Village of Nyack, NY Article III Use Regulations

§ 360-3.1 Table of permitted uses.

Table 3-1, below, lists the principal and accessory uses allowed within all base zoning districts.[1] Each of the listed uses is defined in Article VI, Definitions.

A. Explanation of table abbreviations.

(1) Permitted uses. "P" in a cell indicates that the use is allowed by right, without special conditions other than those imposed upon other uses by right in the district. Permitted uses are subject to all other applicable regulations of this chapter, including the use-specific standards set forth in this article.

(2) Special permit uses. "S" in a cell indicates that, in the respective zoning district, the use is allowed only if reviewed and approved as a special permit use in accordance with the procedures of § 360-5.9. Special permit uses are subject to all other applicable regulations of this Code, including the use-specific standards set forth in this article. Both principal and accessory uses may be special permit uses.

(3) Accessory uses. "A" in a cell indicates that the use is allowed as an accessory use to a permitted use in the zoning district. Accessory uses are subject to all other applicable regulations of this chapter, including the use-specific standards set forth in the article. They may be permitted by right or require special permit review.

(4) Prohibited uses. A dash (-) indicates that the use is prohibited in the respective zoning district.

(5) Use-specific standards. Regardless of whether a use is allowed by right or permitted as a special permit use, there may be additional standards that are applicable to the use. Use-specific standards are noted through a cross-reference in the last column of the table. Cross-references refer to § 360-3.2, Use-specific standards. These standards apply in all districts unless otherwise specified.

B. Table organization. The tables in Appendix A[2] classify land uses and activities into general "use groups" and more specific "use types" based on common functional or physical characteristics, such as the type and amount of activity, the type of customers or residents, how goods or services are sold or delivered and site conditions. This classification provides a systematic basis for assigning present and future land uses into appropriate zoning districts. This classification does not list every use or activity that may appropriately exist within the categories, and specific uses may be listed in one category when they may reasonably have been listed in one or more other categories. The categories are intended merely as an indexing tool and are not regulatory.

[2] Editor's Note: The Table of Permitted Uses, which is located at the end of this chapter.

C. Classification of new and unlisted uses. Any uses not specifically permitted shall be deemed to be prohibited. Any list of prohibited uses contained in any section of this chapter shall be deemed to be not an exhaustive list, but to have been included for the purposes of clarity and emphasis, and to illustrate by example some of the uses frequently proposed that are deemed undesirable and incompatible in the particular district. Nonetheless, new land use types will develop and forms of land use not anticipated may seek to locate in the Village. In order to provide for such situations, a determination as to the appropriate classification of any new or unlisted form of land use shall be made. When application is made for a use type that is not specifically listed in Table 3-1, the procedure set forth below shall be followed.

(1) The Building Inspector shall provide an interpretation as to the use category and type into which such use should be placed. In making such interpretation, the Building Inspector shall consider its potential impacts, including but not limited to: the nature of the use and whether it involves dwelling activity; sales; processing; type of product, storage and amount, and nature thereof; enclosed or open storage; anticipated employment; transportation requirements; the amount of noise, odor, fumes, dust, toxic material and vibration likely to be generated; and the general requirements for public utilities such as water and sanitary sewer.

(2) Standards for new and unlisted uses may be interpreted as those of a similar use.

(3) Appeal of the Building Inspector's decision shall be made to the Zoning Board of Appeals following procedures under § 360-5.19.

[1] Editor's Note: The Table of Permitted Uses is located at the end of this chapter.

§ 360-3.2 Use-specific standards.

Regardless of whether a use is permitted by right, as a special permit use, or as an accessory use, and regardless of the zoning district in which the use is located, the following additional standards must be met in respect of the uses identified, except as authorized by other sections of this chapter. Conformance with these standards will be determined during the application review by the final decisionmaking body.

A. Residential.

[Amended 6-29-2023 by L.L. No. 3-2023]

(1) Mixed use.

(a) Access to any individual residential/dwelling units above the street level must be provided from an enclosed lobby or corridor and stairwell, and must not pass through the use located on the first floor of the building. Unenclosed or partially enclosed exterior stairwells are prohibited.

(b) The minimum habitable floor area in an efficiency residential/dwelling unit shall be 450 square feet, and 600 square feet for a one-bedroom residential/dwelling unit.

(c) For adaptive reuse projects, AOSP shall not be required for the first four residential/dwelling units in the DMU-1 zoning district.

(1A) Adaptive reuse.

(a) Adaptive reuse projects are allowed by special permit use from the Village Planning Board in the DMU-I Zoning District and from the Village Board of Trustees in the M Zoning District. For purposes of adaptive reuse projects, retirement homes, nursing homes and assisted living facilities shall be considered residential uses.

[Amended 11-14-2024 by L.L. No. 14-2024]

(b) The minimum habitable floor area in an efficiency residential/dwelling unit shall be 450 square feet, and 600 square feet for a one-bedroom residential/dwelling unit.

(c) Notwithstanding the conflicting provisions of § 360-1.9, the following exceptions shall apply to the buildings in which adaptive reuse projects are proposed:

[1] Height. The height of the structure, if it exceeds the maximum height of the zoning district, may remain and shall be considered legal.

[2] Floor area. Existing floor area, if it exceeds the maximum FAR permitted by the zoning district, may remain and be considered legal.

[3] Setbacks - yards. Existing principal structures and uses with nonconforming setbacks may remain and shall be considered legal.

[Amended 11-14-2024 by L.L. No. 14-2024]

[4] Accessory off-street parking (AOSP) spaces. New AOSP spaces shall not be required for any commercial portion of an adaptive reuse project; however, the quantity and dimensions of existing AOSP spaces must be maintained and not reduced. New (not previously existing) floor area in residential uses shall be required to provide AOSP according to Table 4-2, entitled "Minimum Parking Requirements," appended to this chapter as 360 Attachment 3 ("Table 4-2"). Notwithstanding the previous sentence, the AOSP requirements shall not apply to the first four residential/dwelling units in the DMU-1 zoning district for an adaptive reuse project in either or both of the following two scenarios:

[a] The new proposed units resulting from a conversion from an existing different use are located within the existing building; and

[b] The units are proposed to be located as newly constructed additional space above an existing building.

[5] Loading space. A new loading zone shall not be required if the existing building does not have an existing loading zone.

(2) Group home. In furtherance of the policy of the State of New York to deinstitutionalize those persons who cannot be cared for in their natural homes by placing them in small, dispersed group homes which are designed to give an outwardly similar appearance to other one-family dwellings, the following regulations shall apply:

(a) Said home shall be operated or sponsored by a public social service agency or nonprofit agency, authorized by the New York State Department of Social Services.

(b) Said home shall have a maximum occupancy of six persons, excluding full-time sleep-in personnel.

(c) Said home shall be set up in size, appearance and structure to bear the general character of a family unit in a relatively permanent household. As such it shall not permit transients or transient living.

(d) Said home shall conform to and shall be maintained in accordance with the overall character and appearance of the surrounding neighborhood. No sign that advertises the use or occupancy of said home shall be erected.

(e) Any applicant for a special permit for an agency group home shall submit the following information to the Zoning Board of Appeals:

[1] The governmental authorization to operate said facility.

[2] A complete statement of the proposed number, age and permanency of residence of the persons to be cared for, and the number and qualifications of both resident and nonresident adult supervisory personnel.

[3] Proof of licensure.

(f) Any change in the operation that requires a change of licensure of any approved group home shall be subject to a complete new application for a special permit, in accordance with the same standards and procedures as required for the original application.

(3) Retirement home, nursing home or assisted-living facility.

(a) The number of residents living within a facility at any one time (including live-in staff) shall not exceed one person per 400 square feet of living area.

(b) A minimum of 30% of the site shall remain as an open planted area, landscaped area, natural vegetation area or usable yard, to exclude buildings, driveways, parking areas, sidewalk, etc.

(c) All dimensional standards of the underlying zoning district shall apply.

(d) The operator of a retirement home, a nursing home or an assisted living facility ("facility") shall retain, hire or contractually engage, continuously and without interruption, ambulance or ambulette services for the purpose of serving the residents of the facility, which ambulance or ambulette services shall be available to the residents 24 hours per day and seven days per week; and which ambulance or ambulette services shall be procured by, and at the sole cost and expense of, the operator of the facility. Upon request by the Village Building Inspector or Village Administrator ("Village official"), the operator of the facility shall promptly provide to the requesting Village official sufficient documentation that will enable the Village official to verify that the operator of the facility has complied with this requirement. Nothing herein shall be deemed to preclude the residents of a facility from using any public or governmental emergency service provider.

[Added 11-14-2024 by L.L. No. 14-2024]

(4) Day-care center, child or nursery school.

(a) The number of children being served within a facility at any one time (including staff) shall not exceed one person per 300 square feet of living area.

(b) A minimum of 30% of the site shall remain as an open planted area, landscaped area, natural vegetation area or usable yard, to exclude buildings, driveways, parking areas, sidewalk, etc.

(c) All dimensional standards of the underlying zoning district shall apply.

(d) Bus transportation to the facility shall not be permitted.

B. Commercial uses.

(1) Adult uses.

(a) No business or person shall construct, establish or be issued a certificate of occupancy for any adult entertainment use within the Village of Nyack unless he has applied for and obtained a special permit from the Zoning Board of Appeals. To receive such a special permit, the applicant must satisfy the following criteria:

[1] No more than one of the adult entertainment uses as defined in § 360-6.1 shall be located on any lot.

[2] No adult entertainment use shall be established or permitted in any building of which any part is used for residential purposes.

[3] No residential use shall be established in a building of which any part is used as an adult entertainment use.

[4] No adult entertainment use shall be established closer than 500 feet to any lot line of any other adult entertainment use.

[5] No adult entertainment use shall be established closer than 200 feet to the lot line of any residential district, which shall include any zoning district that permits residential use.

[6] No adult entertainment use shall be established closer than 200 feet to the lot line of any church, community center, funeral home, school, day-care center, hospital, alcoholism center or drug treatment center, counseling or psychiatric treatment facility or public park.

[7] An adult motion-picture theater established as an adult entertainment use within the Village of Nyack, which adult motion-picture theater proposes to provide video booths for the purpose of presenting materials distinguished or characterized by an emphasis on matter depicting, describing or relating to sexual activities or sexual anatomical areas for observation by its patrons, shall be well lighted at all times and shall be physically arranged in such a manner that the entire interior portion of the booths, cubicles, rooms or stalls wherein the adult entertainment is provided shall be clearly visible from the common areas of the premises. Visibility into such booths, cubicles, rooms or stalls shall not be blocked or obscured by doors, curtains, partitions, drapes or by any other obstruction whatsoever.

(b) The applicant must meet all other regulations of the Village of Nyack, including but not limited to district lot and bulk regulations, parking regulations and signage requirements. For purposes of this chapter, an "adult bookstore" shall be deemed "retail sales."

