2-04 Airport Zoning

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CHAPTER 2-04AIRPORT ZONING2-04-01. Definitions. As used in this chapter, unless the context otherwise requires:1.&quot;Airport&quot; means any area of land or water designed and set aside for the landing and<br>taking off of aircraft and utilized or to be utilized in the interests of the public for such<br>purposes.2.&quot;Airport hazard&quot; means any structure or tree or use of land which obstructs the<br>airspace required for the flight of aircraft in landing or taking off at any airport or is<br>otherwise hazardous to such landing or taking off of aircraft.3.&quot;Airport hazard area&quot; means any area of land or water upon which an airport hazard<br>might be established if not prevented as provided in this chapter.4.&quot;Person&quot; means any individual, firm, copartnership, corporation, limited liability<br>company, company, association, joint-stock association, the state of North Dakota or<br>any political subdivision thereof, and includes any trustee, receiver, assignee, or<br>other similar representative thereof.5.&quot;Political subdivision&quot; means any county, city, park district, or township.6.&quot;Structure&quot; means any object constructed or installed by man, including, but without<br>limitation, buildings, towers, smokestacks, and overhead transmission lines.7.&quot;Tree&quot; means any object of natural growth.2-04-02. Airport hazards contrary to public interest. It is hereby found that an airporthazard endangers the lives and property of users of the airport and of occupants of land in its<br>vicinity, and also, if of the obstruction type, in effect reduces the size of the area available for the<br>landing, taking off, and maneuvering of aircraft, thus tending to destroy or impair the utility of the<br>airport and the public investment therein. Accordingly, it is hereby declared that:1.The creation or establishment of an airport hazard is a public nuisance and an injury<br>to the community served by the airport in question;2.It is therefore necessary in the interest of the public health, public safety, and<br>general welfare that the creation or establishment of airport hazards be prevented;<br>and3.This should be accomplished, to the extent legally possible, by exercise of the police<br>power, without compensation.It is further declared that both the prevention of the creation or establishment of airport hazards<br>and the elimination, removal, alteration, mitigation, or marking and lighting of existing airport<br>hazards are public purposes for which political subdivisions may raise and expend public funds<br>and acquire land or property interests therein.2-04-03. Power to adopt airport zoning regulations.1.In order to prevent the creation or establishment of airport hazards, every political<br>subdivision having an airport hazard area within its territorial limits may adopt,<br>administer, and enforce, under the police power and in the manner and upon the<br>conditions hereinafter prescribed, airport zoning regulations for such airport hazard<br>area, which regulations may divide such area into zones, and, within such zones,<br>specify the land uses permitted and regulate and restrict the height to which<br>structures and trees may be erected or allowed to grow.Page No. 12.Where an airport is owned or controlled by a political subdivision and any airport<br>hazard area appertaining to such airport is located outside the territorial limits of said<br>political subdivision, the political subdivision owning or controlling the airport and the<br>political subdivision within which the airport hazard area is located may, by<br>ordinance or resolution duly adopted, create a joint airport zoning board, which<br>board has the same power to adopt, administer, and enforce airport zoning<br>regulations applicable to the airport hazard area in question as that vested by<br>subsection 1 in the political subdivision within which such area is located. Each such<br>joint board shall have as members two representatives appointed by each political<br>subdivision participating in its creation and in addition a chairman elected by a<br>majority of the members so appointed.3.If in the judgment of a political subdivision owning or controlling an airport, the<br>political subdivision within which is located an airport hazard area appertaining to<br>that airport, has failed to adopt or enforce reasonably adequate airport zoning<br>regulations for such area under subsection 1 and if that political subdivision has<br>refused to join in creating a joint airport zoning board as authorized in subsection 2,<br>the political subdivision owning or controlling the airport may itself adopt, administer,<br>and enforce airport zoning regulations for the airport hazard area in question. In the<br>event of conflict between such regulations and any airport zoning regulations<br>adopted by the political subdivision within which the airport hazard area is located,<br>the regulations of the political subdivision owning or controlling the airport govern<br>and prevail.2-04-04. Relation to comprehensive zoning regulations.1.Incorporation.In the event that a political subdivision has adopted, or