RESOLUTION NO. 2017-08
A RESOLUTION OF THE TOWN OF CHURUBUSCO DESIGNATING CERTAIN RIGHT-OF- WAY STRICTLY FOR UNDERGROUND OR BURIED UTILITIES
WHEREAS, on or around April 25, 2017, the Indiana General Assembly passed Senate Enrolled Act 213, effective April 30, 2017, which is codified, in part, at Ind. Code §8-1-32.5-15 (the “Act”);
WHEREAS, with respect to the construction, placement, or use of a small cell facility and the associated supporting structure, the Act allows the permit authority to prohibit the placement of a new utility pole or a new wireless support structure in a right-of-way within an area that is designated strictly for underground or buried utilities if certain requirements of the Act are met;
WHEREAS, upon receipt of an application for the construction, placement, or use of a small cell facility on one (1) or more new utility poles or one (1) or more new wireless support structures in an area that is designated strictly underground or buried utilities, the permit authority shall post notice of the application on the Town’s website and make the application available to the public upon request;
WHEREAS, the Act requires a permit authority to allow a neighborhood association or a homeowners’ association to register with the permit authority to receive notice of any application filed with the permit authority for the construction, placement, or use of a small cell facility on one
(1) or more new utility poles or one (1) or more new wireless support structures in an area within the jurisdiction of the neighborhood or homeowners’ association; and
WHEREAS, in accordance with the Act, the permit authority now desires to designate right-of-way within the Town of Churubusco strictly for underground or buried utilities and adopt a procedure governing requests to install new utility poles or new wireless support structures within the area.
NOW THEREFORE BE IT RESOLVED by the Town Council of the Town of Churubusco, Whitley County, Indiana as follows:
Section 1: Designated Underground Utility Area. The Town of Churubusco hereby designates Town right-of-way located on all Local Roads, Arterial-Primary Roads, Arterial-Secondary roads, and Collector roads within the Threshers Ridge Addition attached hereto and incorporated herein as designated strictly for underground or buried utilities (individually or collectively, “Underground Utility Area”) and prohibits the placement of a new utility pole or new wireless support structure within the Underground Utility Area. To the extent new wireless support structures are not required, this prohibition does not restrict the collocation of small cell facilities on existing utility poles and wireless support structures within the Underground Utility Area or the replacement of existing utility poles and wireless support structures within the Underground Utility Area.
Section 2. Waiver Procedure. Any request to install new utility poles or new wireless support structures within the Underground Utility Area shall adhere to the Town’s Waiver Procedure, attached hereto and incorporated herein as Exhibit A.
Section 3. Historic Preservation Areas. Applicants who wish to place structures within current and future historic preservation areas must obtain a certificate of appropriateness by the area’s preservation district board prior to placement of said structure as part of the application.
Section 4. Permit Authority. The Town hereby (a) designates the Town Council as the Permit Authority; and (b) requests that the Town Supervisor and the Supervisor’s staff implement and facilitate the waiver procedure.
Section 5. Severability. If any of the terms of this Resolution are held by a court of competent jurisdiction to be null, void or inoperative for any reason, or if any provision or term of this Resolution is in violation of any applicable federal, state or local law, guideline, rule or regulation, all such provisions are severable and the remaining provisions shall remain in full force and effect.
Section 6. Effective Date. This Resolution shall be in full force and effect on April 30, 2017. ALL OF WHICH IS RESOLVED by the Town Council of Town of Churubusco, Whitley County, Indiana this 28th day of April, 2017.
_______________________________ ATTEST:
Mark Pepple, Town Council President
________________________________ _____________________________
Bruce Johnson Madalyn Sade-Bartl, Clerk-Treasurer
________________________________
Frank Kessler
Exhibit A
TOWN OF CHURUBUSCO WAIVER PROCEDURE TO CONSTRUCT, PLACE, OR USE SMALL CELL FACILITIES & ASSOCIATED SUPPORTING STRUCTURES WITHIN CITY RIGHT-OF-WAY DESIGNATED STRICTLY FOR UNDERGROUND OR BURIED UTILITIES
Statement of Purpose: Underground Utility Area
The purpose of this Section is to provide the procedure governing requests to install new utility poles or new wireless support structures or substantially modify an existing wireless support structure in Town right-of-way within areas designated strictly for underground or buried utilities.
