A. 5994 2
S 2. Short title. This act shall be known as and may be cited as the
"wireless facility siting act".
S 3. Moratorium upon the construction of wireless facilities. 1.
Notwithstanding any provision of law to the contrary, and in accordance
with the federal Telecommunications Act of 1996, there is hereby estab-
lished a moratorium upon the construction of wireless facilities in
every city. During the period this section is in effect, no wireless
facility shall be constructed or commence operation in any city in this
state. The purpose of such moratorium shall be to afford cities time to
review and enact land use laws, ordinances, rules and regulations relat-
ing to the placement, construction and modification of wireless facili-
ties in a manner that addresses local concerns and provides the public
with access to wireless services pursuant to article 13-E of the general
municipal law.
2. For the purposes of this section, the term:
(a) "Ancillary equipment" means all equipment necessary for the secure
and successful operation of a wireless facility including but not limit-
ed to, support structures, transmitting, receiving and combining equip-
ment, equipment shelters, transmission cables, and backup power sources.
Ancillary equipment shall not include residential, industrial or commer-
cial buildings, but shall include any such equipment placed on residen-
tial, industrial or commercial buildings.
(b) "Wireless services" means all commercial mobile services, as that
term is defined in section 332(d) of title 47, United States Code, as
amended from time to time, including, but not limited to, all broadband
personal communications services, wireless radio telephone services,
geographic area specialized and enhanced specialized mobile radio
services, and incumbent-wide area specialized mobile radio licensees,
which offer real time, two-way voice or data service that is intercon-
nected with the public switched telephone network or otherwise provides
access to communications services.
(c) "Wireless facility" means only the part or parts of any facility
used in connection with the provision of wireless services including,
but not limited to, antennas, ancillary equipment and telecommunications
towers.
S 4. The general municipal law is amended by adding a new article 13-E
to read as follows:
ARTICLE 13-E
WIRELESS FACILITY SITING ACT
SECTION 300. DEFINITIONS.
301. PERMIT REQUIREMENTS.
302. PROCEDURE FOR MUNICIPAL REVIEW OF PERMIT REQUESTS.
303. STANDARDS FOR REVIEW AND APPLICATION REQUIREMENTS FOR A
WIRELESS FACILITY.
304. CO-LOCATION STANDARDS.
305. PERMIT APPROVAL; NON-CONFORMING FACILITIES.
306. APPLICABILITY.
S 300. DEFINITIONS. WHERE USED IN THIS ARTICLE, THE FOLLOWING WORDS
AND PHRASES SHALL HAVE THE MEANINGS SET FORTH IN THIS SECTION UNLESS THE
CONTEXT CLEARLY INDICATES OTHERWISE:
1. "MUNICIPALITY" MEANS ANY CITY.
2. "MUNICIPAL BOARD" MEANS THE DULY CREATED BOARD OF A MUNICIPALITY
AUTHORIZED BY THE MUNICIPALITY TO REVIEW APPLICATIONS FOR WIRELESS
FACILITIES. IN THE EVENT A MUNICIPALITY DOES NOT DESIGNATE A BOARD,
REFERENCES IN THIS ARTICLE TO THE MUNICIPAL BOARD SHALL BE DEEMED TO
REFER TO THE LEGISLATIVE BODY OF SUCH MUNICIPALITY.
A. 5994 3
3. "BUILDING INSPECTOR" MEANS THE MUNICIPAL OFFICIAL CHARGED WITH
ISSUING BUILDING PERMITS AND/OR ENFORCING THE MUNICIPAL ZONING LAW OF A
MUNICIPALITY OR OTHER INDIVIDUAL DESIGNATED BY THE LEGISLATIVE BODY TO
ISSUE PERMITS FOR WIRELESS FACILITIES.
4. "MUNICIPAL ZONING LAW" MEANS A MUNICIPALITY'S DULY ENACTED ZONING
LAW OR ORDINANCE.
5. "PERSON" MEANS ANY INDIVIDUAL, CORPORATION, LIMITED LIABILITY
COMPANY, JOINT VENTURE, PUBLIC BENEFIT CORPORATION, PARTNERSHIP, LIMITED
LIABILITY PARTNERSHIP, ASSOCIATION, TRUST OR ESTATE, AND ANY OTHER ENTI-
TY, PUBLIC OR PRIVATE, HOWEVER ORGANIZED.
