[Rev. 11/21/2013 12:14:26 PM--2013]

CHAPTER 497 - ZONING

GENERAL PROVISIONS

NRS 497.010           Short title.

NRS 497.020           Definitions.

NRS 497.030           Declaration of policy.

POWERS OF POLITICAL SUBDIVISIONS AND AIRPORT AUTHORITIES

NRS 497.040           Authority to adopt, administer and enforce airport zoning regulations.

NRS 497.050           Creation of joint airport zoning boards by political subdivisions other than airport authorities.

NRS 497.055           Creation of joint airport zoning boards by airport authority and other political subdivisions.

ADOPTION OF REGULATIONS; AIRPORT ZONING COMMISSION; PERMITS; VARIANCES

NRS 497.060           Incorporation of airport zoning regulations into comprehensive zoning ordinance regulating height of buildings.

NRS 497.070           More stringent limitations govern when regulations conflict.

NRS 497.080           Adoption of airport zoning regulations: Necessity of public hearing; notice; publication.

NRS 497.085           Airport zoning regulations: Notice of proposed changes to tenants of nearby mobile home parks.

NRS 497.090           Airport zoning commission: Appointment; recommendation of boundaries of zones to be established; report; public hearings.

NRS 497.100           Airport zoning regulations: Requisites; reasonableness.

NRS 497.110           Airport zoning regulations: Limitations on adoption.

NRS 497.120           Airport zoning regulations: Provision for replacement or alteration of nonconforming structure or tree; permits.

NRS 497.130           Airport zoning regulations: Variances.

NRS 497.140           Installation and maintenance of markers or lights on structures or trees; penalty.

APPEALS; ENFORCEMENT OF REGULATIONS

NRS 497.150           Appeals: Persons entitled to appeal.

NRS 497.160           Appeals: Notice; time; filing; record.

NRS 497.170           Appeals: Stay of proceedings; notice of hearing; action on appeal.

NRS 497.180           Administration and enforcement of regulations by administrative agency; duties.

BOARD OF ADJUSTMENT

NRS 497.190           Powers of board of adjustment.

NRS 497.200           Members of board of adjustment: Number; terms; removal.

NRS 497.210           Majority vote of board of adjustment sufficient.

NRS 497.220           Rules, meetings, minutes and records of board of adjustment.

NRS 497.230           Right of aggrieved person or taxpayer to petition court for review of administrative decision.

NRS 497.240           Jurisdiction of court on review; costs.

MISCELLANEOUS PROVISIONS

NRS 497.250           Effect of regulation held unconstitutional with respect to particular structure or land.

NRS 497.260           Penalty; injunction.

NRS 497.270           Eminent domain.

_________

GENERAL PROVISIONS

      NRS 497.010  Short title.  This chapter shall be known and may be cited as the Airport Zoning Act.

      [28:205:1947]

      NRS 497.020  Definitions.  As used in this chapter, unless the context otherwise requires:

      1.  “Airport” means any area of land or water designed and set aside for the landing and taking off of aircraft and utilized in the interest 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 the 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” includes a government, a governmental agency and a political subdivision of a government.

      5.  “Political subdivision” means any county, incorporated city, unincorporated town or airport authority created by special legislative act as a quasi-municipal corporation.

      6.  “Public utility” means a person who operates any airline, broadcasting, electric, gas, pipeline, radio, railroad, rural electric, sanitary sewer, slurry, telephone or water business in this State and who conducts such a business for a public use.

      7.  “Structure” means any object constructed or installed by a person, including, but without limitation, buildings, towers, smokestacks and overhead wires and other lines.

      8.  “Tree” means any object of natural growth.

      [1:205:1947; 1943 NCL § 5064.01]—(NRS A 1977, 278; 1979, 1651; 1985, 521, 2053; 2013, 1960)

      NRS 497.030  Declaration of policy.

      1.  It is hereby found that an airport hazard 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, takeoff 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:

      (a) That the creation or establishment of an airport hazard is a public nuisance and an injury to the community served by the airport in question.

      (b) That 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.

      (c) That this should be accomplished, to the extent legally possible, by exercise of the police power, without compensation.

      2.  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 extend public funds and acquire land or property interests therein.

      [2:205:1947; 1943 NCL § 5064.02]

POWERS OF POLITICAL SUBDIVISIONS AND AIRPORT AUTHORITIES

      NRS 497.040  Authority to adopt, administer and enforce airport zoning regulations.  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 prescribed in this chapter, airport zoning regulations for such airport hazard area, which regulations may divide such area into zones, and, within such zones, prohibit those land uses which could cause a hazard to air traffic and regulate and restrict the height to which structures and trees may be erected or allowed to grow.

