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. LBD00655-01-7A. 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 theA. 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.