(2) Animal hospital and kennel. Any outdoor facilities, including outdoor dog runs and animal exercise areas, shall be set back at least 100 feet from any lot line and at least 500 feet from the boundary of any zoning district allowing residential uses. Overnight boarding facilities must be located completely indoors.

(3) Bed-and-breakfast. Bed-and-breakfasts shall:

(a) Be owner-occupied, with the subject property serving as the primary dwelling for the owner-operator;

(b) Be located within a structure that is permitted within the district in which it is located;

(c) Be limited to a maximum of six guest rooms;

(d) Not include cooking facilities in guest rooms, including but not limited to stoves, grills or ovens.

(e) Limit meal service to breakfast for paying overnight guests;

(f) Limit exterior alterations to those necessary to assure safety of the structure or enhance compatibility of the bed-and-breakfast with the surrounding neighborhood; and

(g) Limit advertising signage to one on-site sign a maximum of nine square feet in area.

(4) Hotel or motel. Hotels or motels providing more than 100 guest rooms shall include recreational facilities on site such as swimming pools, gymnasiums and other typical health club facilities, and open space recreation areas.

(5) Parking — surface lot (principal use). Off-street parking as a principal use shall meet the following standards:

(a) No other business of any kind shall be conducted on the lot, including repair service, washing, display or storage of vehicles or other goods;

(b) Comply with all applicable standards for landscaping and parking lot design in § 360-4.5K.

(6) Parking-structured. Parking structures shall meet the following standards:

(a) Indoor parking facilities shall generally be integrated within the principal building or constructed as a separate structure behind the principal building.

(b) Facade openings shall be screened so that light and vehicles are not visible from public streets. Openings facing a public street shall not expose vehicle ramps, and the floors fronting on street-facing facades must be level.

(c) A parking garage may front on a public street when it has been designed to include a first floor retail wrap meeting the following standards:

[1] The wrap faces on all streets, except alleys, for the entire length of the building, except for those places necessary to provide ingress and egress into the parking areas;

[2] The depth of the retail wrap is a minimum of 25 feet; and

[3] The space is used for retail, restaurant, municipal or other pedestrian-oriented uses permitted in the zoning district.

(7) Restaurant, take-out restaurant, bar or tavern and fast-food establishment.

(a) Drive-in or drive-thru facilities are prohibited, except as a special permit use in the CC District in accordance with the additional standards of § 360-3.2E(2).

(b) No bar or tavern may be located within 200 feet of the following use types: parks, secondary or elementary schools, community centers and places of worship. The distance shall be measured from the each and every corner of the building housing the bar or tavern to the property line of the above-listed use types.

(8) Retail sales and service. In the RMU District, no individual retail sales or service use shall exceed 5,000 square feet in floor area.

(9) Vehicle related uses — general and intense. Vehicle lifts or pits, dismantled or disabled automobiles and all parts or supplies shall be located within a building enclosed on all sides. Additionally, all service or repair of motor vehicles, other than such minor servicing as change of tires or sale of gasoline or oil, shall be conducted in a building fully enclosed on all sides. This requirement shall not be construed to mean that the doors to any repair shop must be kept closed at all times.

(10) Waterfront facilities. Boat storage for waterfront facilities shall not exceed 25 feet in height, except for masts and standard rigging.

(11) Adult-use retail dispensary.

[Added 10-13-2022 by L.L. No. 9-2022]

(a) An adult-use retail dispensary shall be allowed in i) the Corridor Commercial (CC) Zoning District with frontage along an arterial road as defined by the New York State Department of Transportation, and ii) in the Downtown Mixed Use-1 (DMU-1) Zoning District, and in the Downtown Mixed Use-2 (DMU-2) Zoning District, with frontage along Main Street, North Broadway, South Broadway, or South Franklin Street, as applicable, subject to siting approval by a special use permit from the Village of Nyack Planning Board.

[Amended 9-26-2024 by L.L. No. 9-2024]

(b) The applicant shall submit proof of licensure by the permitting authority.

(c) No building or structure associated with an adult-use retail dispensary shall be located within 500 feet of any school property (including any property owned or leased by a public-school board), or within 200 feet of a house of worship.

(d) All adult-use retail dispensaries shall limit their hours of operation from 8:00 a.m. to 10:00 p.m., Monday through Saturday.

(e) Any adult-use retail dispensary must be located in a permanent, enclosed building, and shall not include a drive-up use. Siting of an adult-use retail dispensary must also comply with any limitations as to location set forth in New York State law governing the same.

(f) Marijuana plants, products, accessories, and associated paraphernalia shall not be visible from a public sidewalk, public street or right-of-way, or any other public place. On-site storage of usable marijuana shall be secured in compliance with applicable federal, state and local laws and regulations.

(g) The adult-use retail dispensary must provide for secure disposal of marijuana remnants or by-products; such remnants or by-products shall not be placed within the business' exterior refuse containers.

(h) The adult-use retail dispensary shall be ventilated so that the odor of marijuana cannot be detected by a person with a normal sense of smell at the exterior of the recreational marijuana business or at any adjoining use or property.

(i) The premises shall have in operation a security system approved by the Orangetown Police Department, including alarms and surveillance cameras designed to notify law enforcement officers that a crime or disorderly person's activity is in progress. The management of the retail dispensary must maintain camera surveillance data backup and retain such data for a minimum of 60 days.

(j) The Police Department shall be provided the name and phone number of a contact person to notify regarding suspicious activity during or after operating hours. A burglarproof drop safe that regulates an employee's access to cash shall be used on the premises.

(k) The exterior portion of an adult-use retail dispensary including parking areas, shall be well lit during business hours. Said lighting shall be designed so as to not unduly interfere with any neighbor's reasonable use and/or enjoyment of the property and shall comply with the Village of Nyack's lighting standards per § 360-4.10.

(l) Smoking, as defined in § 1399-N Subdivision 8 and 9 of the New York State Public Health Law (including but not limited to smoking cannabis and vaping), shall be prohibited within 50 feet of the exterior boundary of the lot on which a retail dispensary is located.

(m) The invalidity or unenforceability of any section, subsection, paragraph, sentence, clause, provision, or phrase of the aforementioned sections, as declared by the valid judgment of any court of competent jurisdiction to be unconstitutional, shall not affect the validity or enforceability of any other section, subsection, paragraph, sentence, clause, provision, or phrase, which shall remain in full force and effect.

(12) Rooftop dining in the Manufacturing District (M Zoning District). All rooftop dining areas in the M Zoning District shall be an accessory use, permitted only as a special permit Use that has been reviewed, and approved, by the Village Planning Board; and shall comply with the following standards and satisfy the following requirements:

[Added 12-14-2023 by L.L. No. 6-2023]

(a) Rooftop dining areas shall provide a food menu to customers, and shall be equipped to serve food; but this shall not be interpreted to prohibit serving customers only beverages to those customers who choose not to purchase any food.

(b) Hours of operation shall be limited to no later than 11:59 p.m. on Fridays, Saturdays and days preceding federal and/or New York State holidays, and 10:00 p.m., Sunday through Thursday.

(c) To the extent feasible, as determined by the Village Planning Board, any lighting fixtures shall be compliant with the applicable standards of DarkSky International, and designed to effectively eliminate glare and sharply cut off lighting levels at the property line. Lighting for safety purposes shall be permitted above the railing level. All lighting associated with the rooftop must be turned off when the rooftop area is not in use.

(d) Rooftop dining areas shall comply with all applicable noise regulations prescribed in the Code of the Village of Nyack (Village).

(e) Screening shall be provided with landscaping and/or a fence, trellis or overhead pergola, and/or other screening to be reviewed and approved by the Village Planning Board based on the specific site circumstances.

(f) Rooftop dining areas shall provide permanent barriers, walls and/or fencing around the periphery of the dining area, at a minimum height of 54 inches, so as to ensure the safety of persons and property.

(g) The design, operation and use of the rooftop dining seating area shall be approved, and certified with a signature and seal, by a qualified and New York State licensed professional engineer, which professional engineer shall certify that the rooftop is capable of the live load to be utilized by the establishment and the design of the load.

(h) The playing, performing, broadcasting, presenting or operating of any device, instrument, machine, appliance, apparatus or mechanism that produces, creates, generates, transmits, makes, broadcasts, airs or emits music, or sound of any kind, shall be subject to the regulations and proscriptions of Chapter 238, Noise, of the Code of the Village of Nyack.

(i) Rooftop dining shall not be considered a story for purposes of measuring or determining the height of a building or structure under this Chapter 360, Zoning.

(13) Veterinary offices. Veterinary offices shall comply with the following standards and satisfy the following requirements:

[Added 5-23-2024 by L.L. No. 2-2024]

(a) There shall be no on- site cremation services.

(b) Overnight boarding or stays are prohibited.

(c) An employee shall always be present on-site while animals are on-site.

(d) Operating hours shall be limited to 8:00 a.m. through 8:00 p.m., except for one day per week, the operating hours may be 8:00 a.m. through 10:00 p.m.

(e) Only small animals, as defined by the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS), shall be examined, treated or given medical care.

(f) The veterinary office shall comply with all applicable county, state and federal standards on radiographs and biohazards, and with all other applicable veterinary regulations.

C. Public and institutional uses.

(1) Clubhouse, community center and place of worship. The Village shall have the authority to grant modifications to any of the standards listed in this section in order to eliminate a substantial burden on religious exercise as guaranteed by the federal Religious Land Use and Institutionalized Persons Act of 2000 (42 U.S.C. § 2000), as amended. In granting such a modification, the Village may require conditions consistent with the federal act that will secure substantially the objectives of the modified standard and that will substantially mitigate any potential adverse impact on the environment or on adjacent properties.

(2) Day-care center, child and nursery school; day-care center, adult. A day-care center provided as an accessory use shall comply with these standards. A day-care center or nursery school associated with and located on the same parcel as a place of worship shall be considered a second principal use and requires approval as such. Day-care centers shall comply with the following standards:

(a) Licensed or authorized by the State of New York.

(b) If allowed as an accessory use to a permitted commercial use, the day-care use shall not exceed 20% of the floor area of the principal use.

(c) In addition, child day-care centers and nursery schools shall provide an outdoor play area meeting the following additional standards:

[1] Include a fence at least 3 1/2 feet in height that completely encloses the play area, that is designed so all persons entering the play area are within direct line of sight from the classroom areas;

[2] Not locate play equipment within the required yard or setback of any district;

[3] Be safely segregated from parking, loading or service areas; and

[4] Not conduct outdoor play activities before 8:00 a.m. or after 8:00 p.m.

(3) School — elementary and/or secondary. A school associated with and located on the same parcel as a place of worship or other principal use shall be considered a second principal use and requires approval as such.