      [3:205:1947; 1943 NCL § 5064.03]—(NRS A 1979, 1652)

      NRS 497.050  Creation of joint airport zoning boards by political subdivisions other than airport authorities.

      1.  Where an airport is owned or controlled by a political subdivision other than an airport authority created by special legislative act as a quasi-municipal corporation, and any airport hazard area appertaining to such airport is located outside the territorial limits of the political subdivision, within or without the State, 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 shall have the same power to adopt, administer and enforce airport zoning regulations applicable to the airport hazard area in question as that vested by NRS 497.040 in the political subdivision within which such area is located.

      2.  Each such joint board shall have as members two representatives appointed by each political subdivision participating in its creation, and in addition a chair elected by a majority of the members so appointed.

      [4:205:1947; 1943 NCL § 5064.04]—(NRS A 1979, 1652)

      NRS 497.055  Creation of joint airport zoning boards by airport authority and other political subdivisions.

      1.  Where an airport is owned or controlled by an airport authority created by special legislative act as a quasi-municipal corporation and any airport hazard area appertaining to that airport is located within the limits of the county or any incorporated city or unincorporated town within the geographical boundaries of the airport authority, the airport authority and the county, incorporated city or unincorporated town within which the airport hazard area is located may, by adopting substantially identical ordinances or resolutions, create a joint airport zoning board, which has the same power to adopt, administer and enforce airport zoning regulations applicable to the airport hazard area in question as that vested by NRS 497.040 in the political subdivision within which that area is located.

      2.  Each such joint board:

      (a) Must have as members two representatives appointed by each political subdivision participating in its creation, and in addition a chair elected by a majority of the members so appointed.

      (b) May consider noise problems related to the airport as they affect lands outside the boundaries of the airport and make recommendations to the airport authority.

      (Added to NRS by 1979, 1653)

ADOPTION OF REGULATIONS; AIRPORT ZONING COMMISSION; PERMITS; VARIANCES

      NRS 497.060  Incorporation of airport zoning regulations into comprehensive zoning ordinance regulating height of buildings.  In the event that a political subdivision has adopted, or hereafter adopts, 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.

      [5:205:1947; 1943 NCL § 5064.05]

      NRS 497.070  More stringent limitations govern when regulations 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, the more stringent limitation or requirement shall govern and prevail.

      [6:205:1947; 1943 NCL § 5064.06]

      NRS 497.080  Adoption of airport zoning regulations: Necessity of public hearing; notice; publication.

      1.  An airport zoning regulation must not be adopted, amended or repealed under this chapter except:

      (a) In the case of an airport owned or controlled by an airport authority created by special legislative act as a quasi-municipal corporation, by the action of the joint airport zoning board within whose jurisdiction that airport lies; or

      (b) In the case of an airport owned or controlled by any other political subdivision, by the action of the joint airport zoning board within whose jurisdiction that airport lies or, if there is no joint board, the governing body of a political subdivision,

Ę after a public hearing in relation thereto, at which public utilities owning facilities in the area involved, other parties in interest and citizens have an opportunity to be heard.

      2.  At least 15 days’ notice of the hearing shall be given to all public utilities owning facilities in the area involved, and at least 15 days’ notice of the hearing shall be published in an official paper, or a paper of general circulation, in the political subdivision or subdivisions in which is located the airport hazard to be zoned.

      [7:205:1947; 1943 NCL § 5064.07]—(NRS A 1961, 127; 1977, 278; 1979, 1652)

      NRS 497.085  Airport zoning regulations: Notice of proposed changes to tenants of nearby mobile home parks.  Airport zoning regulations adopted pursuant to this chapter must provide that if a mobile home park is located within 300 feet of property for which a zoning change is proposed, notice of the proposed change must be mailed to each tenant of the park. The notice must be mailed 10 days before any hearing on the proposed change or, if no hearing is required, 30 days before the change is to become effective.

      (Added to NRS by 1989, 962)

      NRS 497.090  Airport zoning commission: Appointment; recommendation of boundaries of zones to be established; report; public hearings.

      1.  Prior to the initial zoning of any airport hazard area under this chapter, the political subdivision or joint airport zoning board may:

      (a) Adopt the regulations.

