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Banking Interpretations

March 14, 2000

Re:  [ ]

Dear Mr. [ ]:

Your December 9, 1999 letter to [ ] New York State Banking Department ("NYSBD"), regarding the [ ] ("Bank") branch at [ ], New York ("Branch"), has been referred to me for response.

According to your letter, following its purchase of the Branch from [ ], the Bank took steps with respect to the deficiencies of the installed lighting at the Branch in order to bring it into compliance with the provisions of Article II-AA of the New York State Banking Law ("ATM Safety Act"). Shortly after the installation of this additional lighting, a resident of [ ], NY, which is directly behind the Branch’s Automated Teller Machine ("ATM") Facility, complained that the newly installed lighting is a nuisance since it shines into his window at night. Thereafter, the Bank spoke to the lighting contractor who informed it that the reduction of the illuminance level of the newly installed lighting necessary to remove the alleged nuisance would cause the lighting levels to fall below those required by the ATM Safety Act.

In addition to the complaint, the Bank received a December 1, 1999 letter from the City of [ ], a copy of which was enclosed with your December 9, 1999 letter, informing the Bank that the resident filed a complaint with [ ] regarding the installed lighting at the Branch. [ ] asked the Bank to examine the installed lighting to determine what measures, if any, could or need to be taken to reduce the amount of light that crosses the property lines of the Branch. The letter also informed the Bank that Section [ ] of the [ ] City Code directs that no artificial lighting installed by the Bank may cause, "[g]lare, reflection or intrinsic brightness, constituting a nuisance or hazard."

You have asked for the NYSBD’s assistance in resolving this matter due to the conflict between the requirements of the ATM Safety Act and the[ ] City Code.

Please be advised that it is the position of the NYSBD that the provisions of the ATM Safety Act, a state statute, preempt local ordinances, such as the [ ] City Code.

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. (emphasis mine.)

However, Banking Law §§75-b and 75-c contain mandates regarding minimum illumination requirements for automated teller machine ("ATM") facilities and, as such, constitute specific provisions of the ATM Safety Act contemplated by Banking Law §75-h that preempt local zoning ordinances such as the [ ] City Code. Therefore, the City of [ ] cannot legally preclude the Bank from complying with the provisions of the ATM Safety Act by requiring the Bank’s ATM facility at [ ], New York, to comply with the [ ] City Code.

Should you any comments regarding this matter, please do not hesitate to contact me.

Very truly yours,

Assistant Counsel

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