§ 154.153  AIRPORT ENCROACHMENT OVERLAY DISTRICT (AEOD).
   This section may be cited as the Valencia County Airport Overlay Zone District (AEOD), and is adopted, in part, pursuant to the authority cited in the Municipal Airport Zoning Law, NMSA 1978, §§ 3-39-16 et seq. (1965).
   (A)   Purpose. The purpose of this section is to provide both airspace protection and land use compatibility with airport operations in Valencia County. This section, through the establishment of airport overlay zones and corresponding regulations, provides for independent review of development proposals that are potentially discordant with airport operations in order the promote the public interest in safety, health and general welfare in Valencia County, as well as to ensure that all public-use airports in Valencia County can function in a safe, effective and efficient manner. Therefore, it is deemed necessary to regulate uses of land within or near the traffic patterns of airports through regulation of height of structures and objects of natural growth, and through regulation of land uses within noise impacted areas and runway protection zone areas.
   (B)   Definitions. All terms defined in the Interim Comprehensive Zoning Ordinance of Valencia County, New Mexico, as the same may be amended from time to time, shall also apply to this section, and, for purposes of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
      ABOVE GROUND LEVEL (AGL). The specified height above ground level at a structure's location (see Federal Aviation Administration Advisory Circular No. 70/7460.2K (March 1, 2000)).
      AIRPORT ELEVATION. The highest point of the airport's land area usable for takeoff and landing operations measured in feet above mean sea level (AMSL).
      AIRPORT HEIGHT LIMITATION ZONE.
         (a)   SUB ZONE A. The area surrounding each public use airport extending outward 20,000 feet from the ends and from the side of all active runways; and
         (b)   SUB ZONE B. That area within the unincorporated area of the county not within the Airport Height Notification Sub Zone A.
      AIRPORT NOISE IMPACT ZONE. An area contiguous to a public use airport measuring 1/2 the length of the longest active runway on either side and on the end of each active runway centerline.
      AIRPORT OBSTRUCTION HAZARD. Any structure, object of natural growth, or use of land that would exceed the federal obstruction standards as contained in 14 CFR Parts 77.21 (April 1, 1971), 77.23 (April 1, 1971), 77.25 (April 8, 1971), 77.28 (April 1, 1971) and 77.29 (April 8, 1971), and which obstructs the airspace required for the safe operation of aircraft taking off, maneuvering, or landing at an airport or is otherwise hazardous to taking off, maneuvering, or landing of aircraft, and is un-permitted, or for which a variance has not been granted.
      AIRPORT RUNWAY PROTECTION ZONE. A wedged shaped section of land, beginning a distance of 200 feet from each end of a runway. The boundary nearest the runway shall have a width of 500 feet, then the zone extends from the end of the runway 1,700 feet to the far end of the zone, which shall have a width of 1,000 feet, as depicted in the sketch below.
   AVIATION EASEMENT. A right to use the airspace over real property whereby an airport proprietor and aircraft owners and operators are granted the right to operate aircraft in the airspace over the real property of another.
      LANDING AREA. The area(s) of an airport used for landing, takeoff, or taxiing of aircraft.
      LDN. A day/night, 24-hour average (averaged over an annual period) sound level, in decibels, obtained after the addition of 10 decibels to the sound levels occurring during the nighttime period (from 10:00 p.m. to 7:00 a.m.).
      NOISE LEVEL REDUCTION (NLR) , aka SOUND LEVEL REDUCTION (SLR). Reduction in sound level in decibels between two designated locations for a stated sound frequency or band.
      PUBLIC USE AIRPORT. An area of land or water designed and set aside for the landing and taking off of aircraft, utilized or intended to be utilized in the interest of the public for such purpose. As of adoption of this section, the currently recognized public use airports in Valencia County include Mid Valley Airpark and Belen Municipal Airport.
      RUNWAY. A defined area of an airport prepared for landing and takeoff of aircraft along its length.
      SOLID WASTE DISPOSAL SITE. Shall have the meaning given "solid waste facility" by NMSA 1978, § 74-9-3(P) (1990), the Solid Waste Act, as may be amended from time to time; provided, however, that at no time shall a solid waste disposal site include sites where manures and crop residues are returned to the soil as fertilizer or soil conditioner.
   (C)   Establishment of encroachment zones. 