(a) The site shall meet the minimum standards established by the State Department of Education.

(b) In the case of private or parochial schools, these standards shall be used as guides, but if the site is below the state standards, the nonpublic schools will be reviewed as a special permit use.

(4) School — specialized. A school associated with and located on the same parcel as a place of worship or other principal use shall be considered a second principal use and requires approval as such.

(5) Not-for-profit ambulance facilities. Not-for-profit ambulance facilities are structures housing a facility dedicated to providing off-site emergency medical service and administering emergency care to those with acute medical problems, typically by providing transportation for individuals with acute medical problems to health care facilities.

[Added 10-11-2012 by L.L. No. 11-2012]

D. Industrial uses.

(1) Telecommunications facility — freestanding.

(a) Purpose.

[1] The purpose of these supplemental regulations is to promote the health, safety and general welfare of the residents of the Village of Nyack, to provide standards for the safe provision of telecommunications consistent with applicable federal and state regulations and to protect the natural features and aesthetic character of the Village, with special attention to the aesthetic qualities of this Hudson River riverfront residential community. The Village seeks to maintain concealed or reduced antenna/tower height with groups of antennas/towers within close proximity to one another rather than isolated antennas/towers with many users at greater heights and at random locations throughout the Village. Where available, co-location is mandatory. The applicant shall bear the burden of showing, by clear and convincing evidence, that co-location is not possible.

[2] These regulations are not intended to prohibit or have the effect of prohibiting the provision of personal wireless services, nor shall they be used to unreasonably discriminate among providers of functionally equivalent services consistent with current federal regulations.

(b) Application of special use regulations.

[1] No tower or antenna shall hereafter be used, erected, moved, reconstructed, changed or altered except after approval of a special use permit and in conformity with these regulations. No existing structure shall be modified to serve as a tower or antenna unless in conformity with these regulations.

[2] These regulations shall apply to all property within the following zones: all zoning districts contained in the Village of Nyack.

[3] Exceptions to these regulations are limited to:

[a] New uses, which are accessory to residential uses.

[b] Lawful or approved uses existing prior to the effective date of these regulations.

[4] Where these regulations conflict with other laws and regulations of the Village, the more restrictive shall apply, except for tower height restrictions, which are governed by these special standards.

(c) Procedure for special use permit; fee; facility service plan.

[1] All applications shall be accompanied by a facility service plan, which shall include information necessary to allow the Zoning Board of Appeals to understand the existing, proposed and long-range plans of the applicant. The facility service plan shall include at least the following information:

[a] The location, height and operations and characteristics of all existing facilities of the applicant in Orangetown and Clarkstown (including the incorporated areas therein).

[b] A commitment to co-locate or allow co-location wherever possible on all existing and proposed facilities.

[2] The applicant shall provide funds to an escrow account to allow the Building Inspector or the Zoning Board of Appeals to retain such technical experts involving radio frequency as may be necessary to review the proposal, provided that no funds shall be deposited until a scope of work is agreed upon among the applicant, the expert and the Board.

[3] Application to the Zoning Board of Appeals for a special permit under this section shall be accompanied by a fee as set forth in the Village's fee schedule.

[4] Prior to or concurrent with the filing of a formal application to the Zoning Board of Appeals to obtain a special permit under this section, the applicant shall submit information needed to meet the requirements of the New York State Environmental Quality Review Act (SEQRA) to the Zoning Board of Appeals, which Board shall determine whether the requirements of SEQRA have been met. The Zoning Board of Appeals may hold a joint public hearing under the provisions of SEQRA and this section whenever practicable. In the event that a final SEQRA determination has not been made, no application for a special permit under this section shall be granted.

[5] The Zoning Board of Appeals shall hold a public hearing on due notice within 62 days after submission of a formal completed application, including such technical information from the applicant as may be required by the Zoning Board of Appeals for a special permit under the provisions of this section.

[a] Notice of the public hearing shall be by publication in the official newspaper of the Village at least 10 days in advance of the hearing and may be continued from time to time to a specific adjourned date.

[b] The hearing notice shall indicate that the application may be examined and further information is available from the Zoning Board of Appeals office during regular business hours.

[c] Copies of the publication order shall be mailed by the applicant to the owners of property within 1,000 feet of the property which is the subject of the application, and an affidavit of service thereof shall be filed with the Zoning Board of Appeals due on or before the date of the hearing. Failure of any addressee to receive such notice shall not in any manner affect the jurisdiction of the Zoning Board of Appeals or any action taken on the application.

[d] The Zoning Board of Appeals may approve, approve with conditions or disapprove the application for a special permit under the provisions of this section within 62 days after the close of the public hearing.

[e] The decision shall be made at a meeting of the Zoning Board of Appeals with a quorum present and not less than a majority of the total membership voting "aye" on the resolution as a requirement for passage.

[f] A super majority vote of the Zoning Board of Appeals will be required for any approval of an application for a special permit to erect or operate a wireless communications facility in any residentially zoned parklands. A super majority is 50% of the constituency of the Board plus one additional vote.

[g] The period in which the Board may take action may be extended with the consent of the applicant.

[h] The completed application shall be referred to the Planning Board and the Architectural Review Board for review prior to the public hearing. The Planning Board and the Architectural Review Board shall review the application and shall issue findings and a recommendation of approval or disapproval to the Zoning Board of Appeals. The Planning and Architectural Review Boards' recommendations shall be advisory and shall not be binding on the Zoning Board of Appeals.

[6] Information required for wireless communications antennas. For all proposed wireless communications antennas the applicant shall bear the burden of demonstrating by substantial evidence that a bona fide need exists for the facility and that no reasonable combination of locations, techniques or technologies will obviate the need for or mitigate the height or visual impact of the proposed telecommunications tower. The applicant shall provide the following additional information. Items [k] through [q] shall be included in a report prepared by a radio frequency engineer, health physicist or other qualified professional, whose qualifications and curriculum vitae shall be attached to the application.

[a] Name and address of the property owner and the applicant.

[b] Address, lot and block and/or parcel number of the property.

[c] Zoning district in which the property is situated.

[d] Name and address of the person preparing the plan.

[e] Size of the property and the location of all lot lines.

[f] Approximate location of nearest residential structure.

[g] Approximate location of nearest occupied structure.

[h] Location of all structures on the property which is the subject of the application.

[i] Location, size and height of all proposed and existing antennas and all appurtenant structures on the property.

[j] Type, size and location of all existing trees and shrubs, by dominant species and current height, and any and all proposed landscaping, identified by size of specimen at installation and by species.

[k] A report by a New York State licensed professional engineer, documenting compliance with applicable structural standards and describing the general structural capacity of any proposed installation.

[l] Drawings, dimensioned and to scale, which show the ultimate appearance and operation of the wireless communications facility at full build-out, including representations of the proposed mount, antennas, equipment shelters, cable runs, driveways, parking areas and any other construction or development attendant to the wireless communications facility. If the security barrier will block views of the wireless communications facility, the barrier drawing shall be cut away to show the view behind the barrier.

[m] A description of the antenna's function and purpose.

[n] The make, model and manufacturer of the antenna.

[o] The frequency, modulation and class of service.

[p] Transmission and maximum effective radiated power.

[q] Direction of maximum lobes and associated radiation and compliance with FCC regulations.

[r] If the name or address of the owner or operator of the antenna facility is changed, the Building Department of the Village of Nyack shall be notified of the change within 90 days.

[s] Within 90 days of operating any transmitting antenna, the owner or operator shall submit to the Building Inspector a written certification by a New York State licensed professional engineer (for monopole or tower installations) that the antenna complies with the Village of Nyack Code and all other applicable governmental regulations.

[t] Consent to allow additional antennas (for purposes of co-locating) on any new antenna towers, if feasible.

[u] A certified copy of the Federal Communications Commission (FCC) license to operate the telecommunications facility.

[v] A copy of the lease or rental agreement related to the property between the operator of the installation and owner of the property.

[w] In the case of co-location, a certified copy of the intercarrier agreement for the exchange of technical information in order to assure RF standards compliance.

[7] Requirements applicable to all wireless communications antennas. For all proposed wireless communications antennas the following requirements are applicable:

[a] For proposed sites within 100 feet of other sources of radio frequency (RF) energy emanating from other wireless communications facilities, the applicant shall provide an estimate of the maximum total exposure from all nearby stationary sources and comparison with relevant standards. This assessment shall include individual and ambient levels of exposure. It shall not include residentially based facilities such as cordless telephones.

[b] All obsolete or unused wireless communications antennas (including tower supports) shall be removed within 60 days of cessation of operations at the site. The Village may remove such facilities after 60 days and treat the cost as a tax lien on the property.

[c] All wireless communications facilities shall be identified with signs not to exceed six square feet, listing the owner or operator's name, the site manager's name and emergency telephone number, which shall be posted in a conspicuous place. All wireless communications facilities shall likewise bear approved warning signage as required by federal and state law. No signs shall be permitted on either the tower or equipment building, except for those signs required by law or containing such information as owner contact information, warnings and "no trespassing" signs. Absolutely no commercial advertising shall be permitted on any wireless telecommunications tower or equipment building.

[d] New wireless communications facilities may not be sited within 500 feet of any existing wireless communications antenna.

[e] No source of NIER (nonionizing electromagnetic radiation), including facilities operational before the effective date of this section, shall exceed the federal or state NIER emission standard.

[f] New antennas and supporting towers shall be designed to accommodate additional antennas, and supporting towers shall be designed to accommodate additional antennas for purposes of co-locating.

[g] The applicant bears the burden by a showing of substantial evidence that none of the sites listed on Appendix A[1], with a reasonable combination of technologies and techniques, will provide sufficient coverage to meet the need set forth in the application.

[1] Editor's Note: Appendix A is on file in the Village offices.

[h] Equipment shelters and accessory structures.

[i] Equipment shelters shall be designed to be architecturally compatible, both in style and materials, with principal structures on the site, as determined by the Zoning Board of Appeals; or

[ii] Equipment shelters shall be camouflaged behind an effective year-round landscape buffer equal to the height of the proposed building. The Zoning Board of Appeals shall determine the types of plant materials and depth of the needed buffer based on site conditions. Such buffer shall be maintained in a healthy state or replaced as necessary to provide continuing camouflaging.

[iii] Accessory structures for wireless communications facilities shall be permitted if the structures are constructed for the sole and exclusive use and operation of the communications facility, are the minimum size necessary to meet the needs of the specific site, and meet the following requirements:

[A] Accessory structures may not include an office, long-term vehicle storage, other outdoor storage or other uses that are not needed to send or receive wireless communications transmissions.

[B] Accessory structures must be of the minimum size necessary.

[C] Accessory structures must be camouflaged behind an effective year-round landscape buffer equal in height to the proposed structure. Such buffer shall be maintained in a healthy state or replaced as necessary to provide continuing camouflaging.

