20.90.210 Process for wireless facilities

20.90.210 Process for wireless facilities.

A. Purpose. In accordance with IC 8-1-32.3, the following provisions shall apply to the application and approval for construction of a new wireless support structure; substantial modification of a wireless support structure, or collocation of wireless facilities on an existing structure.

B. Application. To be considered complete, the following information must be submitted with an application for a new wireless support structure, a substantially modified wireless support structure, or collocation of a wireless facility:

a. A statement that the applicant is a person that either provides wireless communications service or owns or otherwise makes available infrastructure required for such service; and

b. The name, business address, and point of contact for the applicant.

a. The location of the proposed or affected wireless support structure or wireless facility; and

b. Evidence supporting the choice of the location for the proposed wireless support structure, including 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 because collocation:

i. Would not result in the same wireless service functionality, coverage, and capacity;

ii. Is technically infeasible; or

iii. Is an economic burden to the applicant.

3. Construction Plan. A construction plan 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.

4. Findings of Fact. For an application that requires a special exception or a use variance, evidence showing that the application complies with the applicable criteria shall be submitted.

a. The criteria for a special exception under IC 36-7-4-018.2 shall comply with JCC 20.90.140, Special exception.

b. The criteria for a use variance under IC 36-7-4-918.4 shall comply with JCC 20.90.190, Variance.

C. Review of Application. Upon receipt of an application for a new or significantly modified wireless support structure, the Zoning Administrator shall promptly review it for completeness. Within ten (10) business days of receiving the application, the Zoning Administrator shall notify the applicant of whether the application is complete and whether a public hearing will be required.

1. Failure to Notify. If the Zoning Administrator fails to notify the applicant within ten (10) business days whether their application is complete shall be considered a nonfinal zoning decision in accordance with IC 36-7-4-1602(c), with the applicant consequently entitled to expedited judicial review of the nonfinal zoning decision.

1. Public Hearing Required. When a public hearing is required for a special exception or a use variance, the Board of Zoning Appeals shall conduct the hearing and take final action within a reasonable period of time.

2. Public Hearing Not Required. When a public hearing is not required, the Zoning Administrator shall take final action on the request within a reasonable period of time after the application is filed.

E. Deadlines for Final Action. For purposes of subsection (C) of this section, Review of Application, a “reasonable period of time” shall be determined as follows:

1. Collocation Only. If the request involves an application for collocation only, a reasonable period of time is not more than forty-five (45) days from the date that the applicant is notified by the Zoning Administrator that the application is complete. An application for collocation only is not subject to a public hearing before the Board of Zoning Appeals, but the Zoning Administrator may review the application for compliance with applicable building code requirements before issuing an improvement location permit.

2. New Wireless Support Structure. If the request involves an application for an improvement location permit to construct a new wireless support structure, a reasonable period of time is not more than ninety (90) days from the date that the applicant is notified that the application is complete, or not more than one hundred twenty (120) days in any case in which the approval of a use variance is necessary. The Board of Zoning Appeals shall conduct a public hearing on the request and shall make a decision on the request at the meeting at which it is first presented. Decisions made by the Board of Zoning Appeals after a public hearing conducted in accordance with this section are considered zoning decisions for purposes of IC 36-7-4 and are subject to judicial review under IC 36-7-4-1600 series.

3. Substantial Modification of a Wireless Support Structure. If the request involves an application for an improvement location permit for substantial modification of a wireless support structure, a reasonable period of time is not more than ninety (90) days from the date that the applicant is notified that the application is complete, or not more than one hundred twenty (120) days in any case in which the approval of a use variance is necessary. The Board of Zoning Appeals shall conduct a public hearing on the request and shall make a decision on the request at the meeting at which it is first presented. Decisions made by the Board of Zoning Appeals after a public hearing conducted in accordance with this section are considered zoning decisions for purposes of IC 36-7-4 and are subject to judicial review under IC 36-7-4-1600 series.

4. Additional Time for Applicant Amendment. If an applicant has requested additional time to amend its application or requested or agreed to a continuance during the review or hearing process, then the period of time prescribed by subsections (E)(1), (2), or (3)of this section shall be extended for a corresponding amount of time.

