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STATE OF NEW YORK
________________________________________________________________________

3843--A

2011-2012 Regular Sessions

IN ASSEMBLY

January 28, 2011
___________

Introduced  by  M.  of A. COLTON, CYMBROWITZ, BENEDETTO, KELLNER, ROSEN-
  THAL, WRIGHT, ENGLEBRIGHT, REILLY,  ROBINSON,  JAFFEE,  MARKEY,  MENG,
  HOOPER  --  Multi-Sponsored by -- M. of A. FINCH, GLICK, HIKIND, PHEF-
  FER, THIELE, TITUS, WEISENBERG  --  read  once  and  referred  to  the
  Committee  on Local Governments -- committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to enact the "wireless facility siting act"; to amend the general
  municipal law, in relation to the placement, construction and  modifi-
  cation of wireless services facilities

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

  Section 1. Legislative intent.  Municipal control over the  siting  of
wireless services facilities is an important component of municipal home
rule.  The legislature recognizes the federal, state and local interests
of  providing for proper and convenient wireless services to the public.
As such, the legislature needs to balance  the  interests  of  providing
quality wireless communication services with local concerns on the inap-
propriate  siting  of telecommunications towers. This act provides for a
process of municipal review for  applications  to  site,  construct  and
modify  wireless services facilities.  Such process must incorporate the
needs and desires of the local community, with regard to  the  aesthetic
ramifications  of  such  siting.  It is the intent of the legislature in
adopting the "wireless facility siting act" to implement enabling legis-
lation which specifically sets forth a  uniform  statewide  process  for
municipal  review  of  applications  for the placement, construction and
modification of wireless services facilities in all municipalities  that
do  not  have  local laws to regulate the placement of such towers. Each
municipality shall be able to enact approval  processes  that  are  more
strict than those established by this act.
  S  2.  Short title. This act shall be known as and may be cited as the
"wireless facility siting act".

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04827-03-1
A. 3843--A                          2

  S 3. 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. MINIMUM STATE-WIDE 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. THE FOLLOWING TERMS SHALL HAVE  THE  MEANINGS  SET
FORTH IN THIS SECTION UNLESS THE CONTEXT CLEARLY INDICATES OTHERWISE:
  1.  "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.
  2. "BUILDING INSPECTOR" MEANS  THE  MUNICIPAL  OFFICIAL  CHARGED  WITH
ISSUING BUILDING PERMITS AND/OR ENFORCING THE ZONING LAW OF SUCH MUNICI-
PALITY  OR  OTHER INDIVIDUAL DESIGNATED BY THE LEGISLATIVE BODY TO ISSUE
PERMITS FOR WIRELESS FACILITIES.
  3. "HISTORIC AREA" MEANS AN AREA WHOLLY OR PARTIALLY WITHIN, OR  WIRE-
LESS  FACILITY  HAVING  ITS  FOUNDATION WITHIN ONE THOUSAND FEET OF, ANY
HISTORIC BUILDING, STRUCTURE, FACILITY, SITE OR DISTRICT, THAT IS LISTED
ON THE NATIONAL REGISTER OF HISTORIC PLACES, OR THAT HAS  BEEN  PROPOSED
BY  THE  NEW YORK STATE BOARD ON HISTORIC PRESERVATION FOR A RECOMMENDA-
TION 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 LAND-
MARK BY THE MUNICIPALITY.
  4. "MUNICIPAL BOARD" OR "BOARD" MEANS THE MUNICIPAL  BOARD  AUTHORIZED
TO  REVIEW  APPLICATIONS FOR WIRELESS FACILITIES. IN THE EVENT A MUNICI-
PALITY HAS NOT DESIGNATED A BOARD, REFERENCES IN  THIS  ARTICLE  TO  THE
MUNICIPAL BOARD SHALL BE DEEMED TO REFER TO THE LEGISLATIVE BODY OF SUCH
MUNICIPALITY.
  5.  "MUNICIPAL  ZONING LAW" MEANS A MUNICIPALITY'S ZONING LOCAL LAW OR
ORDINANCE.
  6. "MUNICIPALITY" MEANS ANY CITY, TOWN OR VILLAGE.
  7. "PERMIT" MEANS THE AUTHORIZATION BY THE BUILDING INSPECTOR PURSUANT
TO THIS ARTICLE TO CONSTRUCT A WIRELESS FACILITY.
  8. "PERSON"  MEANS  ANY  INDIVIDUAL,  CORPORATION,  LIMITED  LIABILITY
COMPANY, JOINT VENTURE, PUBLIC BENEFIT CORPORATION, PARTNERSHIP, LIMITED
LIABILITY PARTNERSHIP OR ASSOCIATION.
  9.  "SCENIC AREA" MEANS AN AREA WHOLLY OR PARTIALLY WITHIN, OR A WIRE-
LESS FACILITY HAVING ITS FOUNDATION WITHIN ONE  THOUSAND  FEET  OF,  ANY
PUBLICLY  OWNED OR OPERATED PARKLAND, RECREATION AREA OR DESIGNATED OPEN
SPACE, INCLUDING ANY WIRELESS FACILITY HAVING ITS FOUNDATION WITHIN  ONE
THOUSAND  FEET OF THE CENTERLINE OF ANY SCENIC BYWAY AS DEFINED IN ARTI-
CLE TWELVE-C OF THE HIGHWAY LAW OR AS DESIGNATED BY THE MUNICIPALITY.
  10. "TECHNICAL REVIEW" MEANS REVIEW OF  A  PERMIT  APPLICATION  BY  AN
INDEPENDENT EXPERT IN TELECOMMUNICATIONS SITING.
A. 3843--A                          3