[D] In residential districts, or for installations within 100 feet of a residential district, the use of compatible building materials such as wood, brick or stucco is required for all accessory structures, which shall be designed to match architecturally the exterior of residential structures in the neighborhood, as determined by the Zoning Board of Appeals.

[E] All equipment shelters and accessory structures on one lot shall be architecturally uniform.

[8] Antenna locations where public exposure is likely. For roof-mounted, co-located or other situations wherein a special permit is required hereunder, the application shall include:

[a] An assessment of potential public exposure to radio frequency (RF) energy from the proposed facility indicating the facility's compliance with applicable federal or state standards. The applicant shall identify the maximum exposure level, the locations at which this occurs and the estimated RF levels at specific locations of community interest, such as schools, residential buildings or commercial buildings. Assumptions used in the calculations shall be stated, including building heights and topography.

[b] A multiple-source exposure impact assessment shall be prepared if the wireless communications facility is to be situated on the same site as existing facilities, such as a tower or roof.

[c] Evidence that the maximum exposure to the general public will not exceed federal or state standards.

[d] An identification of rooftop areas to which the public may have access. The exposure in these areas shall be in compliance with the standards established by any federal or state agencies.

[e] An identification of how much of the roof, if any, should be designated a controlled environment due to RF field levels in accordance with the applicable federal or state standard.

[f] Notification to the building management if any portion of the roof needs to be identified as a controlled environment due to RF levels in excess of the guidelines in the applicable federal or state standards.

[9] Requirements applicable to roof-mounted antennas.

[a] Antennas shall not be placed more than 15 feet higher than the height limitation for buildings and structures within the zoning district in which the antenna is proposed to be erected.

[b] In the event that an existing structure or building is proposed as a mount for a wireless communications facility, a fall zone shall not be required unless the Zoning Board of Appeals finds that a substantially better design will result from an increased setback. In making such a finding, the Zoning Board of Appeals shall consider both the visual and safety impacts of the proposed use.

[c] The following material shall be provided to allow the Zoning Board of Appeals to determine the level of visual impact and the appropriateness of the facility:

[i] Existing ("before" condition) color photographs of views of the site from key viewpoints both inside and outside of the Village, including, but not limited to, state highways and other major roads, state and local parks, other public lands, preserves and historic sites normally open to the public, scenic roads and scenic viewsheds identified in the Village Master Plan and from any other location where the site is visible to a large number of residents or visitors. The Zoning Board of Appeals shall determine the appropriate key viewpoints from which the site shall be photographed if different or in addition to those submitted by the applicant.

[ii] Proposed ("after" condition) simulations. Each of the existing condition photographs shall have the proposed wireless communications facility superimposed on to it to show what would be seen from the key viewpoints if the proposed facility were built.

[d] Camouflage.

[i] Wireless communications facilities shall be the least obtrusive and the most appropriate to the proposed site, as determined by the Planning Board.

[ii] All wireless communications facilities shall be designed to blend into the surrounding environment through the use of design and color except in such instances where color is dictated by federal or state authorities such as the Federal Aviation Administration.

[iii] A wireless communications facility, which is roof-mounted on a building, shall be concealed within or behind existing architectural features to limit its visibility from public ways, and shall be stepped back from the front facade in order to limit its impact on the building's silhouette.

[iv] A wireless communications facility, which is side-mounted on a building, shall be painted or constructed of materials to match the color of the building material directly behind it.

[10] Requirements applicable to new wireless communications towers.

[a] Co-location not feasible.

[i] The applicant shall demonstrate to the Zoning Board of Appeals by clear and convincing evidence that no tower exists on which the antenna may co-locate, or that co-location is not feasible for any of the following reasons:

[A] The applicant has been unable to come to a reasonable agreement to co-locate on another tower. The names and addresses of other service providers approached shall be provided, accompanied by a written statement as to the reason an agreement could not be reached.

[B] The applicant's network of antenna locations is not adequate to properly serve its customers, and the use of facilities of other entities is not suitable for physical reasons.

[C] Adequate and reliable service cannot be provided from existing sites in a financially and technologically feasible manner consistent with the service provider's system requirements.

[D] Existing sites cannot accommodate the proposed antenna due to structural or other engineering limitations (e.g., frequency incompatibilities).

[ii] The Zoning Board of Appeals may require the use of stealth technology to camouflage ground-mounts.

[b] Camouflage by vegetation. If wireless communications facilities are not camouflaged from public viewing by existing buildings or structures, they shall be surrounded by buffers of dense tree growth and understory vegetation in all directions to create an effective year-round visual buffer. Ground-mounted wireless communications facilities shall provide a vegetative buffer of sufficient height and depth to effectively screen the facility. Trees and vegetation may exist on the subject property or be installed as part of the proposed facility or a combination of both. The Zoning Board of Appeals shall determine the types of trees and plant materials and depth of the needed buffer based on site conditions. Such buffer shall be maintained in a healthy state or replaced as necessary to provide continuing camouflaging.

[c] Camouflage by design. To the extent that any wireless communications facility extends above the height of the vegetation immediately surrounding it, the facility shall be camouflaged by design to minimize the adverse visual and aesthetic impact unless otherwise required by the Zoning Board of Appeals.

[d] Equipment shelters and accessory structures.

[i] Equipment shelters for wireless communications facilities shall be designed consistent with one of the following standards:

[A] Equipment shelters shall be designed to be architecturally compatible, both in style and materials, with principal structures on the site, as determined by the Zoning Board of Appeals; or

[B] Equipment shelters shall be camouflaged behind an effective year-round landscape buffer equal to the height of the proposed building. The Zoning Board of Appeals shall determine the types of plant materials and depth of the needed buffer based on site conditions. Such buffer shall be maintained in a healthy state or replaced as necessary to provide continuing camouflaging.

[ii] Accessory structures for wireless communications facilities shall be permitted if the structures are constructed for the sole and exclusive use and operation of the communications facility, are the minimum size necessary to meet the needs of the specific site, and meet the following requirements:

[A] Accessory structures may not include an office, long-term vehicle storage, other outdoor storage or other uses that are not needed to send or receive wireless communications transmissions.

[B] Accessory structures must be less than 500 square feet and 15 feet in height or 700 square feet and 12 feet in height.

[C] Accessory structures must be camouflaged behind an effective year-round landscape buffer equal in height to the proposed structure. Such buffer shall be maintained in a healthy state or replaced as necessary to provide continuing camouflaging.

[D] In residential districts, or for installations within 100 feet of a residential district, the use of compatible building materials such as wood, brick or stucco is required for all accessory structures, which shall be designed to match architecturally the exterior of residential structures in the neighborhood, as determined by the Zoning Board of Appeals. In no case will metal exteriors be allowed for accessory structures.

[E] All equipment shelters and accessory structures on one lot shall be architecturally uniform.

[F] When a security fence is required, the outside of such fencing shall be landscaped with evergreen shrubs, trees or climbing evergreen material on the fencing or may contain wooden slats woven into the fence so as to mitigate and minimize the industrial character of the fence.

[G] An existing natural vegetative buffer, which meets or exceeds the above requirements, may be substituted to meet the landscape requirements set forth above.

[e] Access and parking.

[i] A road and parking plan shall be provided to ensure adequate emergency and service access and shall meet the requirements of the Zoning Board of Appeals. Any driveway shall meet the requirements of the Zoning Board of Appeals and the highway authority of the road on which the driveway fronts.

[ii] Maximum use of existing public and private roads shall be made, consistent with safety and aesthetic considerations.

[iii] Road construction shall minimize ground and vegetation disturbance. Road grades shall follow natural contours to reduce soil erosion potential and to ensure that roads are aesthetically compatible with the character of the surrounding area.

[iv] The Zoning Board of Appeals may require an erosion and sedimentation control plan and may refer the site plan to any other municipal authority or official (town, state) for review.

[v] Unpaved roads shall be considered unless conditions require paving, as determined by the Zoning Board of Appeals, in consultation with the appropriate authorities or consultants.

[vi] Access roads, driveways or parking areas shall provide adequate interior turnarounds such that service vehicles will not have to back out onto a public thoroughfare.

[f] Dimensional requirements. Wireless communications towers shall comply with the following requirements:

[i] Height and fall zone.

[A] The total height of any mount or accessory elements attached to any structure shall be measured from the ground level to the top of the mount or the top of the uppermost accessory affixed to the mount, whichever is higher.

[B] A fall zone around any tower constructed as part of a telecommunications facility must have a radius at least equal to the height of the tower and any antenna(s) upon its zenith. The entire fall zone may not include public roads and must be located on property either owned or leased by the applicant or for which the applicant has obtained an easement, and may not contain any structure other than those associated with the telecommunications facility. If the facility is attached to an existing structure, release may be granted by specific permission of the Zoning Board of Appeals on a case-by-case basis.

[ii] Setbacks.

[A] All wireless communications facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition, the following setbacks shall be observed:

[B] To ensure public safety, the minimum distance from the base of any ground-mounted wireless communications facility to any property line, road, habitable dwelling, business or institutional use, accessory structure or public recreation area shall be the height of the facility/mount, including any antennas or other appurtenances. This setback is considered the "fall zone." Additional setbacks may be required by the Planning Board to provide for the public safety.

[C] The maximum area permitted to be cleared shall be no more than 50 feet in extent from the outer edge of the primary structure's footprint. During construction and installation of facilities and structures, only the minimum amount of existing vegetation shall be cleared.

[11] Expert reporting requirements. Any application for the approval of a special permit for a wireless communications facility shall include a report by a qualified radio frequency engineer, health physicist or other qualified professional as determined by the Zoning Board of Appeals which calculates the maximum amount of nonionizing electromagnetic radiation (NIER) which will be emitted from the proposed wireless communications facility upon its installation and demonstrates that the facility will comply with the applicable federal or state standards.

[12] Nonionizing electromagnetic radiation (NIER) measurements and calculations. All applicants for wireless communications antennas in any district shall submit calculations of the estimated NIER output of the antenna(s). The calculations shall be provided to the Zoning Board of Appeals at the time of making the application for special permit. NIER levels shall be measured and calculated as follows:

[a] Measuring equipment used shall be generally recognized by the Environmental Protection Agency (EPA), National Council on Radiation Protection and Measurement (NCRPM), American National Standards Institute (ANSI) or National Bureau of Standards (NBS) as suitable for measuring NIER at frequencies and power levels of the proposed and existing sources of NIER.

[b] Measuring equipment shall be calibrated as recommended by the manufacturer in accordance with methods used by the NBS and ANSI, whichever has the most current standard.

[c] The effect of contributing individual sources of NIER within the frequency range of a broadband measuring instrument may be specified by separate measurement of these sources using a narrow-band measuring instrument.

[d] NIER measurements shall be taken based on maximum equipment output. NIER measurements shall be taken or calculated when and where NIER levels are expected to be highest due to operating and environmental conditions.