      (1)   Three airport overlay zones are created for public use airports in the geographical jurisdiction of Valencia County. The location of these overlay zones relative to public use airports are established by this section and shall apply to any public use airport(s) that may be established within Valencia County after adoption of this section. All development plans and objects of natural growth controllable by property owners within these zones shall comply with these airport zoning regulations in addition to compliance with all applicable underlying zoning district requirements as referenced in the county's zoning and land development regulations. The 3 overlay zones are:
         (a)   Airport Height Notification Zone (Sub Zone A and Sub Zone B). The Airport Height Notification Zone is hereby established as an overlay on the adopted county zoning maps. This zone is established to regulate the height of structures and natural vegetation for areas in proximity to all public use airports located within Valencia County, New Mexico. The Airport Height Notification Zones consists of 2 sub zones, defined as follows:
            1.   Sub Zone A: The area surrounding each public use airport extending outward 20,000 feet from the ends and each side of all active runways.
            2.   Sub Zone B: That area within the unincorporated area of the county not within the Airport Height Notification Sub Zone A.
         (b)   Airport Runway Protection Zone. There is hereby created and established, as an overlay zone on the adopted county zoning maps, an Airport Runway Protection Zone for areas at each end of every active runway at all public use airports within Valencia County. The Airport Runway Protection Zone shall be configured consistent with its definition in division (B) of this section. Within a Runway Protection Zone, certain uses shall be restricted or prohibited to reduce incompatibilities between normal airport operations and public health and safety.
         (c)   Airport Noise Impact Zone.  There is hereby created and established as an overlay zone on the adopted county zoning maps an Airport Noise Impact Zone for areas surrounding all public use airports within Valencia County. The Noise Zone is an area in which uses are restricted and special construction standards are to be used to minimize the impact of airport generated noise routinely produced by continuation of normal airport operations. The AIRPORT NOISE IMPACT ZONE is defined as follows:
            1.   An area surrounding each public use airport extending outward from the ends and each side of all active runways to a distance 1/2 the length of the longest active runway centerline.
            2.   Notwithstanding other provisions of this section, should any public use airport conduct an official 14 CFR Part 150 (1984) study, the boundaries of that Airport's Noise Impact Zone shall be modified to comply with the official noise study, subject to amendment of the official zoning map as addressed in the county zoning regulations.
      (2)   Where a zone of influence overlays a portion of the property, only that portion within the zone shall be affected by the zone regulations. Furthermore, in relation to applying protection zone and noise impact zone requirements, use regulations shall apply to the structure or facilities constituting the use and shall not generally apply to accessory open space, landscape and buffering, storm water management, or driveway and parking uses.
   (D)   Airport Height Notification Zone regulations. The Airport Height Notification Zone regulations apply only to potential airport obstructions, as defined herein. Any proposed development which is not determined by be a potential airport obstruction is exempt from any Airport Height Notification Zone permitting regulations contained herein.
      (1)   Potential airport obstruction definition. A proposed development shall be determined to be a POTENTIAL AIRPORT OBSTRUCTION if the proposed development would result in any structure having a height or natural vegetation having a potential, long-term height greater than an imaginary surface extending outward from the ends and sides of a public use airport active runway at a slope of 1 foot vertically from airport elevation for each 100 feet horizontally, outward to 20,000 feet horizontally (200 feet vertically) for Sub Zone A, or 200 feet above ground level (AGL) for Sub Zone B. Notwithstanding the foregoing, any proposed structure that would otherwise be a potential airport obstruction is not considered a potential airport obstruction if it is shielded by an existing structure, is an antenna structure of 20 feet or less in height, or is otherwise exempt from notice pursuant to 14 CFR 77.15 (April 1, 1971). Further, notwithstanding the foregoing, any provision of this section regulating or restricting or otherwise applying to the growth of natural vegetationshall only apply within the Airport Runway Protection Zone, as defined in this section.
      (2)   Notice. Applicants for any development proposal determined by the county to result in a structure(s) that constitutes a potential airport obstruction shall be issued a notice of potential airport obstruction during the development proposal review process by the Code Enforcement Department. Further, all potential airport obstructions shall be forwarded to the Federal Aviation Administration  (FAA) to the applicant to be reviewed for conformance to the obstruction standards detailed in Title 14, Code of Federal Regulations, Part 77, Subpart C (14 CFR Part 77) (1971), and as described in the Federal Aviation Administration Advisory Circular AC 70/7460-2K (March 1, 2000).
      (3)   Permit required. No proposed development shall be approved for construction and no building permit shall be issued for a proposal to construct any structure which is determined by the county to be a potential airport obstruction unless an airport construction permit has been granted. Further, all potential airport obstructions shall be forwarded to the Federal Aviation Administration (FAA) to be reviewed in conformance to the obstruction standards detailed in Title 14, Code of Federal Regulations, Part 77, Subpart C (14 CFR Part 77).
      (4)   Procedures for obtaining an airport construction permit. Applicants shall submit to the Code Enforcement Department a complete airport construction permit application form (as provided by the Code Enforcement Department) and a copy of the notice of proposed construction form submitted to the FAA for the project. Prior to permit requests being considered for approval, applicants shall submit to the Code Enforcement Department the 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 (1971). The review process shall follow the Type A application procedure set forth in § 154.075.
