HomeMy WebLinkAboutMemo from John Molitor 07-10-17John R. Molitor
Attorney at Law (317) 843-5511
9465 Counselors Row, Suite 200 Fax (317) 805-4723
Indianapolis, IN 46240-6150 e-mail jmolitor@prodigy.net
MEMORANDUM
To: Members, UDO Advisory Committee
From: John Molitor, Counsel to the Plan Commission
Date: July 10, 2017
Re: Substantive Recommendations for the Proposed UDO
(Docket No. 17030006 UDO)
Congratulations to Brad Johnson and the staff for assembling an excellent tool for the
City and those who will be governed by it. In an effort to fill in a few remaining gaps in
the draft which I have found, I am recommending for your consideration 11 substantive
changes – for these purposes:
I. Establish a projected Effective Date (January 1, 2018) for the UDO which will
allow time for potential Commission-Council interaction on the UDO draft to
occur without unreasonable constraints on either body.
II. Provide for a consistent approach for the Plan Commission to take in
considering whether to grant Zoning Waivers to petitioners under the UDO.
III-V. Revise our Sign Standards in light of the 2015 Supreme Court decision in
Reed v. Town of Gilbert, Arizona, and three new statutes enacted by the
Indiana General Assembly in 2017.
VI. Modernize the schedule of civil penalties that the Carmel City Court may
impose for zoning violations while still keeping our maximum fines below those
allowed by state law.
VII-XI. Update our definitions that apply to Wireless Facility (“cell tower”)
petitions, to bring us into conformity with 2017 legislative enactments.
These substantive recommendations are separate from several technical corrections
that I have also suggested, which I have forwarded to Brad Johnson and included for
your information on the Attachment to this memo.
Substantive Recommendations for the Unified Development Ordinance
I. Effective Date: In Section 1.32 on page 1-19, recommend selecting January 1, 2018,
as the projected effective date of the UDO. (Note: This should allow for adequate
time for consideration in case the Council proposes amendments to the UDO and
returns it back to the Plan Commission for further review – which review could occur
as late as November 21, 2017.)
II. Zoning Waivers: Various sections in Article 3 provide that the Plan Commission may
grant Zoning Waivers from the dimensional and quantitative standards prescribed for
certain overlay districts. For consistency’s sake, it is recommended that these should
all be cross-referenced to the Processes Article, Section 9.16 on page 9-42 which as
drafted applies only to the C1 and C2 Zoning Districts but in my opinion should be
rewritten to apply generally to all Zoning Waiver situations. My strong
recommendation is that Zoning Waivers should also continue to be available for the
MC Zoning District – and extended to the new UC Zoning District as well. Regarding
commercial developments, Plan Commission members are used to dealing with the
issue whether to grant Zoning Waivers in the dimensional and quantitative categories,
up to 35%, and I think they will be surprised if they find that their authority in this
respect has been curtailed. (Note: I am not necessarily recommending that the
committee should extend Zoning Waiver authority to existing overlay districts where
it is not now available.)
III. Sign Standards: At the end of Section 5.40(A) on page 5-47, recommend deleting the
phrase “in a manner consistent with the First Amendment guarantee of free speech.”
and insert “so as to uphold the free interchange of thought and opinion, and the right
of every person to speak, write, or print, freely, on any subject whatever, as
guaranteed by federal and state law.” (Note: This language is derived from the text of
the Constitution of the State of Indiana.)
IV. Sign Standards: Recommend the insertion of two new Subsections between existing
(A) and (B) on page 5-47 to read as follows:
B. Right to Install Signage During Election Season: Pursuant to IC 36-1-3-11, any
provision of Section 5.40: Sign Standards relating to the number or size of signs
(the surface area of which is not greater than 32 square feet) is unenforceable
during the following period:
1. Beginning 60 days before an election, as described in IC 3-5-1-2; and
2. Ending at the beginning of the sixth day after the election.
However, state law does not prohibit the Planning Administrator from enforcing
Section 5.40: Sign Standards as it relates to the number or size of signs at any
time if necessary to ensure public safety. Therefore, this provision does not
prevail over any of the public safety prohibitions contained in Section 5.40(F):
Prohibited Signs.