[e] NIER measurements shall be taken or calculated along the property lines at an elevation six feet above grade at such locations where NIER levels are expected to be highest and at the closest occupied structure.

[f] NIER measurements shall be taken or calculated following spatial averaging procedures generally recognized and used by experts in the field of RF measurement or other procedures recognized by the FCC, EPA, NCRPM, ANSI and NBS.

[g] NIER calculations shall be consistent with the FCC, Office of Science and Technology (OST) Bulletin 65 or other engineering practices recognized by the EPA, NCRPM, ANSI, NBS or similarly qualified organization.

[h] Measurements and calculations shall be certified by a New York State licensed professional engineer, health physicist or a radio frequency engineer. The measurements and calculations shall be accompanied by an explanation of the protocol, methods and assumptions used.

[13] Annual inspections.

[a] Structure.

[i] All telecommunications facilities shall be inspected annually at the applicant's expense for structural integrity, and a copy of the inspection report shall be promptly transmitted to the Code Enforcement Officer and/or Building Inspector. The structural inspection shall be performed by a New York State licensed professional engineer.

[ii] The annual inspection report shall describe the structural integrity, maintenance issues and repairs needed or made, if any.

[iii] In the event that the structural inspection indicates structural deficiencies, the deficiencies must be remedied by the applicant at the applicant's expense within a time period reasonably set by the Code Enforcement Officer and/or Building Inspector.

[b] NIER monitoring and enforcement.

[i] The owner and/or operator of the antenna shall perform a NIER level reading as set forth above and shall submit the results of the test to the Building Inspector within 90 days of initially operating the antenna system and annually thereafter. The owner or operator shall provide a report from a qualified professional who shall certify, under penalties of perjury, that the installation does not expose the general public to NIER standards in excess of those of any federal or state agency regulating RF energy. Failure to timely submit such annual inspections to the Building Inspector will act as an automatic revocation of the special permit. Within 10 days of notification of failure to submit such annual inspection report, the Building Inspector is empowered to take any reasonable means in order to enjoin and terminate the operations of the installation.

[ii] The town may measure NIER levels as necessary to ensure that the federal or state standards are not exceeded.

[iii] If the standards of any federal or state agency are exceeded at the location of a proposed transmitting antenna, the proposed facility shall not be permitted.

[14] Bulk regulations and height.

[a] In residential districts, all wireless communications facilities shall comply with yard requirements of the Zoning Chapter for principal buildings. No wireless communications facilities may be located between the principal structure and the street.

[b] In nonresidential districts, wireless communications facilities may be in side or rear yards as established in the Zoning Chapter as acceptable to the Zoning Board of Appeals but not in buffers shown on an approved site plan or in a conservation or similar easement. No wireless communications facilities may be located between the principal structure and the street.

[c] Wireless communications facilities shall not exceed 45 feet in height unless the requirements of Subsection D(1)(c)[14][d] below are met.

[d] In the event that applicants propose a height greater than that listed in Subsection D(1)(c)[14][c] above, the applicant must demonstrate to the satisfaction of the Zoning Board of Appeals that:

[i] Alternative means of mounting the antenna have been considered and are not feasible for the applicant;

[ii] Alternative locations for the antennas have been investigated both in and out of the Village and are not feasible;

[iii] The proposed height is the minimum height necessary for adequate operation to meet the applicants' communications need and the aesthetic intrusion has been minimized to the greatest extent practicable; and

[iv] The site or building on which the facility is proposed to be installed does not become nonconforming or increase in nonconformity by reason of the installation of wireless communications facilities. This includes but is not limited to yard, buffer, height and floor area ratio for equipment buildings, parking, open space and other requirements. Height requirements of the Zoning Chapter shall apply to buildings and equipment shelters.

[e] Notwithstanding anything stated herein, the Zoning Board of Appeals shall be permitted to increase the height of any tower beyond any limitations set forth herein in order to accommodate additional users. In reviewing a request for greater height, the Zoning Board of Appeals shall balance the effect of a greater height against the provision of one or more additional towers, co-locating or other alternatives.

[f] In residential districts, wireless communications towers and monopoles shall be separated from residential buildings on adjacent or abutting properties by a distance of not less than two times the height of the tower or monopole. This provision shall apply to the proposed use for wireless communications facilities of towers or monopoles existing at the time of adoption of this section.

[15] Color and lighting standards. Except as specifically required by the Federal Aviation Administration (FAA) or the FCC, antennas, including the supporting structure and all related appurtenances, shall:

[a] Be colored to reduce the visual impact to the greatest degree possible.

[b] Not be illuminated, except buildings may use lighting required by the New York State Fire Prevention and Building Code or when required for security reasons. When lighting is used, it shall be compatible with the surrounding neighborhood to the greatest degree practicable.

[16] Fencing and NIER warning signs.

[a] The area surrounding the facility shall:

[i] Be fenced or otherwise secured in a manner which prevents unauthorized access by the general public.

[ii] Contain appropriate signage to warn of areas of the site where:

[A] NIER standards are exceeded.

[B] High risks for shocks or burns exist.

[b] For wall-mounted antennas, the signage shall be placed no more than five feet off the ground below the antenna.

[c] For antennas mounted on the roof, signage shall be placed on all doors that provide access to said roof. The signage shall be placed no more than five feet off the ground.

[17] NIER exposure standards. No antenna or combination of antennas shall expose the general public to NIER levels exceeding the standard of any federal or state agencies having jurisdiction. In addition, no antenna facility shall emit radiation such that the general public will be exposed to shock and burn in excess of the standards contained in ANSI C-95.1.

[18] Registration. The Building Department shall keep a list of the names, addresses, type and maximum emissions of all antenna operators in the Village. This list shall be maintained from applications to the Zoning Board of Appeals and Building Department and from FCC or similar inventories of facilities in the Village.

[19] Performance standards for new antennas. New antennas must comply with the following performance standard that the estimated or measured NIER from a proposed antenna, when added to existing radio frequency electromagnetic radiation from existing sources, will not exceed the guidelines set forth in the applicable federal and state standards.

[20] Zoning Board of Appeals findings. The Zoning Board of Appeals shall make written findings that the issuance of a special permit is in compliance with all of the requirements of this chapter.

[21] Expiration: issuance of certificate of use. Except as noted in § 360-3.2D(1)(c)[7][b] and § 360-3.2D(1)[13][b][i] above:

[a] Duration of special use permit.

[i] Every special use permit shall be limited to the applicant and any assignment or transfer of the special use permit or any of the rights thereunder shall be made only with the approval of the Planning Board, except in the case of an assignment or transfer to a corporate affiliate or successor of the applicant.

[ii] The special use permit shall expire after two years from date of approval by the Zoning Board of Appeals.

[A] Renewal must not be unreasonably withheld if the applicant is in conformance with the original approval and all conditions attached thereto.

[B] Not less than 60 days prior to the expiration of a special use permit, the holder of the permit must submit to the Zoning Board of Appeals a renewal application. If the holder fails to submit a renewal application within the 60 days, the special use permit will expire.

[iii] The renewal application will contain the following:

[A] A current updated build-out plan;

[B] A special use permit renewal form;

[C] A statement of need that a structure is still in use and is still necessary to provide satisfactory service to its customers;

[D] The most recent structural and safety inspection reports for all structures on site;

[E] Color photographs of the structure from all directions; and

[F] Other materials or information deemed necessary by the Planning Board.

[iv] Within 45 days of the submission of a completed application for a special use permit renewal and determination by the Code Enforcement Officer that the application is sufficient for review, the Zoning Board of Appeals shall hold a public hearing on the application. A copy of its decision shall be mailed to the applicant.

[v] The applicant has one calendar year from the date of approval of the special use permit to commence construction and 14 months from date of approval of the special use permit to complete construction. If construction is neither begun nor completed within these time frames, the special use permit shall expire.

[b] The Building Inspector shall require issuance of a revised or new special permit prior to the issuance of a building permit use where the proposal requires a special permit.

[c] The applicant shall provide a report to the Building Inspector prepared by a New York State licensed professional engineer certifying that any monopole or tower has been constructed in accordance with the plans approved by the Building Inspector.

[22] Existing installations. The operator of any wireless communications facility existing at the time that this section takes effect shall be permitted to remain in operation, provided that the operator submits proof within six months of the enactment of this section that the facility complies with the standards adopted by the Federal Communications Commission and all requirements of this section, as certified by a professional engineer with qualifications acceptable to the Village of Nyack. Operating antennas or towers that are legally nonconforming with respect to the area regulations of this section shall be permitted to remain until such time as a request is made to modify the antenna or tower. Any facility for which emission, structural and security compliance documentation is not received shall cease operations within six months of the enactment of this section and be immediately removed thereafter in accordance with the provisions of this section. Any facility (antenna or tower) in a residential zoning district which is not operating as of the effective date hereof shall be considered to be nonconforming and shall be removed within six months of the enactment of this section.

[23] Exclusion and exemptions.

[a] The Village of Nyack as a municipality shall be exempt from the provisions of this section and may operate a wireless communications facility or permit the operation of a wireless communications facility on nonresidentially zoned Village property without obtaining a permit and without being subject to the conditions set forth in this section.

[b] This section acknowledges the interest of the Federal Communications Commission in promoting amateur radio operations, as expressed in FCC Order PRB1, by imposing the minimum practicable regulation on amateur radio antennas necessary to accomplish the Village's legitimate zoning purposes.

(2) Vehicle-related uses.

(a) The minimum lot size for such uses shall be 20,000 square feet, and the minimum street frontage shall be 150 feet.

(b) Entrance and exit driveways shall have an unrestricted width of not less than 16 feet, shall be located not nearer than 10 feet to any property lines and shall be so laid out as to allow any vehicle entering the property to turn around on site and not have egress by backing out across any public right-of-way or portion thereof.

(c) Vehicle lifts or pits, dismantled or disabled automobiles and all parts or supplies shall be located within a building enclosed on all sides.

(d) All service or repair of motor vehicles, other than such minor servicing as change of tires or sale of gasoline or oil, shall be conducted in a building fully enclosed on all sides. This requirement shall not be construed to mean that the doors to any repair shop must be kept closed at all times.

(e) The storage of gasoline in bulk shall be located fully underground and not nearer than 35 feet to any property line other than the street line.

(f) No gasoline pumps shall be located nearer than 15 feet to any street line.

(g) No building permit shall be issued for a motor vehicle service station within a distance of 200 feet of any school, clubhouse, community center, place of worship or hospital, said distance to be measured in a straight line between the nearest points of each of the lots or premises, regardless of the district where either premises are located.