  11. "TECHNICALLY AND COMMERCIALLY REASONABLE" MEANS IN ACCORDANCE WITH
GENERAL INDUSTRY PRACTICE IN THE PROVISION OF WIRELESS SERVICES PERTAIN-
ING TO COST AND SERVICE COVERAGE.
  12.  "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.
  13.  "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.
  14.  "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.
  S  301. PERMIT REQUIREMENTS. NO PERSON SHALL COMMENCE THE CONSTRUCTION
OR MODIFICATION OF A WIRELESS FACILITY  WITHOUT FIRST OBTAINING A MUNIC-
IPAL PERMIT.
  S 302. MINIMUM STATE-WIDE PROCEDURE FOR  MUNICIPAL  REVIEW  OF  PERMIT
REQUESTS.   1.   (A) UPON RECEIPT OF A COMPLETED APPLICATION FOR PERMIS-
SION TO CONSTRUCT, PLACE OR MODIFY A WIRELESS  FACILITY,  THE  MUNICIPAL
BOARD SHALL CONDUCT A PUBLIC HEARING WITHIN NINETY DAYS OF SUCH APPLICA-
TION. A WRITTEN DECISION SHALL BE RENDERED WITHIN SIXTY-TWO DAYS OF SUCH
PUBLIC  HEARING.   THE TIME WITHIN WHICH THE MUNICIPAL BOARD MUST RENDER
ITS WRITTEN DECISION MAY BE EXTENDED BY MUTUAL CONSENT OF THE  APPLICANT
AND THE BOARD.
  (B)  EACH  APPLICANT  SHALL  PROVIDE  WRITTEN NOTICE TO ALL OWNERS AND
RESIDENTS OF PROPERTY LOCATED WITHIN ONE THOUSAND FEET OF  THE  PROPOSED
WIRELESS  FACILITY  WITHIN TEN DAYS OF FILING AN APPLICATION PURSUANT TO
PARAGRAPH (A) OF THIS SUBDIVISION, AND AGAIN NOT MORE THAN  THIRTY  DAYS
BEFORE ANY SCHEDULED PUBLIC HEARING.
  2.  (A)  AN  APPLICATION  FEE MAY BE IMPOSED BY A MUNICIPALITY UPON AN
APPLICANT FOR THE PLACEMENT, CONSTRUCTION OR MODIFICATION OF A  WIRELESS
FACILITY THAT SHALL NOT EXCEED THE NORMAL AND CUSTOMARY FEE FOR A BUILD-
ING  PERMIT  APPLICATION IN SUCH MUNICIPALITY FOR PROJECTS OF SUCH SCOPE
AND NATURE.
  (B) UPON REQUEST OF THE BOARD, AN APPLICANT MAY BE REQUIRED TO  ESTAB-
LISH  AN  ESCROW  ACCOUNT  FOR THE PAYMENT OF THE ACTUAL, REASONABLE AND
CUSTOMARY COSTS INCURRED BY THE MUNICIPALITY FOR AN INDEPENDENT  TECHNI-
CAL REVIEW OF EACH ASPECT OF THE APPLICATION.
  S  303.  STANDARDS FOR REVIEW AND APPLICATION REQUIREMENTS FOR A WIRE-
LESS FACILITY. 1.   PERMIT APPROVAL MAY  BE  GRANTED  IF  THE  APPLICANT
DEMONSTRATES  COMPLIANCE  WITH  THE  FOLLOWING STANDARDS FOR THE REVIEW,
PAYS ALL APPLICABLE FEES AND COSTS, AND SUBMITS THE REQUIRED DOCUMENTS.
  2. (A) THE APPLICATION SHALL INCLUDE, AT A MINIMUM, INFORMATION, WHICH
SHALL INCLUDE A MAP, THAT IDENTIFIES THE LOCATION OF ALL EXISTING  WIRE-
LESS  FACILITIES  TOGETHER  WITH ALL FACILITIES FOR WHICH AN APPLICATION
HAS BEEN FILED WITHIN TWENTY MILES OF WHERE SUCH FACILITIES  ARE  TO  BE
LOCATED.  ON  SUCH MAP THE FACILITIES IDENTIFIED MUST NOTE THE OWNER AND
OPERATOR OF SUCH FACILITIES.
A. 3843--A                          4

