STATE OF NEW YORK
________________________________________________________________________
7494
2021-2022 Regular Sessions
IN SENATE
October 29, 2021
___________
Introduced by Sen. HINCHEY -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the highway law and the transportation corporations law,
in relation to prohibiting fees for the use and occupancy of the state
right of way in certain agreements
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 24-e of section 10 of the highway law, as added
2 by section 1 of part RRR of section 59 of the laws of 2019, is amended
3 to read as follows:
4 24-e. The commissioner of transportation is hereby authorized to enter
5 into an agreement with any fiber optic utility for use and occupancy of
6 the state right of way for the purposes of installing, modifying, relo-
7 cating, repairing, operating, or maintaining fiber optic facilities.
8 Such agreement [may] shall not include [a] any fee for use and occupancy
9 of the right of way[, provided, however, such fee shall not be greater
10 than fair market value. Any provider using or occupying a right of way
11 in fulfillment of a state grant award through the New NY Broadband
12 Program shall not be subject to a fee for such use or occupancy. Any fee
13 for use or occupancy charged to a fiber optic utility shall not be
14 passed through in whole or in part as a fee, charge, increased service
15 cost, or by any other means by a fiber optic utility to any person or
16 entity that contracts with such fiber optic utility for service]. Any
17 compensation received by the state pursuant to such agreement shall be
18 deposited by the comptroller into the special obligation reserve and
19 payment account of the dedicated highway and bridge trust fund estab-
20 lished pursuant to section eighty-nine-b of the state finance law. Noth-
21 ing herein shall impair, inhibit, or otherwise affect the ability of any
22 municipality to regulate zoning, land use, or any other power or author-
23 ity granted under the law. For purposes of this subdivision, "munici-
24 pality" shall include a county, city, village, or town.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13118-01-1
S. 7494 2
1 § 2. Section 7 of the transportation corporations law, as added by
2 section 2 of part RRR of section 59 of the laws of 2019, is amended to
3 read as follows:
4 § 7. Agreement for fiber optic utility use and occupancy of state
5 right of way. The commissioner of transportation is hereby authorized to
6 enter into an agreement with any fiber optic utility for use and occu-
7 pancy of the state right of way for the purposes of installing, modify-
8 ing, relocating, repairing, operating, or maintaining fiber optic facil-
9 ities. Such agreement [may] shall not include [a] any fee for use and
10 occupancy of the right of way[, provided, however, such fee shall not be
11 greater than fair market value. Any provider using or occupying a right
12 of way in fulfillment of a state grant award through the New NY Broad-
13 band Program shall not be subject to a fee for such use or occupancy.
14 Any fee for use or occupancy charged to a fiber optic utility shall not
15 be passed through in whole or in part as a fee, charge, increased
16 service cost, or by any other means by a fiber optic utility to any
17 person or entity that contracts with such fiber optic utility for
18 service]. Any compensation received by the state pursuant to such agree-
19 ment shall be deposited by the comptroller into the special obligation
20 reserve and payment account of the dedicated highway and bridge trust
21 fund established pursuant to section eighty-nine-b of the state finance
22 law. Nothing herein shall impair, inhibit, or otherwise affect the abil-
23 ity of any municipality to regulate zoning, land use, or any other power
24 or authority granted under the law. For purposes of this section, "muni-
25 cipality" shall include a county, city, village, or town.
26 § 3. Notwithstanding any provision of law to the contrary, any
27 provision of an agreement made pursuant to subdivision 24-e of section
28 10 of the highway law or section 7 of the transportation corporations
29 law that provide for a fee for use and occupancy of a right of way shall
30 be deemed unenforceable, provided however, that the remaining provisions
31 of such agreement shall be enforceable. Any fees for use and occupancy
32 of a right of way collected prior to the effective date of this act
33 pursuant to such an agreement, may be retained by the state.
34 § 4. This act shall take effect immediately, provided, however that
35 the amendments to subdivision 24-e of section 10 of the highway law made
36 by section one of this act and the amendments to section 7 of the trans-
37 portation corporations law made by section two of this act shall not
38 affect the expiration of such subdivision and such section and shall be
39 deemed to expire and repeal therewith.
