Nrs: Chapter 497 - Zoning

Link to law: https://www.leg.state.nv.us/NRS/NRS-497.html
Published: 2015

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[Rev. 2/11/2015 11:25:33

AM--2014R2]

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,

Ê 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,

Ê 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]