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A07489 Summary:

BILL NOA07489
 
SAME ASSAME AS S02042
 
SPONSORWoerner
 
COSPNSR
 
MLTSPNSR
 
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.
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A07489 Actions:

BILL NOA07489
 
04/27/2017referred to local governments
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A07489 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7489
 
SPONSOR: Woerner
  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 21' century.   LEGISLATIVE HISTORY: 2015-16: S.6090 Referred to Infrastructure and Capital Investment; A.10620 Referred to Local Governments   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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A07489 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7489
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 27, 2017
                                       ___________
 
        Introduced  by M. of A. WOERNER -- read once and referred to the Commit-
          tee 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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00655-01-7

        A. 7489                             2
 
     1  Section 300. Definitions.
     2          301. General municipal authority over siting of wireless facili-
     3                 ties.
     4          302. Eligible facilities requests.
     5          303. Application to supreme court by aggrieved persons.
     6          304. Preemption.
     7    §  300. Definitions.   For the purposes of this article, the following
     8  terms shall have the following meanings  unless  the  context  indicates
     9  otherwise.
    10    1.  "Applicant"  shall  mean  any  person who files an application for
    11  wireless infrastructure pursuant  to  a  municipal  zoning  law  adopted
    12  pursuant  to  this  article  or  an eligible facilities request with the
    13  municipal building inspector.
    14    2. "Application" shall mean a zoning application filed with a  munici-
    15  pality  for  approvals  to  construct,  operate  and maintain a wireless
    16  facility, an eligible facilities request or an application  pursuant  to
    17  the state uniform fire prevention and building code.
    18    3.  "Base  station"  shall  mean  a  structure or equipment at a fixed
    19  location that enables  Federal  Communications  Commission  licensed  or
    20  authorized wireless communications between user equipment and a communi-
    21  cations  network. Such term shall not encompass a tower or any equipment
    22  associated with a tower.
    23    (a) Such term shall include, but not be limited to:
    24    (1) equipment associated with wireless communications services such as
    25  private, broadcast and public safety services,  as  well  as  unlicensed
    26  wireless  services  and  fixed wireless services such as microwave back-
    27  haul;
    28    (2) radio transceivers, antennas, coaxial or fiber-optic cable,  regu-
    29  lar  and  backup power supplies, and comparable equipment, regardless of
    30  technological configuration (including distributed antenna  systems  and
    31  small-cell networks); and
    32    (3)  any  structure  other than a tower that, at the time the relevant
    33  permit application is  filed  with  the  municipal  building  inspector,
    34  supports  or  houses  equipment  described in subparagraph one or two of
    35  this paragraph that has been reviewed and approved under the  applicable
    36  zoning  or  siting  process,  or under another state or local regulatory
    37  review process, even if the structure was not  built  for  the  sole  or
    38  primary purpose of providing such support.
    39    (b)  Such  term  shall not include any structure that, at the time the
    40  relevant permit application is filed with the municipal building inspec-
    41  tor, does not support or house equipment described in  subparagraph  one
    42  or two of paragraph (a) of this subdivision.
    43    4.  "Collocation"  shall  mean  the mounting or installation of trans-
    44  mission equipment on an eligible support structure for  the  purpose  of
    45  transmitting and/or receiving radio frequency signals for communications
    46  purposes.
    47    5.  "Eligible facilities request" shall mean any request for modifica-
    48  tion of an existing tower or base station that  does  not  substantially
    49  change the physical dimensions of such tower or base station, involving:
    50    (a) the collocation of new transmission equipment;
    51    (b) the removal of transmission equipment; or
    52    (c) the replacement of transmission equipment.
    53    6.  "Eligible support structure" shall mean any tower or base station,
    54  provided that it is existing at the time a permit application  is  filed
    55  with a municipal building inspector.