(h) No new automobile service station and no gasoline or oil pump or automotive service appliance, unless within a building, shall be permitted to be established on a lot that is within 600 feet of another lot on which there is an existing automobile service station or outdoor gasoline or oil pump or automotive appliance, or of another lot for which a building permit has been issued for the erection of such a station, pump or service appliance. Such distance shall be measured in all directions along public rights-of-way.

(i) A fuel pump canopy shall meet the following standards:

[1] The canopy shall utilize compatible architectural design and materials as the principal building(s) on the lot.

[2] Light fixtures mounted under canopies shall be full cut-off and shielded so that there is no glare or light spillage at the property line.

[3] Lights shall not be mounted on the top or sides (fascias) of the fuel pump canopy, and the sides (fascias) of the canopy shall not be externally illuminated.

E. Accessory uses.

(1) Accessory building or structure.

(a) Accessory buildings and structures shall be compatible in design with the principal building and shall be designed to fit in with the existing development pattern in a neighborhood and overall character of the area.

(b) The Architectural Review Board shall review the design of accessory buildings and structures for design compatibility within the area of visual impact, except for garden or storage sheds less than 140 square feet in area.

[Amended 5-26-2011 by L.L. No. 6-2011]

(c) An accessory building may be located in any required side or rear yard, provided that:

[1] Such buildings shall be set back three feet from any lot line and, if separated from the principal building, it shall not be located less than five feet from said principal building.

[2] All such buildings in the aggregate shall not occupy more than 30% of the area of the required rear and side yards in which it is located.

(d) Accessory buildings constructed at the same time may be located in pairs or groups in the required rear or side yard along the common side lot line or rear lot line of contiguous lots.

(e) Any accessory building shall be located at least four feet behind the front facade of the principal building on the lot. Accessory buildings in the SFR, TFR, MFR and CC Districts shall be located to the rear of the principal building. Freestanding garages in the SFR and TFR Districts should be located in the rear corner of the lot when possible.

(f) Accessory buildings with a floor area greater than 80 square feet shall be located no less than 25 feet from any street line or three feet from any side or rear lot line, except that party wall private garages for not more than two cars may be erected in any residential district across a side lot line between two adjacent lots.

(g) No accessory building shall exceed 12 feet in height measured at the peak or high point of the roof structure and one story in height.

(h) No accessory building in a residential zoning district shall exceed 7% of the maximum building coverage.

(i) Any accessory building attached to a principal building, including attachment by means of a breezeway or a roofed passageway, shall comply in all respects with the requirements of this chapter applicable to the principal building.

(2) Drive-in or drive-thru facility.

(a) Existing parking or loading stalls must not be utilized as part of a drive-through lane.

(b) Each drive-in or drive-through facility located on a lot or site adjacent to a lot containing a residential use must be limited to operate between the hours of 9:00 a.m. to 9:00 p.m. unless the drive-in or drive-through facility is separated from the residential structure by an intervening building, alley or public street.

(c) No portion of a drive-in or drive-through facility may be located in a required front yard except as required to access the drive-in or drive-through facility.

(d) The length of the drive-in or drive-through shall be sufficient to accommodate 100% of the anticipated volume on site during peak hours of operation. In no case shall such a facility be designed so that peak activity will result in cars stacking onto the adjacent public street.

(3) Home occupations.

(a) No display of goods or signs shall be visible from the street, except as set forth in § 360-4.11.

(b) Such occupation must be incidental to the residential use of the premises and carried on in the principal building by a resident thereon with not more than one nonresident assistant.

(c) Only customary household appliances and equipment shall be used in such occupation.

(d) Such occupation shall be carried on in an area not exceeding 30% of the area of the first floor of the main building.

(4) Professional office or studio accessory to a residential building. A professional office or studio, including, but not limited to, those of an architect, artist, dentist, engineer, lawyer, musician, teacher or physician, but not including veterinarians, is permitted as an accessory use on a lot where the principal use is residential, provided that:

[Amended 10-13-2016 by L.L. No. 3-2016]

(a) Such office or studio is incidental to the residential use of the premises and is carried on by a resident thereon with not more than one nonresident assistant.

(b) In any residential building other than a multifamily building, such office or studio shall occupy not more than 30% of the area of the first floor of the principal building or shall be located in a legal detached accessory building. This limitation shall not apply to structures located in the DMU-1, DMU-2, OMU or RMU Districts.

(c) In a multifamily residential building, not more than one professional office or studio shall be permitted for each 25 dwelling units or major fraction thereof on the lot. Such office or studio shall be only on the street floor, and there shall be direct access to such office or studio from outside the building.

(d) Studios where dancing or music instruction is offered to groups in excess of four pupils at one time, or where concerts or recitals are held, are prohibited.

(e) All signs shall comply with the regulations of § 360-4.11.

(5) Mechanical amusement devices.

(a) The lot line of any establishment within which device or devices shall be located shall be at least 500 feet from the lot line of any school building, school playground, clubhouse, community center or place of worship.

(b) If combined with other uses it shall be located in a separate room, separated from other uses on the premises and from pedestrian circulation to and from such other uses. The room shall be arranged so that there is a management attendant within the room, or such that management attendants outside the room can easily see and supervise the interior of the room.

(c) Adequate space shall be provided for each machine so as to allow its use without overcrowding. A minimum width of two feet shall be provided per machine where the machine is designed for use by one player, and 3 1/2 feet where the machine is designed for use by two players. The depth of the space in front of the machine shall be at least five feet, and there shall be a minimum aisle width beyond this five feet of an additional three feet.

(d) No machine may block any entrance or exit from the premises.

(e) Readily visible signs shall be installed, with their location, size and text shown in the plans submitted to the Planning Board, indicating that the use of machines by persons under 16 years of age shall not be permitted between the hours of 10:00 p.m. and 8:00 a.m. or during normal school hours, and where the premises are used primarily for the serving or consumption of liquor, that the use of amusement machines by persons under the New York State permitted age for the possession of alcoholic beverages is prohibited at all times.

(6) Outdoor dining.

(a) Intent. Outdoor dining other than in the form of a sidewalk cafe as defined in this chapter shall be permitted as an accessory use that is incidental to and in conjunction with an established permitted restaurant, bar or delicatessen as permitted in the DMU-1, DMU-2, CC and WF Districts, provided that the establishment of such an accessory use has no deleterious effect on the public health, safety or welfare, or negative effect on adjoining businesses. Outdoor cabarets and outdoor dining in conjunction with a cabaret are specifically prohibited.

[Amended 4-19-2012 by L.L. No. 2-2012; 10-13-2016 by L.L. No. 3-2016]

(b) Standards and requirements.

[1] Areas utilized for outdoor dining shall comply with setback requirements for a principal building for the district in which such use is located.

[2] Areas utilized for outdoor dining shall not be located within 50 feet of the boundary of any SFR, TFR or MFR District.

[3] Areas utilized for outdoor dining shall be included in the calculation of required parking for the principal use.

[4] All outdoor dining areas pursuant to this section shall provide a food menu, but this shall not be interpreted to prohibit the service of beverages only.

[5] Operating restrictions. The Building Inspector or Planning Board may prohibit or limit the hours of operation of any activities that may impact an adjacent or nearby properties, such as the operation or use of musical instruments or sound reproduction devices, or any noise emanating from the outdoor dining area other than the conversational and service sounds.

[a] All windows and doors on the building or establishment holding a permit issued pursuant to this section shall be closed, and any furnishings used in association with the outdoor dining area shall be removed from the outdoor dining area, at or before 11:00 p.m. following an evening of food and beverage service.

[Added 4-19-2012 by L.L. No. 2-2012]

(7) Sidewalk cafe.

(a) Intent. Sidewalk cafes may be permitted by special permit of the Building Inspector, provided that such use is incidental to and in conjunction with an established permitted restaurant, bar or tavern, or take-out restaurant as permitted in the DMU-1, DMU-2, RMU and WF Districts, provided that the establishment of such an accessory use has no deleterious effect on the public health, safety or welfare, or negative effect on adjoining businesses. Sidewalk cafes and outdoor cabarets in conjunction with fast-food establishments are specifically prohibited.

[Amended 4-19-2012 by L.L. No. 2-2012; 10-13-2016 by L.L. No. 3-2016]

(b) Special permit; site development plan.

[Amended 4-19-2012 by L.L. No. 2-2012]

[1] The Building Inspector is authorized to issue a special permit renewable yearly to operate a sidewalk cafe on public property, provided that the standards and requirements set forth in Subsection E(7)(c) of this section have been complied with by the applicant, and shown on a site plan diagram submitted with the application for a special permit.

[2] The Building Inspector may refuse a renewal of the permit:

[a] If in his judgment the use at that location has unreasonably interfered with vehicular or pedestrian traffic; or

[b] If the premises has a history of noncompliance with the property maintenance standards in the Village Code, as evinced by three convictions during a calendar year for any violation of the Property Maintenance provisions[2] of the Nyack Village Code; or

[2] Editor’s Note: See Ch. 263, Property Maintenance.

[c] There is an outstanding violation of the site plan filed in connection with the permit; or

[d] For other good cause.

[3] Any decision to deny an application to renew a permit must be in writing, and shall be subject to review by the Zoning Board of Appeals.

(c) Standards and requirements. The Building Inspector shall require a site plan to be filed as a part of each application and such plan shall conform in all respects to the following:

[1] There shall be a minimum of five feet of clear distance from any obstruction adjacent to the area occupied by the sidewalk cafe, and no tables shall be placed in any area where the five-foot clear distance cannot be maintained. The five-foot clear area must be free of all obstructions (such as trees, parking meters, multispace parking control systems, utility poles, etc.) in order to allow adequate pedestrian movement. Failure to maintain this clearance shall be a violation of this subsection. When an extended building line places a permitted establishment within 20 feet of the corner of a block, a sidewalk cafe shall only be permitted when it is determined that the use will not create a hazard, a sight distance obstruction for motor vehicle operators or unduly impede pedestrian traffic. There shall be no tables within or blocking an entrance or exit doorway.

[Amended 4-19-2012 by L.L. No. 2-2012]

[2] A sidewalk cafe may be located only directly in front of the establishment with which it is associated. Sidewalk cafes shall be placed adjacent to the building and where the sidewalk is of such width and design that it does not interfere with pedestrian or vehicular traffic.

[3] A sidewalk cafe may not be located within 50 feet of the boundary of any SFR, TFR or MFR District.

[4] Fully removable gateless fencing no higher than table height must be erected on the perimeter line and attached to the building if removed nightly. Such gateless fencing shall be installed by the permit holder at its sole cost. The permit holder shall be fully responsible for the proper installation and removal of the gateless fencing, and shall be liable for any damage to the public sidewalk.

[Amended 4-19-2012 by L.L. No. 2-2012]

[5] Furnishings shall consist solely of the aforementioned gateless fencing, tables, table umbrellas of a height of at least 84 inches, chairs, and planters containing live plants. Furnishings may not be attached, even in a temporary manner, to the sidewalk or other public property.

