An Ordinance Amending Zoning Ordinance No. 121410, As Amended, and Subdivision Control

ORDINANCE NO. ______

AN ORDINANCE AMENDING ZONING ORDINANCE NO. 121410, AS AMENDED, AND SUBDIVISION CONTROL ORDINANCE NO. 121410A, AS AMENDED, OF THE CODE OF ORDINANCES OF THE TOWN OF McCORDSVILLE, INDIANA

WHEREAS, §322(c)(7) of the Telecommunications Act of 1996, 47 U.S.C. (the “Act”), preserves state and local authority over zoning and land use decisions for personal wireless service facilities, including wireless facilities, wireless support structures and related equipment;

WHEREAS, the Town Council of the Town of McCordsville, Indiana, has heretofore adopted Zoning Ordinance No. 121410, as amended, and Subdivision Control Ordinance No. 121410A, as amended, and has adopted as a part of the Code of Ordinances of the Town of McCordsville, Indiana; and

WHEREAS, the Zoning & Subdivision Control Ordinances include standard and rules governing land use, and now specifically desires to adopt additional standards concerning the placement, construction and modification of wireless facilities, wireless support structures and related equipment in the Town’s right-of-way;

WHEREAS, the Town Council of the Town of McCordsville desires to adopt standards consistent with the Act and Indiana law that (a) do not discriminate among providers of functionally equivalent cellular services; (b) do not have the effect of prohibiting the provision of personal wireless services; (c) require action on applications and basic development standards for wireless facilities and wireless support structures; and (d) require written denial, supported by substantial evidence in a written record of any denial of a permit for wireless facilities and wireless support structure;

WHEREAS, to the extent permitted by applicable law, this Ordinance shall be interpreted to minimize the negative impact of wireless facilities and wireless support structures, establish fair and efficient process for review and approval of application, assure an integrated review designed to benefit the health, safety, and welfare of McCordsville residents;

WHEREAS, the Town Council of McCordsville, has, after a public hearing was held on March 15, 2016, received a favorable recommendation from the McCordsville Advisory Plan Commission; and

WHEREAS, the Town Council has found that such amendments are in the best interest of the health, safety, and welfare of the citizens of the Town of McCordsville, Indiana.

THEREFORE BE IT ORDAINED by the Town Council of the Town of McCordsville, Indiana that Zoning Ordinance No. 121410, as amended, is hereby amended as described in Exhibit A, attached hereto.

This ordinance was introduced and filed on the ___ day of ______, 2016. A motion to consider on first reading on the day of introduction was offered and sustained by a vote of __ in favor __ opposed pursuant to I.C. 36-5-2-9.8. This ordinance was duly ordained and passed on this ___ day of ______, 2016 by the Town Council of the Town of McCordsville, Hancock County, Indiana, having been passed by a vote of __ in favor and __ opposed. This Ordinance becomes effective immediately upon its passage.

TOWN OF McCORDSVILLE, INDIANA, BY ITS TOWN COUNCIL

Voting Affirmative: Voting Opposed:

______Larry Longman Larry Longman

______Bryan Burney Bryan Burney

______Tom Strayer Tom Strayer

______Branden Williams Branden Williams

______Barry Wood Barry Wood

ATTEST:

______Catherine C. Gardner Clerk Treasurer

This instrument was prepared by Ryan Crum, 6280 W 800 N, McCordsville, IN 46055.

I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Ryan Crum. Exhibit A

Article III. Section 3.02(D) shall be amended to include:

(3) R/WCO, Right-of-way Corridor Overlay – The R/WCO district is intended to address land uses and facilities located within all public rights-of-way within the incorporated limits of the Town of McCordsville. The purpose of this overlay district is to provide for functional and appropriate land use and development standards that will allow for suitable, reliable public and private telecommunications services. The Town recognizes the need for the use of small-cell facilities for telecommunications in order to serve the needs of the area, and in doing so, there is a need to minimize the adverse, undesirable impacts of such facilities.

Article IV. Section 4.15 shall be amended to include:

(E) Small-cellular Facilities

(1) Location: small-cellular facilities are permitted in the R/WCO District, except for right-of-way having a “local” or “local-collector” functional classification as identified in the Town’s Thoroughfare Plan.