  (B) THE APPLICATION SHALL CONTAIN INFORMATION  THAT  ESTABLISHES  THAT
THERE  IS  A SPECIFIC NEED FOR THE PROPOSED WIRELESS FACILITY INCLUDING,
BUT NOT LIMITED TO, EVIDENCE THAT THE EXISTING  WIRELESS  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
INCLUDE DATA ON THE EFFECTS UPON THE PUBLIC HEALTH OF  THE  RADIO  WAVES
EMITTED BY THE PROPOSED WIRELESS FACILITY.
  3.  THE  APPLICATION  SHALL DEMONSTRATE THAT OPERATION OF THE WIRELESS
FACILITY COMPLIES WITH ALL APPLICABLE REGULATIONS OF THE FEDERAL  COMMU-
NICATIONS COMMISSION.  IF NEW, MORE RESTRICTIVE STANDARDS ARE ADOPTED BY
SUCH AGENCY, THE FACILITY SHALL,  IN A MANNER CONSISTENT WITH SUCH STAN-
DARDS,  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, WHILE  PROVIDING  THE  LEVEL  OF
SERVICE REQUESTED BY THE APPLICANT.  MINIMIZATION OF VISUAL IMPACT IN AN
HISTORIC  OR SCENIC AREA SHALL INCLUDE REASONABLE EFFORTS THAT TAKE INTO
ACCOUNT THE TOPOGRAPHY AND SURROUNDINGS OF THE WIRELESS FACILITY.
  5. NO TELECOMMUNICATIONS TOWER SHALL BE LOCATED  WITHIN  ONE  THOUSAND
FIVE HUNDRED FEET OF ANY ELEMENTARY OR SECONDARY SCHOOL.
  6.  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.
  7.  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
GROUND  AREAS  OR  GROUND STRUCTURES MAY BE ATTACHED TO WIRELESS FACILI-
TIES.
  8. THE APPLICANT SHALL PRESERVE EXISTING  ON-SITE  VEGETATION  TO  THE
MAXIMUM  EXTENT PRACTICABLE.  THE BASE OF THE FACILITY AND ANY ACCESSORY
STRUCTURES SHALL BE LANDSCAPED.
  9. (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  MUNICIPALITY  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 MUNICIPALITY 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 MUNICIPALITY 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.    SUCH PUBLIC HEARING SHALL BE ON NOT LESS THAN THIRTY
DAYS NOTICE TO SUCH OWNER.  UPON A FINDING THAT  THE  WIRELESS  FACILITY
HAS BEEN ABANDONED, THE MUNICIPALITY SHALL DELIVER WRITTEN NOTICE TO THE
APPLICANT INDICATING THE REASONS FOR ITS FINDING, AND DIRECTING THAT THE
WIRELESS  FACILITY  BE  REMOVED  WITHIN ONE HUNDRED TWENTY DAYS, WEATHER
A. 3843--A                          5