[Amended 4-19-2012 by L.L. No. 2-2012]

[6] No permanent structure or enclosure to accommodate the storage of furniture, accessories or accumulated garbage may be erected or placed adjacent to or separate from the sidewalk cafe on public property.

[7] A sidewalk cafe shall not interfere with any public service facility such as a telephone, fire call box, mailbox or public bench located on a sidewalk.

[8] All sidewalk cafes pursuant to this section must provide a food menu, but this shall not be interpreted to prohibit the service of beverages only.

[9] The permit holder of a sidewalk cafe shall maintain, at its sole expense, comprehensive general liability insurance coverage in an amount not less than $1,000,000, with the Village named as additional insured.

(d) Operating restrictions.

[1] The establishment shall maintain all necessary licenses required by the State of New York.

[2] The Building Inspector may prohibit or limit the hours of operation of any activities that may impact an adjacent or nearby properties, such as the operation or use of musical instruments or sound reproduction devices, or any noise emanating from the sidewalk cafe or outdoor vending area other than the conversational and service sounds.

[3] When the associated indoor establishment is not open or the sidewalk cafe is not in daily use, all furnishings shall be removed daily from public property.

[4] All alcoholic beverages to be served at sidewalk cafes shall be prepared in the interior of the establishment.

[5] The restaurant shall not serve food or beverage to a patron at a sidewalk cafe unless that patron is seated at a table.

[6] Sidewalk cafes and the public property on which they are located shall be kept neat and clean at all times, whether or not the sidewalk cafe furnishings are being utilized, and free from any substance that may damage the sidewalk or cause patron or pedestrian injury, including but not limited to all litter, discarded food materials, chewing gum debris, and cigarette butts.

[Amended 4-19-2012 by L.L. No. 2-2012]

[7] The total number of patrons at any outdoor cafe or at any sidewalk tables authorized under this chapter shall not exceed six patrons as of 11:00 p.m. following an evening of food and beverage service.

[Amended 4-19-2012 by L.L. No. 2-2012]

[8] All outdoor cafes and sidewalk tables authorized under this section, as well as any furnishings used in association with the outdoor cafe area, shall be removed from the outdoor cafe area at or before 11:00 p.m. following an evening of food and beverage service.

[Amended 4-19-2012 by L.L. No. 2-2012]

[9] All windows and doors on the building or establishment holding a permit issued pursuant to this section shall be closed at or before 11:00 p.m. following an evening of food and beverage service.

[Added 4-19-2012 by L.L. No. 2-2012]

(e) Enforcement. This section shall be enforceable by the Building Inspector, Village Code Enforcement Officer, the Orangetown Police or the Village parking enforcement aides.

[Amended 4-19-2012 by L.L. No. 2-2012]

(f) Penalties for violations. Any person violating the provisions of this section shall be subject to a penalty not exceeding $250 for the first offense and a penalty not exceeding $1,000 for the second or other subsequent offense and, in addition thereto, a violation thereof shall constitute disorderly conduct, and a person violating the same shall be deemed a disorderly person.

[Added 4-19-2012 by L.L. No. 2-2012]

(8) Swimming pool. Any outdoor swimming pool with an area of 100 square feet or more and a depth in excess of two feet accessory to a residential use shall meet the following requirements:

(a) The pool shall not be operated for gain.

(b) The edge of the pool shall be kept a distance of not less than 20 feet from all property lines.

(c) If located within 50 feet of any property line, such pool shall be screened from the view of abutting properties.

(d) All requirements of the New York State Uniform Fire Prevention and Building Code pertaining to swimming pools shall be met.

(9) Multifamily apartment accessory to not-for-profit ambulance facilities subject to occupancy restrictions.

[Added 10-11-2012 by L.L. No. 11-2012; amended 7-16-2015 by L.L. No. 3-2015]

(a) All multifamily apartments shall meet the requirements for residential dwelling units contained in the New York State Fire and Building Code. At least one on-site parking space shall be required for each dwelling unit. The Planning Board shall require such reasonable covenants and restrictions to ensure that occupancy of apartments accessory to not-for-profit ambulance facilities shall be limited to emergency service providers actively associated with the ambulance facility and their spouses and children. These accessory apartments shall be located on the same lot as the ambulance service facility or an adjacent lot to the facility.

(10) Solar energy collectors.

[Added 10-13-2016 by L.L. No. 3-2016; amended 10-14-2021 by L.L. No. 3-2021]

(a) Authority. This subsection is adopted pursuant to §§ 7-700 through 7-704 of the Village Law of the State of New York, which authorize the Village of Nyack to adopt zoning provisions that advance and protect the health, safety and welfare of the community, and, in accordance with the Village law of New York State, "to make provision for, so far as conditions may permit, the accommodation of solar energy systems and equipment and access to sunlight necessary therefor."

(b) Statement of purpose. This subsection is adopted to advance and protect the public health, safety, and welfare of Village by creating regulations for the installation and use of solar energy generating systems and equipment, with the following objectives:

[1] To take advantage of a safe, abundant, renewable and nonpolluting energy resource;

[2] To decrease the cost of electricity to the owners of residential and commercial properties, including single-family houses;

[3] To increase employment and business development in the Village, to the extent reasonably practical, by furthering the installation of solar energy systems;

[4] To mitigate the impacts of solar energy systems on environmental resources such as important agricultural lands, forests, wildlife and other protected resources;

[5] To create synergy between solar and other stated goals of the community pursuant to its LWRP and Zoning Code (such as downtown revitalization, vacant land management, creating a walkable, healthy community, etc.). Consequently, the Village is desirous of promoting:

[a] A decrease in the use of fossil fuels, thereby, reducing the carbon footprint of Village of Nyack;

[b] Investment in a locally generated source of energy and to increase local economic value, rather than importing nonlocal fossil fuels;

[c] To align the laws and regulations of the community with several policies of the State of New York, particularly those that encourage distributed energy systems (the NYS Unified Solar Permit was updated in October 2016);

[d] To become more competitive for state and federal grants and tax benefits;

[e] To make the community more resilient during storm events;

[f] To aid in the energy independence of the community as well as the country;

[g] To diversify energy resources to decrease dependence on the grid;

[h] To improve public health;

[i] To encourage a sense of pride in the community;

[j] To encourage investment in public infrastructure supportive of solar, such as generation facilities, grid-scale transmission infrastructure, and energy storage sites.

(c) Definitions. As used in this subsection, the following terms shall have the meanings indicated:

BUILDING-INTEGRATED SOLAR ENERGY SYSTEM

A combination of solar panels and solar energy equipment integrated into any building envelope system such as vertical facades, semitransparent skylight systems, roofing materials, or shading over windows, which produce electricity for onsite consumption.

GLARE

The effect by reflections of light with intensity enough as determined in a commercially reasonable manner to cause annoyance, discomfort, or loss in visual performance and visibility in any material respects.

GROUND-MOUNTED SOLAR ENERGY SYSTEM

A solar energy system that is anchored to the ground via a pole or other mounting system, detached from any other structure that generates electricity for onsite or off- site consumption.

NATIVE PERENNIAL VEGETATION

Native wildflowers, forbs, and grasses that serve as habitat, forage, and migratory way stations for pollinators and shall not include any prohibited or regulated invasive species as determined by the New York State Department of Environmental Conservation.

ROOF-MOUNTED SOLAR ENERGY SYSTEM

A solar energy system located on the roof of any legally permitted building or structure that produces electricity for onsite or off-site consumption.

SOLAR ACCESS

Space open to the sun and clear of overhangs or shade to permit the use of active and/or passive solar energy systems on individual properties.

SOLAR ENERGY EQUIPMENT

Electrical material, hardware, inverters, conduit, storage devices, or other electrical and photovoltaic equipment associated with the production of electricity.

SOLAR ENERGY SYSTEM

The components and subsystems required to convert solar energy into electric energy suitable for use. The term includes, but is not limited to, solar panels and solar energy equipment. The area of a solar energy system includes all the land inside the perimeter of the solar energy system, which extends to any interconnection equipment. A solar energy system is classified as a Tier 1, Tier 2, or Tier 3 solar energy system as follows:

[1] Tier 1 solar energy systems include the following: roof-mounted solar energy systems, or building-integrated solar energy systems.

[2] Tier 2 solar energy systems include ground-mounted solar energy systems with a total surface area of all solar panels on the lot of up to 4,000 square feet and that generate up to 110% of the electricity consumed on the site over the previous 12 months.

[3] Tier 3 solar energy systems are systems that are not included in the list for Tier 1 and Tier 2 solar energy systems.

(d) Applicability.

[1] The requirements of this subsection shall apply to all solar energy systems permitted, installed, or modified in Village of Nyack after the effective date of this subsection, excluding general maintenance and repair.

[2] Solar energy systems constructed or installed prior to the effective date of this subsection shall not be required to meet the requirements of this subsection.

[3] Modifications to an existing solar energy system that increase the solar energy system area by more than 5% of the original area of the solar energy system (exclusive of moving any fencing) shall be subject to this subsection.

[4] All solar energy systems shall be designed, erected, and installed in accordance with all applicable codes, regulations, and industry standards as referenced in the NYS Uniform Fire Prevention and Building Code ("Building Code"), the NYS Energy Conservation Code ("Energy Code"), and the Village Code except that the New York State Unified Solar Panel Application form (updated by NYS in October 2016) shall be acceptable for permitting solar installations in the Village of Nyack.

(e) General requirements. All solar energy collectors shall be subject to the following requirements:

[1] Solar energy collectors shall be structures and shall require a building permit and certificate of compliance issued by the Building Inspector.

[2] Solar energy collectors shall be located in areas and ways that best mitigate their visibility from surrounding properties when possible, and they shall not be unnecessarily bright, shiny, garish or reflective.

[3] Solar energy collectors shall be permitted only to provide power for use by owners, lessees, tenants, residents, or other occupants of the premises on which they are erected, but nothing contained in this provision shall be construed to prohibit the sale of excess power through a net billing or similar program in accordance with New York Public Service Law § 66-j or similar state or federal statute.

[4] All solar energy collectors shall have antireflective coatings.

[5] Permitting requirements for Tier 1 solar energy systems.

[a] All Tier 1 solar energy systems shall be permitted in all zoning districts and shall be exempt from site plan review under the local zoning code or other land use regulation, subject to the following conditions for each type of solar energy system.

[b] All roof-mounted and building-integrated solar energy systems are permitted in all zoning districts and shall be exempt from site plan review under the local zoning code or other land use regulation, subject to the following conditions for each type of solar energy system:

[c] Roof-mounted solar energy collectors shall incorporate, when feasible, the following design requirements:

[i] Shall be mounted no more than 12 inches above the surface to which they are affixed.

[ii] On a pitched roof, shall not extend beyond the highest point of the roof surface.