6. "WIRELESS SERVICES" MEANS ALL COMMERCIAL MOBILE SERVICES, AS THAT
TERM IS DEFINED IN SECTION 332(D) OF TITLE 47, UNITED STATES CODE, AS
AMENDED FROM TIME TO TIME, INCLUDING, BUT NOT LIMITED TO, ALL BROADBAND
PERSONAL COMMUNICATIONS SERVICES, WIRELESS RADIO TELEPHONE SERVICES,
GEOGRAPHIC AREA SPECIALIZED AND ENHANCED SPECIALIZED MOBILE RADIO
SERVICES, AND INCUMBENT-WIDE AREA SPECIALIZED MOBILE RADIO LICENSEES,
WHICH OFFER REAL TIME, TWO-WAY VOICE OR DATA SERVICE THAT IS INTERCON-
NECTED WITH THE PUBLIC SWITCHED TELEPHONE NETWORK OR OTHERWISE PROVIDES
ACCESS TO COMMUNICATIONS SERVICES.
7. "WIRELESS FACILITY" MEANS ONLY THE PART OR PARTS OF ANY FACILITY
USED IN CONNECTION WITH THE PROVISION OF WIRELESS SERVICES INCLUDING,
BUT NOT LIMITED TO, ANTENNAS, ANCILLARY EQUIPMENT AND TELECOMMUNICATIONS
TOWERS.
8. "TELECOMMUNICATIONS TOWER" MEANS ANY FREESTANDING TOWER, MONOPOLE
OR SIMILAR STRUCTURE USED FOR THE PROVISION OF WIRELESS SERVICES INCLUD-
ING ANCILLARY TELECOMMUNICATIONS EQUIPMENT REQUIRED TO INTEGRATE SUCH
FACILITY INTO AN EXISTING OR PROPOSED WIRELESS NETWORK.
9. "PERMIT" MEANS THE AUTHORIZATION BY THE BUILDING INSPECTOR PURSUANT
TO THIS ARTICLE TO CONSTRUCT A WIRELESS FACILITY.
10. "TECHNICALLY AND COMMERCIALLY REASONABLE" MEANS IN ACCORDANCE WITH
GENERAL INDUSTRY PRACTICE IN THE PROVISION OF WIRELESS SERVICES PERTAIN-
ING TO COST AND SERVICE COVERAGE.
11. "TECHNICAL REVIEW" MEANS REVIEW OF A PERMIT APPLICATION BY AN
INDEPENDENT EXPERT IN TELECOMMUNICATIONS SITING.
12. "ANCILLARY EQUIPMENT" MEANS ALL EQUIPMENT NECESSARY FOR THE
SECURE AND SUCCESSFUL OPERATION OF A WIRELESS FACILITY INCLUDING BUT NOT
LIMITED TO, SUPPORT STRUCTURES, TRANSMITTING, RECEIVING AND COMBINING
EQUIPMENT, EQUIPMENT SHELTERS, TRANSMISSION CABLES, AND BACKUP POWER
SOURCES. ANCILLARY EQUIPMENT SHALL NOT INCLUDE RESIDENTIAL, INDUSTRIAL
OR COMMERCIAL BUILDINGS BUT SHALL INCLUDE ANY SUCH EQUIPMENT PLACED ON
RESIDENTIAL, INDUSTRIAL OR COMMERCIAL BUILDINGS.
13. "HISTORIC AREA" MEANS AN AREA WHOLLY OR PARTIALLY WITHIN, OR WIRE-
LESS FACILITY HAVING ITS FOUNDATION WITHIN FIVE HUNDRED FEET OF, ANY
HISTORIC BUILDING, STRUCTURE, FACILITY, SITE OR DISTRICT, OR PREHISTORIC
SITE, THAT IS LISTED ON THE NATIONAL REGISTER OF HISTORIC PLACES, OR
THAT HAS BEEN PROPOSED BY THE NEW YORK STATE BOARD ON HISTORIC PRESERVA-
TION FOR A RECOMMENDATION TO THE STATE HISTORIC PRESERVATION OFFICER FOR
NOMINATION FOR INCLUSION IN THE NATIONAL REGISTER, THAT IS LISTED ON THE
STATE REGISTER OF HISTORIC PLACES, OR HAS BEEN DESIGNATED AS A HISTORIC
PLACE OR LANDMARK BY THE MUNICIPALITY.