      (b) Appoint a commission to be known as the airport zoning commission.

      (c) Recommend the boundaries of the various zones to be established and the regulations to be adopted therefor.

      2.  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 the commission.

      3.  Where a city planning commission or comprehensive zoning commission already exists, it may be appointed as the airport zoning commission.

      4.  At least 15 days’ notice of each public hearing by the commission shall be given to all public utilities owning facilities in the area involved.

      [8:205:1947; 1943 NCL § 5064.08]

      NRS 497.100  Airport zoning regulations: Requisites; reasonableness.

      1.  All airport zoning regulations adopted under this chapter shall be reasonable, and none shall impose any requirement or restriction which is not reasonably necessary to effectuate the purposes of this chapter.

      2.  In determining what regulations it may adopt, each political subdivision and joint airport zoning board shall consider, among other things:

      (a) The character of the flying operations expected to be conducted at the airport.

      (b) The nature of the terrain within the airport hazard area.

      (c) The character of the neighborhood.

      (d) The uses to which the property to be zoned is put and adaptable.

      [9:205:1947; 1943 NCL § 5064.09]

      NRS 497.110  Airport zoning regulations: Limitations on adoption.  No airport zoning regulations adopted under this chapter shall 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 NRS 497.140.

      [10:205:1947; 1943 NCL § 5064.10]

      NRS 497.120  Airport zoning regulations: Provision for replacement or alteration of nonconforming structure or tree; permits.

      1.  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, but no such permit shall be required to make maintenance repairs to any existing structure, or to replace parts of any existing structure, which repairs or replacements do not substantially enlarge or increase the height of an existing structure.

      2.  In any event, however, all such regulations shall provide that before any nonconforming structure or tree may be replaced, substantially altered, 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 or change.

      3.  No permit shall 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 the applicable regulation was adopted or than it is when the application for a permit is made.

      4.  Except as provided herein, all applications for permits shall be granted.

      [11:205:1947; 1943 NCL § 5064.11]

      NRS 497.130  Airport zoning regulations: Variances.

      1.  Any person desiring to erect any structure, or increase the height of any structure, or permit the growth of any tree, or otherwise use the 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.

      2.  Such variances shall 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. 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.

      [12:205:1947; 1943 NCL § 5064.12]

      NRS 497.140  Installation and maintenance of markers or lights on structures or trees; penalty.

      1.  In granting any permit or variance under NRS 497.120 and 497.130, the administrative agency or board of adjustment may, if it deems such an action advisable to carry out the purposes of this chapter and reasonable in the circumstances, so condition the permit or variance as to require the owner of the structure or tree in question to permit the political subdivision to install, operate and maintain thereon at the owner’s expense such markers and lights as may be necessary to indicate to aviators the presence of a hazard to flight.

      2.  The political subdivision may, with the permission of the owner and at its own expense, install and operate, upon nonconforming structures existing at the time the particular zoning regulation is adopted or amended, such markers or lights as may be necessary. After initial installation, the political subdivision, upon written notice to the owner, may require the owner to maintain those markers or lights in conformance with the standards of the Federal Aviation Administration.

      3.  Any person who fails to install, operate or maintain a marker or light or pay the expenses required in this section is guilty of a misdemeanor.

      [13:205:1947; 1943 NCL § 5064.13]—(NRS A 1981, 532)

APPEALS; ENFORCEMENT OF REGULATIONS

      NRS 497.150  Appeals: Persons entitled to appeal.  Any person aggrieved by any decision of an administrative agency made in its administration of airport zoning regulations adopted under this chapter, or any governing body of a political subdivision, or any joint airport zoning board, which is of the opinion that a decision of such an 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.

      [14:205:1947; 1943 NCL § 5064.14]

      NRS 497.160  Appeals: Notice; time; filing; record.  All appeals taken under NRS 497.150 must be taken within a reasonable time, as provided by the rules of the board, by filing with the agency from which the appeal is taken, and with 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.

      [15:205:1947; 1943 NCL § 5064.15]

      NRS 497.170  Appeals: Stay of proceedings; notice of hearing; action on appeal.

      1.  An appeal shall stay 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 shall 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.

      2.  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 agent or by attorney.

      3.  The board may, in conformity with the provisions of this chapter, reverse, 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 shall have all the powers of the administrative agency from which the appeal is taken.

      [16:205:1947; 1943 NCL § 5064.16]

      NRS 497.180  Administration and enforcement of regulations by administrative agency; duties.