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C. Right to Substitute Noncommercial Copy: The owner of any sign that is otherwise
allowed by Section 5.40: Sign Standards may substitute noncommercial copy in
place of any other commercial or noncommercial copy. This substitution of copy
may be made without the issuance of any additional permit by the Planning
Administrator or other local government agency. Pursuant to IC 36-7-4-1109(h),
the purpose of this provision is to prevent any inadvertent favoring of commercial
speech over noncommercial speech, or the favoring of any particular
noncommercial message over any other noncommercial message. This provision
prevails over any more specific provision in Section 5.40: Sign Standards to the
contrary.
V. Sign Standards: Recommend the insertion of a new Subsection after existing (C) at
the bottom of page 5-47 to read as follows:
F. Exemption Where Certain Outdoor Advertising Signs Are Obstructed: Pursuant to
IC 8-23-20-25.6, if a lawfully erected outdoor advertising sign (which sign is
located along the interstate and primary system, or any other highway where
control of outdoor advertising signs is required under 23 U.S.C. 131) is no longer
visible or becomes obstructed, or must be moved or removed, due to a noise
abatement or safety measure, grade changes, construction, directional signage,
highway widening, or aesthetic improvement made by any agency of the state
along the interstate and primary system or any other highway, the owner or
operator of the outdoor advertising sign, to the extent allowed by federal or state
law, may:
1. Elevate the outdoor advertising sign; or
2. Relocate the outdoor advertising sign to a point within 500 feet of its prior
location, if the outdoor advertising sign complies with the applicable
spacing requirements.
The elevated outdoor advertising sign or outdoor advertising sign to be relocated
shall be the same size as the previous outdoor advertising sign. The purpose of
this provision is to permit the owner or operator of the described sign to modify
the sign without obtaining a new or amended sign permit, either by elevating the
sign so that the entire advertising content of the sign is again visible, or by
reinstalling the sign at an angle that makes the entire advertising content of the
sign again visible, or a combination of both.
VI. Fines for Zoning Violations: Recommend rewriting as follows the fine schedule now
contained in Section 10.03 on page 10-2 so that maximum (rather than exact) fines are
listed – this would give the City Court judge the discretion regarding the fine to be
imposed up to the listed maximum:
A. The maximum civil penalty for an initial civil violation shall be $1,000.
B. For repeated civil violations by the same responsible party, the maximum civil
penalties shall be:
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For the second violation, $2,000
For the third violation, $3,000
For the fourth violation, $4,000
For violations after the fourth, $5,000.
(Note: State law, IC 36-1-3-8 already allows for penalties up to $2,500 for
initial violations, and up to $7,500 for second and subsequent violations. Carmel
would continue to be well below these maximums.)
VII. Wireless Facilities: Recommend updating the definition of Small Cell Facility on
page 11-25 as follows:
a. Replace “three (3) cubic feet” with “six (6) cubic feet”.
b. Delete b.
c. Replace “seventeen (17) cubic feet” with “twenty-eight cubic feet”, and replace
“clause c” with “clause b”.
VIII. Wireless Facilities: Recommend updating the definition of Utility Pole on page 11-28
as follows: After “lighting” insert “, traffic control, or signage”.
IX. Wireless Facilities: Recommend rewriting the definition of Wireless
Communications Service on page 11-30 as follows: “Services, whether mobile or at
a fixed location, that are provided using wireless facilities through licensed or
unlicensed spectrum.”
X. Wireless Facilities: Recommend updating the definition of Wireless Facility on page
11-30 as follows: After “components”, insert “that are owned and operated by a
wireless communications provider and”.
XI. Wireless Facilities: Recommend updating the definition of Wireless Support
Structure on page 11-30 as follows: Replace “designed to support” with “that is
designed to support or is capable of supporting”.
