Owen County Unincorporated
City Zoning Code

WIRELESS COMMUNICATION

FACILITIES

§ 155.155 GENERALLY.

The purpose of this subchapter is to regulate the design, construction, placement, modification, and removal of wireless communications facilities; to allow the providers of wireless communications services to provide for adequate coverage and capacity while minimizing the total number and overall impact of additional towers; to encourage co-location, the use of attached facilities, and the use of appropriate public and semi-public properties where possible; to require designs and parameters compatible with adjacent land uses; to conserve the scenic, historic, aesthetic and environmental quality of the county and the tourism industry based thereon from the adverse impacts of wireless communications facilities development; promote long-range planning and cooperation between the citizens and property owners of the county, the County Plan Commission and County Commissioners, and the wireless communications services providers; to protect the public health, safety and general welfare of the community.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

§ 155.156 PERMITTED, CONDITIONAL AND EXEMPT USES.

(A) Permitted uses. Permitted uses include:

(1) Co-location: placement of an antenna array if located on:

(a) A legal existing or previously approved WCF;

(b) A previously constructed broadcast tower; or

(c) An existing communications tower where the engineering specifications of the tower(s) permit and no increase in the height of the tower is required.

(2) Attached wireless communications facilities. Placement of an antenna array if integrated with/within another existing structure (such as, a building facade, church steeple or water tower) and no more than a 15-foot increase in the height of the existing structure is required.

(3) Replacement of a legal, existing WCF, support structure or antenna array. Replacement of a legal, existing WCF, support structure, or antenna array with a similar facility of an equal or smaller size, subject to the application procedures, general requirements and abandonment provisions of this chapter.

(4) Placement of antenna arrays or construction of wireless communications facilities. Placement of antenna arrays or construction of wireless communications facilities shall be permitted within the Agricultural Zone.

(B) Conditional uses. There are no conditional uses for WCF. Construction of a WCF in other than an Agricultural Zone requires rezoning pursuant to the provisions of this chapter.

(C) Exemptions. The following wireless communications facilities are exempt from the provisions of this subchapter: police, fire, ambulance and other emergency dispatch; amateur (HAM) radio; antennas used solely for residential household television and radio reception and satellite dishes measuring two meters or less in diameter.

(D) Prohibitions. WCF not expressly permitted under divisions (A), (B) or (C) are prohibited.

(E) Conditions of approval. The following conditions apply to all permitted and conditional uses:

(1) All wireless communications facilities and support structures shall be designed for, and constructed in accordance with, provisions for co-location (defined below);

(2) Applicants and/or petitioners agree to make a good faith effort on terms consistent with any applicable national agreement or on terms common to the region, to accommodate requests for co-location that originate from a provider, from the WCF owner, or from the Planning Department;

(3) Property owners and/or agents shall accept and accommodate the provisions for co-location prescribed by this subchapter, and shall agree to the renting or leasing of space on a support structure or WCF, for co-location, at fair market prices and terms without discrimination.

(4) Upon completion of the support structure or WCF, owners and/or operators of the support structure or WCF agree to make a good faith effort to accommodate co-location (placement of additional antenna arrays) in a timely manner, including those WCF or antenna arrays proposed by other service providers.

(5) No approval for a WCF or support structure shall become valid until authorization (written approval) or a written statement of no objection from all relevant federal, state or local agencies with regulatory authority has been submitted to the Planning Department.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003) Penalty, see § 155.999

§ 155.157 GENERAL REQUIREMENTS.

The following requirements apply to all WCF that are erected or placed within the county jurisdictional area after the effective date of this subchapter.

(A) For each application, the property owner(s), WCF owner(s), and wireless communications service provider(s) shall be considered co-applicants and shall be jointly and severally subject to the provisions of this subchapter.

(B) Each permit application for placement of a WCF, WCF support structure or antenna array shall be accompanied by the following:

(1) Application form. A completed application form, with original signatures from all applicants including the property owner(s), WCF owner(s) and wireless communications service provider(s).

(2) Statement. A written statement with illustrations that describes the proposed wireless communications facility (type of construction, tower height and provisions for co-location).

