IN Code § 8-1-32.3-26 (2021)
2021 Indiana Code|Title 8. Utilities and Transportation|Article 1. Utilities Generally|Chapter 32.3. Permits for Wireless Service Providers|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

Sec. 26. (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).As added by P.L.145-2015, SEC.3. Amended by P.L.261-2017, SEC.9.