͢
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ATTACHMENT
Suggested Technical Corrections for the UDO
o In Section 1.09(B)(3) on page 1-4, strike the second occurrence of
“commitments” (as well as the first).
o In Section 1.11 on page 1-5, the reference should be to the Director of
Community Services.
o In Section 1.30(F)(3) on page 1-14, the text should be returned to the left
margin after “(b) The Board of Public Works and Safety,” – the remainder
of the sentence applies regardless of which entity enters into the Credit
Agreement.
o In Section 3.59 on page 3-20, delete “No d” before the listing of Drive-thru
facilities under “Prohibited Uses in the Main Street Sub-Area”.
o In Section 3.68 on page 3-33, rewrite (6)(d) to clarify that it is within the
Plan Commission’s discretion (not the developer’s option) whether to allow
a reduction in the required number of parking spaces.
o In Section 5.09(G) on page 5-13, the reference should be to the Director
of Community Services.
o In Section 5.14(B) on page 5-17, rewrite “church spires” to read “spires
associated with churches, temples, or other places of worship”.
o In Section 5.40(D) on page 5-48, convert subdivision (12) to a separate
subsection, with a heading like “Vehicles Used as Signs”.
o On page 5-49, delete the spurious heading at the top of the page.
o In Section 6.07 on page 6-6, clarify the reference to an intensity bonus for
commitment to comply with “specific architectural …”.
o In Section 7.28(A)(2) on page 7-43, replace “entrances” with “access
points” (for consistency).
o In Section 9.03(B)(1) on page 9-6, delete “n. Other requirements
considered appropriate by the legislative body:” and convert the following
four subclauses to clauses n, o, p, and q.
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o In Section 9.03(B)(2) on page 9-7, delete “e. Other information considered
appropriate by the legislative body.” and convert the following nine
subclauses to clauses e, f, g, h, i, j, k, l, and m.
o In Section 9.03(C)(1) on page 9-8, delete “g. Other requirements
considered appropriate by the legislative body:” and convert the following
four subclauses to clauses g, h, I, and j.
o In Section 9.03(C)(2) on page 9-9, delete “c. Other information considered
appropriate by the legislative body.” and convert the following two
subclauses to clauses c and d.
o In Section 9.03(D)(1)(g) on page 9-10, delete subclause vi.
o In Section 9.03(D)(1)(h) on page 9-10, delete subclause vii.
o In Section 9.03(D)(2)(e) on page 9-12, delete subclause v.
o In Section 9.03(D)(2)(f) on page 9-12, delete subclause vi.
o In Section 9.06 on page 9-18, delete all of Subsection D as unnecessary –
the majority-vote requirement is a function of state law which is already
spelled out in the rules of procedure of both the Plan Commission and
BZA.
o In Section 9.08 on pages 9-20 and 9-21, correct references to the Board
of Zoning Appeal.
o In Section 9.09 on pages 9-24 through 9-27, correct references from
“Minor Plat Committee” to “Plat Committee”. Note that Article XI, Section 3
of the Plan Commission rules of procedure already delegates Minor
Subdivision responsibilities to the Plat Committee (there is no “Minor Plat
Committee”).
o In Section 9.10(E)(1) on page 9-28, replace “placed on the Plan
Commission agenda” with “placed on an agenda”. Note that If the pending
“combo committee” proposal is eventually approved by the City Council,
then the Plan Commission rules of procedure will authorize the Director to
occasionally docket proposed plats for committee agendas – they would
not necessarily all be docketed for hearing by the full Commission.
o In Section 9.15(F) on page 9-41, delete all of Subdivision 8 Conditions of
Approval as superseded – the commitments process spelled out in
Subdivision 7 on page 9-40 is now required by state law (since 2011), and
it is the only method the Plan Commission can use to impose conditions of
approval which are permanently enforceable.
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o In Article 11, correct the headers on pages 11-2 through 11-30 to read
“Definitions”.
o In Section 11.02 on page 11-24, rewrite the definition of “Sign, Legal Non-
Conforming” to clarify which date triggers legal nonconformity –
presumably May 23, 1973 – as follows: “Any given sign which was lawfully
established and maintained prior to the time that it came under the initial
Sign Code of the City, May 23, 1973, and which has been continuously
maintained since that time but fails to conform to all applicable regulations
and restrictions of the Unified Development Ordinance, or a non-
conforming sign for which a variance has been granted by the Board of
Zoning Appeals and for which a sign permit has been issued.”
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