(2) Permitting: Any person or entity seeking to install small-cellular facilities, related equipment, a substantial modification, or collocate shall seek a Right-of-way Permit and Telecommunications Facility Permit from the Town.

(3) Development Standards:

a) New small-cellular facilities shall be monopole design constructed to support the initial user and at least one additional user.

b) A proposal for a new wireless support structure or wireless facilities shall not be approved unless the petitioner submits an affidavit that the telecommunications equipment planned for the proposed structure cannot be accommodated on an existing or approved utility pole, electrical transmission tower, other wireless support structure, or other structure due to one (1) or more of the following reasons:

i) The planned telecommunications equipment would exceed the structural capacity of the existing or approved utility pole, electrical transmission tower, other wireless support structure, or other structure as documented by a qualified and licensed professional engineer and the existing or approved utility pole, electrical transmission tower, other wireless support structure, or other structure cannot be reinforced, modified, or replaced to accommodate the planned telecommunication equipment at a reasonable cost, or

ii) The planned telecommunications equipment would cause interference impacting the usability of other existing telecommunication equipment at the site if placed on existing structures. Supportive documentation by a qualified and licensed professional engineer indicating the interference cannot be prevented at a reasonable cost; or

iii) The existing or approved utility pole, electrical transmission tower, other wireless support structure, or other structure within the search radius cannot accommodate the planned telecommunication equipment at a height necessary to function reasonably as documented by a qualified and licensed professional engineer; or

iv) Other unforeseen reasons make it unfeasible or impossible to locate the planned telecommunication equipment upon an existing or approved utility pole, electrical transmission tower, other wireless support structure, or other structure; or

v) The petitioner has been unable to enter a commonly reasonable lease term with the owners of existing or approved utility pole, electrical transmission tower, other wireless support structure, or other structure. c) The overall maximum antenna and tower height shall be fifty (50) feet from grade level. d) The minimum tower separation shall be one thousand (1,000) feet between any other support structures primarily used for telecommunications, as measured in any direction between support structures, not necessarily a dimension measured parallel to a road right-of-way. e) Support structures must be metal or fiberglass monopoles matching the design and color of the Town’s non-residential street lights, as amended. The Town reserves the right to require luminaires on support structures that match the Town’s street light luminaire specifications. Such luminaires shall be maintained in good working order, be illuminated consistent with the timing of other street lights along the corridor, at the cost of the applicant, including the cost of electricity. f) Any antenna equipment mounted to the support structure shall also be matching in color to the support structure. g) All facility equipment at a single facility (with the exception of the antenna itself) shall be ground mounted in a cabinet having an area not to exceed forty (40) cubic feet and no greater than forty-eight (48) inches in overall height. Under special circumstances, contingent upon a mutual agreement, the Town may allow a pole mounted cabinet with dimensions not exceeding twenty (20) inches by twenty (20) inches by six (6) inches (20” x 20” x 6”), ground mounted cabinet not to exceed two (2) feet by two (2) feet by one (1) foot (2’ x 2’ x 1’) and other considerations, such as, but not limited to, the addition of shrouding and landscaping to mitigate the visual impact of the equipment. If a mutual agreement cannot be reached, then the Town of McCordsville Public Works Committee shall intervene and make a determination.

h) All support structures shall have a plaque identifying the structure, the owner, and the owner’s contact information; said plaque shall not exceed 0.25 square feet.

i) All conduit, wiring and fiber shall be concealed within the support structure and/or shall be buried underground. All new electrical service lines to the support structure and/or equipment shall also be underground. Existing aerial electrical service lines may remain. Under no circumstance shall any service drop crossing a street or roadway be run in any manner than underground via a bore.

j) Wireless support structures and facilities shall be designed to blend into the surrounding environment through the use of color, camouflaging and architectural treatment. The entire facility shall be aesthetically and architecturally compatible with its environment. The use of materials compatible with the surrounding environment is required for associated support structures, which shall be designed to architecturally match the exterior of residential or commercial structures within the neighborhood or area. Specific requirements for aesthetics of the wireless support structures and facilities shall be in accordance with the standards established by the McCordsville Public Works Committee, from time to time.