14. "SCENIC AREA" MEANS AN AREA WHOLLY OR PARTIALLY WITHIN, OR A WIRE-
LESS FACILITY HAVING ITS FOUNDATION WITHIN FIVE HUNDRED FEET OF, ANY
PUBLICLY OWNED OR OPERATED PARKLAND, RECREATION AREA OR DESIGNATED OPEN
SPACE, INCLUDING ANY WIRELESS FACILITY HAVING ITS FOUNDATION WITHIN FIVE
HUNDRED FEET OF THE CENTERLINE OF ANY SCENIC BYWAY AS DEFINED IN ARTICLE
TWELVE-C OF THE HIGHWAY LAW OR AS DESIGNATED BY THE MUNICIPALITY.
A. 5994 4
15. "SITE CONSOLIDATOR" MEANS ANY INDIVIDUAL, CORPORATION (OR ANY
SUBSIDIARY, DIVISION OR AFFILIATE THEREOF), LIMITED LIABILITY COMPANY,
JOINT PARTNERSHIP, ASSOCIATION, TRUST OR ESTATE, AND ANY OTHER ENTITY,
PUBLIC OR PRIVATE, HOWEVER ORGANIZED (OR ANY SUBSIDIARY, DIVISION OR
AFFILIATE THEREOF) WHICH: (A) IS PRIMARILY OR PRINCIPALLY ENGAGED IN THE
BUSINESS OF OWNING, LEASING, MANAGING OR OPERATING WIRELESS FACILITIES
FOR ITSELF AND/OR OTHERS, REGARDLESS AS TO WHETHER OR NOT THE SITE
CONSOLIDATOR IS A PROVIDER OF WIRELESS SERVICES; AND (B) CAN DEMONSTRATE
THROUGH WRITTEN EVIDENCE A PROVEN ABILITY TO OPERATE AND MANAGE WIRELESS
FACILITIES USED BY WIRELESS SERVICES PROVIDERS.
S 301. PERMIT REQUIREMENTS. NO PERSON, INCLUDING A SITE CONSOLIDATOR,
SHALL COMMENCE THE CONSTRUCTION OR MODIFICATION OF A WIRELESS FACILITY
WITHOUT FIRST HAVING OBTAINED A PERMIT FROM THE BUILDING INSPECTOR IN
THE MUNICIPALITY IN WHICH SUCH WIRELESS FACILITY WILL BE LOCATED.
S 302. PROCEDURE FOR MUNICIPAL REVIEW OF PERMIT REQUESTS. 1.
NOTWITHSTANDING ANY STATE OR LOCAL LAW TO THE CONTRARY, A MUNICIPALITY
SHALL FOLLOW THE PROCEDURES SET FORTH IN THIS ARTICLE FOR THE REVIEW AND
ISSUANCE OF A PERMIT FOR A WIRELESS FACILITY.
2. (A) UPON RECEIPT OF A COMPLETED APPLICATION FOR PERMISSION TO
CONSTRUCT, PLACE OR MODIFY A WIRELESS FACILITY, THE MUNICIPAL BOARD
SHALL DECIDE UPON THE APPLICATION AND RENDER A WRITTEN DECISION WITHIN
THIRTY DAYS OF RECEIPT. ANY DENIAL OF SUCH APPLICATION SHALL BE
SUPPORTED BY SUBSTANTIAL EVIDENCE. THE TIME WITHIN WHICH THE MUNICIPAL
BOARD MUST RENDER ITS WRITTEN DECISION MAY BE EXTENDED BY MUTUAL CONSENT
OF THE APPLICANT AND THE MUNICIPAL BOARD.
(B) UPON APPROVAL OF AN APPLICATION RECEIVED PURSUANT TO THIS SUBDIVI-
SION, THE MUNICIPAL BOARD SHALL PROVIDE WRITTEN NOTICE OF SUCH APPROVAL
TO THE BUILDING INSPECTOR. UPON RECEIPT OF SUCH NOTICE THE BUILDING
INSPECTOR SHALL ISSUE A WRITTEN PERMIT AND FILE THE PERMIT WITH THE
MUNICIPAL CLERK WITHIN TWENTY DAYS.
(C) EACH APPLICANT SHALL MAKE A GOOD FAITH EFFORT TO PROVIDE WRITTEN
NOTICE TO ALL OWNERS AND RESIDENTS OF PROPERTY LOCATED WITHIN FIVE
HUNDRED FEET OF THE PROPOSED WIRELESS FACILITY WITHIN TEN DAYS OF FILING
AN APPLICATION PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. THE FAIL-
URE OF A PROPERTY OWNER OR RESIDENT TO RECEIVE WRITTEN NOTICE SHALL NOT
AFFECT THE VALIDITY OF THE APPLICATION OR APPROVAL.