hereafteradopts, a comprehensive zoning ordinance regulating, among other things, the<br>height of buildings, any airport zoning regulations applicable to the same area or<br>portion thereof, may be incorporated in and made a part of such comprehensive<br>zoning regulations, and be administered and enforced in connection therewith.2.Conflict. In the event of conflict between any airport zoning regulations adopted<br>under this chapter and any other regulations applicable to the same area, whether<br>the conflict be with respect to the height of structures or trees, the use of land, or any<br>other matter, and whether such other regulations were adopted by the political<br>subdivision which adopted the airport zoning regulations or by some other political<br>subdivision, the more stringent limitation or requirement governs and prevails.2-04-05. Procedure for adoption of zoning regulations.1.No airport zoning regulations shall be adopted, amended, or changed under this<br>chapter except by action of the legislative body of the political subdivision in<br>question, or the joint board provided for in subsection 2 of section 2-04-03 after a<br>public hearing in relation thereto, at which parties in interest and citizens shall have<br>an opportunity to be heard.At least fifteen days' notice of the hearing shall bepublished in an official newspaper, or a newspaper of general circulation, in the<br>political subdivision or subdivisions in which is located the airport hazard area to be<br>zoned.2.Prior to the initial zoning of any airport hazard area under this chapter, the political<br>subdivision or joint airport zoning board which is to adopt the regulations shall<br>appoint a commission, to be known as the airport zoning commission, to<br>recommend the boundaries of the various zones to be established and the<br>regulations to be adopted therefor. The commission shall make a preliminary report<br>and hold public hearings thereon before submitting its final report, and the legislative<br>body of the political subdivision or the joint airport zoning board shall not hold its<br>public hearings or take other action until it has received the final report of suchPage No. 2commission. If a city planning commission or zoning commission already exists, it<br>may be appointed as the airport zoning commission.2-04-06. Airport zoning requirements.1.Reasonableness. All airport zoning regulations adopted under this chapter must be<br>reasonable and none may impose any requirement or restriction which is not<br>reasonably necessary to effectuate the purposes of this chapter. In determining<br>what regulations it may adopt, each political subdivision and joint airport zoning<br>board shall consider, among other things, the character of the flying operations<br>expected to be conducted at the airport, the nature of the terrain within the airport<br>hazard area, the character of the neighborhood, and the uses to which the property<br>to be zoned is put and adaptable.2.Nonconforming uses. No airport zoning regulations adopted under this chapter may<br>require the removal, lowering, or other change or alteration of any structure or tree<br>not conforming to the regulations when adopted or amended, or otherwise interfere<br>with the continuance of any nonconforming use, except as provided in subsection 3<br>of section 2-04-07.2-04-07. Permits and variances.1.Permits. Any airport zoning regulations adopted under this chapter may require that<br>a permit be obtained before any new structure or use may be constructed or<br>established and before any existing use or structure may be substantially changed<br>or substantially altered or repaired. In any event, however, all such regulations must<br>provide that before any nonconforming structure or tree may be replaced,<br>substantially altered or repaired, rebuilt, allowed to grow higher, or replanted, a<br>permit must be secured from the administrative agency authorized to administer and<br>enforce the regulations, authorizing such replacement, change, or repair. No permit<br>may be granted that would allow the establishment or creation of an airport hazard<br>or permit a nonconforming structure or tree or nonconforming use to be made or<br>become higher or become a greater hazard to air navigation than it was when<br>applicable regulation was adopted or than it is when the application for a permit is<br>made. Except as provided herein, all applications for permits must be granted.2.Variances. Any person desiring to erect any structure, or increase the height of any<br>structure, or permit the growth of any tree, or otherwise use that person's property in<br>violation of airport zoning regulations adopted under this chapter may apply to the<br>board of adjustment for a variance from the zoning regulations in question. Such<br>variances must be allowed where a literal application or enforcement of the<br>regulations would result in practical difficulty or unnecessary hardship and the relief<br>granted would not be contrary to the public interest but do substantial justice and be<br>in accordance with the spirit of the regulations and this chapter; provided, that any<br>variance may be allowed subject to any reasonable conditions that