(4) Operation: A petitioner receiving a permit for a (1) new construction of a wireless support structure; (2) substantial modification of wireless support structure, or (3) collocation of wireless facilities on an existing structure inherently agrees that if the wireless support structure or wireless facilities are not used for a period of six (6) months, they will be removed by the facilities owner at its expense. Should such owner fail to remove the wireless support structure or wireless facilities after thirty (30) days from the date of Notice of Violation is issued by the Town, the Town may remove such structure or facilities and bill the owner for the costs of removal and clean-up and restoration of the site. The owner of any facility shall annually file a copy of any inspections completed on such wireless support structure or wireless facilities with the Town for continued operation and use of the structure or facility.

(5) Confidential: All confidential information submitted by the petitioner shall be maintained to the extent authorized by Indiana Code 5-14-3 et. seq.

(6) Application Process:

a) New Wireless Support Structures:

i) Contents of Application: An application for a permit shall include the following: (a) the name, business address, and point of contact for the applicant, (b) the location address, and Latitude and Longitude of the proposed or affected wireless support structure or wireless facility, and identify all small cell towers within one thousand five hundred (1 ,500) feet of the proposed new support structure, (c) a construction plan, as defined herein, that describes the proposed wireless, support structure and all equipment and network components, including antennas, transmitters, receivers, base stations, power supplies, cabling, and related equipment sufficient to determine compliance with these standards, and (d) evidence supporting the choice of location, including, without limitation: (i) maps or plats showing the proposed location(s) of applicant's proposed wireless support structure; and (ii) a sworn statement from the individual responsible for the choice of location demonstrating that collocation of wireless facilities on an existing wireless support structure was not a viable option. ii) Single Application: An applicant may submit one (1) application for multiple wireless service facilities that are located within R/WCO. The permit authority may issue a single permit for all wireless support structures and service facilities included in the application rather than individual permits for each wireless support structure and service facility. iii) Procedure:

(1) Determination of Completion/Defects: Within ten (10) business days of receipt of an application, the permit authority shall review the application to determine if the application is complete. If the permit authority determines that an application is not complete, the permit authority shall notify the applicant in writing of all defects in the application. An applicant that receives a written notice of incompletion may cure the defects and resubmit the application within thirty (30) business days of receiving the notice. If an applicant is unable to cure the defects within the thirty (30) day period, the applicant shall notify the permit authority of the additional time the applicant requires to cure the defects.

(2) Decision by Permit Authority: Not more than fourteen (14) business days after the permit authority makes an initial determination of completeness, the permit authority shall: (1) review the application to determine if it complies with applicable requirements of this Section 4.15(E); (2) review the application to determine if it complies with standards required as established by the permit authority, and (3) notify the applicant in writing whether the application is approved or denied. However, if the applicant requested additional time to cure defects in the application, the fourteen (14) business days shall be extended for a corresponding, reasonable amount of time.

iv) Written Determinations: A written determination shall state clearly the basis for the decision to approve or deny an application. If the permit authority denies an application, the written notice must include substantial evidence in support of the denial. A notice is considered written if it is included in the minutes of a public meeting of the permit authority. b) Substantial Modification:

i) Contents of Application: An application for substantial modification of a wireless support structure shall include: (a) the name, business address, and point of contact for the applicant, (b) the location of the proposed or affected wireless support structure or wireless facility, and (c) a construction plan, as defined herein, that describes the proposed modifications to the wireless support structure and all equipment and network components, including antennas, transmitters, receivers, base stations, power supplies, cabling, and related equipment.

ii) Single Application: An applicant may submit one (1) application for multiple modifications of wireless support structures and service facilities that are located within R/WCO. The permit authority may issue a single permit for all wireless support structures and service facilities included in the application rather than individual permits for each wireless support structure and service facility.

iii) Procedure:

v) Written Determinations: A written determination shall state clearly the basis for the decision to approve or deny an application. If the permit authority denies an application, the written notice must include substantial evidence in support of the denial. A notice is considered written if it is included in the minutes of a public meeting of the permit authority. c) Collocation:

i) Contents of Application: An application for collocation of a wireless support structure shall include: (a) the name, business address, and point of contact for the applicant, (b) the location of the proposed or affected wireless support structure or wireless facility, (c) evidence of conformance with applicable building permit requirements.

ii) Single Application: An applicant may submit one (1) application to collocate multiple wireless service facilities that are located within R/WCO. The permit authority shall issue a single permit or all wireless service facilities included in the application rather than individual permits for each wireless service facility.

iii) Procedure:

vi) Written Determinations: A written determination shall state clearly the basis for the decision to approve or deny an application. If the permit authority denies an application, the written notice must include substantial evidence in support of the denial. A notice is considered written if it is included in the minutes of a public meeting of the permit authority.

