Because I do not believe the exemption from local zoning regulation accorded to the state-owned telecommunications towers should be applied to the private telecommunications providers here, I respectfully dissent.
Placement of private wireless service facilities is ordinarily subject to local zoning requirements. This case differs from the typical scenario because the private providers locate their antennae on a state tower that is immune from local regulation. The issue before this Court is whether that immunity should be extended to benefit the private providers—allowing them immunity from local zoning simply because they opt to co-locate on a state, rather than a private, tower.
The City of New Rochelle Code contains zoning regulations specifically pertaining to telecommunications facilities (New Rochelle Code, ch 331, art IXA).* * While the City understands the need for telecommunications services, it “finds that these regulations are necessary to protect the environmental, scenic *170and historical resources of the city and to ensure that adverse visual and operational effects will not contribute to blighting or deterioration of the surrounding neighborhood” (New Rochelle Code § 331-64.2). The Code states that shared use of existing towers (co-location) is favored (see New Rochelle Code § 331-64.4 [B]). The Code also provides that applications will be granted in order to fill in gaps in service (see New Rochelle Code § 331-64.4 [C]). The Code lists specific requirements for applicants seeking to co-locate on existing telecommunications facilities (see New Rochelle Code § 331-64.5).
The preliminary inquiry here should be whether the State has preempted this area so that local zoning does not apply. In Incorporated Vil. of Nyack v Daytop Vil., Inc. (78 NY2d 500 [1991]), we addressed whether the operator of a state-licensed residential substance abuse facility was subject to local zoning laws. We engaged in a preemption analysis to determine whether the Nyack Zoning Code was preempted by article 19 of the Mentad Hygiene Law (see Incorporated Vil. of Nyack, 78 NY2d at 505). “Where the State has demonstrated its intent to preempt an entire field and preclude any further local regulation, locad law regulating the same subject matter is considered inconsistent and will not be given effect” (Incorporated Vil. of Nyack, 78 NY2d at 505). The Court found that the Village had an important interest in regulating substance abuse facilities and that “separate levels of regulatory oversight [could] coexist” (Incorporated Vil. of Nyack, 78 NY2d at 507).
Here, the State has not preempted the field of regulating telecommunications facilities. The State Department of Transportation (DOT) does have statutory authority to lease property on or along special parkways—which include the Hutchinson River Parkway (see Transportation Law § 71 [2]; § 70 [2] [a]). In addition, the DOT Commissioner must also grant permits for any construction or improvements on a state highway right-of-way “notwithstanding any consent or franchise granted by any town or county superintendent, or by any other municipal authority” (Highway Law § 52). However, while the State does have some measure of control over development in these areas, it does not rise to the level of preemption.
The statutes do not explicitly limit local zoning authority and do not demonstrate any specific intent to preempt this area. Further, although the Commissioner has the authority to lease state highway property, the statute provides that development of such property “shall be subject to the zoning regulations and *171ordinances of the municipality in which said property is located and to the support, protection or relocation of any public utility facilities within the right of way of any highways within said property” (Highway Law § 10 [38]). Thus, rather than preemption, the statute contemplates that state and local zoning regulation can coexist.
The federal Telecommunications Act of 1996 (TCA) (47 USC § 151 et seq.) also specifically preserves local zoning authority. The TCA states that the act will not limit local authority over the placement of private wireless service facilities with limited exceptions pertaining to regulations that are either discriminatory or prohibit service (see 47 USC § 332 [c] [7]; see also 47 USC § 253 [c]; Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 433 [2004]; majority op at 168-169).
Absent state preemption, the City has a legitimate interest in regulating the placement of private wireless facilities within its borders, and the wireless carriers should have applied for a special permit through the City’s Planning Board. Like Incorporated Vil. of Nyack, there is no proof that the City’s regulations would be inconsistent with the State’s ultimate goal of setting up a Statewide Wireless Network (SWN) (see 78 NY2d at 508). Thus, the City should be permitted to exercise its authority to regulate the placement of private wireless communications facilities.
Nor is there any other barrier to the application of local zoning law. The test articulated in Matter of County of Monroe (72 NY2d 338 [1988]) and adopted by the majority in this case, is inapplicable to this situation. The “balancing of public interests” test applies to disputes between “governmental units”—specifically whether an “encroaching governmental unit” will be subject “to the zoning requirements of the host governmental unit” (see County of Monroe, 72 NY2d at 343). By contrast, this case involves the interests of the municipality (New Rochelle) on the one hand and the interests of the commercial wireless providers on the other. As the majority notes, the immunity of the state towers is not at issue (see majority op at 165 n 2). As the Attorney General concedes, it is not at all clear that County of Monroe is applicable to the State—as the State is sovereign rather than a “governmental unit.”