(3) Inventory. Inventory of the provider’s existing wireless communications facilities and/or antenna arrays within the county and within three miles of the boundaries of the county planning jurisdiction, along with a plan describing any potential future facility locations. The inventory and master plan shall include:

(a) Locations of all existing and proposed facilities (by property address, latitude/longitude coordinates, and township, range, section 1/4 section);

(b) Height and type of each existing and proposed facility (including antenna types, output frequency, number of channels, power output and maximum power output per channel);

(c) For each existing and proposed facility, information on the practical capacity for accommodating additional co-located antenna arrays;

(d) Delineation of existing and anticipated coverage patterns in the county with brightly colored radial plots showing clear demarcations between signal strengths: for each existing and proposed facility, signal propagation and radio frequency studies and plots shall be prepared, clearly identified, and signed by a qualified radio frequency engineer (power density calculations shall be in accordance with “worst case” formulas, assuming operation at maximum power and maximum capacity); and

(e) For each existing or proposed facility, type(s) of services to be provided (such as, paging, PCS and the like.)

(4) Site plan. A drawing to scale, with the following information:

(a) Property lines, with distances and bearings illustrated;

(b) Existing site improvements, including buildings and structures;

(d) Proposed wireless communications facilities; and

(e) Proposed landscaping, including existing vegetation where applicable.

(5) Visual impact analysis. A visual impact analysis that includes:

(a) Current photographs of significant man-made or natural features adjacent to the proposed WCF or support structure, indicating those features that will provide buffering for adjacent properties and rights-of-way;

(b) A photographic presentation that depicts current site conditions with a superimposed image of the proposed facilities to demonstrate the anticipated views of the proposed site and facilities upon completion of all improvements. Four views shall be illustrated, at a minimum, from points directly to the north, south, east, and west of the proposed facility at distances no less than one-half mile and no greater than one mile.

(6) Maintenance and facility removal agreement. For each WCF or support structure, a maintenance and facility removal agreement signed by the applicants and/or petitioners. This agreement shall bind the applicants and all successors in interest to properly maintain the exterior appearance of all facilities and, ultimately, remove all facilities upon abandonment in compliance with the provisions of this subchapter and any conditions of approval. This agreement shall bind the applicants to pay all costs for monitoring compliance with, and enforcement of, the agreement and to reimburse the county for any and all costs incurred to perform any work required by this agreement that the applicants fail to perform. This agreement shall be signed by the applicants and by the Administrator of the Planning Department and recorded in the office of the County Recorder.

(7) Indemnification. The county shall not enter into any lease agreement or authorize the placement of any WCF or support structure unless the county obtains an adequate indemnification from the applicants (owners/operators) and/or wireless communications service providers. This indemnification must:

(a) Release the county from all liability arising out of the construction, operation, removal or repair of a wireless communications facility and/or antenna array. Parties to a wireless communications agreement agree to not sue or seek any monies or damages from the county in connection with the above;

(b) Indemnify and hold harmless the county, its elected and appointed officials, agents, servants and employees, from and against all claims, demands, or causes of action whatsoever, and the resulting losses, costs, expenses, attorney’s fees, liabilities, damages, orders, judgments or decrees, sustained by the county or any third party arising out of, or resulting from, each wireless communications facility’s owner’s, operator’s, agent’s, employee’s, or servant’s negligible acts, error, or omissions; and

(c) Provide that the covenants and representations relating to the indemnification provision shall survive the term of any agreement and continue in force and effect as to the responsibility of the party to indemnify.

(8) Proof of insurance. At a minimum, adequate insurance covering liability, bodily injury and property damage must be obtained and maintained for the entire period the wireless communications facility is in existence. The County Plan Commission shall be named as an additional insured. A certificate of insurance verifying such insurance shall be submitted at the time of application.

(9) Reports. Copies of inspections or reports that are required by, and have been submitted to, the FAA and/or the FCC.

(10) Fee. The fee, in accordance with the standards set by the Plan Commission.

(11) Proof of escrow account. A certificate of funds in escrow, for the benefit of the county, in the amount of $5,000 per support structure and $1,000 per antenna array (the amount applicable to support structures shall not apply to attached WCF). The escrow account shall be established with a bank located within 60 miles of Spencer, Indiana. The Administrator of the Plan Commission shall have the authority to draw funds from the account as needed to ensure compliance with the maintenance, indemnification, insurance and abandonment provisions of this chapter. The account may be released or closed upon the discontinuation of the subject WCF and upon demonstration of compliance with all requirements of this subchapter.

(C) The requirements of division (B)(6), (7), (8) and (11) are continuing requirements and are binding on the applicants, their successors and assigns. In the event of a draw of funds, the applicants shall be required to restore the escrow account to its original amount. The applicants, their successors and assigns shall be required to submit documented proof of compliance with the foregoing requirements:

(1) Annually;

(2) When ownership of the facility changes;

(3) When ownership of the WCF site changes;

(4) Prior to the expiration or invalidation of a submitted document; and

(5) Upon any other event that would reasonably call the validity or effectiveness of the original document into question.

