REQUIRES TWO-THIRDS MAJORITY VOTE (§ 9)                 

                                                 (Reprinted with amendments adopted on April 21, 2003)

 

Senate Bill No. 426–Committee on Commerce and Labor

 

March 24, 2003

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Establishes statewide procedures for approval of applications for construction of facilities for personal wireless communications. (BDR 58-1286)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to wireless telecommunications; establishing a statewide procedure for approval by a state or local land use authority of an application for the construction of a facility for personal wireless service under certain circumstances; authorizing a land use authority to assess an applicant for the actual costs incurred by the authority to process an application; requiring that a denial or conditional approval of an application be in writing, set forth each ground for denial or conditional approval, and be supported by substantial evidence contained in a written record; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. The Legislature finds and declares that:

1-2  1.  Congress enacted the Wireless Communications and Public

1-3  Safety Act of 1999, Public Law 106-81, 113 Stat. 1286, to

1-4  encourage states to make efforts to facilitate the development of

1-5  seamless, ubiquitous and reliable personal wireless services

1-6  networks as a means of promoting public safety by providing

1-7  immediate and critical communications links among members of the

1-8  public, emergency medical service providers and emergency

1-9  dispatch providers. The widespread use of personal wireless services

2-1  in the rescue, relief and recovery efforts following the

2-2  September 11, 2001, terrorist attacks, in which landline

2-3  communication networks were unavailable or unsuited to meeting

2-4  exigent public safety communications needs, demonstrated the

2-5  versatility and robustness of personal wireless services networks and

2-6  their resulting importance to public safety and homeland security. It

2-7  is the intent of the Legislature in enacting the provisions of sections

2-8  3 to 10, inclusive, of this act to reaffirm the federal policy of

2-9  facilitating the development of seamless, ubiquitous and reliable

2-10  personal wireless services networks as reflecting the public policy of

2-11  the State of Nevada, and to set forth uniform standards and

2-12  procedures that will give effect to this policy.

2-13      2.  A large percentage of the residents of this state subscribe to

2-14  personal wireless services, and there is a substantial public interest

2-15  in permitting the residents of this state to enjoy the increase in

2-16  personal productivity, flexibility and convenience attributable to the

2-17  availability of seamless, ubiquitous and reliable personal wireless

2-18  services. Seamless, ubiquitous and reliable personal wireless

2-19  services also facilitate telecommuting, flexible hours and other

2-20  alternate work arrangements that are integral to the service economy

2-21  of this state and strategies for reducing road congestion.

2-22      3.  Local governments in this state retain an important role in

2-23  decisions concerning the construction of facilities for personal

2-24  wireless services in order to ensure that such decisions give

2-25  consideration to legitimate local concerns. Nevertheless, because

2-26  personal wireless services networks must be seamless, ubiquitous

2-27  and reliable to be effective, there is a preeminent state interest in

2-28  ensuring the availability of such services throughout the State.

2-29  Furthermore, in the Telecommunications Act of 1996, Public Law

2-30  104-104, 110 Stat. 56, Congress required that applications for

2-31  facilities for personal wireless services be acted upon in an

2-32  expeditious manner and without unreasonable delay. It is the intent

2-33  of the Legislature in enacting the provisions of sections 3 to 10,

2-34  inclusive, of this act to balance local, state and national interests by

2-35  specifying uniform statewide procedures for the review by the State

2-36  and by any local governments of applications to construct facilities

2-37  for personal wireless service and to encourage the State and any

2-38  local governments to allow the construction of facilities for personal

2-39  wireless service on government property.

2-40      Sec. 2.  Chapter 707 of NRS is hereby amended by adding

2-41  thereto the provisions set forth as sections 3 to 10, inclusive, of this

2-42  act.

2-43      Sec. 3.  As used in sections 3 to 10, inclusive, of this act,

2-44  unless the context otherwise requires, the words and terms defined

3-1  in sections 4 to 7, inclusive, of this act have the meanings ascribed

3-2  to them in those sections.

3-3  Sec. 4.  “Facility for personal wireless service” includes any

3-4  building, structure, antenna and other equipment used to provide

3-5  personal wireless service. The term includes a telecommunications

3-6  tower.

3-7  Sec. 5. “Land use authority” means an agency, bureau,

3-8  board, commission, department, division, officer or employee of

3-9  the State or of a local government authorized by law to take action

3-10  on an application to construct a facility for personal wire service.

3-11      Sec. 6.  “Personal wireless service” has the meaning ascribed

3-12  to it in 47 U.S.C. § 332(c)(7)(C), as that provision existed on

3-13  July 1, 2003.

3-14      Sec. 7.  “Telecommunications tower” means any freestanding

3-15  tower, monopole or similar structure used to provide personal

3-16  wireless services.

3-17      Sec. 8.  1.  Notwithstanding any specific statute or ordinance

3-18  to the contrary, a land use authority with jurisdiction over an

3-19  application to construct a facility for personal wireless service

3-20  shall, after notice and an opportunity for a hearing, approve the

3-21  application if:

3-22      (a) The applicant is a provider of wireless telecommunications

3-23  that is licensed by the Federal Communications Commission to

3-24  provide wireless telecommunications services over a designated

3-25  radio frequency and authorized to do business in this state; and

3-26      (b) The facility for personal wireless service is to be:

3-27          (1) Architecturally integrated with its surroundings so that

3-28  it appears to be an architectural feature of a building or other

3-29  structure and its nature as a facility for personal wireless service is

3-30  not readily apparent;

3-31          (2) Collocated with a facility for personal wireless service

3-32  approved, or capable of being approved, by the land use authority;

3-33          (3) Constructed on an existing building or structure owned

3-34  by a public utility or on property owned by the State or by a local

3-35  government; or

3-36          (4) If constructed on an existing building or structure not

3-37  owned by a public utility, architecturally compatible with the

3-38  building or structure and not more than 10 feet taller than the

3-39  building or structure.

3-40      2.  The land use authority shall not:

3-41      (a) Consider the environmental effects of radio frequency

3-42  emissions from a facility for personal wireless service if the facility

3-43  complies with the regulations of the Federal Communications

3-44  Commission concerning such emissions.

4-1  (b) Deny or condition the approval of the application to

4-2  construct a facility for personal wireless service on the basis of its

4-3  design if the applicant demonstrates that the design of the facility

4-4  is consistent with community aesthetics.

4-5  (c) If the application to construct a facility for personal

4-6  wireless services requests the use of a public right-of-way, deny

4-7  the application if the proposed use:

4-8       (1) Meets all applicable requirements for use of a public

4-9  right-of-way; and

4-10          (2) Does not endanger the public health or safety.

4-11      3.  A land use authority of a local government may provide for

4-12  the administrative appeal of a decision made pursuant to this

4-13  section.

4-14      Sec. 9.  A land use authority, in connection with an

4-15  application to construct a facility for personal wireless service,

4-16  may assess the applicant for the actual costs incurred by the land

4-17  use authority to process the application.

4-18      Sec. 10.  1.  A land use authority that denies or conditions

4-19  the approval of an application to construct a facility for personal

4-20  wireless service shall issue a written decision. The decision must:

4-21      (a) Set forth with specificity each ground on which the

4-22  authority denied or conditioned the approval of the application;

4-23  and

4-24      (b) Be supported by substantial evidence contained in a written

4-25  record.

4-26      2.  A person who brings an action against a land use authority

4-27  pursuant to NRS 278.0233 shall file a copy of the decision and

4-28  record with the court.

4-29      Sec. 11.  This act becomes effective on July 1, 2003.

 

4-30  H