Enhanced Planning or Zoning Restrictions

Legislative

AZ - Land Use Planning Around Military Airports
Series of laws dating back to 1978 provide statutory guidance on compatible land use planning around Military Airports. Most recent legislation includes SB 1062, 1995; SB 1514, 2000; SB 1525, 2001; SB 1393, 2002; HB 2140, 2004 and HB 2141, 2004 that set forth the following:

  • Established "high noise or accident potential zone" (generally the noise contours and the arrival departure corridors) around each military airport and their ancillary military facility and its requirements:
    • Cities, towns and counties shall adopt and enforce zoning regulations to "assure development compatible with the high noise and accident potential generated by military airport and ancillary military facility operations that have or may have an adverse effect on public health and safety."
    • Defined "compatible" land use matrix (A.R.S. 28-8481 (J)) within high noise or accident potential Zones. (One military airport is to use their Joint Land Use Study in order to determine compatibility.)
    • By December 31, 2005 cities, towns and counties must identify these boundaries within their general/comprehensive plan.
    • Cities, towns and counties must send a copy of general/comprehensive plan or an element or major amendment of the general plan to the attorney general at least 60 days prior to adoption.
    • Cities, towns and counties must provide notice to the attorney general within three days of approval, adoption, or readoption of the general/comprehensive plan.
      • The attorney general has 25 days after receipt of the plan to determine if it is compatible with the land use matrix set forth in ARS 28-8481 (J).
      • Governing body has thirty days after receipt of notice from attorney general to reconsider their actions. If actions are reaffirmed, the attorney general may institute a civil action.
    • In order to facilitate development set forth in the compatibility land use matrix (ARS 28-8481 (J)) a county may approve transfer of development rights and inter into an intergovernmental agreement with another political subdivision.
    • Provides a "fair market value" of minimum one residential dwelling unit per acre for political subdivisions, state or an agency or instrument of the United States when purchasing land or development rights.
    • Prohibits local jurisdictions from permitting or approving new divisions of land zoned for residential use if the division would result in a lot, parcel or fractional interest of four acres or less. A waiver may be granted.
    • Applications for public reports must include a statement that the property is located in a high noise or accident potential zone. (This is in addition to a statement that the property is located in a territory in the vicinity.)
  • Established "territory in the vicinity" (a larger area designed to capture major military operating areas) requirements for military airports and ancillary military facilities:
    • The State Land Department is to prepare a map with legal description of the territory in the vicinity of ancillary military facility and the accompanying high noise or accident potential zone, accident potential zone ones and two. This information is to be sent to the appropriate county, made available to the public at the State Land Department and the Department of Real Estate.
    • Establishes sound attenuation requirements for: new residential development; portions of buildings where the public is received; office areas in new buildings; schools; libraries and churches. Beginning December 31, 2004 this requirement will also apply to ancillary military facilities.
    • Cities, Towns and Counties must:
      • Provide the military airport notice an opportunity to provide comments on general and comprehensive plans or amendments prior to adoption.
      • Provide the military airport notice of public hearings for zoning changes. If the military airport provides comments concerning the compatibility of the proposed rezoning prior to the first hearing, the governing body must hold a public hearing and consider the comments before a final decision is made. (This insures that plans are not adopted on a consent agenda.)
      • Consider military airport or ancillary military facility operations with land use element.
    • The School Facilities Board must notify military airports of hearings regarding any applications for School Facilities Funding. Any comments or analysis received from the military must be consider and analysis prior to a final decision. Beginning December 31, 2004 this requirement will also apply to ancillary military facilities.
    • Department of Real Estate and local government shall request and maintain map of military operations and military airport contact information and make available to the public.
    • Disclosure regarding transfer or sale of land. For residential property, statement must be on first page of public report and includes, if available, map of military operations. Beginning December 31, 2004 this requirement will also apply to ancillary military facilities.
    • The Department of Real Estate shall execute and record a document for with the appropriate county recorder for land with the following disclosure: "this property is located within territory in the vicinity of a military airport or ancillary military facility and may be subject to increased noise and accident potential."
    • ARS 28-8480 provides that a political subdivision "may acquire, by exchange, purchase, lease, donation, devise or condemnation, land or interests in land for the continued operation of a military airport or ancillary military facility."