3. (A) NO APPLICATION FEE IMPOSED BY A MUNICIPALITY UPON AN APPLICANT
FOR THE PLACEMENT, CONSTRUCTION OR MODIFICATION OF A WIRELESS FACILITY
SHALL EXCEED THE NORMAL AND CUSTOMARY FEE FOR A BUILDING PERMIT APPLICA-
TION IN SUCH MUNICIPALITY.
(B) UPON REQUEST OF THE MUNICIPAL BOARD, AN APPLICANT MAY BE REQUIRED
TO ESTABLISH AN ESCROW ACCOUNT FOR THE PAYMENT OF THE ACTUAL, REASONABLE
AND CUSTOMARY COSTS INCURRED BY THE MUNICIPALITY FOR ONE INDEPENDENT
TECHNICAL REVIEW OF EACH ASPECT OF THE APPLICATION; PROVIDED, HOWEVER,
IN NO EVENT SHALL THE TOTAL OF SUCH COSTS EXCEED THE GREATER OF FIVE
THOUSAND DOLLARS OR TWO AND ONE-HALF PERCENT OF THE TOTAL PROJECT COST
EXCLUSIVE OF REAL ESTATE AS SET FORTH IN THE APPLICATION; AND PROVIDED
FURTHER THAT THE APPLICANT SHALL NOT BE REQUIRED TO PAY FOR MORE THAN
ONE REVIEW OF ANY ASPECT OF THE APPLICATION.
S 303. STANDARDS FOR REVIEW AND APPLICATION REQUIREMENTS FOR A WIRE-
LESS FACILITY. 1. PERMIT APPROVAL SHALL BE GRANTED IF THE APPLICANT
DEMONSTRATES COMPLIANCE WITH THE FOLLOWING SUBSTANTIVE STANDARDS FOR THE
REVIEW, PAYS ALL APPLICABLE FEES AND COSTS DUE AND OWING TO THE MUNICI-
PALITY, AND SUBMITS THE REQUIRED DOCUMENTS.
2. (A) THE APPLICATION SHALL INCLUDE WRITTEN DOCUMENTATION, WHICH MAY
INCLUDE A MAP, THAT SHOWS THE LOCATION OF ALL THE APPLICANT'S EXISTING
A. 5994 5
WIRELESS FACILITIES TOGETHER WITH ALL FACILITIES FOR WHICH AN APPLICA-
TION HAS BEEN FILED BY THE APPLICANT WITHIN THE COUNTY WITHIN WHICH SUCH
FACILITIES ARE TO BE LOCATED AND A ONE-HALF MILE AREA OUTSIDE OF THE
BOUNDARIES OF SUCH COUNTY.
(B) THE APPLICATION SHALL CONTAIN SUBMISSION OF WRITTEN DOCUMENTATION
ESTABLISHING THAT THERE EXISTS A SPECIFIC NEED FOR THE PROPOSED WIRELESS
FACILITY INCLUDING, BUT NOT LIMITED TO, EVIDENCE THAT THE EXISTING WIRE-
LESS FACILITIES DO NOT PROVIDE ADEQUATE COVERAGE AND DO NOT HAVE THE
VIABILITY TO PROVIDE ADEQUATE COVERAGE BY ADJUSTING THE FACILITIES AT
EXISTING SITES.
(C) THE INFORMATION SUBMITTED PURSUANT TO THIS SUBDIVISION SHALL BE
DEEMED PROPRIETARY AND CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER
ARTICLE SEVEN OF THE PUBLIC OFFICERS LAW.
3. THE APPLICATION SHALL CONTAIN PROOF THAT OPERATION OF THE WIRELESS
FACILITY COMPLIES WITH ANY APPLICABLE REGULATIONS PROMULGATED BY THE
FEDERAL COMMUNICATIONS COMMISSION, INCLUDING REGULATIONS REGARDING RADI-
O-FREQUENCY EMISSIONS. IF NEW, MORE RESTRICTIVE STANDARDS ARE ADOPTED
BY THE FEDERAL COMMUNICATIONS COMMISSION, THE FACILITY SHALL, IN A
MANNER CONSISTENT WITH SUCH STANDARDS, BE BROUGHT INTO COMPLIANCE, OR
CONTINUED OPERATIONS MAY BE RESTRICTED BY THE MUNICIPALITY.
