(A) No person or entity shall be allowed access to streets or alleys within the town for commercial drives, residential drives, road cuts, cuts for the installation of pipe, cable or conduit, for borings under any street, roadway or alley, or for poles to be located within the town, rights-of-way for any street or alley without first applying for and obtaining a permit utilizing the procedure and the form on file with the Public Works Commissioner.
(B) (1) The Town Manager, the Public Works Commissioner or their duly authorized designee is empowered to issue an order requiring the suspension of any activity threatened to be conducted or actually conducted in violation hereof. The stop work order shall be posted on the property in question in a conspicuous place or shall be personally delivered to the owner, possessor or person in charge or person conducting the activity in question stating the conditions under which the activity may be resumed. If said stop work order is not honored, the town may institute suit in a court of competent jurisdiction to enforce the provisions of said stop work order, including the request for a temporary, preliminary and/or permanent injunction, the recovery of litigation costs and attorney’s fees.
(2) Any person or entity who is deemed to have violated the provisions hereof shall be deemed to have committed a civil ordinance violation and may be issued a citation by the designated enforcement entity consisting of the Town Manager, the Town Public Works Commissioner or their duly authorized designee and/or any member of the Town Police Department. Said citation shall indicate that each day a violation remains in existence shall constitute a separate civil ordinance violation subject to additional fines and if incurred by the town, court costs, litigation expense and attorney’s fees. All fines provided for in this section shall be paid through the Town Clerk-Treasurer who shall render to the person making the payment a receipt stating the amount and purpose for which the fine has been paid, a duplicate of which shall be made a part of the records of the town.
(3) If a person or entity who receives a citation or a stop work order and continues in violation of the terms and provisions hereof or fails to bring their activity within the compliance hereof, the Town Council, through its designated representative, may commence legal proceedings to enforce the terms and provisions hereof. A person or entity adjudged to have committed a civil ordinance violation is liable for court costs, litigation expense and attorney’s fees. No costs shall be assessed against the town in this type of action and there shall be no change of venue from the county in this type of case.
(4) Any person or entity who applies for a permit pursuant hereto after having been in violation hereof shall pay a fee for said permit that is twice the scheduled fee for said action.
(5) As an additional penalty for violation hereof, a fine of up to the sum of $2,500 for each violation may be imposed by the Town Council, with each day said violation exists to constitute a separate and individual violation subject to the penalties imposed herein. In addition to said fines and other penalties set forth herein, the person or entity in non-compliance herewith shall be required to reimburse the town for any attorney’s fees, court costs or other expense associated with the imposition and collection of any said fine.
(C) The town hereby establishes an Underground and Buried Utilities District ("Area") to be in effect April 28, 2017 and to apply throughout all town ROW, and is further defined as follows:
(1) In all areas of the town where no overhead or above ground utilities, utility facilities, overhead lines, or associated overhead structures used or useful in supplying electric, communication or similar and associated services currently exist;
(2) In all areas of the town where planned road projects, redevelopment areas and/or economic development areas provide for and require underground buried utilities and utility facilities, including but not limited to electric, communication or similar and associated services;
(3) All other areas of ROW or proposed ROW throughout the town, whether or not above ground utilities or utility facilities currently exist.
(4) (a) Notwithstanding divisions (C)(1) through (3) above, any utility that requires construction, placement, or use of small cell facility in an Area designated strictly for underground or buried utilities, may submit an application to the Town Council requesting a waiver to install new utility poles or new wireless support structures within the Area pursuant to the provisions in division (I) as stated in this section. The waiver process is described as follows:
(b) A waiver from the provisions of this section may be granted upon application to the McCordsville Town Council who, after conducting a public hearing on such a request, shall determine whether to grant the waiver based upon the health, safety, and welfare of the citizens of McCordsville.
(D) From and after the effective date of this chapter, no person, corporation, or utility shall erect or construct within the town's ROW any pole, overhead line, or associated overhead structure used or useful in supplying electric, communication or similar associated services.
(E) Unless otherwise expressly authorized by the Town Council, all utilities located within the town's ROW shall be placed underground and/or buried.
(F) All existing overhead poles, wires, and/or utility transmission lines may remain within the town's ROW, but may not be replaced or relocated without the prior written authorization from town staff and which authorization will not be unreasonable held.
(G) Small cellular facilities shall be permitted to be installed on any existing above-ground utility structure without the need for a waiver.
(H) Exceptions. The requirements of this section shall not apply to the following structures within the ROW:
(a) Facilities or structures used solely for emergency communications intended to provide information to the public for safety purposes, such as emergency weather sirens, emergency warning systems, emergency communication systems and devices, opticom, and the associated support structures for those systems, equipment and devices.
(b) Facilities, equipment, or structures used solely for orderliness and safety of persons, vehicles, and other equipment in the ROW such as traffic signals and street lighting.
(I) Small cellular facilities and associated support structures, located in ROW within the Underground and Buried Utilities District, which receive a waiver from the Town Council under the terms of division (C) of this section, shall be restricted as further defined below:
(1) 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. Additionally, a right-of-way bond and certificate of liability insurance, in amounts determined appropriate by the town, shall be required.
(2) Small cellular facilities shall be monopole design constructed to support the initial user and at least one additional user.
(3) 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 or more of the following reasons:
(a) 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
(b) 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
(c) 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
(d) 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
(e) 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.
(4) The overall maximum antenna and tower height shall be 50 feet from grade level.