      1.  All airport zoning regulations adopted under this chapter shall 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. In no case shall such administrative agency be or include any member of the board of adjustment.

      2.  The duties of any administrative agency designated pursuant to this chapter shall include that of hearing and deciding all permits under NRS 497.120, but such agency shall not have or exercise any of the powers herein delegated to the board of adjustment.

      [17:205:1947; 1943 NCL § 5064.17]

BOARD OF ADJUSTMENT

      NRS 497.190  Powers of board of adjustment.  All airport zoning regulations adopted under this chapter shall provide for a board of adjustment to have and exercise the following powers:

      1.  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 NRS 497.150.

      2.  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.

      3.  To hear and decide specific variances under NRS 497.130.

      [18:205:1947; 1943 NCL § 5064.18]—(NRS A 1975, 9)

      NRS 497.200  Members of board of adjustment: Number; terms; removal.  Where 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 five members, each to be appointed for a term of 3 years by the authority adopting the regulations, and to be removable by the appointing authority for cause, upon written charges and after public hearing.

      [19:205:1947; 1943 NCL § 5064.19]

      NRS 497.210  Majority vote of board of adjustment sufficient.  The concurring vote of a majority of the members of the board of adjustment shall be 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.

      [20:205:1947; 1943 NCL § 5064.20]

      NRS 497.220  Rules, meetings, minutes and records of board of adjustment.

      1.  The board of adjustment shall adopt rules in accordance with the provisions of the ordinance or resolution by which it was created.

      2.  Meetings of the board must be held at the call of the chair and at such other times as the board may determine.

      3.  The chair, or in his or her absence the acting chair, may administer oaths and compel the attendance of witnesses.

      4.  All hearings of the board must be public.

      5.  The board shall:

      (a) 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 audio recordings or transcripts of its proceedings.

      (b) Keep records of its examinations and other official actions, all of which must immediately be filed in the office of the board and are public records.

      [21:205:1947; 1943 NCL § 5064.21]—(NRS A 2005, 1414)

      NRS 497.230  Right of aggrieved person or taxpayer to petition court for review of administrative decision.

      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 shall be presented to the court within 30 days after the decision is filed in the office of the board.

      2.  Upon presentation of the petition the court may allow a writ of certiorari directed to the board of adjustment to review the decision of the board. The allowance of the writ shall 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 shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof, or of such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

      [22:205:1947; 1943 NCL § 5064.22]

      NRS 497.240  Jurisdiction of court on review; costs.

      1.  The court shall have 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, if supported by substantial evidence, shall be accepted by the court as conclusive, and no objection to a decision of the board shall be considered by the court unless such objection shall have been urged before the board, or, if it was not so urged, unless there were reasonable grounds for failure to do so.

      2.  Costs shall 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.

      [23:205:1947; 1943 NCL § 5064.23]

MISCELLANEOUS PROVISIONS

      NRS 497.250  Effect of regulation held unconstitutional with respect to particular structure or land.  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 this State or the Constitution of the United States, such holding shall not affect the application of such regulations to other structures and parcels of land.

      [24:205:1947; 1943 NCL § 5064.24]

      NRS 497.260  Penalty; injunction.

      1.  Each violation of this chapter or of any regulations, orders, or rulings promulgated or made pursuant to this chapter, shall constitute a misdemeanor, and each day’s violation of this chapter or of any regulations, orders or rulings promulgated or made pursuant to this chapter shall constitute a separate offense.

      2.  In addition, the political subdivision or agency adopting zoning regulations under 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.

      [25:205:1947; 1943 NCL § 5064.25]—(NRS A 1967, 597)

      NRS 497.270  Eminent domain.

      1.  In any case in which:

      (a) It is desired to remove, lower or otherwise terminate a nonconforming structure, tree or use;

      (b) The approach protection necessary cannot, because of constitutional limitations, be provided by airport zoning regulations under this chapter; or

      (c) It appears advisable that the necessary approach protection be provided by acquisition of property rights rather than by airport zoning regulations,

Ę 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 property for public purposes, such air right, avigation 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.  In the case of the purchase of any property or any easement or estate or interest therein, or the acquisition of the same by condemnation, the political subdivision making such purchase or exercising such power shall, in addition to the damages for the taking, injury or destruction of property, also pay the cost of the removal and relocation of any structure or equipment of any public utility which is required to be moved to a new location.

      [26:205:1947; 1943 NCL § 5064.26]