4. THE WIRELESS FACILITY SHALL BE DESIGNED AND FINISHED IN A MANNER
WHICH MINIMIZES THE VISUAL IMPACT ON SURROUNDING PROPERTIES IN ACCORD-
ANCE WITH GENERALLY ACCEPTED PRACTICES AND AT A REASONABLE COST, WHILE
PROVIDING THE LEVEL OF SERVICE REQUIRED BY THE APPLICANT. MINIMIZATION
OF VISUAL IMPACT IN AN HISTORIC OR SCENIC AREA SHALL INCLUDE REASONABLE
EFFORTS THAT TAKE INTO ACCOUNT THE SURROUNDINGS OF THE WIRELESS FACILITY
THAT ARE THE BASIS FOR DESIGNATION AS AN HISTORIC OR SCENIC AREA AND
SHALL BE FINISHED IN A MANNER WHICH MINIMIZES THE VISUAL IMPACT ON
SURROUNDING PROPERTIES IN ACCORDANCE WITH GENERALLY ACCEPTED PRACTICES
AND AT A REASONABLE COST, WHILE PROVIDING THE LEVEL OF SERVICE REQUIRED
BY THE APPLICANT.
5. A WIRELESS FACILITY SHALL NOT EXCEED A HEIGHT OF SEVEN FEET IN ANY
RESIDENTIAL ZONE.
NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF SECTION THREE
HUNDRED FIVE OF THIS ARTICLE, NOTHING CONTAINED IN THIS SUBDIVISION
SHALL PROHIBIT A MUNICIPALITY FROM PERMITTING A GREATER HEIGHT IN ANY
SUCH ZONE FOR THE PURPOSES OF ACCOMMODATING CO-LOCATION OR A MUNICIPAL
OR STATE WIRELESS SYSTEM. WHERE A NEW ANTENNA FACILITY IS PROPOSED WHICH
IS BEING BUILT AS A REPLACEMENT FOR AN EXISTING ANTENNA FACILITY, SO
LONG AS THE PROPOSED ANTENNA FACILITY IS OF SUBSTANTIALLY SIMILAR
CONSTRUCTION TYPE AND NO TALLER THAN THE EXISTING ANTENNA FACILITY, THE
PROPOSED ANTENNA FACILITY SHALL BE DEEMED TO MEET THE CRITERIA SET FORTH
IN THIS SECTION EVEN IF THE PROPOSED ANTENNA FACILITY EXCEEDS THE OTHER-
WISE APPLICABLE HEIGHT LIMITATIONS CONTAINED IN THIS SECTION.
6. NO TELECOMMUNICATIONS TOWER SHALL BE LOCATED WITHIN FIVE HUNDRED
FEET OF ANY NURSERY, ELEMENTARY OR SECONDARY SCHOOL.
7. THE WIRELESS FACILITY SHALL BE DESIGNED, CONSTRUCTED, MAINTAINED
AND OPERATED IN A MANNER THAT ENSURES THE SECURITY OF THE FACILITY AND
PROTECTS AGAINST UNAUTHORIZED ACCESS IN ACCORDANCE WITH ACCEPTED INDUS-
TRY PRACTICES.
8. WIRELESS FACILITIES SHALL NOT BE ILLUMINATED BY ARTIFICIAL MEANS
AND SHALL NOT DISPLAY OBSTRUCTION MARKING AND/OR LIGHTING UNLESS SUCH
MARKING AND/OR LIGHTING IS SPECIFICALLY REQUIRED BY THE FEDERAL AVIATION
ADMINISTRATION OR OTHER FEDERAL OR STATE AUTHORITY FOR A PARTICULAR
WIRELESS FACILITY; PROVIDED, HOWEVER, WHEN INCORPORATED INTO THE DESIGN,
LIGHT FIXTURES USED TO ILLUMINATE BALL FIELDS, PARKING LOTS, OR OTHER
A. 5994 6
GROUND AREAS OR GROUND STRUCTURES MAY BE ATTACHED TO WIRELESS FACILI-
TIES.
9. THE APPLICANT SHALL PRESERVE EXISTING ON-SITE VEGETATION TO THE
MAXIMUM EXTENT PRACTICABLE. TO THE EXTENT REASONABLY PRACTICABLE, THE
BASE OF THE FACILITY AND ANY ACCESSORY STRUCTURES SHALL BE LANDSCAPED.