5. Failure to Take Action. Failure by the Zoning Administrator or the Board of Zoning Appeals to take final action on a request within a reasonable period of time shall be considered a nonfinal zoning decision in accordance with IC 36-7-4-1602(c), with the applicant consequently entitled to expedited judicial review of the nonfinal zoning decision.

F. Additional Rules. In accordance with IC 8-1-32.3 and notwithstanding IC 36-7-4 or any rules adopted by the Board of Zoning Appeals, the following provisions apply to all applications submitted under this section:

1. Fees.

a. The Zoning Administrator may not require an applicant to pay a fee associated with the submission, review, processing, or approval of an application for a permit unless the Zoning Administrator requires payment of the same or a similar fee for applications for permits for similar types of commercial development within the jurisdiction of the Zoning Administrator.

b. If a fee associated with the submission, review, processing, or hearing of an application, including a fee imposed by a third party that provides review, technical, or consulting assistance to the Zoning Administrator, the fee must be based on actual, direct, and reasonable costs incurred for the review, processing, and hearing of the application.

c. A fee described in this section may not include:

i. Travel expenses incurred by a third party in its review of an application; or

ii. Direct payment or reimbursement of third party fees charged on a contingency basis.

2. Nondiscrimination. The Zoning Administrator or Board of Zoning Appeals may not discriminate among communications service providers or public utilities with respect to the following:

a. Approving applications, issuing permits, or otherwise establishing terms and conditions for construction of wireless or wireline communications facilities.

b. Authorizing or approving tax incentives for wireless or wireline communications facilities.

c. Providing access to rights-of-way, infrastructure, utility poles, river and bridge crossings, and other physical assets owned or controlled by the County.

3. Fall Zone Limitation. The Zoning Administrator or Board of Zoning Appeals may not impose a fall zone requirement for a wireless support structure that is larger than the area within which the structure is designed to collapse, as set forth in the applicant’s engineering certification for the structure. However, a fall zone requirement that is larger than the area described above may be imposed if the Zoning Administrator or Board of Zoning Appeals provides evidence that the applicant’s engineering certification is flawed. This evidence must include a study performed by a professional engineer.

4. All Other Land Use and Development Standards Apply. These additional rules do not affect the ability of the County to exercise other zoning, land use, planning or other development standards with respect to the siting of new wireless support structures; or exempt the applicant from complying with applicable laws and ordinances concerning land use.

5. Federal Standards Apply. In reviewing applications and conducting hearings, the Zoning Administrator and the Board of Zoning Appeals shall comply with all applicable provisions of Section 332(c)(7)(B) of the Federal Telecommunications Act of 1996 as in effect on July 1, 2015, and Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 as in effect on July 1, 2015.

6. Information Not Required. Neither the Zoning Administrator nor the Board of Zoning Appeals may require an applicant to submit information about or evaluate an applicant’s business decisions with respect to the applicant’s designed service, customer demand, service quality, or desired signal strength to a particular location.

7. Confidential Materials. All meetings of the Board of Zoning Appeals are subject to the Open Door Law in accordance with IC 5-14-1.5. However, neither the Zoning Administrator nor the Board of Zoning Appeals may release to the public any records that are required to be kept confidential under Federal or State law, including the trade secrets of applicants, as provided in the Access to Public Records Act (IC 5-14-3) and other applicable laws.

8. Consolidation of Multiple Applications. The Zoning Administrator shall allow an applicant to submit a single consolidated application to collocate multiple wireless service facilities, or for multiple small cell facilities that are located within the County and that comprise a single small cell network. Whenever a consolidated application is approved, the Zoning Administrator shall issue the applicant a single improvement location permit for the multiple facilities, or for the small cell network, in lieu of issuing multiple permits for each respective facility.

9. Conditions for Use of Utility Poles or Towers. Neither the Zoning Administrator nor the Board of Zoning Appeals may require or impose conditions on an applicant regarding the installation, location, or use of wireless service facilities on utility poles or electrical transmission towers. [Ord. 3-7-16A § 1; Ord. 12-27-11 § 9.21.]