Senate Bill S1896

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1896

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 9, 2009
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to the Committee on  Energy  and  Telecommuni-
  cations

AN  ACT  to enact the "wireless facility siting act"; to establish a one
  hundred twenty day moratorium upon the construction of wireless facil-
  ities in cities; to amend the general municipal law,  in  relation  to
  the  placement,  construction  and  modification  of wireless services
  facilities; to direct the department of health to study, evaluate  and
  make  recommendations on the health effects of radio frequency signals
  and microwave energy emitted by wireless communications service facil-
  ities and wireless  communications  devices;  and  providing  for  the
  repeal of certain provisions upon expiration thereof

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative intent. In 1996,  the  United  States  Congress
adopted the Telecommunications Act of 1996 which addresses, in part, the
siting  of  wireless  services facilities and the authority of state and
local governments to regulate the placement, construction and  modifica-
tion  of  such  facilities.   While municipal control over the siting of
wireless services facilities is an important component of municipal home
rule in the state of New York, the legislature  nevertheless  recognizes
the  similarly important federal, state and local interests of providing
for wireless services to the public in a manner that addresses state and
local concerns.  As such, the legislature has  identified  the  need  to
balance federal interests with local concerns by providing for an appro-
priate  and  efficient  process  of municipal review for applications to
site, construct and modify wireless services  facilities.    It  is  the
intent of the legislature in adopting the "wireless facility siting act"
to  implement  enabling  legislation  which  specifically  sets  forth a
uniform statewide process for municipal review of applications  for  the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05276-01-9

              

S. 1896                             2

placement, construction and modification of wireless services facilities
in cities.
  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,

S. 1896                             3

REFERENCES IN THIS ARTICLE TO THE MUNICIPAL BOARD  SHALL  BE  DEEMED  TO
REFER TO THE LEGISLATIVE BODY OF SUCH MUNICIPALITY.
  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

S. 1896                             4

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.
  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.

S. 1896                             5

  2. (A) THE APPLICATION SHALL INCLUDE WRITTEN DOCUMENTATION, WHICH  MAY
INCLUDE  A  MAP, THAT SHOWS THE LOCATION OF ALL THE APPLICANT'S EXISTING
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

S. 1896                             6

WIRELESS FACILITY; PROVIDED, HOWEVER, WHEN INCORPORATED INTO THE DESIGN,
LIGHT FIXTURES USED TO ILLUMINATE BALL FIELDS, PARKING LOTS, OR    OTHER
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. 1896                             7

  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-
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

S. 1896                             8

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
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.