A. Definitions: For purposes of this Section, the following definitions, which shall be interpreted consistent with Ind. Code §§ 8-1-32 and – 32.3, et. seq., as amended, shall apply:
1. “antenna” means any communications equipment that transmits or receives electromagnetic radio signals used in the provision of wireless communications service.
2. “base station” means 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.
3. “collocation” means 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.
4. “construction plan” when referring to a new wireless support structure means a written plan for construction that demonstrates that the aesthetics of the wireless support structure is substantially similar to the street lights located nearest the proposed location; includes the total height and width of the wireless facility and wireless support structure, including cross section and elevation, footing, foundation and wind speed details; a structural analysis indicating the capacity for future and existing antennas, including a geotechnical report and calculations for the foundations capacity; the identity and qualifications of each person directly responsible for the design and construction; and signed and sealed documentation from a professional engineer that shows the proposed location of the wireless facility and wireless support structure and all easements and existing structures within one thousand (1,000) feet of such wireless facility or wireless support structure.
“construction plan” when referring to substantial modification of an existing wireless facility or wireless support structure means a plan 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.
5. “electrical transmission tower” means a structure that physically supports high voltage overhead power lines. The term does not include a utility pole.
6. “equipment compound” means the area that: (1) surrounds or is near the base of a wireless support structure; and (2) encloses wireless facilities.
7. “existing structure” does not include a utility pole or an electrical transmission tower.
8. “micro wireless facility” means a small cell facility that (1) is not larger in dimension than (A) twenty-four (24) inches in length; (B) fifteen (15) inches in width; and (C) twelve (12) inches in height; and (2) if the small cell facility has an exterior antenna, the exterior antenna is not longer than eleven (11) inches.
9. “permit authority” means the Town Council of Town of Churubusco and designated staff.
10. “person” means a corporation, firm, partnership, association, organization or any other group acting as a unit, as well as a natural person.
11. “small cell facility” means: (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 six (6) 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 twenty-eight (28) cubic feet or less.
12. “small cell network” means a collection of interrelated small cell facilities designed to deliver wireless service.
13. “substantial modification of a wireless support structure” means a change to a small cell facility, utility poles or wireless support structures. The term “substantial modification” does not include the installation, placement, maintenance, or replacement of micro wireless facilities that are suspended on cables strung between existing utility poles in compliance with applicable codes by a communications service provider that is authorized to use the public right- of-way.
14. “utility pole” means 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; (b) provide lighting; (c) provide traffic control; or (d) provide signage.
15. “wireless communications services” means services whether mobile or at a fixed location, that are provided using wireless facilities through licensed or unlicensed spectrum.
16. “wireless facility” means the set of equipment and network components that are
(1) owned and operated by a communications service provider; and (2) necessary to provide wireless communications service. The term does not include a wireless support structure.
17. “wireless support structure” means a freestanding structure designed to support or capable of supporting wireless facilities. The term does not include a utility pole or an electrical transmission tower
B. Designated Underground Utility Area: The Town of Churubusco has designated Town right-of- way located on or about all Local Roads, Arterial-Primary Roads, Arterial-Secondary roads, Collector roads, and roundabouts within the areas depicted in Exhibit A, as amended, attached hereto and incorporated herein as designated strictly for underground or buried utilities (individually or collectively, “Underground Utility Area”) and prohibits the construction, placement or use of a new utility pole or new wireless support structure within the Underground Utility Area. This prohibition does not restrict the collocation of small cell facilities on existing utility poles and wireless support structures within the Underground Utility Area or the replacement of existing utility poles and wireless support structures within the Underground Utility Area.
