|SAME AS||SAME AS S06090|
|COSPNSR||Ceretto, McDonald, Blake|
|Add Art 13-E §§300 - 304, Gen Muni L|
|Enacts the "wireless broadband eligible facility permitting act" to provide for uniform regulation of certain wireless facilities.|
|06/08/2016||referred to local governments|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10620 SPONSOR: Rules (Morelle)
TITLE OF BILL: An act to amend the general municipal law, in relation to enacting the "wireless broadband eligible facility permitting act" providing for uniform municipal regulation of certain wireless facili- ties   PURPOSE: This legislation will put in place a uniform state siting process for the placement, collocation, modification and maintenance of wireless facilities. It is intended to ease the burden on local governments by reducing their administrative costs, and to incentivize wireless carri- ers to co-locate their equipment at existing wireless facility sites, rather than to construct new sites.   SUMMARY OF PROVISIONS: Section 1 sets forth the bill's legislative intent. § 2 titles the bill the Wireless Broadband Eligible Facility Permitting Act. § 3 adds a new General Municipal Law Article 13-E, which relates to the placement, collocation, modification or maintenance of wireless facili- ties. GML § 300 defines key terms. GML § 301 sets forth language regarding municipal authority to regulate the siting and installation of base stations and towers that ensures that local governments exercising this authority do so in a manner that conforms with federal law. GML § 302 sets forth a process for local government consideration of eligible facilities requests. GML § 303 provides for judicial review of actions that do not conform with the provisions of GML § 302. § 4 provides that this article supersedes any inconsistent state or local laws relating to the placement, collocation, modification or main- tenance of wireless facilities. § 5 is the effective date.   EXISTING LAW: New York does not currently have any laws in place regarding the siting and installation of base stations and towers. There are a number of federal laws and Federal Communications Commission (FCC) regulations that govern the siting and installation of base stations and towers.   JUSTIFICATION: This legislation is intended to promote the investment in and upgrades to the state's wireless telephone and data networks by simplifying approvals for minor modifications to existing wireless facilities by exempting them from local zoning, land use or other discretionary siting permits and codifying the process to obtain such approvals. By conforming state law and local processes with federal law, the bill is intended to provide an incentive for wireless carriers to maximize co-location at existing wireless facility sites (rather than construct- ing new sites). The legislation will also benefit local governments by providing them with clear guidance and direction through this process, which is largely governed by federal law and regulation. Robust and reliable telecommunications networks are essential to the state's economy and to its economic growth. Having a statewide, uniform process for eligible wireless facility upgrades will encourage the wire- less industry's continued capital deployment in the state. Wireless industry investment in network upgrades will ensure that the state's residents, businesses, and tourists will have access to the most modern networks that are needed to succeed in the 21st century. Under this bill, local governments will continue to have zoning and land use jurisdiction consistent with state and federal law.   LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS: No cost to the state. The legislation should result in some cost savings for local governments.   EFFECTIVE DATE: Takes effect 30 days after it becomes law.
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STATE OF NEW YORK ________________________________________________________________________ 10620 IN ASSEMBLY June 8, 2016 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. Morelle, Ceretto, McDonald) -- read once and referred to the Committee on Local Governments AN ACT to amend the general municipal law, in relation to enacting the "wireless broadband eligible facility permitting act" providing for uniform municipal regulation of certain wireless facilities The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative intent. The legislature hereby finds and 2 declares that it is the policy of this state to ensure the safe and 3 efficient integration of certain wireless facility modifications neces- 4 sary for the provision of broadband and other advanced wireless services 5 across the entirety of the state. It is the intent of this act to facil- 6 itate the ongoing demand for access to broadband and other advanced 7 wireless services by exempting certain modifications of existing wire- 8 less facilities from the need for municipal zoning, land use or other 9 discretionary siting permits, to eliminate the burdens and resources 10 dedicated by municipal zoning and land use agencies to review certain 11 eligible modifications of such wireless facilities, and create a state- 12 wide uniform process for municipal permitting of such eligible facility 13 modifications. The legislature acknowledges and confirms the authority 14 of local governments to otherwise exercise zoning, land use and permit- 15 ting authority within their territorial boundaries with regard to the 16 placement and construction of wireless facilities in accordance with 17 other laws, rules and requirements that may apply to the siting of wire- 18 less facilities. 