STATE OF NEW YORK
________________________________________________________________________
2636
2023-2024 Regular Sessions
IN ASSEMBLY
January 26, 2023
___________
Introduced by M. of A. COLTON, BENEDETTO, RIVERA, L. ROSENTHAL --
Multi-Sponsored by -- M. of A. GLICK, THIELE, WALKER -- read once and
referred to the Committee on Local Governments
AN ACT to enact the "wireless facility siting act"; to amend the general
municipal law, in relation to the placement, construction and modifi-
cation of wireless services facilities
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. Municipal control over the siting of
2 wireless services facilities is an important component of municipal home
3 rule. The legislature recognizes the federal, state and local interests
4 of providing for proper and convenient wireless services to the public.
5 As such, the legislature needs to balance the interests of providing
6 quality wireless communication services with local concerns on the inap-
7 propriate siting of telecommunications towers. This act provides for a
8 process of municipal review for applications to site, construct and
9 modify wireless services facilities. Such process must incorporate the
10 needs and desires of the local community, with regard to the aesthetic
11 ramifications of such siting. It is the intent of the legislature in
12 adopting the "wireless facility siting act" to implement enabling legis-
13 lation which specifically sets forth a uniform statewide process for
14 municipal review of applications for the placement, construction and
15 modification of wireless services facilities in all municipalities that
16 do not have local laws to regulate the placement of such towers. Each
17 municipality shall be able to enact approval processes that are more
18 strict than those established by this act.
19 § 2. Short title. This act shall be known as and may be cited as the
20 "wireless facility siting 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00450-01-3
A. 2636 2
1 WIRELESS FACILITY SITING ACT
2 Section 300. Definitions.
3 301. Permit requirements.
4 302. Minimum state-wide procedure for municipal review of permit
5 requests.
6 303. Standards for review and application requirements for a
7 wireless facility.
8 304. Co-location standards.
9 305. Permit approval; non-conforming facilities.
10 306. Applicability.
11 § 300. Definitions. The following terms shall have the meanings set
12 forth in this section unless the context clearly indicates otherwise:
13 1. "Ancillary equipment" means all equipment necessary for the secure
14 and successful operation of a wireless facility including but not limit-
15 ed to, support structures, transmitting, receiving and combining equip-
16 ment, equipment shelters, transmission cables, and backup power sources.
17 Ancillary equipment shall not include residential, industrial or commer-
18 cial buildings but shall include any such equipment placed on residen-
19 tial, industrial or commercial buildings.
20 2. "Building inspector" means the municipal official charged with
21 issuing building permits and/or enforcing the zoning law of such munici-
22 pality or other individual designated by the legislative body to issue
23 permits for wireless facilities.
24 3. "Historic area" means an area wholly or partially within, or wire-
25 less facility having its foundation within one thousand feet of, any
26 historic building, structure, facility, site or district, that is listed
27 on the national register of historic places, or that has been proposed
28 by the New York state board on historic preservation for a recommenda-
29 tion to the state historic preservation officer for nomination for
30 inclusion in the national register, that is listed on the state register
31 of historic places, or has been designated as a historic place or land-
32 mark by the municipality.
33 4. "Municipal board" or "board" means the municipal board authorized
34 to review applications for wireless facilities. In the event a munici-
35 pality has not designated a board, references in this article to the
36 municipal board shall be deemed to refer to the legislative body of such
37 municipality.
38 5. "Municipal zoning law" means a municipality's zoning local law or
39 ordinance.
40 6. "Municipality" means any city, town or village.
41 7. "Permit" means the authorization by the building inspector pursuant
42 to this article to construct a wireless facility.
43 8. "Person" means any individual, corporation, limited liability
44 company, joint venture, public benefit corporation, partnership, limited
45 liability partnership or association.
46 9. "Scenic area" means an area wholly or partially within, or a wire-
47 less facility having its foundation within one thousand feet of, any
48 publicly owned or operated parkland, recreation area or designated open
49 space, including any wireless facility having its foundation within one
50 thousand feet of the centerline of any scenic byway as defined in arti-
51 cle twelve-C of the highway law or as designated by the municipality.
52 10. "Technical review" means review of a permit application by an
53 independent expert in telecommunications siting.
54 11. "Technically and commercially reasonable" means in accordance with
55 general industry practice in the provision of wireless services pertain-
56 ing to cost and service coverage.
A. 2636 3
1 12. "Telecommunications tower" means any freestanding tower, monopole
2 or similar structure used for the provision of wireless services includ-
3 ing ancillary telecommunications equipment required to integrate such
4 facility into an existing or proposed wireless network.