C. Waivers- General Standards. A person that provides wireless communications service or otherwise makes available infrastructure for wireless communications services may apply for a waiver to install new utility poles or new wireless support structures within the Underground Utility Area. All confidential information submitted by an applicant shall be maintained to the extent authorized by Ind. Code § 5-14-3 et. seq. When considering a proposed waiver, the permit authority shall consider, in addition to whether the applicant can demonstrate that it can satisfy most of the applicable construction requirements included in Section G the following, among other applicable factors:
1. Collocation Preference. Applicants seeking a waiver to install a new utility pole or new wireless support structures within the Underground Utility Area shall consider the City’s preference for collocation on existing facilities and shall endeavor to demonstrate the following:
(a) At a minimum, new wireless facilities shall be a monopole constructed to support the initial user plus loading of at least one (1) potential, additional, user.
(b) The site of the initial wireless facility at any location shall be of sufficient area to allow for the location of one (1) potential, additional wireless facility.
(c) Any proposed wireless support structure shall be designed, and engineered structurally, electrically and in all other respects, to accommodate both the initial wireless facility and one potential, additional wireless facility support structure shall be designed to allow for future rearrangement of cellular communication equipment and antennas upon the structure and to accept cellular communication equipment and antennas mounted at varying heights.
(d) Typically, a waiver for a new wireless support structure will not be approved unless the person submits verification that the telecommunication equipment planned for the proposed wireless support structure cannot be accommodated on an existing or approved utility pole or electrical transmission tower or other structure due to one (1) or more of the following reasons:
(1) The planned telecommunication equipment would exceed the structural capacity of the existing or approved utility pole or electrical transmission tower, buildings, or structures as documented by a qualified and licensed professional engineer, and the existing or approved utility pole or electrical transmission tower, buildings or structures cannot be reinforced, modified, or replaced to accommodate the planned telecommunication equipment at a reasonable cost, or
(2) The planned telecommunication 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 that the interference cannot be prevented at a reasonable cost; or
(3) The existing or approved utility pole or electrical transmission tower, buildings or structures 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
(4) Other unforeseen reasons that make it unfeasible or impossible to locate the planned telecommunication equipment upon an existing or approved utility pole or electrical transmission tower, building or structure; or
(5) The person has been unable to enter a commonly reasonable lease term with the owners of existing utility pole or electrical transmission tower, buildings or structures.
2. Specifications. Applicants seeking a waiver to install a new utility pole or new wireless support structures within the Underground Utility Area shall endeavor to meet the following specifications:
(a) Maximum Tower Height: 46 feet.
(b) Minimum Tower Separation: 1,000 feet between any other support structure primarily used for telecommunications, measured in any direction between support structures, not necessarily a dimension measured parallel to a road right-of-way.
(c) Support structures must match the Town’s street light poles, per engineering specifications as may be amended from time to time by the Town of Churubusco. Support structures shall include luminaires that match the Town’s specifications for lighting and be maintained in good working order at the cost of the applicant, including the cost of electricity. Any antenna equipment mounted to the support structures (antenna or other permitted equipment) shall also be matching in color to the support structure.
(d) All facility equipment at a single facility, with the exception of the antenna itself, shall be ground mounted in a cabinet having dimensions no greater than 44” wide by 24” deep by 52” height, as may be amended from time to time by the Town of Churubusco. Maximum Antenna dimensions: 24” height by 16” in diameter.
(e) 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.
(f) All wiring and fiber shall be concealed within the support structure and all conduit, wiring and fiber shall be buried between structures and/or structures and ground mounted cabinets.
(g) Wireless support structures and facilities shall be designed to blend into the surrounding environment through the use of color, camouflaging and architectural treatment and 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 standards established by the Town of Churubusco, from time to time.
3. Continued Operation. A person receiving a waiver for (1) construction of a new wireless support structure; or (2) substantial modification of a wireless support structure; that is not used for a period of six (6) consecutive months shall remove the facility at the owner’s sole cost and expense. Should such owner fail to remove the wireless support structure or wireless facilities within thirty (30) days from the date a 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 cleanup of the site. The owner of any facility who has been granted a waiver under this Section shall annually file a copy of any inspections completed on such wireless support structure or wireless facilities with the permit authority for continued operation and use of the wireless support structure or wireless facilities.
