tower,
in fact caused the tower to become abandoned.
F.
Any person to whom, or entity to which, there has
been transferred or assigned any license issued by the FCC and under
which the tower owner/operator operated the tower/facility.
G.
Any person or entity which has purchased all or a
substantial portion of the assets of the tower owner/operator/service
provider(s).
H.
Any entity which has merged with, or which has arisen
or resulted from a merger with, the tower owner or operator or service
provider(s).
I.
Any person or entity which acquired the owner or the
operator of the abandoned tower.
J.
Any parent or subsidiary of any of the foregoing which
happens to be a corporation.
K.
Any managing partner of any of the foregoing which
happens to be a limited partnership.
L.
Any partner of any of the foregoing which happens
to be a general partnership.
In the event that the responsible parties have
failed to remove the tower and/or restore the facility site within
90 days, the Town of Copake may remove the tower and restore the site
using the surety bonds deposited at the time of application, and may
thereafter initiate judicial proceedings against the responsible parties
for any portion of the cost not covered by the surety bond.
[Amended 7-12-2007 by L.L. No. 3-2007]
A.
Any person or other legal entity who fails to comply
with or who violates this chapter or who shall refuse a reasonable
request to inspect any premises or who shall have aided or abetted
the commission of any such violation shall each be guilty of a separate
offense and, upon conviction thereof, shall be subject to a fine of
not more than $250 or imprisonment for a term of not more than 15
days, or both. Each day after notice that a violation continues shall
be deemed a separate offense. In addition, a civil penalty of $100
per day may be assessed for any such violation, which civil penalty
shall be recovered by the Town of Copake in a civil action.
B.
Except as provided otherwise by law, such a violation
shall not be a crime, and the penalty or punishment imposed therefor
shall not be deemed for any purpose a penal or criminal penalty or
punishment and shall not impose any disability upon or affect or impair
the credibility as a witness, or otherwise, of any person found guilty
of such an offense.
C.
Appropriate actions and proceedings may be taken at
law or in equity to prevent or remedy unlawful violations or infractions
of any portion of this chapter, and these remedies shall be in addition
to penalties otherwise prescribed by law.
D.
Nothing contained in this section shall be deemed
to prohibit any other appropriate civil action or proceeding instituted
or taken to prevent the unlawful erection, construction, reconstruction,
alteration, repair, conversion, or use of a telecommunications site
or facility or to restrain, correct, or abate such violation, or to
prevent the illegal use of such site or facility.
The invalidity of any section or provision of
this chapter shall not invalidate any other section or provision hereof.
