SB 0196

AN ACT relative to the review of wireless communications facility proposals of state agencies and of proposals received by local land use boards.

SPONSORS: Sen. Below, Dist 5; Sen. Cohen, Dist 24; Rep. J. Bradley, Carr 8; Rep. R. Cooney; Rock 26; Rep. Norelli, Rock 31; Rep. N. Kaen, Straf 7

I. Gives the division of historical resources, department of cultural resources the duty to review wireless facility proposals of state agencies and proposals submitted by local land use boards for adverse impacts on historical resources.

II. Clarifies the power of municipalities to adopt single purpose zoning ordinances related to land use matters and pursuant to a master plan.

III. Expands the allowable telecommunications uses of highway and railroad rights-of-way under the control of the department of transportation.

IV. Allows municipalities to adopt a one-time moratorium for the purpose of developing wireless facility regulations.

V. Extends the appropriation made to the department of resources and economic development for the purpose of the telecommunications and planning initiative.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to the review of wireless communications facility proposals of state agencies and of proposals received by local land use boards.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Economic Development; Telecommunications Planning and Initiative; Appropriation Extended. Amend RSA 12-A:45, III to read as follows:

III. The budget for the fiscal year ending June 30, 2001 for the duties of this subdivision shall not exceed $150,000, provided that any unexpended amount shall not lapse until June 30, 2003. The budget for subsequent fiscal years shall be considered in the division of economic development's operating budget.

2 New Paragraph; Definition Added. Amend RSA 12-K:2 by inserting after paragraph XIII the following new paragraph:

XIV. "Wireless facility" means a personal wireless service facility as defined in paragraph XI or other wireless communications facilities as defined in RSA 672:14, IV.

3 New Section; Moratorium. Amend RSA 12-K by inserting after section 7 the following new section:

12-K:7-a Moratorium. The governing body of a municipality may by majority vote adopt a one-time moratorium on the installation of wireless facilities for not more than 180 days for the purpose of developing, reviewing, and adopting appropriate and adequate ordinances and/or regulations for the deployment of wireless facilities.

4 New Section; State Agency Wireless Facility Projects. Amend RSA 12-K by inserting after section 8 the following new section:

I. Any state agency, as defined in RSA 21-G:5, III, proposing a wireless facility project shall submit the proposal to the division of historical resources, department of cultural resources for review pursuant to RSA 227-C:9.

II. The results of the review and the recommendations by the division of historical resources with regard to mitigation or avoidance of adverse impacts on historic resources shall be taken into account by the agency prior to proceeding with the proposal.

III.(a) The use of, or access to, state buildings or structures as governed by procedures of the department of administrative services shall allow for disguised or camouflaged mounts of PWSFs on existing state buildings, including the lease to privately-owned PWSFs for such mounts.

(b) Any such use or access to state buildings or structures under this section shall be subject to review by the division of historical resources, department of cultural resources pursuant to RSA 227-C:9, and shall be subject to other applicable laws and rules except that RSA 4:40 shall not apply to this section. The commissioner of administrative services may give expedited preference to disguised or camouflaged mounts that would have minimal adverse visual impact. Such agreements, which shall be for commercially reasonable value, shall not extend for a period of more than 25 years. For such wireless facilities, the governor and council may authorize the commissioner of administrative services to enter into contracts, leases, licenses, and other agreements based on standard forms, fee schedules, and procedures, without governor and council review of each individual proposal.

5 New Paragraph; Department of Cultural Resources; Review of Wireless Facility Projects; Rulemaking. Amend RSA 21-K:8 by inserting after paragraph VIII the following new paragraph:

IX. The criteria and procedures for the review of wireless facility projects by the division of historical resources pursuant to RSA 227-C:9

6 New Paragraph; Review of Wireless Facility Projects. Amend RSA 227-C:9 by inserting after paragraph III the following new paragraph:

IV. The division shall review all proposed state agency wireless facility projects pursuant to RSA 12-K:8-a, and shall review all proposals submitted by a local land use board pursuant to RSA 674:55. The review of proposals by the division shall be pursuant to rules adopted by the commissioner of the department of cultural resources pursuant to RSA 21-K:8, IX. Such rules shall establish procedures to evaluate the effect of telecommunications projects on historical resources using specific guidelines substantially similar to the procedures implemented by the division under Section 106 of the National Historic Preservation Act of 1996 as amended. After review the division may make a finding of

7 Department of Transportation; Telecommunications Uses of Highway and Railroad Rights-of-way. Amend RSA 228:31-a to read as follows:

228:31-a Agreements for Telecommunications-Related Uses of the State Highway System and State-Owned Railroad Rights-of-Way. The commissioner may, with the approval of the governor and council, execute contracts, leases, licenses, and other agreements relating to the use or occupation of state-owned rights-of-way, whether easement or fee-owned, for purposes of allowing the installation and maintenance of commercial mobile radio service devices. The commissioner may give expedited preference to such facilities that would have minimal adverse visual impact because they would be camouflaged or disguised facilities or otherwise mounted on existing structures pursuant to RSA 12-K. For such facilities, the governor and council may authorize the commissioner of administrative services to enter into contracts, leases, licenses, and other agreements based on standard forms, fee schedules, and procedures, without governor and council review of each individual proposal. Such agreements, which shall be for commercially reasonable value, shall not extend for a period of more than [10] 25 years. Any leases executed pursuant to this section shall be subject to the requirements of RSA 72:23 with regard to properly assessed real estate taxes and subject to local zoning and planning requirements. Installation of said devices or facilities shall take into consideration the scenic beauty of the landscape to minimize or mitigate adverse visual impacts. There shall be no advertising signs on these devices. The provisions of RSA 4:40 shall not apply to this section.

8 New Paragraph; Zoning and Planning; Grant or Power; Single Purpose Zoning. Amend RSA 674:16 by inserting after paragraph V the following new paragraph:

VI. The power to adopt a zoning ordinance under this subdivision expressly includes the power to adopt single purpose zoning ordinances addressing such matters including, but not limited to, the regulation of wireless facilities, as defined in RSA 12-K:2, XIV, or the development in floodplains, provided such matters are treated in a local master plan prepared and adopted pursuant to RSA 674:2-4.

9 New Subdivision; Wireless Facilities. Amend RSA 674 by inserting after section 54 the following new subdivision:

I. Any local land use board which receives under any provision of this title an application or proposal which includes a wireless facility as defined in RSA 12-K:2, XIV, may submit the application or proposal to the division of historical resources, department of cultural resources, for review pursuant to RSA 227-C:9, IV. The recommendations of the division of historical resources may be considered by the local land use board prior to approval of any application or proposal. Notwithstanding any other provision of law, rules, or local regulation to the contrary, a local land use board may delay review of and final action on an application or proposal for such a facility pending the completion of a review of the project by the division under RSA 227-C:9, IV or pursuant to Section 106 of the National Historic Preservation Act of 1996 as amended. The local land use board may condition approval of an application or proposal on the results of such a review, including denial of an application or proposal if the division finds that there will be an adverse impact on an historic resource as defined in RSA 227-C:1, VII.

II. If the division of historical resources finds and adverse impact on an historic resource that is a national historic landmark or other historic property on the National Register of Historic Places and which is located outside of the jurisdiction of a local land use board reviewing a proposed wireless facility, then upon notice of such finding to the land use board, the governing body, the planning board, the heritage commission, and the historic district commission, if any, of that other municipality shall henceforth be deemed "abutters" under RSA 672:3 for purposes of future notice of and participation in the proceedings of the land use board concerning the review of the impacting facility.

674:56 Waiver for Certain Wireless Facilities Permitted. Notwithstanding the requirements for granting of a variance under this chapter, a municipality may waive the requirements of a zoning ordinance with regard to a wireless facility as defined in RSA 12-K:2,XIV in a situation where an alternative antenna mount or location would mitigate adverse impacts compared with a proposed location or mount that is otherwise permitted by local zoning ordinances.

10 Appropriation Lapse Date Extended. The appropriation made to the department of resources and economic development in 2000, 298:5, II for the purpose of the telecommunications planning and development initiative shall not lapse until June 30, 2003.