19 § 2. Short title. This act shall be known and may be cited as the 20 "wireless broadband eligible facility permitting act". 21 § 3. The general municipal law is amended by adding a new article 13-E 22 to read as follows: 23 ARTICLE 13-E 24 WIRELESS FACILITIES 25 Section 300. Definitions. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13137-01-5A. 10620 2 1 301. General municipal authority over siting of wireless facili- 2 ties. 3 302. Eligible facilities requests. 4 303. Application to supreme court by aggrieved persons. 5 304. Preemption. 6 § 300. Definitions. For the purposes of this article, the following 7 terms shall have the following meanings unless the context indicates 8 otherwise. 9 1. "Applicant" shall mean any person who files an application for 10 wireless infrastructure pursuant to a municipal zoning law adopted 11 pursuant to this article or an eligible facilities request with the 12 municipal building inspector. 13 2. "Application" shall mean a zoning application filed with a munici- 14 pality for approvals to construct, operate and maintain a wireless 15 facility, an eligible facilities request or an application pursuant to 16 the state uniform fire prevention and building code. 17 3. "Base station" shall mean a structure or equipment at a fixed 18 location that enables Federal Communications Commission licensed or 19 authorized wireless communications between user equipment and a communi- 20 cations network. Such term shall not encompass a tower or any equipment 21 associated with a tower. 22 (a) Such term shall include, but not be limited to: 23 (1) equipment associated with wireless communications services such as 24 private, broadcast and public safety services, as well as unlicensed 25 wireless services and fixed wireless services such as microwave back- 26 haul; 27 (2) radio transceivers, antennas, coaxial or fiber-optic cable, regu- 28 lar and backup power supplies, and comparable equipment, regardless of 29 technological configuration (including distributed antenna systems and 30 small-cell networks); and 31 (3) any structure other than a tower that, at the time the relevant 32 permit application is filed with the municipal building inspector, 33 supports or houses equipment described in subparagraph one or two of 34 this paragraph that has been reviewed and approved under the applicable 35 zoning or siting process, or under another state or local regulatory 36 review process, even if the structure was not built for the sole or 37 primary purpose of providing such support. 38 (b) Such term shall not include any structure that, at the time the 39 relevant permit application is filed with the municipal building inspec- 40 tor, does not support or house equipment described in subparagraph one 41 or two of paragraph (a) of this subdivision. 42 4. "Collocation" shall mean the mounting or installation of trans- 43 mission equipment on an eligible support structure for the purpose of 44 transmitting and/or receiving radio frequency signals for communications 45 purposes. 46 5. "Eligible facilities request" shall mean any request for modifica- 47 tion of an existing tower or base station that does not substantially 48 change the physical dimensions of such tower or base station, involving: 49 (a) the collocation of new transmission equipment; 50 (b) the removal of transmission equipment; or 51 (c) the replacement of transmission equipment. 52 6. "Eligible support structure" shall mean any tower or base station, 53 provided that it is existing at the time a permit application is filed 54 with a municipal building inspector. 55 7. "Existing" shall mean that a constructed tower or base station has 56 been reviewed and approved under the applicable zoning or siting proc-A. 10620 3 1 ess, or under another state or local regulatory review process, provided 2 that a tower that has not been reviewed and approved but was lawfully 3 constructed prior to the current applicable zoning or siting process, 4 shall be deemed to be existing. 5 8. "Modification" shall mean the improvement, upgrade or expansion of 6 an existing wireless facility, base station or wireless support struc- 7 ture that is not a repair, maintenance or in kind replacement of exist- 8 ing transmission equipment. 9 9. "Municipality" shall mean a city, town or village, including any 10 agent, board, authority, commission, agency, department or other instru- 11 mentality thereof. 12 10. "Municipal building inspector" shall mean the official charged 13 with issuing building permits or enforcing the state uniform fire 14 prevention and building code within a municipality. In the event a 15 municipality does not have a municipal official charged with issuing 16 building permits or enforcing the state uniform fire prevention and 17 building code, such term shall be deemed to refer to the entity charged 18 with enforcing the building code pursuant to subdivision two of section 19 three hundred eighty-one of the executive law. 20 11. "Municipal zoning law" shall mean any local law, ordinance, rule, 21 regulation, policy or guideline which regulates or governs the location 22 or use of structures or land adopted by a municipality pursuant to this 23 chapter, the general city law, the town law, the village law and/or any 24 other applicable authority. 25 12. "Site" shall mean, for towers other than towers in the public 26 rights-of-way, the current boundaries of the leased or owned property 27 surrounding the tower and any access or utility easements related to the 28 site, and, for other eligible support structures, further restricted to 29 that area in proximity to the structure and to other transmission equip- 30 ment deployed on the ground. 