(A) Future uses.
(1) Except as specifically provided herein, no material change shall be made in the use of land, no structure shall be erected or otherwise established, and no tree shall be planted in any surface created unless a permit therefore shall have been applied for and granted. Each application for a permit shall include evidence that a Determination of No hazard to Air Navigation has been issued by the FAA per Federal Aviation Regulation (FAR) Part 77, Objects Affecting Navigable Airspace (and all amendments, revisions, or superseding laws) for the structure or demonstrate that notice to the FAA was not required. Each application shall also include evidence that a permit for the structure has been issued from the Indiana Department of Transportation per I.C. 8-21-10, Regulation of Tall Structures (and all amendments, revisions, or superseding laws) or demonstrate that a permit from the Indiana Department of Transportation was not required. Each application for a permit shall indicate the purpose for which the permit is desired, with sufficient particularity to permit it to be determined whether the resulting use, structure, or tree would conform to the regulations herein prescribed. If such determination is in the affirmative, the permit shall be granted. No permit for a use inconsistent with the provisions of this chapter shall be granted unless a variance has been approved in accordance with § 153.105(D). In the area lying within the limits of the horizontal surface, conical surface and transition surface no permit shall be required for any tree or structure less than 75 feet of vertical height above the ground, except when, because of terrain, land contour, or topographic features, such tree or structure would extend above the height limits prescribed for such surfaces.
(2) Nothing contained in any of the foregoing exceptions shall be construed as permitting or intending to permit any construction, or alteration of any structure, or growth of any tree in excess of any of the height limits established by this chapter except as set forth in § 153.102(B)(12)).
(B) Existing uses. No permit shall be granted that would allow the establishment or creation of an obstruction or permit a nonconforming use, structure, or free to become a greater hazard to air navigation than it was on the effective date of this chapter or any amendments thereto or than it is when the application for a permit is made. Except as indicated, all applications for such a permit shall be granted.
(C) Nonconforming uses abandoned or destroyed. Whenever the Commission determines that a nonconforming tree or structure has been abandoned or more than 80% torn down, physically deteriorated, or decayed, no permit shall be granted that would allow such structure or tree to exceed the applicable height limit or otherwise deviate from the zoning regulations.
(D) Variances. Any person desiring to erect or increase the height of any structure, permit the growth of any tree or use property not in accordance with the regulations prescribed in this chapter may apply to the Board of Zoning Appeals for a variance from such regulations. The application for variance shall be accompanied by a determination from the Federal Aviation Administration as to the effect of the proposal on the operation of air navigation facilities and the safe, efficient use of navigable airspace. Such variances shall be allowed where it is duly found that a literal, application or enforcement of the regulations will result in unnecessary hardship and relief granted, will not be contrary to the public interest, in accordance with the spirit of this chapter. Additionally, no application for variance to the requirements of this chapter may be considered by the Board of Zoning Appeals unless a copy of the application has been furnished to the Marion Board of Aviation Commissioners for advice as to the aeronautical effects of the variance. If the Marion Board of Aviation Commissioners does not respond to the application within 21 days after receipt, the Board of Zoning Appeals may act on its own to grant or deny said application.
(E) Obstruction marking and lighting. Any permit or variance granted may, if such action is deemed advisable to effectuate the purpose of this chapter and be reasonable in the circumstances, be so conditioned as to require the owner of the structure or tree in question to install, operate, and maintain, at the owner's expense, such markings and lights as may be necessary. If deemed proper by the Board of Zoning Appeals, this condition may be modified to require the owner to permit the airport at its own expense to install, operate, and maintain the necessary markings and lights.
(1985 Code, § 36-7-4-600(4.8)) (Am. Ord. 19-2010, passed 10-19-2010)