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AZ - Natural Gas Storage Facility Restriction
ARS 49-1302 (HB 2134, 2004) prohibits the location of a natural gas facility within nine miles of Luke Air Force Base. Includes a legislative findings section that states such activities "are subject to state regulation as provided by 49 United States Code 60104c."

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AR - Land Use Planning Around Military Installations
Arkansas' Ark. Code Section 14-56-426 (Act 530, 1995) requires cities over 2,500 residents and an active-duty United States Air Force to "enact a city ordinance specifying that within five (5) miles of the corporate limits future uses on property which might be hazardous to aircraft operation shall be restricted or prohibited." The city ordinance shall:

  • Be consistent with the recommendations and studies made by the October 1992 United States Air Force document titled Air Installation Compatible Use Zone Study, Volumes I, II, and III .
  • Restrict or prohibit future uses that violate the height restriction criteria of Federal Aviation Regulation, part 77, subpart C.
  • Consider recommendations or studies in order to protect the public and provide for safe aircraft operations.
  • Not prohibit single-family residential uses on an acre or more if future construction complies with Guidelines for the Sound Insulation of Residences Exposed to Aircraft Operations, Wyle Research Report WR 89-7.
  • Specifically, the ordinance shall restrict or prohibit future land uses that meet the following categories within the five-mile area:
  • Uses that interfere or impair visibility with the operation of aircraft by releasing substances such as steam, dust or smoke into the air.
  • Uses that interfere with pilot vision by producing light emissions (direct, indirect or reflective).
  • Uses that interfere with aircraft communications systems or navigational equipment by producing electrical emissions.
  • Uses that attract birds or waterfowl (such as sanitary landfill operations, maintenance of feeding stations, growing of certain vegetation).
  • Structures within ten feet of aircraft approach, departure, or transitional surfaces.
  • Expose persons to noise greater than seventy-five decibels.

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CA - Land Use Planning Around Military Installations
California Govt. Code ß 65040.9 (SB 1468, 2002) provides that if sufficient federal funds become available, the Office of Planning and Research shall prepare and publish an advisory planning handbook that explains "how to reduce land use conflicts between the effects of civilian development and military readiness activities" that are carried out on military installations, operating and training areas, training routes military airspace and adjacent areas. California Govt. Code ß 65302 (SB 1468, 2002)amends general plan requirements for cities and counties. Changes include for example, the land use element shall "(c)onsider the impact of new growth on military readiness activities" when proposing zoning ordinances or changes to the general plan. SB 926, 2004 amended this bill to require these changes occur at the next general plan revision; and removed the requirement for an agreement to be reached between the federal government and the state to reimburse for this additional requirement.

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CA - Wind Energy Coordination within the R-2508 Complex
California Govt. Code ß 65892.13 (11) (SB 1989, 2002) requires a local agency to forward a copy of an application to install a small wind energy system within the restricted airspace of "R-2515" to the governing authority of that airspace. This requirement is only applicable if the R-2515 governing authority has first filed a "detailed diagram of that restricted airspace." The local agency shall consider written comments provided by the R-2515 governing authority before acting on such applications.