        A. 7489                             3
 
     1    7.  "Existing" shall mean that a constructed tower or base station has
     2  been reviewed and approved under the applicable zoning or  siting  proc-
     3  ess, or under another state or local regulatory review process, provided
     4  that  a  tower  that has not been reviewed and approved but was lawfully
     5  constructed  prior  to  the current applicable zoning or siting process,
     6  shall be deemed to be existing.
     7    8. "Modification" shall mean the improvement, upgrade or expansion  of
     8  an  existing  wireless facility, base station or wireless support struc-
     9  ture that is not a repair, maintenance or in kind replacement of  exist-
    10  ing transmission equipment.
    11    9.  "Municipality"  shall  mean a city, town or village, including any
    12  agent, board, authority, commission, agency, department or other instru-
    13  mentality thereof.
    14    10. "Municipal building inspector" shall  mean  the  official  charged
    15  with  issuing  building  permits  or  enforcing  the  state uniform fire
    16  prevention and building code within a municipality.    In  the  event  a
    17  municipality  does  not  have  a municipal official charged with issuing
    18  building permits or enforcing the  state  uniform  fire  prevention  and
    19  building  code, such term shall be deemed to refer to the entity charged
    20  with enforcing the building code pursuant to subdivision two of  section
    21  three hundred eighty-one of the executive law.
    22    11.  "Municipal zoning law" shall mean any local law, ordinance, rule,
    23  regulation, policy or guideline which regulates or governs the  location
    24  or  use of structures or land adopted by a municipality pursuant to this
    25  chapter, the general city law, the town law, the village law and/or  any
    26  other applicable authority.
    27    12.  "Site"  shall  mean,  for  towers other than towers in the public
    28  rights-of-way, the current boundaries of the leased  or  owned  property
    29  surrounding the tower and any access or utility easements related to the
    30  site,  and, for other eligible support structures, further restricted to
    31  that area in proximity to the structure and to other transmission equip-
    32  ment deployed on the ground.
    33    13. "Substantial  change"  shall  mean  a  modification  substantially
    34  changes  the  physical dimensions of an eligible support structure if it
    35  meets any of the following criteria:
    36    (a) For towers other than  towers  in  the  public  rights-of-way,  it
    37  increases  the  height  of  the tower by more than ten percent or by the
    38  height of one additional antenna array with separation from the  nearest
    39  existing  antenna  not  to exceed twenty feet, whichever is greater; and
    40  for other eligible support structures, it increases the  height  of  the
    41  structure  by  more than ten percent or more than ten feet, whichever is
    42  greater. For the purpose of this paragraph, changes in height  shall  be
    43  measured  from the original support structure in cases where deployments
    44  are or will be separated horizontally, such as on  buildings'  rooftops;
    45  and in other circumstances, changes in height shall be measured from the
    46  dimensions  of  the  tower  or  base  station,  inclusive  of originally
    47  approved appurtenances and any modifications that were approved prior to
    48  the enactment of the Middle Class Tax Relief and  Job  Creation  Act  of
    49  2012 (Public Law 112-96);
    50    (b)  For  towers  other  than  towers  in the public rights-of-way, it
    51  involves adding an appurtenance to the body  of  the  tower  that  would
    52  protrude  from the edge of the tower more than twenty feet, or more than
    53  the width of the tower structure  at  the  level  of  the  appurtenance,
    54  whichever  is  greater;  and  for  other eligible support structures, it
    55  involves adding an appurtenance to the body of the structure that  would
    56  protrude from the edge of the structure by more than six feet;