31 13. "Substantial change" shall mean a modification substantially 32 changes the physical dimensions of an eligible support structure if it 33 meets any of the following criteria: 34 (a) For towers other than towers in the public rights-of-way, it 35 increases the height of the tower by more than ten percent or by the 36 height of one additional antenna array with separation from the nearest 37 existing antenna not to exceed twenty feet, whichever is greater; and 38 for other eligible support structures, it increases the height of the 39 structure by more than ten percent or more than ten feet, whichever is 40 greater. For the purpose of this paragraph, changes in height shall be 41 measured from the original support structure in cases where deployments 42 are or will be separated horizontally, such as on buildings' rooftops; 43 and in other circumstances, changes in height shall be measured from the 44 dimensions of the tower or base station, inclusive of originally 45 approved appurtenances and any modifications that were approved prior to 46 the enactment of the Middle Class Tax Relief and Job Creation Act of 47 2012 (Public Law 112-96); 48 (b) For towers other than towers in the public rights-of-way, it 49 involves adding an appurtenance to the body of the tower that would 50 protrude from the edge of the tower more than twenty feet, or more than 51 the width of the tower structure at the level of the appurtenance, 52 whichever is greater; and for other eligible support structures, it 53 involves adding an appurtenance to the body of the structure that would 54 protrude from the edge of the structure by more than six feet; 55 (c) For any eligible support structure, it involves installation of 56 more than the standard number of new equipment cabinets for the technol-A. 10620 4 1 ogy involved, but not to exceed four cabinets; or, for towers in the 2 public rights-of-way and base stations, it involves installation of any 3 new equipment cabinets on the ground if there are no pre-existing ground 4 cabinets associated with the structure, or else involves installation of 5 ground cabinets that are more than ten percent larger in height or over- 6 all volume than any other ground cabinets associated with the structure; 7 (d) It entails any excavation or deployment outside the current site; 8 (e) It would defeat the concealment elements of the eligible support 9 structure; or 10 (f) It does not comply with conditions associated with the siting 11 approval of the construction or modification of the eligible support 12 structure or base station equipment; provided, however, that this limi- 13 tation shall not apply to any modification that is non-compliant only in 14 a manner that would not exceed the thresholds identified in paragraphs 15 (a) through (d) of this subdivision. 16 14. "Transmission equipment" shall mean equipment that facilitates 17 transmission for any Federal Communications Commission licensed or 18 authorized wireless communications services including, but not limited 19 to, radio transceivers, antennas, coaxial or fiber-optic cable, and 20 regular and backup power supply. Such term shall include equipment asso- 21 ciated with wireless communications services including, but not limited 22 to, private, broadcast and public safety services, as well as unlicensed 23 wireless services and fixed wireless services such as microwave back- 24 haul. 25 15. "Tower" shall mean any structure built for the sole or primary 26 purpose of supporting any Federal Communications Commission licensed or 27 authorized antennas and their associated facilities, including struc- 28 tures that are constructed for wireless communications services includ- 29 ing, but not limited to, private, broadcast and public safety services, 30 as well as unlicensed wireless services and fixed wireless services such 31 as microwave backhaul, and the associated site. 32 16. "Wireless facility" shall mean the wireless services equipment 33 including transmission equipment, base station, tower and accessory 34 equipment, utilities and other site development components. 35 17. "Wireless services" shall mean the use of any wireless technology, 36 including without limitation, commercial mobile services, commercial 37 mobile radio services, unlicensed wireless services, common carrier 38 wireless exchange access services, cellular radiotelephone, specialized 39 mobile radio systems, personal communications services, advanced wire- 40 less services, two-way personal wireless services, and any such other 41 wireless technologies that may from time to time be utilized, in order 42 to transmit and/or receive radio waves. 43 § 301. General municipal authority over siting of wireless facilities. 44 1. A municipality may enact municipal zoning laws regulating the siting 45 and installation of base stations and towers provided that such munici- 46 pal zoning laws comply with federal laws, including the provisions of 47 47 U.S.C. § 332(c)(7), the Federal Communications Commission cell tower 48 shot clock order, the Middle Class Tax Relief and Job Creation Act of 49 2012 and the provisions of this article. 50 2. Every municipality shall act on an application for a wireless 51 facility in accordance with the regulations and orders of the Federal 52 Communications Commission as follows for: 53 (a) a base station within ninety days of the application being filed 54 with the municipality; 55 (b) a tower within one hundred fifty days of the application being 56 filed with the municipality; orA. 10620 5 1 (c) an eligible facilities request within sixty days of the applica- 2 tion being filed with the municipality, as set forth in section three 3 hundred two of this article. 