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.
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. See
§ 360-3.2D(1)(c)[6].
[7] Requirements applicable to all wireless communications antennas. See
§ 360-3.2D(1)(c)[7].
[8] Antenna locations where public exposure is likely. See
§ 360-3.2D(1)(c)[8].
[9] Requirements applicable to roof-mounted antennas. See
§ 360-3.2D(1)(c)[9].
[10] Requirements applicable to new wireless communications towers. See
§ 360-3.2D(1)(c)[10].
[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. See
§ 360-3.2D(1)(c)[12].
[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. See
§ 360-3.2D(1)(c)[14].
[15] Color and lighting standards. See
§ 360-3.2D(1)(c)[15].
[16] Fencing and NIER warning signs. See
§ 360-3.2D(1)(c)[16].
[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)(c)[13][b][i].
[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.
