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