October 29, 1998
Re: [ ]
request for a legal opinion regarding the preemption provisions of the ATM Safety Act
Dear [ ]:
Your October 19, 1998 letter to Albert J. Frey, ATM Program Administrator, New York State Banking Department ("NYSBD"), requesting that the NYSBD issue an opinion as to whether the provisions of Article II of the New York Banking Law ("ATM Safety Act") preempt local zoning laws has been referred to me for response.
According to your letter, [ ] ("Bank") recently upgraded the lighting at the automated teller machine ("ATM") facility at its branch in [ ], New York, in order to comply with the provisions of the ATM Safety Act. Thereafter, the [ ] Village Zoning Administrator ("Administrator") informed the Bank that the additional lighting violated certain village zoning ordinances related to excess lighting and stated that the Bank was required to comply with the village zoning ordinance as the ATM Safety Act only preempts local laws regarding consumer safety. However, since the Bank believes that the ATM Safety Act also preempts local zoning ordinances, it has requested that the NYSBD provide an opinion on the matter.
Banking Law §75-h, "Compliance with local building code and all other applicable provisions of law," states that,
Unless otherwise provided in this article, nothing contained in this article shall be construed to exempt or relieve any banking institution from complying with all relevant provisions of the local building code and all other applicable provisions of law.
Banking Law §§75-b and 75-c contain mandates regarding the minimum illumination requirements for ATMs and, as such, constitute specific provisions of the ATM Safety Act contemplated by Banking Law §75-h which preempt local zoning ordinances. Therefore, the Village of [ ] cannot legally preclude the Bank from complying with the provisions of the ATM Safety Act.
I trust this is responsive to your inquiry.
Very truly yours,