5 13. "Wireless facility" means only the part or parts of any facility
6 used in connection with the provision of wireless services including,
7 but not limited to, antennas, ancillary equipment and telecommunications
8 towers.
9 14. "Wireless services" means all commercial mobile services, as that
10 term is defined in section 332(d) of title 47, United States Code, as
11 amended from time to time, including, but not limited to, all broadband
12 personal communications services, wireless radio telephone services,
13 geographic area specialized and enhanced specialized mobile radio
14 services, and incumbent-wide area specialized mobile radio licensees,
15 which offer real time, two-way voice or data service that is intercon-
16 nected with the public switched telephone network or otherwise provides
17 access to communications services.
18 § 301. Permit requirements. No person shall commence the construction
19 or modification of a wireless facility without first obtaining a munic-
20 ipal permit.
21 § 302. Minimum state-wide procedure for municipal review of permit
22 requests. 1. (a) Upon receipt of a completed application for permis-
23 sion to construct, place or modify a wireless facility, the municipal
24 board shall conduct a public hearing within ninety days of such applica-
25 tion. A written decision shall be rendered within sixty-two days of such
26 public hearing. The time within which the municipal board must render
27 its written decision may be extended by mutual consent of the applicant
28 and the board.
29 (b) Each applicant shall provide written notice to all owners and
30 residents of property located within one thousand feet of the proposed
31 wireless facility within ten days of filing an application pursuant to
32 paragraph (a) of this subdivision, and again not more than thirty days
33 before any scheduled public hearing.
34 2. (a) An application fee may be imposed by a municipality upon an
35 applicant for the placement, construction or modification of a wireless
36 facility that shall not exceed the normal and customary fee for a build-
37 ing permit application in such municipality for projects of such scope
38 and nature.
39 (b) Upon request of the board, an applicant may be required to estab-
40 lish an escrow account for the payment of the actual, reasonable and
41 customary costs incurred by the municipality for an independent techni-
42 cal review of each aspect of the application.
43 § 303. Standards for review and application requirements for a wire-
44 less facility. 1. Permit approval may be granted if the applicant
45 demonstrates compliance with the following standards for the review,
46 pays all applicable fees and costs, and submits the required documents.
47 2. (a) The application shall include, at a minimum, information, which
48 shall include a map, that identifies the location of all existing wire-
49 less facilities together with all facilities for which an application
50 has been filed within twenty miles of where such facilities are to be
51 located. On such map the facilities identified must note the owner and
52 operator of such facilities.
53 (b) The application shall contain information that establishes that
54 there is a specific need for the proposed wireless facility including,
55 but not limited to, evidence that the existing wireless facilities do
A. 2636 4
1 not provide adequate coverage and do not have the viability to provide
2 adequate coverage by adjusting the facilities at existing sites.
3 (c) The information submitted pursuant to this subdivision shall
4 include data on the effects upon the public health of the radio waves
5 emitted by the proposed wireless facility.
6 3. The application shall demonstrate that operation of the wireless
7 facility complies with all applicable regulations of the Federal Commu-
8 nications Commission. If new, more restrictive standards are adopted by
9 such agency, the facility shall, in a manner consistent with such stan-
10 dards, be brought into compliance, or continued operations may be
11 restricted by the municipality.
12 4. The wireless facility shall be designed and finished in a manner
13 which minimizes the visual impact on surrounding properties in accord-
14 ance with generally accepted practices, while providing the level of
15 service requested by the applicant. Minimization of visual impact in an
16 historic or scenic area shall include reasonable efforts that take into
17 account the topography and surroundings of the wireless facility.
18 5. No telecommunications tower shall be located within one thousand
19 five hundred feet of any elementary or secondary school.
20 6. The wireless facility shall be designed, constructed, maintained
21 and operated in a manner that ensures the security of the facility and
22 protects against unauthorized access.
23 7. Wireless facilities shall not be illuminated by artificial means
24 and shall not display obstruction marking and/or lighting unless such
25 marking and/or lighting is specifically required by the Federal Aviation
26 Administration or other federal or state authority for a particular
27 wireless facility; provided, however, when incorporated into the design,
28 light fixtures used to illuminate ball fields, parking lots, or other
29 ground areas or ground structures may be attached to wireless facili-
30 ties.
31 8. The applicant shall preserve existing on-site vegetation to the
32 maximum extent practicable. The base of the facility and any accessory
33 structures shall be landscaped.
34 9. (a) Any contract with an owner of property upon which a wireless
35 facility is to be placed, constructed or modified shall include a
36 provision requiring the owner of the wireless facility to remove such
37 facility in the event the facility has not been in use for a period of
38 at least twelve months. The terms of such provision shall be filed with
39 the municipality where the proposed wireless facility is to be
40 located. The permit may be revoked upon a finding that the required
41 contract language has been removed.