(5) The minimum tower separation shall be 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. Additionally, no tower shall be closer than 100 feet to a single-family residential structure.
(6) 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 street light color is Federal Green or color equivalent. 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.
(7) Any antenna equipment mounted to the support structure shall also be matching in color to the support structure.
(8) 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 40 cubic feet and no greater than 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 20 inches by 20 inches by six inches (20" x 20" x 6"), ground mounted cabinet not to exceed two feet by two feet by one 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.
(9) All support structures shall have a plaque identifying the structure, the owner, and the owner's contact information; the plaque shall not exceed 0.25 square feet.
(10) All support structures shall avoid conflicts with sidewalks, multi-use trails, and other roadway and utility infrastructure.
(11) 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 other than underground via a bore.
(12) 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 Town Council, from time to time.
(13) 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 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 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, and provide documentation of compliance with the financial assurance provisions of Section 4.15(C).
(14) Confidential. All confidential information submitted by the petitioner shall be maintained to the extent authorized by I.C. 5-14-3 et seq.
(15) Application process for new wireless support structures.
(a) Contents of application. An application for a permit shall include the following:
1. The name, business address, email address, telephone number, and point of contact for the applicant;
2. 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 1,500 feet of the proposed new support structure;
3. A small cell facility 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
4. Evidence supporting the choice of location, including, without limitation:
a. Maps or plats showing the proposed location(s) of applicant's proposed wireless support structure;
b. 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 based upon documentation by a qualified and licensed professional engineer.
(b) Single application. An applicant may submit one 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.
(c) Procedure.
1. Determination of completion/defects. Within ten 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, which shall be an email within the specified time period, and followed-up by a mailed letter which may not be within the specified time period, of all defects in the application. An applicant that receives a written notice of incompletion may cure the defects and resubmit the application within 30 business days of receiving the notice. If an applicant is unable to cure the defects within the 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 14 business days after the permit authority makes an initial determination of completeness, the permit authority shall:
a. Review the application to determine if it complies with applicable requirements of Section 4.15(E);
b. Review the application to determine if it complies with standards required as established by the permit authority; and
c. Notify the applicant in writing, which shall be an email within the specified time period, and followed-up by a mailed letter which may not be within the specified time period, whether the application is approved or denied. However, if the applicant requested additional time to cure defects in the application, the 14 business days shall be extended for a corresponding, reasonable amount of time.
(d) Written determinations. A written determination, which shall be delivered via an email within the specified time period and followed-up by a mailed letter which may not be within the specified time period, 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.
(16) Application process for substantial modification.
(a) Contents of application. An application for substantial modification of a wireless support structure shall include:
1. The name, business address, email address, telephone number, and point of contact for the applicant;
2. The location of the proposed or affected wireless support structure or wireless facility; and
3. A small cell facility 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.
(b) Single application. An applicant may submit one 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.
(c) Procedure.
1. Determination of completion/defects. Within ten 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, which shall be an email within the specified time period, and followed-up by a mailed letter which may not be within the specified time period, of all defects in the application. An applicant that receives a written notice of incompletion may cure the defects and resubmit the application within 30 business days of receiving the notice. If an applicant is unable to cure the defects within the 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 14 business days after the permit authority makes an initial determination of completeness, the permit authority shall:
a. Review the application to determine if it complies with applicable requirements of this Section 4.15(B);
b. Review the application to determine if it complies with standards required as established by the permit authority; and
c. Notify the applicant in writing, which shall be an email within the specified time period, and followed-up by a mailed letter which may not be within the specified time period, whether the application is approved or denied. However, if the applicant requested additional time to cure defects in the application, the 14 business days shall be extended for a corresponding, reasonable amount of time.
(d) Written determinations. A written determination, which shall be delivered via an email within the specified time period and followed-up by a mailed letter which may not be within the specified time period, 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.
(17) Application process for collocation.
(a) Contents of application. An application for collocation of a wireless support structure shall include:
1. The name, business address, email address, telephone number, and point of contact for the applicant;
2. The location of the proposed or affected wireless support structure or wireless facility;
3. Evidence of conformance with applicable building permit requirements; and
4. Evidence from a qualified and licensed professional engineer demonstrating the existing support structure can handle the additional equipment.
(b) Single application. An applicant may submit one 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.
(c) Procedure.
1. Determination of completion/defects. Within ten 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, which shall be an email within the specified time period, and followed-up by a mailed letter which may not be within the specified time period, of all defects in the application. An applicant that receives a written notice of incompletion may cure the defects and resubmit the application within 30 business days of receiving the notice. If an applicant is unable to cure the defects within the 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 14 business days after the permit authority makes an initial determination of completeness, the permit authority shall:
a. Review the application to determine if it complies with applicable requirements of this Section 4.15(E);
b. Review the application to determine if it complies with standards required as established by the permit authority, and
c. Notify the applicant in writing, which shall be an email within the specified time period, and followed-up by a mailed letter which may not be within the specified time period, whether the application is approved or denied. However, if the applicant requested additional time to cure defects in the application, the 14 business days shall be extended for a corresponding, reasonable amount of time.
(c) Written determinations. A written determination, which shall be delivered via an email within the specified time period and followed-up by a mailed letter which may not be within the specified time period, 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.
(18) 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.
(Res. 030299A, passed 3-2-1999; Ord. 071901, passed 7-19-2001; Ord. 071205B, passed 7-12-2005; Ord. 110916, passed 11-9-2016; Ord. 042817, passed 4-28-2017)