10. (A) ANY CONTRACT WITH AN OWNER OF PROPERTY UPON WHICH A WIRELESS
FACILITY IS TO BE PLACED, CONSTRUCTED OR MODIFIED SHALL INCLUDE A
PROVISION REQUIRING THE OWNER OF THE WIRELESS FACILITY TO REMOVE SUCH
FACILITY IN THE EVENT THE FACILITY HAS NOT BEEN IN USE FOR A PERIOD OF
AT LEAST TWELVE MONTHS. THE TERMS OF SUCH PROVISION SHALL BE FILED WITH
THE MUNICIPAL BOARD WHERE THE PROPOSED WIRELESS FACILITY IS TO BE
LOCATED. THE PERMIT MAY BE REVOKED UPON A FINDING THAT THE REQUIRED
CONTRACT LANGUAGE HAS BEEN REMOVED.
(B) THE MUNICIPAL BOARD MAY REQUIRE THAT, IN THE EVENT THE WIRELESS
FACILITY IS NOT USED BY THE APPLICANT, OTHER CO-LOCATORS, THEIR SUCCES-
SORS AND/OR ASSIGNS FOR A PERIOD OF ONE YEAR OR MORE, SUCH FACILITY
SHALL BE REMOVED BY ITS THEN-CURRENT OWNER. IN THE EVENT THE WIRELESS
FACILITY IS NOT SO REMOVED, THE MUNICIPAL CLERK SHALL GIVE WRITTEN
NOTICE TO THE OWNER OF SUCH FACILITY (I) STATING THAT THE WIRELESS
FACILITY IS CONSIDERED ABANDONED, AND (II) SETTING A TIME, DATE AND
PLACE FOR A PUBLIC HEARING BEFORE THE MUNICIPAL BOARD ON THE MATTER.
SUCH PUBLIC HEARING SHALL BE ON NOT LESS THAN TWENTY DAYS NOTICE TO SUCH
OWNER, AND SHALL BE PUBLISHED IN A NEWSPAPER HAVING GENERAL CIRCULATION
IN THE MUNICIPALITY. UPON A FINDING THAT THE WIRELESS FACILITY HAS BEEN
ABANDONED, THE MUNICIPAL BOARD SHALL DELIVER WRITTEN NOTICE TO THE
APPLICANT INDICATING THE REASONS FOR ITS FINDING, AND DIRECTING THAT THE
WIRELESS FACILITY BE REMOVED WITHIN SIXTY DAYS, WEATHER PERMITTING. IN
THE EVENT THAT THE WIRELESS FACILITY IS NOT SO REMOVED, THE MUNICIPALITY
MAY COMMENCE AN ACTION IN SUPREME COURT AGAINST THE OWNER OF SUCH FACIL-
ITY SEEKING AN ORDER REQUIRING THE REMOVAL. THE PREVAILING PARTY IN
SUCH ENFORCEMENT ACTION SHALL BE ENTITLED TO RECOVER FROM THE OTHER
REASONABLE ATTORNEYS FEES, AS DETERMINED BY THE COURT.
(C) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPHS (A) AND (B) OF THIS
SUBDIVISION, A MUNICIPALITY MAY ADOPT A LOCAL LAW TO REQUIRE THE POSTING
OF A BOND OR OTHER SECURITY IN ORDER TO FINANCE DISMANTLING OF AN ABAN-
DONED WIRELESS FACILITY; PROVIDED, HOWEVER, THE AMOUNT OF ANY SUCH BOND
MAY NOT EXCEED THE ACTUAL AND REASONABLE COSTS OF DISMANTLING SUCH
FACILITY AS SET FORTH IN THE APPLICATION.
11. WHERE THE APPLICANT FOR A WIRELESS FACILITY IS A SITE CONSOLIDA-
TOR, SUCH APPLICATION SHALL ALSO INCLUDE A SWORN AFFIDAVIT OF THE APPLI-
CANT STATING THAT THE APPLICANT HAS OBTAINED CONTRACTUAL COMMITMENTS
FROM AT LEAST TWO SITE USERS WHICH FALL WITHIN ANY OF THE FOLLOWING
CLASSES OF ENTITIES: (A) WIRELESS SERVICE PROVIDERS (HEREINAFTER
REFERRED TO IN THIS ARTICLE AS "FEDERAL COMMUNICATIONS COMMISSION LICEN-
SEES"), (B) PUBLIC SAFETY OR OTHER GOVERNMENTAL AGENCIES, OR (C) OTHER
LICENSEES CATEGORIZED BY THE FEDERAL COMMUNICATIONS COMMISSION AS
COMMERCIAL MOBILE RADIO SERVICE PROVIDERS OR PRIVATE LAND MOBILE OPERA-
TORS, AND WHICH SITE USERS HAVE COMMITTED TO PLACING THEIR WIRELESS
SERVICES EQUIPMENT ON THE PROPOSED WIRELESS FACILITY IF SUCH WIRELESS
FACILITY IS CONSTRUCTED. THE CONTRACTUAL COMMITMENTS REFERRED TO IN THE
SWORN AFFIDAVIT MAY BE CONTINGENT UPON THE APPLICANT RECEIVING ALL
NECESSARY PERMITS AND APPROVALS FOR, AND ACTUAL ERECTION OF THE PROPOSED
WIRELESS FACILITY.