42 (b) The municipality may require that, in the event the wireless
43 facility is not used by the applicant, other co-locators, their succes-
44 sors and/or assigns for a period of one year or more, such facility
45 shall be removed by its then-current owner. In the event the wireless
46 facility is not so removed, the municipality shall give written notice
47 to the owner of such facility (i) stating that the wireless facility is
48 considered abandoned, and (ii) setting a time, date and place for a
49 public hearing. Such public hearing shall be on not less than thirty
50 days notice to such owner. Upon a finding that the wireless facility
51 has been abandoned, the municipality shall deliver written notice to the
52 applicant indicating the reasons for its finding, and directing that the
53 wireless facility be removed within one hundred twenty days, weather
54 permitting. In the event that the wireless facility is not so removed,
55 the municipality may commence an action in supreme court against the
56 owner of such facility seeking an order requiring the removal. The
A. 2636 5
1 prevailing party in such enforcement action shall be entitled to recover
2 from the other reasonable attorneys fees, as determined by the court.
3 (c) Notwithstanding the provisions of paragraphs (a) and (b) of this
4 subdivision, a municipality may adopt a local law to require the posting
5 of a bond or other security in order to finance dismantling of an aban-
6 doned wireless facility.
7 § 304. Co-location standards. 1. Where an application proposes
8 construction of a wireless facility designed to support only one provid-
9 er, the applicant shall demonstrate that co-locating with another wire-
10 less facility instead of construction of the proposed wireless facility
11 is not technically and commercially reasonable.
12 2. The board may require the applicant for a wireless facility to make
13 a reasonable attempt to co-locate with another wireless facility that
14 can adequately serve the needs of the applicant.
15 3. If the board requires the applicant to attempt to co-locate a wire-
16 less facility with an existing wireless facility, the applicant shall
17 provide the board with a statement indicating that the applicant has
18 either:
19 (a) agreed to co-locate the wireless facility with an existing wire-
20 less facility, and which statement identifies the location of the facil-
21 ity on which the applicant will be co-located; or
22 (b) attempted to co-locate the wireless facility with an existing
23 wireless facility; such statement should identify the location of the
24 facilities which the applicant attempted to co-locate on wireless facil-
25 ities which the applicant has reviewed, and list the reasons why each
26 such attempt to co-locate a wireless facility was unsuccessful.
27 4. The board may deny an application if it determines that such appli-
28 cant can co-locate its proposed facility at another site.
29 § 305. Permit approval; non-conforming facilities. 1. Upon finding
30 that a proposed wireless facility complies with the provisions of
31 sections three hundred three and three hundred four of this article, the
32 board shall issue a permit. Appeals from board actions pursuant to the
33 provisions of this article shall be governed by article seventy-eight of
34 the civil practice law and rules.
35 2. (a) Where the wireless facility does not meet the specifications
36 outlined in this article, the municipal board shall not issue the permit
37 pursuant to this article.
38 (b) Notwithstanding the provisions of paragraph (a) of this subdivi-
39 sion, upon a showing that construction of a wireless facility meeting
40 the requirements of this article is not technically and commercially
41 reasonable, application may be made pursuant to the provisions of any
42 municipal zoning law or other local law, ordinance, rule or regulation
43 adopted pursuant to the provisions of article five-A of the general city
44 law, the statute of local governments or municipal home rule law govern-
45 ing the placement, construction or modification of wireless facilities;
46 provided, however that an area or use variance shall be granted for a
47 wireless facility upon a showing that:
48 (i) the wireless facility is a public necessity in that it is required
49 to render the safe and adequate level of service required by the appli-
50 cant; and
51 (ii) the placement, construction or modification of the wireless
52 facility is necessary in order for the applicant to render the required
53 level of service in a manner that is technically and commercially
54 reasonable.
55 § 306. Applicability. Notwithstanding any provision of law to the
56 contrary, the provisions of this article shall govern the placement,
A. 2636 6
1 construction and modification of all wireless facilities in a munici-
2 pality; whether such placement, construction or modification shall be
3 upon state, county, municipality or privately owned lands or rights of
4 way provided, however, no provision of this article shall be deemed to
5 prohibit any municipality from enacting and implementing a local law
6 which is consistent with the minimum requirements of this article, and
7 imposes stricter or more restrictive standards on the siting of wireless
8 facilities than those enacted in this article.
9 § 4. This act shall take effect immediately, provided that section
10 three of this act shall take effect on the one hundred eightieth day
11 after it shall have become a law and shall apply to all applications for
12 building permits for wireless facilities submitted on or after the
13 effective date of such section.