      (5)   Criteria for granting an airport construction permit. 
         (a)   Where the FAA has reviewed the proposed development and determined its construction would not exceed an obstruction standard of 14 CFR Part 77 (1971), the Code Enforcement Department shall grant an airport construction permit for the proposed development; provided that a condition is attached to the permit approval to ensure that the approved structure(s) is marked and lighted as soon as the obstruction height is exceeded and prior to the issuance of a certificate of occupancy (CO), and in accordance with the standards of Rules of the Federal Department of Transportation and the Federal Aviation Administration Advisory Circular No. 70/7460-1 (April 15, 2000).
         (b)   Where the FAA has reviewed a proposed development and determined that the proposed development exceeds the obstruction standards of 14 CFR Part 77, no airport construction permit may be approved, and a Valencia County airport obstruction variance must be obtained by the applicant for the proposed development to proceed.
      (6)   Airport obstruction variance. An airport obstruction variance may be granted pursuant to the Type C review procedures set forth in § 154.077, and as provided below.
         (a)   The applicant shall submit an application on a form approved by the Code Enforcement Department, and shall also submit:
            1.   A copy of the proposed construction form submitted to the FAA including aerial photography of the site as required,
            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 (1971), and
            3.   A valid aeronautical evaluation (may consist of the evaluation performed by the FAA).
         (b)   An airport obstruction variance may be granted if the Board of County Commissioners determine 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 or aircraft safety (i.e., the development can be accommodated in navigable airspace without adverse impact on the county's public use airports or operations) but would do substantial justice and be in accordance with the spirit of applicable state statutes.
         (c)   A condition shall be attached to all airport obstruction variance approvals to require that the approved structure(s) is marked and lighted to indicate to aircraft pilots the presence of an obstruction in accordance with the standards of FAA Advisory Circular Number 70/7460-1 (April 15, 2000). Where such marking or lighting is required, such requirement shall be satisfied as soon as the obstruction height exceeded and prior to issuance of a certificate of occupancy (CO) for the affected structure.
         (d)   No airport obstruction variance shall be approved unless the FAA determines that the aeronautical evaluations submitted are valid and that safety of flight operations will not be adversely affected.
         (e)   Further consideration shall be given to:
            1.   The nature of the terrain and the 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 decent altitude or 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 structures or proposed structures identified in the applicable jurisdiction's comprehensive plans, and all other known proposed structure in the area,
            11.   FAA determinations and results of aeronautical studies conducted by or for the FAA,
            12.   Comments and recommendations from local airport authorities and users, and
            13.   Other testimony and findings of aviation operations and safety experts.
         (f)   Conflicting criteria for variances in existing or future Valencia County zoning regulations shall not be applicable to airport obstruction variance requests. Criteria in other Valencia County zoning regulations that do not conflict, however, are applicable to review of airport obstruction variance requests.
   (E)   Airport Runway Protection Zone regulations. The following types of uses shall be prohibited within the Runway Protection Zone:
      (1)   Educational centers (including, but not limited to, all types of primary and secondary schools, pre-schools, child care facilities),
      (2)   Medical facilities (including, but not limited to, hospitals, medical inpatient treatment facilities, nursing/convalescent facilities),
      (3)   Places of worship,
      (4)   Recreational facilities, such as a race track, fairgrounds where large numbers of people may congregate (e.g., not a golf course),
      (5)   Commercial businesses that constitute a potential hazard (including, but not limited to, gasoline service stations, restaurants, chemical warehouses or storage facilities, etc.), and
      (6)   Any use not permitted in the underlying zone designation, or any use which, in the judgment of the Code Enforcement Department, constitutes an added hazard to people on the ground in case of an accident or incident involving normal aircraft movement or operation.
   (F)   Air Noise Impact Zone. Provisions of this division shall apply to construction, alteration, moving, repair and use of any building or structure for the uses specified below and located within the Airport Noise Impact Zones. The following uses located within an Airport Noise Impact Zone, unless prohibited by any other zoning district regulations, shall comply with the applicable criteria described below:
      (1)   Developers of child care facilities, transient lodgings, educational centers, and residential uses shall verify to the county in writing that the proposed buildings are designed to achieve an outdoor to indoor noise level reduction (NLR) of at least 25 decibels. Normal residential construction can be expected to provide an NLR of 20 to 25 decibels.
      (2)   Developers of hospitals, homes for the aged, places of worship, auditoriums and concert halls shall verify to the county in writing that the proposed buildings are designed to achieve an outdoor to indoor noise level reduction (NLR) of at least 25 decibels.