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CO - Enhanced planning communication and notification

  • Colo. Rev. Stat. ß 29-1-207, 30-28-106, 31-23-206 (Acts 2005, Chapter 59, SB 05-080) The General Assembly declares that local governments should cooperate with military installations in order to encourage compatible land use, help prevent incompatible urban encroachment upon military installations, and facilitate the continued presence of major military installations within the state. Local governments with a military installation in excess of 1,000 acres (other than the Rocky Mountain Arsenal or any facility used primarily for civil works, river or flood control projects) located partially or within its boundaries shall provide timely notification of certain actions to the military installation commander or his or her designee. Information shall include changes in the comprehensive plan or its amendments or land use regulations that if approved would significantly affect the intensity, density or use of any area within the territorial boundaries of the local government that is within two miles of the military installation. This requirement does not require information related to site-specific development applications under consideration by the local government.
  • After providing the prescribed information to the military, the local government must also provide the commanding officer of the military installation (or his or her designee) an opportunity to review and comment on the military mission impact of the proposed change. Comments may include:
    • Impact on the airfields safety and noise impact set forth in their Air Installation Compatible Use Zone (AICUZ);
    • Incompatibility with the Installation Environmental Noise Management Program (IENMP) of the United States Army;
    • Incompatibility with the areas Joint Land Use Study (JLUS) findings
    • If the mission will be adversely affected by the proposed actions.
  • The local government when considering approval of the comprehensive plan or its amendments or its land use regulations shall review the comments and a copy of the comments to the Office of Smart Growth.
  • This provision is effective beginning August 8, 2005 and shall apply to any requested changes in a local government's comprehensive plan, its amendments, or land use regulations submitted for approval on or after that date.

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FL - Land Use Planning Around Military Installations
Florida's Fla. Stat. ß 163.3175 (SB 1604, 2004) states, "(t) he Legislature finds that incompatible development of land close to military installations can adversely affect the ability of such an installation to carry out its mission." Counties that have a military installation within its jurisdiction and each affected local government must:

  • Send the installation commanding officer information "relating to proposed changes to comprehensive plans, plan amendments, and proposed changes to land development regulations which, if approved, would affect the intensity, density, or use of the land adjacent to or in close proximity to the military installation."
  • Provide the "military installation an opportunity to review and comment on the proposed changes."
  • Consider the military's comments when making comprehensive planning or land development regulation decisions and forward a copy of the comments to the state land-planning agency.
  • Include a military representative to serve as an ex-officio, non-voting member on the land planning or zoning board and will represent all installations within the political jurisdiction.

The military may provide comments on the proposed change's impact on the mission. Comments may include:

  • Impact on the airfield's safety and noise impact set forth in their Air Installation Compatible Use Zone (AICUZ);
  • Incompatibility with the Installation Environmental Noise Management Program (IENMP) of the United States Army;
  • Incompatibility with the area's Joint Land Use Study (JLUS) findings
  • If the mission will be adversely affected by the proposed actions.

The Commanding Officer is encouraged to provide information regarding any community planning assistance grants available through the federal Office of Economic Adjustment.

Florida's Fla. Stat. ß 163.3177 (SB 1604, 2004): Local governments' future comprehensive land use plan elements must address compatibility of land uses "adjacent or closely proximate" to military installations and include criteria to achieve that compatibility. This update or amendment must be submitted to the Department of Community Affairs b y June 30, 2006. The Department must consider land use compatibility issues "adjacent to or in close proximity to all military installations in coordination with the Department of Defense."

Florida's Fla. Stat. ß 163.3191 (SB 1604, 2004): Local governments' evaluation of its comprehensive plan is to include an assessment of whether the criteria in the future land use plan element was successful in achieving compatibility with military installations.

GA - Land Use Planning Around Military Bases and Installations
Georgia's Ga. Code Ann. ß36-66-6 (SB 261, 2003) requires planning entities to investigate and make recommendations on proposed zoning decisions on land that is "adjacent to or within 3,000 feet of any military base or military installation or within the 3,000 foot Clear Zone and Accident Prevention Zones Numbers I and II as prescribed in the definition of an Air Installation Compatible Use Zone of a military airport." Specifically, planning entities are to determine given the proposed land use's proximity of the military facility:

  • If the proposal will permit a suitable use;
  • If the proposal will adversely affect the existing use or usability of nearby property;
  • If the affected property has a reasonable economic use as currently zoned;
  • If the proposed use could cause safety issues to such items as streets, transportation facilities, utilities or schools
  • If a land use plan has been adopted and if so, if the proposed change conforms with the policy and intent of the land use plan; and
  • If there are existing or changing conditions that would affect the use of nearby property.