[iii] On a flat roof, shall not extend beyond surrounding parapet, or more than 24 inches above flat roof surface, whichever is higher.

[iv] All roof-mounted solar energy systems shall be subject to the maximum height regulations specified for principal and accessory buildings within the underlying zoning district unless otherwise provided in Subsection E(10)(e)[5][b] above.

[v] Building-integrated solar energy systems shall be shown on the plans submitted for the building permit application for the building containing the system.

[6] Permitting requirements for Tier 2 solar energy systems.

[a] All Tier 2 solar energy systems shall be permitted in all zoning districts as accessory structures and shall be exempt from site plan review under the local zoning code or other land use regulations, subject to the following conditions:

[b] Setbacks. Tier 2 solar energy systems shall be subject to the setback regulations specified for the accessory structures within the underlying zoning district. All ground-mounted solar energy systems shall only be installed in the side or rear yards in residential districts.

[c] Height. Tier 2 solar energy systems shall be subject to the height limitations specified for accessory structures within the underlying zoning district.

[d] Screening and visibility:

[i] All Tier 2 solar energy systems shall have views minimized from adjacent properties to the extent reasonably practicable;

[ii] Solar energy equipment shall be in a manner to reasonably avoid and/or minimize blockage of views from surrounding properties and shading of property to the north, while still providing adequate solar access.

[e] Lot size. Tier 2 solar energy systems shall comply with the existing lot size requirement specified for accessory structures within the underlying zoning district.

[7] Permitting requirements for Tier 3 solar energy systems.

[a] All Tier 3 solar energy systems are permitted through the issuance of a site plan approval from the Planning Board within the CC (Corridor Commercial) District zoning district, and subject to site plan application requirements set forth in this section.

[b] Underground requirements. All onsite utility lines shall be placed underground to the extent feasible and as permitted by the serving utility, except for the main service connection at the utility company right-of-way and any new interconnection equipment, including without limitation any poles with new easements and right-of-way.

[c] Vehicular paths. Vehicular paths within the site shall be designed to minimize the extent of impervious materials and soil compaction.

[d] Signage.

[i] No signage or graphic content shall be displayed on the solar energy systems except the manufacturer's name, equipment specification information, safety information, and twenty-four-hour emergency contact information. Said information shall be depicted within an area no more than eight square feet.

[ii] As required by National Electric Code (NEC), disconnect and other emergency shut off information shall be clearly displayed on a light reflective surface. A clearly visible warning sign concerning voltage shall be placed at the base of all pad-mounted transformers and substations.

[e] Glare. All solar panels shall have antireflective coating(s).

[f] Lighting. Lighting of the solar energy systems shall be limited to that minimally required for safety and operational purposes and shall be reasonably shielded and downcast from abutting properties.

[g] Tree-cutting. Removal of existing trees larger than six inches in diameter should be minimized to the extent possible.

[8] Additional standards for Tier 1 and Tier 2 solar energy collectors shall be permitted subject to the following requirements:

[a] Tier 1. A roof plan shall be submitted to the Building Inspector including the height of the parapets and structural design load requirements certified by a design engineer and the location of all property lines and neighboring buildings.

[b] Tier 1 and Tier 2. Upon project completion, the Design Engineer shall certify in writing to the Building Inspector that the solar installation has been built in accordance with New York State Building Code and the plan's design specifications.

[9] Decommissioning.

[a] Solar energy systems that have been abandoned and/or not producing electricity for a period of one year shall be removed at the owner and/or operator's expense, which at the owner's option may come from any security made with the Village as set forth in Subsection E(10)(e)[9][b] and [c] herein.

[b] A decommissioning plan signed by the owner and/or operator of the solar energy system shall be submitted by the applicant, addressing the following:

[i] The cost of removing the solar energy system;

[ii] The time required to decommission and remove the solar energy system any ancillary structures;

[iii] The time required to repair any damage caused to the property by the installation and removal of the solar energy system.

[c] Security.

[i] The deposit, executions, or filing with the Village Clerk of cash, bond, or other form of security reasonably acceptable to the Village Attorney and/or Engineer, shall be in an amount sufficient to ensure the good faith performance of the terms and conditions of the permit issued pursuant hereto and to provide for the removal and restorations of the site subsequent to removal. The amount of the bond or security shall be 125% of the cost of removal of the Tier 3 solar energy system and restoration of the property with an escalator of 2% annually for the life of the solar energy system. The decommissioning amount shall be reduced by the amount of the estimated salvage value of the solar energy system;

[ii] In the event of default upon performance of such conditions, after proper notice and expiration of any cure periods, the cash deposit, bond, or security shall be forfeited to the Village, which shall be entitled to maintain an action thereon. The cash deposit, bond, or security shall remain in full force and effect until restoration of the property as set forth in the decommissioning plan is completed;

[iii] In the event of default or abandonment of the solar energy system, the system shall be decommissioned as set forth in Subsection E(10)(e)[9][a], [b], and [c] herein.

[10] Site plan application.

[a] The plan submitted to the Building Inspector as a requirement for the approval of the site plan shall indicate all existing and proposed grading, excavating, filling, paving, fencing, and screening as it may relate to the proposed collector, shall indicate the location of all property lines and neighboring buildings, and shall comply with the requirements and standards of this section and of Village Code § 360-5.7.

[b] Any site plan application shall include the following information:

[i] Property lines and physical features, including roads, for the project site,

[ii] Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, and screening vegetation or structures,

[iii] A one- or three-line electrical diagram detailing the solar energy system layout, solar collector installation, associated components, and electrical interconnection methods, with all National Electrical Code compliant disconnects and over current devices,

[iv] A preliminary equipment specification sheet that documents all proposed solar panels, significant components, mounting systems, and inverters that are to be installed. A final equipment specification sheet shall be submitted prior to the issuance of building permit,

[v] Name, address, and contact information of proposed or potential system installer and the owner and/or operator of the solar energy system. Such information of the final system installer shall be submitted prior to the issuance of building permit,

[vi] Name, address, phone number, and signature of the project applicant, as well as all the property owners, demonstrating their consent to the application and the use of the property for the solar energy system,

[vii] Zoning district designation for the parcel(s) of land comprising the project site (on a complete bulk table),

[viii] Property operation and maintenance plan. Such plan shall describe continuing photovoltaic maintenance and property upkeep, such as mowing and trimming,

[ix] Erosion and sediment control and stormwater management plans prepared to New York State Department of Environmental Conservation standards, if applicable, and to such standards as may be established by the Planning Board,

[x] Prior to the issuance of the building permit or final approval by the Planning Board, but not required as part of the application, engineering documents must be signed and sealed by a New York State (NYS) Licensed Professional Engineer or NYS Registered Architect.

[11] Additional site plan review standards. In addition to the site plan elements contained in this chapter, the following additional site plan review elements shall apply:

[a] Lot size. The property on which the Tier 3 solar energy system is placed shall meet the lot size requirements of the underlying zoning district.

[b] Setbacks. The Tier 3 solar energy systems shall comply with the setback requirements of the underlying zoning district for principal structures.

[c] Height. The Tier 3 solar energy systems shall comply with the building height limitations for principal structures of the underlying zoning district.

[d] Fencing requirements. All mechanical equipment, including any structure for storage batteries, shall be enclosed by a seven-foot-high fence, as required by NEC, with a self-locking gate to prevent unauthorized access.

[e] Screening and visibility. Solar energy systems smaller than five acres shall have views minimized from adjacent properties to the extent reasonably practicable using architectural features, earth berms, landscaping, or other screening methods that will harmonize with the character of the property and surrounding area.

[f] Solar energy systems larger than five acres shall be required to:

[i] Conduct a visual assessment of the visual impacts of the solar energy system on public roadways and adjacent properties. At a minimum, a line-of-sight profile analysis shall be provided. Depending upon the scope and potential significance of the visual impacts, additional impact analyses, including for example a digital viewshed report, may be required to submitted by the applicant;

[ii] Submit a screening and landscaping plan to show adequate measures to screen through landscaping, grading, or other means so that views of solar panels and solar energy equipment shall be minimized as reasonably practical from public roadways and adjacent properties to the extent feasible (the screening and landscaping plan shall specify the locations, elevations, height, plant species, and/or materials that will comprise the structures, landscaping, and/or grading used to screen and/or mitigate any adverse aesthetic effects of the system). The landscaped screening shall be comprised of a minimum of one evergreen tree, at least six feet high at time of planning, plus two supplemental shrubs at the reasonable discretion of the Village Planning Board, all planted within each 10 linear feet of the solar energy system. Existing vegetation may be used to satisfy all or a portion of the required landscaped screening. A list of suitable evergreen tree and shrub species may be provided by the Village.

[g] Tier 3 solar energy system owners shall develop, implement, and maintain native vegetation to the extent practicable pursuant to a vegetation management plan by providing native perennial vegetation and foraging habitat beneficial to game birds, songbirds, and pollinators. To the extent practicable, when establishing perennial vegetation and beneficial foraging habitat, the owners shall use native plant species and seed mixes.

[h] Safety.

[i] Solar energy systems and solar energy equipment shall be certified under the applicable electrical and/or building codes as required.

[ii] Solar energy systems shall be maintained in good working order and in accordance with industry standards. Site access shall be maintained, including snow removal at a level acceptable to the local fire department and the local ambulance corps.

[iii] If storage batteries are included as part of the solar energy system, they shall meet the requirements of any applicable fire prevention and building code when in use and, when no longer used, shall be disposed of in accordance with the laws and regulations of the Village and any applicable federal, state, or county laws or regulations.

[i] Permit time frame and abandonment.

[i] The site plan approval for a solar energy system shall be valid for a period of 18 months, provided that a building permit is issued within that time period. In the event construction is not completed in accordance with the final site plan, as may have been amended and approved as required by the Planning Board, within 18 months after approval, the applicant or the Planning Board may extend the time to complete construction for 180 days. If the owner and/or operator fails to perform substantial construction after 24 months, the approvals shall expire.

[ii] Upon cessation of electricity generation of a solar energy system on a continuous basis for 12 months, the Village may notify and instruct the owner and/or operator of the solar energy system to implement the decommissioning plan. The decommissioning plan must be completed within 360 days of notification.

[iii] If the owner and/or operator fails to comply with decommissioning upon any abandonment, the Village may, at its discretion, utilize the bond and/or security for the removal of the solar energy system and restoration of the site in accordance with the decommissioning plan.

[12] Enforcement. Any violation of this subsection shall be subject to the same enforcement requirements, including the civil and criminal penalties, provided for in the zoning or land use regulations of Village. This article shall be enforced by the Building Inspector, Assistant Building Inspector, Fire Inspector and other enforcement officials in the Building Department. A person who violates this article shall be charged with a violation and, if convicted, shall be punished by a fine of not less than $500 and not more than $1,000, for each day that the violation continues.