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 FACILITY 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.
  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 BOARD MAY REQUIRE THE APPLICANT FOR A WIRELESS FACILITY TO MAKE
A REASONABLE ATTEMPT TO CO-LOCATE WITH ANOTHER  WIRELESS  FACILITY  THAT
CAN ADEQUATELY SERVE THE NEEDS OF THE APPLICANT.
  3. IF THE BOARD REQUIRES THE APPLICANT TO ATTEMPT TO CO-LOCATE A WIRE-
LESS  FACILITY  WITH  AN EXISTING WIRELESS FACILITY, THE APPLICANT SHALL
PROVIDE THE BOARD WITH A STATEMENT INDICATING  THAT  THE  APPLICANT  HAS
EITHER:
  (A)  AGREED  TO CO-LOCATE THE WIRELESS FACILITY WITH AN EXISTING WIRE-
LESS FACILITY, AND WHICH STATEMENT IDENTIFIES THE LOCATION OF THE FACIL-
ITY ON WHICH THE APPLICANT WILL BE CO-LOCATED; OR
  (B) ATTEMPTED TO CO-LOCATE THE  WIRELESS  FACILITY  WITH  AN  EXISTING
WIRELESS  FACILITY;  SUCH  STATEMENT SHOULD IDENTIFY THE LOCATION OF THE
FACILITIES WHICH THE APPLICANT ATTEMPTED TO CO-LOCATE ON WIRELESS FACIL-
ITIES WHICH THE APPLICANT HAS REVIEWED, AND LIST THE  REASONS  WHY  EACH
SUCH ATTEMPT TO CO-LOCATE A WIRELESS FACILITY WAS UNSUCCESSFUL.
  4. THE BOARD MAY DENY AN APPLICATION IF IT DETERMINES THAT SUCH APPLI-
CANT CAN CO-LOCATE ITS PROPOSED FACILITY AT ANOTHER SITE.
  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
BOARD  SHALL ISSUE A PERMIT.  APPEALS FROM 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
A. 3843--A                          6

LEVEL  OF  SERVICE  IN  A  MANNER  THAT  IS TECHNICALLY AND COMMERCIALLY
REASONABLE.
  S  306.  APPLICABILITY.    NOTWITHSTANDING ANY PROVISION OF LAW TO THE
CONTRARY, THE PROVISIONS OF THIS ARTICLE  SHALL  GOVERN  THE  PLACEMENT,
CONSTRUCTION  AND  MODIFICATION  OF ALL WIRELESS FACILITIES IN A MUNICI-
PALITY; WHETHER SUCH PLACEMENT, CONSTRUCTION OR  MODIFICATION  SHALL  BE
UPON  STATE,  COUNTY, MUNICIPALITY OR PRIVATELY OWNED LANDS OR RIGHTS OF
WAY PROVIDED, HOWEVER, NO PROVISION OF THIS ARTICLE SHALL BE  DEEMED  TO
PROHIBIT  ANY  MUNICIPALITY  FROM  ENACTING AND IMPLEMENTING A LOCAL LAW
WHICH IS CONSISTENT WITH THE MINIMUM REQUIREMENTS OF THIS  ARTICLE,  AND
IMPOSES STRICTER OR MORE RESTRICTIVE STANDARDS ON THE SITING OF WIRELESS
FACILITIES THAN THOSE ENACTED IN THIS ARTICLE.
  S  4.  This  act  shall take effect immediately, provided that section
three of this act shall take effect on the  one  hundred  eightieth  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.