§ 8-1-32.3-26 — Small cell facilities; exemption for placement in right-of-way; small cell networks; application fees; permit authority's proposed alternative location; procedures and time for review; prohibited acts by permit authority; safety regulations for use of public right-of-way; utility poles owned or controlled by governmental unit

Indiana § 8-1-32.3-26

• Jurisdiction: Indiana
• Art. 1: UTILITIES GENERALLY
• Ch. 32.3: Permits for Wireless Service Providers

Text

(a) An application for a permit or approval
for the construction, placement, or use of small cell facilities is subject
to the following:
(1) The placement of a small cell facility and the associated
supporting structure in the public right-of-way is considered a
permitted use and is exempt from local zoning review if the total
height of the structure supporting the small cell facility does not
exceed the greater of:
(A) fifty (50) feet measured from grade; or
(B) the height of any utility pole in place on July 1, 2017, and
within five hundred (500) feet of the proposed small cell
facility, plus ten (10) feet.
(2) A permit authority shall allow an applicant to submit a single
consolidated application for multiple small cell facilities that are
located within the permit authority's jurisdiction and constitute a
single small cell network. The permit authority shall issue a single
permit for the small cell network rather than multiple permits for
each small cell facility.
(3) The total of any application fees allowed under this section
may not exceed the lesser of:
(A) the amount charged by the permit authority for an
application for a building permit for any similar type of
commercial:
(i) construction;
(ii) activity; or
(iii) land use development;
within the jurisdiction of the permit authority; or
(B) one hundred dollars ($100) per small cell facility included
in the application.
(4) With respect to an application for the construction, placement,
or use of a small cell facility and the associated supporting
structure at a location where a supporting structure does not exist,
a permit authority may propose, as an alternative location for the
proposed small cell facility, that the small cell facility be
collocated on an existing utility pole or on an existing wireless
support structure, if the existing utility pole or the existing
wireless support structure is located within fifty (50) feet of the
location proposed in the application. The applicant shall use the
alternative location proposed by the permit authority if:
(A) the applicant's right to use the alternative location is subject
to reasonable terms and conditions; and
(B) the alternative location will not result in technical
limitations or additional costs, as determined by the applicant.
(5) With respect to an application for the construction, placement,
or use of a small cell facility and the associated supporting
structure, a permit authority shall follow the procedures and time
limits for review and approval that apply to collocation permit
applications under section 22 of this chapter. However,
notwithstanding section 22(f) of this chapter, not more than sixty
(60) days after making an initial determination of completeness
under section 22(d) of this chapter with respect to an application
for the construction, placement, or use of a small cell facility and
the associated supporting structure, a permit authority shall notify
the applicant in writing whether the application is approved or
denied. However, if the applicant requested additional time as
allowed under section 22(e) of this chapter to cure defects in the
application, the permit authority may extend the sixty (60) day
period for a corresponding amount of time.
(b) Subject to subsection (c), with respect to the construction,
placement, or use of any small cell facility and the associated
supporting structure, a permit authority shall not do any of the
following:
(1) Limit the placement of the small cell facility by minimum
separation distances or maximum height limitations.
(2) Impose unreasonable requirements regarding the maintenance
or appearance of the small cell facility and associated supporting
structure, including requirements concerning the types of
materials to be used or the screening or landscaping of the
location.
(3) Condition the grant of approval on the applicant's agreement
to allow other wireless facilities to be placed at, attached to, or
located on the associated wireless support structure or utility pole.
(4) Limit the duration of any permit that is granted. However, a
permit authority may require that, as applicable, construction
commence not later than two (2) years after the date the permit is
granted.
(5) Prohibit an applicant from locating a small cell facility,
wireless support structure, or utility pole in a residential area.
(6) Impose setback or fall-zone requirements for the associated
wireless support structure or utility pole that are different from
requirements imposed on other types of structures in the
right-of-way.
(7) Require the removal of existing wireless support structures,
wireless facilities, or utility poles, wherever located, as a
condition for approval of the application. However, this
subdivision does not prohibit the permit authority from adopting
reasonable rules intended to ensure the public health, safety, and
welfare regarding the removal of an abandoned wireless support
structure or abandoned wireless facilities.
(c) This chapter does not prohibit a permit authority from applying
a reasonable and generally applicable safety regulation under IC 8-1-2-101(b) to the construction, placement, or use of small cell
facilities and associated supporting structures in the public
right-of-way.
(d) The construction, placement, or use of small cell facilities on a
utility pole owned or controlled by a governmental unit is subject to the
following:
(1) The rate for the construction, placement, or use of small cell
facilities on the utility pole owned or controlled by the unit may
not exceed fifty dollars ($50) per utility pole per year.
(2) For a utility pole used to provide communications service or
electric service, the parties to the construction, placement, or use
shall comply with the process for make ready work under 47
U.S.C. 224 and any associated implementing regulations. The
good faith estimate of the unit owning or controlling the utility
pole with respect to any make ready work necessary to enable the
utility pole to support the requested placement must include pole
replacement if necessary.
(3) For a utility pole that does not support aerial facilities used to
provide communications service or electric service, the unit shall
provide a good faith estimate for any make ready work necessary
to enable the utility pole to support the requested construction,
placement, or use, including pole replacement if necessary, not
later than sixty (60) days after the unit's receipt of a complete
application. Make ready work, including any pole replacement,
shall be completed not later than sixty (60) days after the
applicant's written acceptance of the good faith estimate.
(4) The unit shall not require more make ready work than required
to meet applicable codes (as defined in section 15(b)(3) of this
chapter) or industry standards. Fees for make ready work may not
include costs related to preexisting or prior damage or to
noncompliance. Fees for make ready work, including any utility
pole replacement, may not:
(A) exceed actual costs or the amount charged to
communications service providers for similar work; or
(B) include any consultants' fees or expenses.
(5) Subject to subdivision (7), the unit shall offer rates, fees, and
other terms for the construction, placement, or use that comply
with this chapter. Not later than:
(A) December 31, 2017; or
(B) three (3) months after receiving the first request under this
chapter for the construction, placement, or use of a small
wireless facility on a utility pole owned or controlled by the
unit;
whichever occurs later, the unit shall establish and make
available, by ordinance or otherwise, the rates, fees, and terms
that govern the construction, placement, or use of small cell
facilities on utility poles owned or controlled by the unit and that
are in compliance with this chapter.
(6) The unit or a utility owned by the unit shall not impose a
rental or other recurring fee for small cell facilities that are strung
or located between utility poles if one (1) or more of the utility
poles has an associated attachment for which a rental rate is
charged.
(7) The unit may impose additional general terms and conditions
for the construction, placement, or use of small cell facilities on
utility poles owned or controlled by the unit if the additional
general terms and conditions are:
(A) consistent with this chapter;
(B) reasonable;
(C) nondiscriminatory; and
(D) generally applicable to users of the rights-of-way.
Additional general terms and conditions authorized by this
subdivision must be included in the rates, fees, and terms that the
unit is required to establish and make available under subdivision
(5).

Legislative History

As added by P.L.145-2015, SEC.3. Amended by P.L.261-2017, SEC.9.