the board of<br>adjustment may deem necessary to effectuate the purposes of this chapter.3.Hazard marking and lighting. In granting any permit or variance under this section,<br>the administrative agency or board of adjustment may, if it deems such action<br>advisable to effectuate the purposes of this chapter and reasonable in the<br>circumstances, so condition such permit or variance as to require the owner of the<br>structure or tree in question to permit the political subdivision, at its own expense, to<br>install, operate, and maintain thereon such markers and lights as may be necessary<br>to indicate to flyers the presence of an airport hazard.2-04-08. Appeals.1.Any person aggrieved, or taxpayer affected, by any decision of an administrative<br>agency made in its administration of airport zoning regulations adopted under thisPage No. 3chapter, or any governing body of a political subdivision, or any joint airport zoning<br>board, which is of the opinion that a decision of such administrative agency is an<br>improper application of airport zoning regulations of concern to such governing body<br>or board, may appeal to the board of adjustment authorized to hear and decide<br>appeals from the decisions of such administrative agency.2.All appeals taken under this section must be taken within a reasonable time, as<br>provided by the rules of the board, a notice of appeal specifying the grounds thereof.<br>The agency from which the appeal is taken shall forthwith transmit to the board all<br>the papers constituting the record upon which the action appealed from was taken.3.An appeal stays all proceedings in furtherance of the action appealed from, unless<br>the agency from which the appeal is taken certifies to the board, after the notice of<br>appeal has been filed with it, that by reason of the facts stated in the certificate a<br>stay would, in its opinion, cause imminent peril to life or property. In such cases,<br>proceedings may not be stayed otherwise than by order of the board on notice to the<br>agency from which the appeal is taken and on due cause shown.4.The board shall fix a reasonable time for the hearing of appeals, give public notice<br>and due notice to the parties in interest, and decide the same within a reasonable<br>time. Upon the hearing, any party may appear in person or by attorney.5.The board may, in conformity with the provisions of this chapter, reverse or affirm<br>wholly or partly, or modify, the order, requirement, decision, or determination<br>appealed from and may make such order, requirement, decision, or determination<br>as ought to be made, and to that end has all the powers of the administrative agency<br>from which the appeal is taken.2-04-09. Administration of airport zoning regulations. All airport zoning regulationsadopted under this chapter must provide for the administration and enforcement of such<br>regulations by an administrative agency which may be an agency created by such regulations or<br>any official, board, or other existing agency of the political subdivision adopting the regulations or<br>of one of the political subdivisions which participated in the creation of the joint airport zoning<br>board adopting the regulations, if satisfactory to that political subdivision, but in no case may<br>such administrative agency be or include any member of the board of adjustment. The duties of<br>any administrative agency designated pursuant to this chapter include that of hearing and<br>deciding all permits under subsection 1 of section 2-04-07, but such agency shall not have or<br>exercise any of the powers herein delegated to the board of adjustment.2-04-10. Board of adjustment.1.All airport zoning regulations adopted under this chapter must provide for a board of<br>adjustment to have and exercise the following powers:a.To hear and decide appeals from any order, requirement, decision, or<br>determination made by the administrative agency in the enforcement of the<br>airport zoning regulations, as provided in section 2-04-08.b.To hear and decide any special exceptions to the terms of the airport zoning<br>regulations upon which such board may be required to pass under such<br>regulations.c.To hear and decide specific variances under subsection 2 of section 2-04-07.2.If a zoning board of appeals or adjustment already exists, it may be appointed as the<br>board of adjustment.Otherwise, the board of adjustment shall consist of fivemembers, each to be appointed for a term of three years by the authority adopting<br>the regulations and to be removable by the appointing authority for cause, upon<br>written charges and after public hearing.Page No. 43.The concurring vote of a majority of the members of the board of adjustment is<br>sufficient to reverse any order, requirement, decision, or determination of the<br>administrative agency, or to decide in favor of the applicant on any matter upon<br>which it is required to pass under the airport zoning regulations, or to effect any<br>variation in such regulations.4.The board shall adopt rules in accordance with the provisions of the ordinance or<br>resolution by which it was created. Meetings of the board shall be held at the call of<br>the chairman and at such other