(D) The failure to maintain the insurance coverage or the escrow account in the manner required above shall be a violation of this chapter. In addition to all other available remedies, the Administrator or Plan Commission may seek a court order that mandates the maintenance of the coverage or account and/or that immediately and permanently prohibits the use of the WCF until compliance with this subchapter is demonstrated.

(E) Each application for placement of a wireless communications facility or antenna array shall be subject to co-location review, as described in § 155.159 of this subchapter.

(F) In the manner described in § 155.158 of this subchapter, the Planning Department and Plan Commission shall employ, on behalf of the county and at the applicant’s expense, an independent technical expert to review and assess all technical application materials or conclusions.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

§ 155.158 PROVISIONS FOR HIRING INDEPENDENT CONSULTANT.

(A) Upon submission of an application for a WCF, or petition for amendment to the WCF overlay, the county shall hire one or more independent consultants of its own choosing. These consultants shall be qualified professionals with an appropriate combination of training, record of service, and/or certification in one of the following fields: telecommunications/radio frequency engineering; structural engineering; electromagnetic fields (EMF); and, if determined by the Plan Commission, other fields.

(B) The Planning Department shall provide the independent consultant with a copy of the complete application for analysis and review.

(C) The independent consultant(s) shall provide an estimate for the cost of reviewing the application to the Planning Department. The Planning Department shall forward this estimate in writing to the applicant and the applicant shall promptly pay this fee during the review process (separate from the general application fee). The estimate shall be regarded as a decision of the Administrator. No application will be processed and no public hearings (where applicable) will be scheduled until full payment has been made.

(D) The consultant(s) shall work under the direction of the County Plan Commission and/or Board of Zoning Appeals (if a conditional use or variance is requested). Copies of the consultant(s) findings and reports shall be made available to the applicant not less than seven days prior to any scheduled public hearing(s), and the applicant shall be given the opportunity to respond to said reports in writing and at the applicable public hearing(s).

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

§ 155.159 CO-LOCATION REVIEW.

Co-location shall be required for wireless communications facilities or antenna array, unless specifically exempted by the provisions of this subchapter.

(A) Procedures. The Planning Department shall, upon request and/or submittal of an application in conformance with § 155.158 of this subchapter, provide applicants with a list of all known existing and proposed wireless communications facilities or support structures that lie within one mile of the proposed site and the names of the applicable owners or providers, based upon the existing inventory of wireless communications facilities in the county and upon known co-location opportunities.

(B) Basis for relief. Relief from co-location under this section shall require independent professional verification of the applicant’s data and an independent professional evaluation that supports exception from co-location. Relief from this section may be justified by the following:

(1) Existing wireless communications facilities or support structures do not fall within location tolerances based upon radio frequency mapping;

(2) Proposed site(s) do not meet minimum height requirements based upon radio frequency engineering data;

(3) Existing wireless communications facilities or support structures do not meet structural integrity requirements for the proposed antenna array; or

(4) Placement of the proposed wireless communications facility and/or antenna array would impair, or be impaired by, the emission of radio frequencies.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

§ 155.160 PERFORMANCE STANDARDS.

(A) Security. For all WCF excepting attached WCF, a perimeter fence at least eight feet high shall be installed to circumscribe and contain the WCF, along with all accessory structures and/or facilities. Use of razor wire is prohibited.

(B) Lighting.

(1) Security lighting is not required. However, if security lighting is installed, it shall be confined to accessory structure(s), directed downward to minimize glare or intrusion into adjoining properties.

(2) Other illumination is prohibited. No WCF, support structure or antenna array that requires illumination shall be permitted.

(1) The following planting requirements shall be applied to all applications or petitions for construction of WCF and/or support structures:

(a) A double staggered row of evergreen trees, planted at seven feet in height (measured from grade) and at no more than 15 feet intervals along the perimeter of the fence to screen the facilities from adjoining properties; or

(b) A mix of deciduous shade trees (two and one-half inch caliper) and large deciduous shrubs (at least 48 inches) of sufficient density along the perimeter of the fence to adequately screen the facilities from adjoining properties.

(2) Existing vegetation within 20 feet of the security fence that is preserved shall be credited towards planting requirements.