      (3)   Developers of outdoor sports arenas and spectator sports facilities shall verify to the county in writing that the proposed buildings are designed to achieve an outdoor to indoor noise level reduction (NLR) of at least 25 decibels.
      (4)   In lieu of providing written verification that a proposed building is designed for an NLR of 25 decibels as stated in this division (F), a developer may execute and record an aviation easement as provided below.
      (5)   An AVIATION EASEMENT is a legal document that grants to the owner or operator of a nearby airport a right to continue to operate the airport in a manner similar to current operations, despite potential nuisance effects upon uses that are being established in close proximity to the airport. Applicants choosing to provide an aviation easement shall execute the easement to the appropriate airport authority. The easement shall be in a form acceptable to the county attorney's office and shall be executed in a recordable form prior to the release of a development site plan, prior to or via recording of a final plat, or prior to issuance of a building permit, as applicable.
      (6)   Notwithstanding the foregoing, no land is required to meet the requirements of this division (F) if the self-generated noise from that use and /or the ambient noise from other nonaircraft and nonairport uses is equal to or greater than the noise from aircraft and airport sources.
   (G)   Special requirements applicable throughout the unincorporated area of the county.
      (1)   Purpose. Notwithstanding any other provision of this overlay district, no use may be made of land or water within the unincorporated areas of the county in such a manner as to interfere with the operation of an airborne aircraft using a public use airport. The following special requirements shall apply to proposed developments: Solid waste disposal sites shall be reviewed in accordance with state solid waste environmental regulations. In addition, no solid waste disposal site shall be permitted to be located:
         (a)   Within 10,000 feet of any public airport active runway used, or planned to be used, by turbine powered aircraft, or
         (b)   Within 5,000 feet of any public use airport active runway used only by piston engine type aircraft, or
         (c)   So that it places the active runways and/or approach and departure patterns of an airport between a solid waste disposal site and a bird feeding, water or roosting area, or
         (d)   Outside the above locations but still within the limits of any airport overlay zone(s) if determined by the FAA to pose a hazard.
      (2)   Requirements. Proposed developments which will produce lights or illumination, smoke, glare, or other visual hazards, or produce electronic interference with airport or airplane communication or navigational signals shall be subject to standards and required to meet the standards specified in the FAA Order 7400.2F, Procedures for Handling Airspace Matters (Effective February 16, 2006), and be consistent with state statutes, as may be applied and enforced by state or federal law.
   (H)   Nonconforming Uses. The regulations prescribed herein shall not be construed to require removal, lowering, or other change to or alteration of any structure or natural vegetation not currently conforming to the regulations as of the effective date of this section, or to otherwise interfere with continuance of any nonconforming use. However, no pre-existing, nonconforming structure, natural vegetation, or use shall be replaced, rebuilt, altered, or allowed to grow higher, or to be replanted, so as to constitute an increase in the degree of nonconformity with regard to these regulations. Nothing contained herein shall require any change in the construction, alteration, or intended use of any structure, where the construction or alteration began prior to the effective date of this section and is completed within 1 year thereafter. Any existing, non-conforming use that is terminated after the date of this section is enacted shall conform to this section unless the existing, non-conforming use is re-established within 1 year after it is terminated. Nothing in this section shall permit any existing, non-conforming use to be re-established to a greater degree or extent than existed at the date that this section becomes law.
   (I)   Appeals.  Appeals of any decision of the Code Enforcement Department pursuant to this section shall be heard by the Board pursuant to the proceduresin § 154.062, and may be filed by the applicant, staff; or any person aggrieved or taxpayer affected or the New Mexico State Highway and Transportation Department.
   (J)   Enforcement. Enforcement of regulations in this section (AOED) shall be pursuant to § 154.999 and as provided or limited by applicable law.
   (K)   Conflicting regulations; regulation references.
      (1)   Where there exists a conflict between any of the regulations or limitations prescribed in this section and any other regulations applicable to thesame area, whether the conflict is with respect to the height of structures or trees, and the use of land, or any other matter, the more stringent limitation or requirement shall govern and prevail.
      (2)   The federal regulations referenced in this section are available at the Code Enforcement Department, Federal Aviation Administration or (at the time of adoption of this section) on the internet at the following sites:
 
Reference:
Available at the following web site:
14 CFR Parts 71 and 77
14 CFR Part 150
Federal Aviation Administration Advisory Circular AC 70/7460-1
www.faa.gov (follow links to advisory circulars)
Federal Aviation Administration Advisory Circular AC 70/7460-2K
www.faa.gov (follow links to advisory circulars)
FAA Order 7400.2F, Procedures for Handling Airspace Matters (Effective February 16, 2006)
 
(Ord. 2006-07, passed 11-17-2006)