Even applying County of Monroe, there is no basis to cloak the private providers with the State’s immunity. The factors to be weighed in the “balancing of public interests” test include *172“the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” (County of Monroe, 72 NY2d at 343 [internal quotation marks and citation omitted]). Additional factors include “the applicant’s legislative grant of authority, alternative locations for the facility in less restrictive zoning areas, and alternative methods of providing the needed improvement ... [as well as] intergovernmental participation in the project development process and an opportunity to be heard” (County of Monroe, 72 NY2d at 343).
The State undeniably has an important interest in the SWN to improve State Police communications and in the Intelligent Transportation System (ITS) to improve the safety of travel. It also has an interest in improving 911 service. These interests apply to the utility of the towers in general—which is not at issue here. What is at issue here is whether state immunity should be conferred upon private providers.
The SWN is a prospective development in its planning stages. Thus, the primary use of the tower is currently private, making the majority of the benefits claimed to flow from the tower speculative. The type of land use involved is the placement of private wireless equipment—typically an area subject to regulation by localities. Indeed, such local regulatory authority is specifically preserved by the TCA. Here, there was a lack of intergovernmental participation as to whether the private providers should be permitted to co-locate on the towers.
Significantly, the majority fails to address what effect, if any, the local zoning regulation would have upon the proposed use. There is no indication that local zoning would conflict with these purposes. The New Rochelle Code reflects a preference for co-location—making the application procedure for shared use less rigorous than for a new tower (see New Rochelle Code §§ 331-64.5, 331-64.6). The City also has legitimate interests in regulating telecommunication facilities, such as “protecting] the appearance and property value of neighborhoods” as well as “protecting] the environmental, scenic and historical resources of the city and to ensure that adverse visual and operational effects will not contribute to blighting or deterioration of the surrounding neighborhood” (New Rochelle Code § 331-64.2). In addition, “once an area is sufficiently serviced by a wireless service provider, the right to deny applications becomes broader” *173(Sprint Spectrum L.P. v Willoth, 176 F3d 630, 643 [2d Cir 1999]). There is no evidence that there were service gaps here that would have required the private providers to place their antennae in these particular locations. Here, given the primarily private use of the towers and the absence of any indication that the zoning provisions would conflict with state purposes, there is an insufficient basis upon which to apply the State’s immunity to the private providers.
The majority also contends that profits from granting space to the private providers that “will ultimately aid in financing the construction of the State’s telecommunications infrastructure plan” is a consideration in determining whether the private providers should benefit by the State’s immunity (majority op at 167). To suggest that mere enhancement of the State’s revenue is the sort of “public interest” that can justify exemption from local regulation can lead to abuses if taken to an extreme.
Nor should the private providers be considered an accessory use, such as “[t]he airport terminal, parking facilities, and air freight facility” in County of Monroe (72 NY2d at 345). The Court determined those uses were accessory to the airport and should benefit by immunity, deeming them “customarily incidental to an airport operation” (County of Monroe, 72 NY2d at 345). Here, the primary use of the towers is commercial and the SWN is a speculative future project. The private providers are engaged in their ordinary business which could be conducted on any tower—whether state or private. While the private providers may confer a benefit, the tower could function without them. Thus, these do not appear to be the type of accessory uses contemplated by County of Monroe.
It is also persuasive that the parties provided for compliance with local zoning requirements in the “Tower License Agreement” between Crown and the private providers. The agreement states that “[t]he access to, and installation, maintenance and operation of, Licensee’s Site Equipment must at all times be in strict compliance with the Technical Standards, all applicable federal, state and local laws, ordinances, and regulations (including without limitation the FCC, Federal Aviation Administration, zoning, building and fire codes) . . . .”
The State’s conduct essentially amounts to selling its immunity from zoning regulations. This particular conduct was rejected by this Court in Little Joseph Realty, Inc. v Town of Babylon (41 NY2d 738, 742 [1977]) and by the Southern District *174in Omnipoint Communications, Inc. v Common Council of City of Peekskill (202 F Supp 2d 210, 225 [SD NY 2002] [“Nongovernmental uses, such as the lease of space to private corporations for the construction of a personal wireless service facility, are not immune from local zoning requirements”]). Little Joseph concededly relied upon the since-rejected governmental-proprietary function distinction. However, the premise that a government entity should not be permitted to sell its own immunity from local zoning regulations to private parties remains valid.
The State’s immunity from local zoning requirements should not be extended to the private providers. The State has not preempted this area and there is no indication that the local zoning regulations would conflict with the State’s purposes. Thus, I would reverse the order of the Appellate Division and reinstate the order of Supreme Court.
Judges G.B. Smith, Rosenblatt and Read concur with Judge Graffeo; Judge Ciparick dissents and votes to reverse in a separate opinion in which Chief Judge Kaye and Judge R.S. Smith concur.
Order affirmed, with costs.
The regulations cited were the regulations in effect at the time of the controversy. The provisions pertaining to wireless telecommunications facilities have been amended and now appear at section 331-99 (amended Jan. 15, 2002 by Ord. No. 21-2002).