times as the board may determine. The chairman,<br>or in the chairman's absence the acting chairman, may administer oaths and compel<br>the attendance of witnesses. All hearings of the board must be public. The board<br>shall keep minutes of its proceedings, showing the vote of each member upon each<br>question, or, if absent, or failing to vote, indicating such fact, and shall keep records<br>of its examinations and other official actions, all of which must immediately be filed<br>in the office of the board and shall be a public record.2-04-11. Judicial review.1.Any person aggrieved, or taxpayer affected, by any decision of a board of<br>adjustment, or any governing body of a political subdivision or any joint airport<br>zoning board which is of the opinion that a decision of a board of adjustment is<br>illegal, may present to the district court a verified petition setting forth that the<br>decision is illegal, in whole or in part, and specifying the grounds of the illegality.<br>Such petition must be presented to the court within fifteen days after the decision is<br>filed in the office of the board.2.Upon presentation of such petition the court may allow a writ of certiorari directed to<br>the board of adjustment to review such a decision of the board. The allowance of<br>the writ does not stay proceedings upon the decision appealed from, but the court<br>may, on application, on notice to the board and on due cause shown, grant a<br>restraining order.3.The board of adjustment is not required to return the original papers acted upon by<br>it, but it is sufficient to return certified or sworn copies thereof or of such portions<br>thereof as may be called for by the writ. The return must concisely set forth such<br>other facts as may be pertinent and material to show the grounds of the decision<br>appealed from and must be verified.4.The court has exclusive jurisdiction to affirm, modify, or set aside the decision<br>brought up for review, in whole or in part, and if need be, to order further<br>proceedings by the board of adjustment.The findings of fact of the board, ifsupported by substantial evidence, must be accepted by the court as conclusive,<br>and no objection to a decision of the board may be considered by the court unless<br>such objection has been urged before the board, or, if it was not so urged, unless<br>there were reasonable grounds for failure to do so.5.Costs may not be allowed against the board of adjustment unless it appears to the<br>court that it acted with gross negligence, in bad faith, or with malice, in making the<br>decision appealed from.6.In any case in which airport zoning regulations adopted under this chapter, although<br>generally reasonable, are held by a court to interfere with the use or enjoyment of a<br>particular structure or parcel of land to such an extent, or to be so onerous in their<br>application to such a structure or parcel of land, as to constitute a taking or<br>deprivation of that property in violation of the Constitution of North Dakota or the<br>Constitution of the United States, such holding does not affect the application of<br>such regulations to other structures and parcels of land.Page No. 52-04-12.Enforcement and remedies.Each violation of this chapter or of anyregulations, orders, or rulings promulgated or made pursuant to this chapter, constitutes a class<br>B misdemeanor.In addition, the political subdivision or agency adopting zoning regulationsunder this chapter may institute in any court of competent jurisdiction, an action to prevent,<br>restrain, correct, or abate any violation of this chapter, or of airport zoning regulations adopted<br>under this chapter, or of any order or ruling made in connection with their administration or<br>enforcement, and the court shall adjudge to the plaintiff such relief, by way of injunction (which<br>may be mandatory) or otherwise, as may be proper under all the facts and circumstances of the<br>case, in order fully to effectuate the purposes of this chapter and of the regulations adopted and<br>orders and rulings made pursuant thereto.2-04-13. Acquisition of air rights. In any case in which:1.It is desired to remove, lower, or otherwise terminate a nonconforming structure or<br>use;2.The approach protection necessary cannot, because of constitutional limitations, be<br>provided by airport zoning regulations under this chapter; or3.It appears advisable that the necessary approach protection be provided by<br>acquisition of property rights rather than by airport zoning regulations,the political subdivision within which the property or nonconforming use is located or the political<br>subdivision owning the airport or served by it may acquire, by purchase, grant, or condemnation<br>in the manner provided by the law under which political subdivisions are authorized to acquire<br>real property for public purposes, such air right, navigation easement, or other estate or interest<br>in the property or nonconforming structure or use in question as may be necessary to effectuate<br>the purposes of this chapter.2-04-14. Short title. This chapter must be known and may be cited as the &quot;AirportZoning Act&quot;.Page No. 6Document Outlinechapter 2-04 airport zoning