S 304. CO-LOCATION STANDARDS. 1. WHERE AN APPLICATION PROPOSES
CONSTRUCTION OF A WIRELESS FACILITY DESIGNED TO SUPPORT ONLY ONE PROVID-
ER, THE APPLICANT SHALL DEMONSTRATE THAT CO-LOCATING WITH ANOTHER WIRE-
A. 5994 7
LESS FACILITY INSTEAD OF CONSTRUCTION OF THE PROPOSED WIRELESS FACILITY
IS NOT TECHNICALLY AND COMMERCIALLY REASONABLE.
2. THE MUNICIPAL BOARD MAY, IN ITS SOLE DISCRETION, REQUIRE THE APPLI-
CANT FOR A WIRELESS FACILITY TO MAKE A REASONABLE ATTEMPT TO CO-LOCATE
WITH ANOTHER WIRELESS FACILITY PROVIDED THE MUNICIPAL BOARD NOTIFIES THE
APPLICANT IN WRITING, WITHIN FIFTEEN DAYS OF THE FILING OF THE APPLICA-
TION, OF THE LOCATION OF ANY EXISTING WIRELESS FACILITY, UPON WHICH THE
MUNICIPAL BOARD BELIEVES THE APPLICANT CAN SUCCESSFULLY CO-LOCATE A
WIRELESS FACILITY THAT WILL ADEQUATELY SERVE THE TECHNICAL AND COMMER-
CIAL REQUIREMENTS OF THE APPLICANT.
3. IF THE MUNICIPAL BOARD REQUIRES THE APPLICANT TO ATTEMPT TO CO-LO-
CATE A WIRELESS FACILITY WITH AN EXISTING WIRELESS FACILITY, THE APPLI-
CANT SHALL PROVIDE THE MUNICIPAL BOARD WITH A STATEMENT INDICATING THAT
THE APPLICANT HAS EITHER:
(A) SUCCESSFULLY AGREED TO CO-LOCATE THE WIRELESS FACILITY WITH AN
EXISTING WIRELESS FACILITY, AND WHICH STATEMENT IDENTIFIES THE LOCATION
OF THE FACILITY ON WHICH THE APPLICANT WILL BE CO-LOCATED; OR
(B) UNSUCCESSFULLY ATTEMPTED TO CO-LOCATE THE WIRELESS FACILITY WITH
AN EXISTING WIRELESS FACILITY AND WHICH STATEMENT IDENTIFIES THE
LOCATION OF THE FACILITIES WHICH THE APPLICANT ATTEMPTED TO CO-LOCATE ON
WIRELESS FACILITIES WHICH THE APPLICANT HAS REVIEWED, AND LISTS THE
REASONS WHY EACH SUCH ATTEMPT TO CO-LOCATE A WIRELESS FACILITY WAS
UNSUCCESSFUL.
S 305. PERMIT APPROVAL; NON-CONFORMING FACILITIES. 1. UPON FINDING
THAT A PROPOSED WIRELESS FACILITY COMPLIES WITH THE PROVISIONS OF
SECTIONS THREE HUNDRED THREE AND THREE HUNDRED FOUR OF THIS ARTICLE, THE
MUNICIPAL BOARD SHALL ISSUE APPROVAL AND TRANSMIT A WRITTEN COPY OF ITS
APPROVAL TO THE BUILDING INSPECTOR IN ACCORDANCE WITH SUBDIVISION TWO OF
SECTION THREE HUNDRED TWO OF THIS ARTICLE. APPEALS FROM MUNICIPAL BOARD
ACTIONS PURSUANT TO THE PROVISIONS OF THIS ARTICLE SHALL BE GOVERNED BY
ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
2. (A) WHERE THE WIRELESS FACILITY DOES NOT MEET THE SPECIFICATIONS
OUTLINED IN THIS ARTICLE, THE MUNICIPAL BOARD SHALL NOT ISSUE THE PERMIT
PURSUANT TO THIS ARTICLE.