        A. 7489                             4
 
     1    (c)  For  any  eligible support structure, it involves installation of
     2  more than the standard number of new equipment cabinets for the technol-
     3  ogy involved, but not to exceed four cabinets; or,  for  towers  in  the
     4  public  rights-of-way and base stations, it involves installation of any
     5  new equipment cabinets on the ground if there are no pre-existing ground
     6  cabinets associated with the structure, or else involves installation of
     7  ground cabinets that are more than ten percent larger in height or over-
     8  all volume than any other ground cabinets associated with the structure;
     9    (d) It entails any excavation or deployment outside the current site;
    10    (e)  It  would defeat the concealment elements of the eligible support
    11  structure; or
    12    (f) It does not comply with  conditions  associated  with  the  siting
    13  approval  of  the  construction  or modification of the eligible support
    14  structure or base station equipment; provided, however, that this  limi-
    15  tation shall not apply to any modification that is non-compliant only in
    16  a  manner  that would not exceed the thresholds identified in paragraphs
    17  (a) through (d) of this subdivision.
    18    14. "Transmission equipment" shall  mean  equipment  that  facilitates
    19  transmission  for  any  Federal  Communications  Commission  licensed or
    20  authorized wireless communications services including, but  not  limited
    21  to,  radio  transceivers,  antennas,  coaxial  or fiber-optic cable, and
    22  regular and backup power supply. Such term shall include equipment asso-
    23  ciated with wireless communications services including, but not  limited
    24  to, private, broadcast and public safety services, as well as unlicensed
    25  wireless  services  and  fixed wireless services such as microwave back-
    26  haul.
    27    15. "Tower" shall mean any structure built for  the  sole  or  primary
    28  purpose  of supporting any Federal Communications Commission licensed or
    29  authorized antennas and their associated  facilities,  including  struc-
    30  tures  that are constructed for wireless communications services includ-
    31  ing, but not limited to, private, broadcast and public safety  services,
    32  as well as unlicensed wireless services and fixed wireless services such
    33  as microwave backhaul, and the associated site.
    34    16.  "Wireless  facility"  shall  mean the wireless services equipment
    35  including transmission equipment,  base  station,  tower  and  accessory
    36  equipment, utilities and other site development components.
    37    17. "Wireless services" shall mean the use of any wireless technology,
    38  including  without  limitation,  commercial  mobile services, commercial
    39  mobile radio services,  unlicensed  wireless  services,  common  carrier
    40  wireless  exchange access services, cellular radiotelephone, specialized
    41  mobile radio systems, personal communications services,  advanced  wire-
    42  less  services,  two-way  personal wireless services, and any such other
    43  wireless technologies that may from time to time be utilized,  in  order
    44  to transmit and/or receive radio waves.
    45    § 301. General municipal authority over siting of wireless facilities.
    46  1.  A municipality may enact municipal zoning laws regulating the siting
    47  and  installation of base stations and towers provided that such munici-
    48  pal zoning laws comply with federal laws, including the provisions of 47
    49  U.S.C. § 332(c)(7), the Federal  Communications  Commission  cell  tower
    50  shot  clock  order,  the Middle Class Tax Relief and Job Creation Act of
    51  2012 and the provisions of this article.
    52    2. Every municipality shall act  on  an  application  for  a  wireless
    53  facility  in  accordance  with the regulations and orders of the Federal
    54  Communications Commission as follows for:
    55    (a) a base station within ninety days of the application  being  filed
    56  with the municipality;

