S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8287
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              October 1, 2021
                                ___________
 
 Introduced  by M. of A. WOERNER -- read once and referred to the Commit-
   tee on Transportation
 
 AN ACT to amend the highway law and the transportation corporations law,
   in relation to prohibiting fees for the use and occupancy of the state
   right of way in certain agreements

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 24-e of section 10 of the highway law, as added
 by  section  1 of part RRR of section 59 of the laws of 2019, is amended
 to read as follows:
   24-e. The commissioner of transportation is hereby authorized to enter
 into an agreement with any fiber optic utility for use and occupancy  of
 the  state right of way for the purposes of installing, modifying, relo-
 cating, repairing, operating, or  maintaining  fiber  optic  facilities.
 Such agreement [may] SHALL NOT include [a] ANY fee for use and occupancy
 of  the  right of way[, provided, however, such fee shall not be greater
 than fair market value. Any provider using or occupying a right  of  way
 in  fulfillment  of  a  state  grant  award through the New NY Broadband
 Program shall not be subject to a fee for such use or occupancy. Any fee
 for use or occupancy charged to a  fiber  optic  utility  shall  not  be
 passed  through  in whole or in part as a fee, charge, increased service
 cost, or by any other means by a fiber optic utility to  any  person  or
 entity  that  contracts  with such fiber optic utility for service]. Any
 compensation received by the state pursuant to such agreement  shall  be
 deposited  by  the  comptroller  into the special obligation reserve and
 payment account of the dedicated highway and bridge  trust  fund  estab-
 lished pursuant to section eighty-nine-b of the state finance law. Noth-
 ing herein shall impair, inhibit, or otherwise affect the ability of any
 municipality to regulate zoning, land use, or any other power or author-
 ity  granted  under the law.  For purposes of this subdivision, "munici-
 pality" shall include a county, city, village, or town.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13118-01-1

 A. 8287                             2
 
   § 2. Section 7 of the transportation corporations  law,  as  added  by
 section  2  of part RRR of section 59 of the laws of 2019, is amended to
 read as follows:
   §  7.  Agreement  for  fiber  optic utility use and occupancy of state
 right of way. The commissioner of transportation is hereby authorized to
 enter into an agreement with any fiber optic utility for use  and  occu-
 pancy  of the state right of way for the purposes of installing, modify-
 ing, relocating, repairing, operating, or maintaining fiber optic facil-
 ities. Such agreement [may] SHALL NOT include [a] ANY fee  for  use  and
 occupancy of the right of way[, provided, however, such fee shall not be
 greater  than fair market value. Any provider using or occupying a right
 of way in fulfillment of a state grant award through the New  NY  Broad-
 band  Program  shall  not be subject to a fee for such use or occupancy.
 Any fee for use or occupancy charged to a fiber optic utility shall  not
 be  passed  through  in  whole  or  in  part as a fee, charge, increased
 service cost, or by any other means by a  fiber  optic  utility  to  any
 person  or  entity  that  contracts  with  such  fiber optic utility for
 service]. Any compensation received by the state pursuant to such agree-
 ment shall be deposited by the comptroller into the  special  obligation
 reserve  and  payment  account of the dedicated highway and bridge trust
 fund established pursuant to section eighty-nine-b of the state  finance
 law. Nothing herein shall impair, inhibit, or otherwise affect the abil-
 ity of any municipality to regulate zoning, land use, or any other power
 or authority granted under the law. For purposes of this section, "muni-
 cipality" shall include a county, city, village, or town.
   §  3.  Notwithstanding  any  provision  of  law  to  the contrary, any
 provision of an agreement made pursuant to subdivision 24-e  of  section
 10  of  the  highway law or section 7 of the transportation corporations
 law that provide for a fee for use and occupancy of a right of way shall
 be deemed unenforceable, provided however, that the remaining provisions
 of such agreement shall be enforceable. Any fees for use  and  occupancy
 of  a  right  of  way  collected prior to the effective date of this act
 pursuant to such an agreement, may be retained by the state.
   § 4. This act shall take effect immediately,  provided,  however  that
 the amendments to subdivision 24-e of section 10 of the highway law made
 by section one of this act and the amendments to section 7 of the trans-
 portation  corporations  law  made  by section two of this act shall not
 affect the expiration of such subdivision and such section and shall  be
 deemed to expire and repeal therewith.