A.   Procedures For Obtaining An Airport Construction Permit:
      1.   Construction of any building, structure or object within the airport zoning district if the proposed construction is:
         a.   Within the airport critical area (as called out in subsection 13-13-10B of this chapter);
         b.   Planned to both exceed fifty feet (50') in height and exceed the airport elevation by fifty feet (50');
will require a permit.
      2.   The permit will be obtained from the city-county planner.
   B.   Criteria For Granting Permits:
      1.   Permits will not be granted for buildings, structures or objects that violate any airport airspace zones or land use zone requirements.
      2.   No permit shall be granted that would allow the establishment or creation of an airport hazard or permit a nonconforming use, structure, or tree to be made or become higher, or become a greater hazard to air navigation, than it was on the effective date hereof, or than it is when the application for a permit is made. No permit shall be granted that would allow the establishment or creation of any use or structure, which does not comply with Montana state air pollution standards. Except as indicated, all applications for such a permit shall be granted.
   C.   Appeals:
      1.   Denied airport construction permits may be appealed within fifteen (15) days of the decision rendered.
      2.   Appeals, in the form of an application for variance, shall be heard by the city board of adjustment.
      3.   Appeals may be filed by the applicant, any person aggrieved, taxpayer affected, or governing body of a political subdivision.
   D.   Variances:
      1.   Procedures For Obtaining An Airport Obstruction Variance:
         a.   Any person desiring to erect or increase the height of any structure, or to permit the growth of any tree, or to use his property in a manner not in accordance with the provisions of this chapter, may apply to the city board of adjustment for a variance. The request may be approved, approved with conditions, or denied.
         b.   Prior to variance requests being scheduled for consideration by the board of adjustment, the applicant shall submit the following:
            (1)   A copy of the notice of proposed construction form submitted to the FAA, FAA form 7460-1;
            (2)   A final determination issued by the FAA based on its review of the applicant's notice of proposed construction submitted in accordance with 14 CFR part 77;
            (3)   A valid aeronautical evaluation (may consist of the evaluation performed by the FAA);
            (4)   Comments from the aeronautics division of the Montana department of transportation (MAD) or evidence that the MAD has made no comments during its required forty five (45) day comment time frame. Said evidence shall include a return receipt showing that the MAD comment time frame has been exceeded.
      2.   Criteria For Granting An Airport Obstruction Variance: Where the FAA has reviewed the proposed development and determined its construction would exceed an obstruction standard of 14 CFR part 77, the board of adjustment may grant an airport obstruction variance for a proposed development. Such a variance may be granted if the board determines that a literal enforcement of the regulations would result in practical difficulty or unnecessary hardship and where the relief granted would not be contrary to the public interest, i.e., the development can be accommodated in navigable airspace without adverse impact to the airport or aviation operations, but would do substantial justice and be in accordance with the spirit of this section; provided, that:
         a.   If such action is deemed advisable to effectuate the purpose of this chapter and be reasonable in the circumstances, any permit or variance granted may be so conditioned as to require the owner of the structure or tree in question to install, operate, and maintain thereon such markers and lights as may be necessary to indicate to aircraft pilots the presence of an obstruction in accordance with the standards of FAA advisory circular 70/7460-1K, as it may be amended. Where such marking or lighting is required, such requirement shall be satisfied prior to the issuance of a certificate of occupancy (CO) for the affected structure.
         b.   FAA determines the aeronautical evaluations submitted are valid.
         c.   Consideration is given to all of the following:
            (1)   The nature of the terrain and height of existing structures.
            (2)   Public and private interests and investments.
            (3)   The character of flying operations and planned development of airports.
            (4)   FAA designated federal airways.
            (5)   Whether construction of the proposed structure would cause an increase in the minimum descent altitude or the decision height at the affected airport.
            (6)   Technological advances.
            (7)   The safety of persons on the ground and in the air.
            (8)   Land use density.
            (9)   The safe and efficient use of navigable airspace.
            (10)   The cumulative effects on navigable airspace of all existing structures, proposed structures identified in the applicable jurisdictions' growth policies, and all other known proposed structures in the area.
            (11)   FAA determinations and results of aeronautical studies conducted by or for the FAA.
            (12)   MAD comments and recommendations, including MAD findings relating to Montana Code Annotated chapter 67.
            (13)   Comments and recommendations from local airport authorities.
            (14)   Other testimony and findings of aviation operations and safety experts.
   E.   Judicial Review: Any person aggrieved, or any taxpayer affected, by any decision of the airport board of adjustment, may appeal to the district court as provided in Montana Code Annotated sections 67-6-206 and 76-2-327. (Ord. 766, 2-16-2004)