Enacts the "wireless facility siting act"; directs cities, towns and villages to regulate the siting of cellular communications facilities.
Ayes (5): Martins, McDonald, Stewart-Cousins, Oppenheimer, Klein
Ayes W/R (2): Ball, Ritchie
Nays (1): Little
TITLE OF BILL: An act to enact the "wireless facility siting act"; to amend the general municipal law, in relation to the placement, construction and modification of wireless services facilities
PURPOSE OR GENERAL IDEA OF BILL: To address concerns regarding the increasing construction of cell phone/wireless communication towers in municipalities. The bill establishes a minimal uniform statewide set of standards for municipal review of applications for the placement, construction and modification of wireless service facilities.
SUMMARY OF SPECIFIC PROVISIONS: Section 1: Legislative Intent.
Section 2: Establishes the wireless Facility Siting Act.
Section 3: Adds General Municipal Law Article 13-E to establish minimum state-wide standards for municipal review and approval of cell towers. This article relates to the placement, construction and modification of wireless services facilities.
The bill adds a new article 13-E to establish certain permit procedures and requirements that would:
* Require proof of need for the wireless facility, including a county map showing the location of existing wireless facilities;
* Require written notice of the construction of the facility to property owners and residents within 1,000 feet of proposed tower;
* Require that facilities must conform, were reasonably practicable, to the aesthetics of surrounding neighborhood, particularly those areas that are within historic districts or scenic areas;
* Require municipal boards to provide a decision in writing on the approval or denial of the application within 62 days after a public hearing;
* Require applicant to establish an escrow account at the request of the municipality to pay for an independent technical review of the application;
* Provide for the removal of facility by applicant if it is not used for a period over one year; and,
* Prevent wireless facilities from being constructed within 1,500 feet of a school.
* These review standards are minimum state-wide standards. Municipalities would be able to implement local laws that have stricter review standards.
Section 4; Sets an immediate effective date, provided that the requirements of section 3 shall take effect 180 days after it shall become law and will apply to all applications for permits submit on or after the effective date.
Amendments expand the applicability to except this from other contrary provisions of law and expands the scope of lands affected.
JUSTIFICATION: New Yorkers are raising serious environmental and aesthetic concerns regarding the widespread construction of wireless facilities in their communities. Residents, elected officials and wireless companies all agree that there is a need to improve service and eliminate dead zones. However, that need should not justify the reckless placement of wireless towers, sometimes where they are not even needed, without appropriate oversight.
Residents are not given ample opportunity to Comment on the construction of these towers which are being placed near their homes. Further, there can be insufficient oversight by municipalities on how, where and why these towers are being placed in close proximity to residential areas and schools. This bill is designed to promote responsible and efficient placement of wireless facilities.
This bill would require the creation of regulations for the siting of wireless facilities that would include public hearings, and criteria for approval that includes items such as location, aesthetics, public health, and environmental impacts, and the proof of need of these facilities.
PRIOR LEGISLATIVE HISTORY: 2006: S.6351 - Referred to Energy & Telecommunications 2008: S.2286 - Referred to Energy & Telecommunications 2009-10: S.1896 - Referred to Energy & Telecommunications
EFFECTIVE DATE: This act shall take effect immediately, provided that section three of the 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.
STATE OF NEW YORK ________________________________________________________________________ 579--A 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________Introduced by Sens. KLEIN, FUSCHILLO -- read twice and ordered printed, and when printed to be committed to the Committee on Local Government -- 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. LBD04827-02-1 S. 579--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.S. 579--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.S. 579--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, WEATHERS. 579--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 REQUIREDS. 579--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.