(7) Construction Requirements: All wireless support structures, wireless facilities, telecommunication towers, accessory structures, and any associated equipment and wiring shall comply with the following requirements:

a) All applicable provisions of the Town’s Municipal Code, Zoning Ordinance, Subdivision Control Ordinance, and all other Town Ordinances, as amended.

b) All applicable provisions of the Federal Communications Commission (FCC).

c) All applicable provisions of the Building Code of the State of Indiana, as amended.

d) All wireless facilities and support structures shall be certified by a qualified and licensed professional engineer to conform to the latest structural standards and wind loading requirements of the Uniform Building Code, as amended, and the Electronics Industry Association.

e) All wireless facilities and support structures shall be designed to conform with accepted electrical engineering methods and practices and to comply with the provisions of the National Electric Code, as amended.

f) All wireless facilities and support structures shall be constructed to conform with the requirements of the Occupational Safety and Health Administration (OSHA).

g) All wireless facilities and support structures shall be designed and constructed to all applicable standards of the American National Standards Institute (ANSI) manual, as amended.

Article XII shall be amended to include: Antenna Any communications equipment that transmits or receives electromagnetic radio signals used in the provision of wireless communications service.

Base Station A station located at a specific site that is authorized to communicate with mobile stations. The term includes all radio transceivers, antennas, coaxial cables, power supplies, and other electronics associated with a station.

Collocation The placement or installation of wireless facilities on existing structures that include a wireless facility or a wireless support structure, including water towers and other buildings or structures. The term includes the placement, replacement, or modification of wireless facilities within an approved equipment compound.

Electrical Transmission Tower A structure that physically supports high voltage overhead power lines. The term does not include a utility pole.

Equipment Compound The area that: (1) surrounds or is near the base of a wireless support structure; and (2) encloses wireless facilities.

Permit Authority The staff of the Town of McCordsville and the applicable board of zoning appeals within the jurisdiction of the Town of McCordsville.

Small Cell Facility (1) a personal wireless service facility as defined by the Act or (2) a wireless service facility that satisfies the following requirements: (a) each antenna, including exposed elements, has a volume of three (3) cubic feet or less; (b) all antennas, including exposed elements, have a total volume of six (6) cubic feet or less; and (c) the primary equipment enclosure located with the facility has a volume of forty (40) cubic feet or less.

Small Cell Network A collection of interrelated small cell facilities designed to deliver wireless service.

Substantial Modification of a Wireless Support Structure The mounting of a wireless facility on a wireless support structure in a manner that: (1) increases the height of the wireless support structure by the greater of: (a) ten percent (10%) of the original height of the wireless support structure; or (b) twenty (20) feet; (2) adds an appurtenance to the wireless support structure that protrudes horizontally from the wireless support structure more than the greater of: (a) twenty (20) feet; or (b) the width of the wireless support structure at the location of the appurtenance; or (3) increases the square footage of the equipment compound in which the wireless facility is located by more than two thousand five hundred (2,500) square feet. The term substantial modification does not include the following: (1) increasing the height of a wireless support structure to avoid interfering with an existing antenna; (2) increasing the diameter or area of a wireless support structure to: (a) shelter an antenna from inclement weather; or (b) connect an antenna to the wireless support structure by cable.

Utility Pole A structure that is: (1) owned or operated by: (a) a public utility; (b) a communications service provider; (c) a municipality; (d) an electric membership corporation; or (e) a rural electric cooperative; and (2) designed and used to: (a) carry lines, cables, or wires for telephone, cable television, or electricity; or (b) provide lighting.

Wireless Facility The set of equipment and network components necessary to provide wireless communications service. The term does not include a wireless support structure.

Wireless Support Structure A freestanding structure designed to support wireless facilities. The term does not include a utility pole or an electrical transmission tower.