(B) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (A) OF THIS SUBDIVI-
SION, UPON A SHOWING THAT CONSTRUCTION OF A WIRELESS FACILITY MEETING
THE REQUIREMENTS OF THIS ARTICLE IS NOT TECHNICALLY AND COMMERCIALLY
REASONABLE, APPLICATION MAY BE MADE PURSUANT TO THE PROVISIONS OF ANY
MUNICIPAL ZONING LAW OR OTHER LOCAL LAW, ORDINANCE, RULE OR REGULATION
ADOPTED PURSUANT TO THE PROVISIONS OF ARTICLE FIVE-A OF THE GENERAL CITY
LAW, THE STATUTE OF LOCAL GOVERNMENTS OR MUNICIPAL HOME RULE LAW GOVERN-
ING THE PLACEMENT, CONSTRUCTION OR MODIFICATION OF WIRELESS FACILITIES;
PROVIDED, HOWEVER THAT AN AREA OR USE VARIANCE SHALL BE GRANTED FOR A
WIRELESS FACILITY UPON A SHOWING THAT:
(I) THE WIRELESS FACILITY IS A PUBLIC NECESSITY IN THAT IT IS REQUIRED
TO RENDER THE SAFE AND ADEQUATE LEVEL OF SERVICE REQUIRED BY THE APPLI-
CANT; AND
(II) THE PLACEMENT, CONSTRUCTION OR MODIFICATION OF THE WIRELESS
FACILITY IS NECESSARY IN ORDER FOR THE APPLICANT TO RENDER THE REQUIRED
LEVEL OF SERVICE IN A MANNER THAT IS TECHNICALLY AND COMMERCIALLY
REASONABLE.
S 306. APPLICABILITY. 1. THE PROVISIONS OF THIS ARTICLE SHALL GOVERN
THE PLACEMENT, CONSTRUCTION AND MODIFICATION OF ALL WIRELESS FACILITIES
IN A MUNICIPALITY; PROVIDED, HOWEVER, THIS ARTICLE SHALL NOT APPLY TO
ANY WIRELESS FACILITY PLACED, CONSTRUCTED OR MODIFIED PURSUANT TO A
MASTER PERMIT WITH ANY AGENCY OR AUTHORITY OF THE STATE OF NEW YORK
A. 5994 8
ENTERED INTO ON OR BEFORE THE EFFECTIVE DATE OF THIS ARTICLE, AND ANY
FUTURE SITE PERMITS ISSUED PURSUANT TO ANY SUCH MASTER PERMIT.
2. ISSUANCE OF A PERMIT PURSUANT TO THIS ARTICLE SHALL SATISFY AND BE
IN LIEU OF ANY CERTIFICATIONS, APPROVALS OR OTHER REQUIREMENTS CONCERN-
ING THE CONSTRUCTION OF A WIRELESS FACILITY INCLUDING, BUT NOT LIMITED
TO, SUBDIVISION APPROVAL UNDER ANY STATE OR LOCAL LAW, ORDINANCE, RULE,
REGULATION OR OTHER RESTRICTION, EXCEPT FOR THE REQUIREMENT TO DEMON-
STRATE COMPLIANCE WITH THE NEW YORK STATE UNIFORM BUILDING AND FIRE
PREVENTION CODE.
3. FOR THE PURPOSES OF THIS ARTICLE, AND IN COMPLIANCE WITH ARTICLE
EIGHT OF THE ENVIRONMENTAL CONSERVATION LAW AND ALL RULES AND REGU-
LATIONS PROMULGATED THEREUNDER, WIRELESS FACILITIES SHALL BE CONSIDERED
TYPE II ACTIONS CONSISTENT WITH THE RULES AND REGULATIONS RELATING TO
SUCH DESIGNATIONS.
S 5. The department of health shall study, examine, evaluate and make
recommendations concerning the health effects of exposure to the radio
frequency signals and microwave energy emitted by wireless facilities,
as defined in subdivision 2 of section three of this act, and wireless
communications devices, as defined in section 301 of the county law.
Such department shall report its findings, conclusions and recommenda-
tions thereon to the governor and the legislature on or before the one
hundred eightieth day after this act shall have become a law, and shall
submit with its report such legislative proposals as it deems necessary
to implement its recommendations.
S 6. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent
of the legislature that this act would have been enacted even if such
invalid provisions had not been included herein.
S 7. This act shall take effect immediately, provided that:
(a) section three of this act shall expire and be deemed repealed on
the one hundred twentieth day after it shall have become a law; and
(b) section four of this act shall take effect on the one hundred
twentieth day after it shall have become a law and shall apply to all
applications for building permits for wireless facilities submitted on
or after the effective date of such section.