4 § 302. Eligible facilities requests. 1. Notwithstanding any other 5 provision of law to the contrary, a municipality shall not require 6 zoning, land use or other discretionary permits for any eligible facili- 7 ties request. 8 2. All eligible facilities requests shall be submitted to the munici- 9 pal building inspector for review with any application or applications 10 for permits that may be required by the state uniform fire prevention 11 and building code, and shall not otherwise be subject to any municipal 12 zoning law which may otherwise apply to wireless facilities. 13 3. All eligible facilities requests shall be exempt from environmental 14 quality review pursuant to article eight of the environmental conserva- 15 tion law on the basis that administrative review of an eligible facili- 16 ties request is an official act of a ministerial nature involving no 17 exercise of discretion, and the issuance of any associated administra- 18 tive approval by the municipal building inspector predicated solely on 19 compliance or noncompliance with this section. No environmental assess- 20 ment form shall be required for review of an eligible facilities review. 21 4. When a person files an eligible facilities review and asserts in 22 writing that a request for modification is covered by this section, the 23 municipal building inspector may only require documentation or informa- 24 tion customarily required in a building permit application and such 25 other information reasonably related to determining whether the request 26 meets the requirements of this article. A municipal building inspector 27 may adopt a form for use in assessing eligible facilities review filings 28 in addition to any other customary forms used for the processing of 29 building permit applications. 30 5. The municipal building inspector shall review and approve an appli- 31 cation of eligible facilities review and issue any necessary building 32 and/or electrical permits within sixty days of the submission, subject 33 to tolling as set forth in subdivision six of this section, unless the 34 municipal building inspector determines that the modification does not 35 meet the criteria for an eligible facilities review in which case a 36 written denial thereof shall be transmitted within sixty days of the 37 filing date. If the municipal building inspector determines that the 38 modification does not meet the criteria for an eligible facilities 39 review, the reasons shall be stated in the written denial and include a 40 determination of what if any application shall be required under any 41 municipal zoning law. 42 6. The sixty day review period begins to run when the application for 43 an eligible facilities review and application for any necessary permits 44 are filed, and may be tolled only (a) by mutual agreement of the munici- 45 pal building inspector and the applicant or (b) where the municipal 46 building inspector determines that the eligible facilities review and/or 47 any necessary permit applications are incomplete and provides written 48 notice to the applicant within thirty days of receipt of such permit 49 applications specifically delineating all missing supporting information 50 or documentation that is required. The timeframe for review begins 51 running again when the applicant makes a supplemental submission in 52 response to any notice of incompleteness. Following a supplemental 53 submission, the municipal building inspector shall notify the applicant 54 within ten days if the supplemental submission did not provide the 55 information identified in the original notice delineating missing infor- 56 mation and these tolling procedures. Second or subsequent notices ofA. 10620 6 1 incompleteness shall only toll the timeframe for review to the extent 2 they request documents or information that were delineated in the 3 original notice of incompleteness. 4 7. In the event the municipal building inspector fails to approve or 5 deny an application for eligible facilities review and issue any neces- 6 sary permits within the timeframe set forth in subdivision five of this 7 section, subject to tolling set forth in subdivision six of this 8 section, the eligible facilities review and any necessary permits shall 9 be deemed granted. The deemed grant approval will become effective when 10 the applicant notifies the municipal building inspector in writing that 11 the sixty day period, and any applicable tolling, has expired and the 12 permits have been deemed granted by operation of law. The municipality 13 shall issue any necessary permits within fifteen days of the date the 14 municipality receives notice of the deemed grant approval. 15 § 303. Application to supreme court by aggrieved persons. Any person 16 or persons, jointly or severally aggrieved by any act of a municipality 17 that is inconsistent with the provisions of this article or a failure to 18 act in a manner consistent therewith, may, within thirty days after such 19 action or failure to act, commence an action pursuant to article seven- 20 ty-eight of the civil practice law and rules in the supreme court for 21 the county in which such municipality is situate. The supreme court 22 shall hear and decide such action on an expedited basis. 23 § 304. Preemption. The provisions of this article shall supersede any 24 inconsistent provision of law relating to the placement, collocation, 25 modification or maintenance of wireless facilities. 26 § 4. This act shall take effect on the thirtieth day after it shall 27 have become a law.