(3) The provisions of this section may be waived, in whole or in part, by the Planning Department upon a determination that: site conditions would not be adequate to support landscape plantings; or, that architectural camouflage (“stealth” design) will insure compatibility with adjoining land uses and eliminate the need for screening.

(4) All landscape plantings shall be properly maintained or replaced as necessary to ensure their good health and viability for the life of the WCF and/or support structure.

(D) Signage. Identification signage, no more than three square feet in total area, shall be required for each WCF/support structure, and/or accessory facility. Identification signage shall include the name(s) of the facility owner(s) or operator(s) and a 24-hour emergency telephone number, and shall be affixed to a perimeter fence where possible. Off-premise and other advertising signage is prohibited.

(E) Attached WCF. Attached WCF shall be appropriately integrated with, or within, existing structures with due consideration given to siting/placement, color, camouflage, size and type of construction. Attached WCF shall be designed to minimize visual impact and antenna arrays shall not exceed the height of the existing structure by more than 15 feet.

(F) Noise.

(1) Noise-producing equipment shall be sited and/or insulated to guarantee that no increase in noise above ambient levels measured at the property line occur.

(2) Backup generators, if used, shall only be operated during power outages and for testing and maintenance purposes. Routine testing and maintenance, if conducted, shall only be conducted between the hours of 8:00 a.m. and 5:00 p.m. Monday through Saturday.

(G) Materials. Excepting attached WCF, all support structures shall be constructed of galvanized metal. The provisions of this section may be waived by the Planning Department upon a determination that architectural camouflage (“stealth” design) will satisfy the intent of this section.

(H) Health and safety.

(1) All WCF and/or support structures shall be constructed, operated, maintained and monitored in compliance with all applicable federal (such as, FCC and FAA) and state standards and requirements.

(2) WCF and/or support structures that would be classified as a hazard to air navigation, as defined by the Federal Aviation Administration, shall not be permitted.

(I) Other performance standards. Refer to § 155.164 of this subchapter.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003) Penalty, see § 155.999

§ 155.161 TEMPORARY WCF.

(A) Temporary WCF or antennas shall be permitted for test purposes, emergency communications or in the event of equipment failure for a maximum period of two weeks, subject to the requirements of § 155.157(B)(1) through (5) and (7) through 10.

(B) If the applicant is investigating co-location opportunities for a proposed antenna array, and demonstrates with written documentation that good faith co-location negotiations are in process, a temporary WCF may be approved by the Planning Department for a period not to exceed six months subject to the requirements of § 155.157(B)(1) through (5) and (7) through 10.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

§ 155.162 AMENDMENT OF ZONING MAPS FOR WCF.

(A) Requests for amendments to the zoning maps to allow construction of a WCF in other than an Agricultural Zone shall be in accordance with the procedures and requirements of this chapter.

(B) In evaluating a request for map amendment, the county shall give due consideration to the Comprehensive Plan, zoning ordinance, zoning maps, the contest of the prospective site, the technical constraints and requirements of the prospective the facility, and the purposes, requirements and provisions of this subchapter.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

§ 155.163 ABANDONMENT.

(A) Any WCF or support structure that is no longer needed or used for its intended purpose shall be considered abandoned and shall be reported immediately by the service provider to the Planning Department. All abandoned WCF and/or support structures shall be completely removed by, and at the expense of, the service provider and/or owner within six months from the date of abandonment and the surface of the site shall be restored to a condition suitable for redevelopment.

(B) Any discontinued WCF or support structures not completely removed within six months from the date of abandonment may be removed by the county. Costs associated with the dismantling and removal of an abandoned WCF or support structure and site restoration shall be paid by the service provider and/or owner as bound by the terms of the maintenance and facility removal agreement described herein.

(C) In the event that costs are not covered by the applicant as described in this section, the county reserves the right to withdraw funds, as needed, to cover costs associated with removal of an abandoned WCF through disbursement of funds from the escrow account (per § 155.157(B)(11).

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

§ 155.164 WIRELESS COMMUNICATIONS FACILITIES.

Wireless Communications Facilities
Performance standard	All WCF, support structures
Type of construction
(WCF or support structure)	Monopole
Provisions for additional collocated
Antenna arrays	2 (minimum)
Maximum permitted height1	199 feet
Front yard setback (minimum)	500 feet
Side yard setback (minimum)	1,000 feet
Rear yard setback (minimum)	1,000 feet
1 No WCF, support structure or antenna array shall be permitted at a height that would require illumination