The planning entity at least 30 days prior to the hearing must request that the military commander provide "written recommendation and supporting facts relating to the proposed land use change." If the military commander does not submit a response by the date of the public hearing then the proposed zoning change is presumed to not have an adverse effect. Any information received shall become part of the public record.

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IL - County Air Corridor Protection Act
HB 1338, 2003, known as the "County Air Corridor Protection Act." Provides counties with a U.S. Air Force installation with runways that are at least 7,500 feet in length with the authority to:

  • "Protect the safety of the community by controlling" land uses designated in the Air Installation Compatible Use Zone (AICUZ) Study adopted by the United States Air Force.
  • Utilize eminent domain powers to acquire land or an easement when a land use exists or when a municipality approves a use that is not compatible with the AICUZ and falls within the following areas:
    • clear zones and runway protection zones
    • accident potential zones I and II or
    • within the 65 decibel contour.

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KY - Land Use Planning Around Military Bases and Installations
Kentucky's Ky. Rev.Stat. ß 100.187 (HB 357, 2003) provides that a planning entity, when drafting a comprehensive plan, shall include provisions for accommodating military installations that are at least 300 acres and located partially, within or "abutting" the planning entity's boundaries. The statute is intended to help "minimize conflicts between the relevant military installations and the planning unit's residential population."

The planning entity shall consult with the military commander to determine their needs, and shall include questions regarding:

  • "installation expansion,
  • environmental impact,
  • issues of installation safety, and
  • issues relating to airspace usage, to include noise pollution, air pollution, and air safety concerns."

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NC - Land Use Planning around Military Bases
N.C. Gen. Stat. ß 153A-323 and ß 160A-364 (SB 1161, 2004) requires cities and counties to provide military installation commanders written notice at least ten days (but not more than 25 days) prior to a public hearing to consider any ordinance that would change zoning or affect the permitted uses of land within five miles of a military base. Prior to making a final decision, the governing body shall consider any comments or analysis received from the military regarding the compatibility of the proposed ordinance or amendment.

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OK - Land Use Planning Around Military Installations
Okla. Rev. Stat. ß 11-43-101.1 (HB 2472, 2004; HB 2115, 2002; SB 658, 2001) permits any municipality that has an active-duty United States Air Force to "enact a city ordinance specifying that within five (5) miles of the corporate limits of the military installation future uses on the property which may be hazardous to aircraft operation shall be restricted or prohibited." The city ordinance shall:

  • Be consistent with the most current recommendations and studies titled " Air Installation Compatible Use Zone Study" made by the United States Air Force installations at Altus AFB, Tinker AFB and Vance AFB or studies made by United States Department of the Army installation at Fort Sill titled "Army Compatible Use Buffers" or "similar zoning relating to or surrounding a military installation as adopted by a county, city, or town or an combination of those governmental entities."
  • Restrict or prohibit future uses that violate the height restriction of any Federal Aviation Regulation criteria.
  • Consider the recommendations or studies in order to protect the public and provide for safe aircraft operations.
  • Subject to the provisions and requirements of item 1, not prohibit single-family residential uses on an acre or more if future construction complies with Guidelines for the Sound Insulation of Residences Exposed to Aircraft Operations, Wyle Research Report WR 89-7.
  • Specifically, the ordinance shall restrict or prohibit future land uses that meet the following categories within the five-mile area:
    • Uses that interfere or impair visibility with the operation of aircraft by releasing substances such as steam, dust or smoke into the air unless the substance is generated from an agricultural use.
    • Uses that interfere with pilot vision by producing light emissions (direct, indirect or reflective).
    • Uses that interfere with aircraft communications systems or navigational equipment by producing electrical emissions.
    • Uses that attract birds or waterfowl (such as sanitary landfill operations, maintenance of feeding stations).
    • Structures within ten feet of aircraft approach, departure, or transitional surfaces.
    • Expose persons to noise greater than seventy-five decibels.
    • Uses that detract from the aesthetic appearance or make for an unsightly entrance to the installation (such as automobile salvage yards, disposal sites, waste storage.)