4. Community Input. When considering each waiver, the Town shall consider the general welfare of its community, including, without limitation input received from adjacent property owner(s). The Town shall be especially mindful of community input when considering a waiver within any residentially zoned area of the Town. The permit authority shall allow a neighborhood association or homeowners association to register with the permit authority to receive notice by United States mail of any application filed with the permit authority for the construction, placement, or use of a small cell facility on one (1) or more new utility poles or one (1) or more new wireless support structures in an area within the jurisdiction of the neighborhood association or homeowners association.
D. Contents of Waiver Application
1. Contents of Waiver Application. An application for a waiver shall include the following:
(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) 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.
(d) Evidence supporting the choice of location, including, without limitation
(1) maps or plats showing the proposed location(s) of applicant’s proposed wireless support structure; and
(2) 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.
2. Single Application. An applicant may submit one (1) application for multiple wireless service facilities that are located within Underground Utility Area. The waiver authority may issue a single waiver for all wireless support structures and service facilities included in the application rather than individual waivers for each wireless support structure and service facility.
3. Procedure.
(a) Determination of Completion/Defects. Within ten (10) 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 fifteen (15) days of receiving the notice. If an applicant is unable to cure the defects within the fifteen (15) day period, the applicant shall notify the permit authority of the additional time the applicant requires to cure the defects.
(b) Decision by Permit Authority. Not more than forty-five (45) 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; (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 forty-five (45) days shall be extended for a corresponding, reasonable amount of time.
6. 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.
E. Substantial Modification.
1. 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.
2. Single Application. An applicant may submit one (1) application for multiple modifications of wireless support structures and service facilities that are located within Underground Utility Area. The permit authority may issue a single waiver for all wireless support structures and service facilities included in the application rather than individual waivers for each wireless support structure and service facility.
3. Procedure.
(a) Determination of Completion/Defects. Within ten (10) days of receipt of an application, the permit authority shall review an 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 fifteen (15) days of receiving the notice. If an applicant is unable to cure the defects within the fifteen (15) day period, the applicant shall notify the permit authority of the additional time the applicant requires to cure the defects.
(b) Decision by Permit Authority. Not more than forty-five (45) 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; (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 fifteen (15) days shall be extended for a corresponding, reasonable amount of time.
4. 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.
F. Collocation. An application for a waiver for collocation shall include:
1. 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; and
(c) Evidence of conformance with applicable building permit requirements.
2. Single Application. An applicant may submit one (1) application to collocate multiple wireless service facilities that are located within Underground Utility Area. The permit authority shall issue a single waiver or all wireless service facilities included in the application rather than individual waivers for each wireless service facility.
3. Procedure.
(a) Determination of Completion/Defects. Within ten (10) days of receipt of an application, the permit authority shall review an 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 fifteen (15) days of receiving the notice. If an applicant is unable to cure the defects within the fifteen (15) day period, the applicant shall notify the permit authority of the additional time the applicant requires to cure the defects.
(b) Decision by Permit Authority. Not more than forty-five (45) 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; (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 fifteen (15) days shall be extended for a corresponding, reasonable amount of time.
4. 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 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.
G. Construction Requirements: All antennas, telecommunication towers, accessory structures and any other wiring constructed within the City of Fishers planning and zoning jurisdiction shall comply with the following requirements:
1. All applicable provisions of this Unified Development Ordinance and the Building Code of the State of Indiana, as amended, and the Federal Communications Commission (FCC) when applicable.
2. 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.
3. 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 Electrical Code, as amended.
4. All wireless facilities and support structures shall be constructed to conform with the requirements of the Occupational Safety and Health Administration (OSHA).
5. 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.
6. An engineer’s certification shall be submitted for all wireless facilities and support structures to document and verify the design specifications, including, but not limited to, the foundation for all towers, anchors for all guy wires (if used),
the location of all collocation sites, strength requirements to withstand natural forces such as ice, wind, earth movements, etc.
7. All wireless facilities and support structures shall be designed and constructed, at a minimum, to withstand wind gusts of at least eighty (80) miles per hour with one‑half (½) inch of ice and to accommodate all collocation sites as required by this Unified Development Ordinance.