        A. 7489                             5
 
     1    (b)  a  tower  within  one hundred fifty days of the application being
     2  filed with the municipality; or
     3    (c)  an  eligible facilities request within sixty days of the applica-
     4  tion being filed with the municipality, as set forth  in  section  three
     5  hundred two of this article.
     6    §  302.  Eligible  facilities  requests.  1. Notwithstanding any other
     7  provision of law to the  contrary,  a  municipality  shall  not  require
     8  zoning, land use or other discretionary permits for any eligible facili-
     9  ties request.
    10    2.  All eligible facilities requests shall be submitted to the munici-
    11  pal building inspector for review with any application  or  applications
    12  for  permits  that  may be required by the state uniform fire prevention
    13  and building code, and shall not otherwise be subject to  any  municipal
    14  zoning law which may otherwise apply to wireless facilities.
    15    3. All eligible facilities requests shall be exempt from environmental
    16  quality  review pursuant to article eight of the environmental conserva-
    17  tion law on the basis that administrative review of an eligible  facili-
    18  ties  request  is  an  official act of a ministerial nature involving no
    19  exercise of discretion, and the issuance of any  associated  administra-
    20  tive  approval  by the municipal building inspector predicated solely on
    21  compliance or noncompliance with this section. No environmental  assess-
    22  ment form shall be required for review of an eligible facilities review.
    23    4.  When  a  person files an eligible facilities review and asserts in
    24  writing that a request for modification is covered by this section,  the
    25  municipal  building inspector may only require documentation or informa-
    26  tion customarily required in a  building  permit  application  and  such
    27  other  information reasonably related to determining whether the request
    28  meets the requirements of this article. A municipal  building  inspector
    29  may adopt a form for use in assessing eligible facilities review filings
    30  in  addition  to  any  other  customary forms used for the processing of
    31  building permit applications.
    32    5. The municipal building inspector shall review and approve an appli-
    33  cation of eligible facilities review and issue  any  necessary  building
    34  and/or  electrical  permits within sixty days of the submission, subject
    35  to tolling as set forth in subdivision six of this section,  unless  the
    36  municipal  building  inspector determines that the modification does not
    37  meet the criteria for an eligible facilities  review  in  which  case  a
    38  written  denial  thereof  shall  be transmitted within sixty days of the
    39  filing date. If the municipal building  inspector  determines  that  the
    40  modification  does  not  meet  the  criteria  for an eligible facilities
    41  review, the reasons shall be stated in the written denial and include  a
    42  determination  of  what  if  any application shall be required under any
    43  municipal zoning law.
    44    6. The sixty day review period begins to run when the application  for
    45  an  eligible facilities review and application for any necessary permits
    46  are filed, and may be tolled only (a) by mutual agreement of the munici-
    47  pal building inspector and the applicant  or  (b)  where  the  municipal
    48  building inspector determines that the eligible facilities review and/or
    49  any  necessary  permit  applications are incomplete and provides written
    50  notice to the applicant within thirty days of  receipt  of  such  permit
    51  applications specifically delineating all missing supporting information
    52  or  documentation  that  is  required.  The  timeframe for review begins
    53  running again when the applicant  makes  a  supplemental  submission  in
    54  response  to  any  notice  of  incompleteness.  Following a supplemental
    55  submission, the municipal building inspector shall notify the  applicant
    56  within  ten  days  if  the  supplemental  submission did not provide the

        A. 7489                             6
 
     1  information identified in the original notice delineating missing infor-
     2  mation and these tolling procedures. Second  or  subsequent  notices  of
     3  incompleteness  shall  only  toll the timeframe for review to the extent
     4  they  request  documents  or  information  that  were  delineated in the
     5  original notice of incompleteness.
     6    7. In the event the municipal building inspector fails to  approve  or
     7  deny  an application for eligible facilities review and issue any neces-
     8  sary permits within the timeframe set forth in subdivision five of  this
     9  section,  subject  to  tolling  set  forth  in  subdivision  six of this
    10  section, the eligible facilities review and any necessary permits  shall
    11  be  deemed granted. The deemed grant approval will become effective when
    12  the applicant notifies the municipal building inspector in writing  that
    13  the  sixty  day  period, and any applicable tolling, has expired and the
    14  permits have been deemed granted by operation of law.  The  municipality
    15  shall  issue  any  necessary permits within fifteen days of the date the
    16  municipality receives notice of the deemed grant approval.
    17    § 303. Application to supreme court by aggrieved persons.  Any  person
    18  or  persons, jointly or severally aggrieved by any act of a municipality
    19  that is inconsistent with the provisions of this article or a failure to
    20  act in a manner consistent therewith, may, within thirty days after such
    21  action or failure to act, commence an action pursuant to article  seven-
    22  ty-eight  of  the  civil practice law and rules in the supreme court for
    23  the county in which such municipality  is  situate.  The  supreme  court
    24  shall hear and decide such action on an expedited basis.
    25    §  304. Preemption. The provisions of this article shall supersede any
    26  inconsistent provision of law relating to  the  placement,  collocation,
    27  modification or maintenance of wireless facilities.
    28    §  4.  This  act shall take effect on the thirtieth day after it shall
    29  have become a law.
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