SC - Land Use Planning Around Military Installations
South Carolina's S.C.Code ß 6-29-1530 (H4482, 2004) requires planning entities to provide planning information to the military installation commander 30 days prior to the public hearing and request "written recommendation with supporting facts" on land that is located within:

  • a federal overlay zone
  • 3,000 feet of a
    • military installation
    • Clear Zone and Accident Potential Zones Numbers I and II

The commander's comments and the planning entity are to make recommendations and findings regarding:

  • If the proposed use is suitable given the proximity of the military installation.
  • If the proposal will adversely affect the existing use or usability of nearby property;
  • If the affected property has a reasonable economic use as currently zoned;
  • If the proposed use could cause safety issues to such items as streets, transportation facilities, utilities or schools;
  • If a land use plan has been adopted and if so, if the proposed change conforms with the policy and intent of the land use plan; and
  • If there are existing or changing conditions that would affect the use of nearby property.

If the military commander does not submit a response by the date of the public hearing then the proposed zoning change is presumed to not have an adverse effect. Any information received shall become part of the public record. Local governments are to "incorporate identified boundaries, easements, and restrictions for federal military installations into official maps."

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SD - Military Airport Zoning Regulations
N.D. Cent. Code ß 50-10-32 to 50-10-35 (SL 1996, ch 278) permits political subdivisions to "adopt, administer, and enforce, under its police power" zoning regulations "to prevent the creation of a military airport hazard." The military airport hazard area (which is defined as an area of land or water with a hazard such as a structure which obstructs or interferes with military aircraft) zoning regulations may be divided into zones and include:

  • Specifying land uses that are permitted
  • Regulating type and density of structures
  • Restricting height of structures and obstructions to prevent the construction of an obstruction to flight operations or air navigation.

The political subdivision may also adopt by ordinance or resolution any federal laws or rules to assist in "controlling the use of land located adjacent to or in the immediate vicinity of the military airport."

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TX - Military Preparedness Act
SB 652, 2003 established the Texas Military Preparedness Commission (previously called the Strategic Military Planning Commission) and sunsets on September 1, 2007. This office is within the Governor's Office and reports to the Governor or his designee. Commission duties include:

  • Advising the Governor and Legislature on military issues and their related economic and industrial development.
  • Making recommendations regarding policies and plans to support the long-term military mission viability including best methods for communities to enhance their relationship with their military installation.
  • Preparing a biennial strategic plan to assist the longevity and expand the mission of Texas military installations.
  • Preparing an annual report to the Governor and the Legislature by July 1 regarding the military installations and their communities and the associated defense related business within the state. State agencies are to assist with this report.
  • Coordinating annual meetings to discuss the report with state agencies and legislators whose district includes an active or former military installation.
  • The Commission may solicit and accept gifts and grants.
  • Military Installation Commanders may request commission assistance to coordinate with other state agencies to prepare base evaluation criteria.
  • Authorizes the Commission to provide a loan of financial assistance to defense community projects that meet set criteria including enhancing "military value of a military facility located in, near, or adjacent" to the community.
  • Loans must be paid within five years and may not exceed the total cost of the project.
  • Creates the Texas Military Value Revolving Loan Account.
    • A community that applies for financial assistance shall prepare "in consultation with the authorities from each defense base associated with the community a defense base military value enhancement statement."
    • A community may request financial assistance to prepare a "comprehensive defense installation and community strategic impact plan that states the defense community's long-range goals and development proposals" includes the following elements as they relate to the military base:
      • Land use, transportation, population growth, water resources, conservation, open-space, restricted airspace and military training route element.
        • The plan should minimize encroachment and control negative effects of future growth on the military mission
        • The land use element should identify "existing and proposed regulations of land uses" and their distribution and locating that may impact the military base.
        • The open space element should identify existing areas along with an analysis of the military's need for "open-space areas to conduct its military training activities."
        • The restricted airspace element should create needed buffer zones between the base and the community.
        • The military training route element should identify existing routes and if needed, proposes a plan for additional routes.
    • Communities that developed a comprehensive defense installation and community strategic impact plan are encouraged to develop with their military base a "planning manual based upon the proposals contained in the plan." If changes are needed in the plan, then the community should consult with the military.
    • Defense communities that determine a proposed ordinance, rule or plan may impact the military mission shall "seek comments and analysis" from the military concerning the compatibility. The community "shall consider and analyze the comments and analysis before making a final determination relating to the proposed ordinance, rule or plan."
    • An agency's strategic plans are to also include an "analysis of the agency's expected expenditures" related military installations or communities with military installations.
    • State agencies are to consider when establishing goals the enhancement of military value to a military installation or facility. If the agency "determines that an expenditure will enhance the military value" of an installation or facility (based on the base realignment and closure criteria) the agency shall make the expenditure a priority.
    • The state may sell, lease or grant easements on unused or underused state property to the United States armed forces if "after consultation with appropriate military authorities" it is determined that this property would materially assist the military in mission accomplishment.
      • The state is required to "retain all minerals it owns with respect to the land, but it may relinquish the right to use the surface to extract them."
    • The state is prohibited from the selling and leasing "of upland within 2,500 feet of a military base" unless after "consultation with appropriate military authorities" it is determined that the sale or lease would not have an adverse affect on the military.
    • Prohibits prospecting in a "location within 2,500 feet of a military base, but prospectors may, from a location more than 2,500 feet from a base, look for minerals within the 2,500-foot strip."
    • "Any lease covering land adjacent to a military base shall require the lessee to forego the right to use the surface within 2,500 feet of the military base while exploiting the minerals."

VA - Land Use Planning Around Military Bases, Installations or Military Airports
Virginia's Va. Code ß 15.2-2204, 15.2-2223 15.2-2283 (H714, 2004) requires local planning commissions to provide the military ten days' advance notice of any land use changes (including comprehensive plan or amendment, zoning map, or an application for special exception for a change in use) within 3,000 feet of a "military base, military installation, or military airport, excluding armories operated by the Virginia National Guard."

  • This notification also provides the military an opportunity to submit comments for consideration.
  • Local comprehensive plans may include the location of military bases, installations and military airports and their adjacent safety areas.
  • Stipulates that zoning ordinances shall provide reasonable protection against encroachment upon military bases, installations and military airports and their adjacent safety areas ("excluding armories operated by the Virginia National Guard.")

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WA - Land Use Planning Around Military Installations
Wash. Rev. Code ß 36.70A.530 (ESSB 6401, 2004) requires that cities and counties' comprehensive plans, development regulations or their amendments "should not allow development in the vicinity of a military installation that is incompatible with the installation's ability to carry out its mission requirements." Cities and counties with military installations (other than a reserve center) of more than 100 personnel must notify the installation commander of their intent to amend the comprehensive plan or development regulations to "address lands adjacent to military installations to ensure those lands are protected from incompatible development". This notice shall provide the commander 60 days to provide a written recommendation with supporting facts. If no response is received from the commander, than the local government may presume that the "implementation of the proposed plan or amendment" will not have an adverse effect on the installation's operations.

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Last Modified: 30 April 2014 at 11:48