AN ACT to amend the Indiana Code concerning transportation.
SECTION 1.
IC 8-21-10-2
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 2. As used in this
chapter:
"Department" refers to the Indiana department of transportation.
"Noise sensitive purpose" means the use of a building or
structure as a residence, school, church, child care facility, medical
facility, retirement home, or nursing home.
"Permit" means a permit issued by the department under this
chapter.
"Person" means any individual, firm, partnership, corporation,
company, limited liability company, association, joint stock
association, or body politic, including any trustee, receiver, assignee,
or other similar representative.
"Public-use airport" means any area, site, or location, either on land,
water, or upon any building, which is specifically adapted and
maintained for the landing and taking off of aircraft, and utilized or to
be utilized in the interest of the public for such purposes. The term
does not include:
(1) any private use airport or landing field; or
(2) any military airport solely occupied by any federal branch of
government using that airport for military air purposes.
"Structure" means any object constructed or installed by man
including, but not limited to, cranes, buildings, towers, smokestacks,
electronic transmission or receiving towers, buildings used for a noise
sensitive purpose, and antennae and overhead transmission lines.
SECTION 2.
IC 8-21-10-3
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 3. (a) Unless a permit
has been issued by the department, a person may not erect, alter, or add
to the height of any structure which falls within any one (1) of the
following categories:
(1) Any construction or alteration of more than two hundred (200)
feet above ground level at its site.
(2) Any construction or alteration of greater height than an
imaginary surface extending outward and upward at one (1) of the
following slopes:
(A) One hundred (100) to one (1) for a horizontal distance of
twenty thousand (20,000) feet from the nearest point of the
nearest runway of any public-use airport with at least one (1)
runway more than three thousand two hundred (3, 200) feet in
actual length, excluding heliports.
(B) Fifty (50) to one (1) for a horizontal distance of ten
thousand (10,000) feet from the nearest point of the nearest
runway of any public-use airport with its longest runway no
more than three thousand two hundred (3, 200) feet in actual
length, excluding heliports.
(C) Twenty-five (25) to one (1) for a horizontal distance of
five thousand (5,000) feet from the nearest point of the nearest
landing and takeoff area of any public-use heliport.
(3) Any construction or alteration of traverse ways used, or to be
used, for the passage of mobile objects if the standards set forth
under subdivisions (1) and (2) would be exceeded, but only after
the heights of these traverse ways are increased by:
(A) Seventeen (17) feet for an interstate highway where
overcrossings are designed for a minimum of seventeen (17)
feet vertical distance.
(B) Fifteen (15) feet for any other public roadway.
(C) Ten (10) feet or the height of the highest mobile object that
would normally traverse the road, whichever is greater, for a
private road.
(D) Twenty-three (23) feet for a railroad.
(E) For a waterway or any other traversed way not previously
mentioned, an amount equal to the height of the highest
mobile object that would normally traverse it.
(b) Unless:
each permit issued by the department in the office of the county
recorder for the county where the structure is located, not later
than five (5) business days after the department issues the permit.
If a structure is located in more than one (1) county, the county
that contains the majority of the structure is the county in which
the permit must be filed.
(g) A permit issued under subsection (b) is valid only after the
department receives a certified copy of the recorded permit with
the recording data from the county recorder of the county in which
the structure is located.
(h) A permit issued under subsection (b) must contain the
following statement:
"The permittee acknowledges for itself, its heirs, its
successors, and its assigns, that the real estate described in
this permit experiences or may experience significant levels of
aircraft operations, and that the permittee is erecting a
building designed for noise sensitive use upon the real estate,
with the full knowledge and acceptance of the aircraft
operations as well as any effects resulting from the aircraft
operations.".
(i) An applicant for a permit under subsection (a) must provide
written evidence to the department that the structure being
constructed does not violate section 7 of this chapter with regard
to an existing public use airport, if a public use airport is located
within a five (5) nautical mile radius surrounding the structure
that is the subject of the permit.
(j) Unless a denial of permit is issued by the department, a
Determination of No Hazard to Air Navigation from the Federal
Aviation Administration is a permit under this section, and a
separate permit will not be issued by the department.
SECTION 3.
IC 8-21-10-6
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 6. (a) Upon receiving
an application for a permit, the department shall make such
investigation as may be necessary to properly process the application
under this chapter. The investigation shall be conducted so as to
determine, in the opinion of the department, if the proposed structure
erected in the proposed location would have a substantial adverse
effect upon the safe and efficient use of the navigable airspace and
would be a hazard to air navigation if constructed. The department may
take into consideration findings and recommendations of other
governmental agencies or interested persons concerning the proposed
structure; however, such findings or recommendations are not binding
on the department. Further, the requirements of this chapter do not
supersede any other law.
(b) The department must consider an application for a permit
for a period of sixty (60) days before making a final determination
on the permit if:
(1) a public use airport is located within a five (5) nautical
mile radius surrounding the structure, regardless of county
lines; and
(2) the structure that is the subject of the permit is:
(1) a new structure; or
(2) an existing structure to which additional height is
added.
SECTION 4.
IC 8-21-10-7
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 7. (a) This section
applies to:
(1) an existing public use airport; and
(2) a public use heliport.
(b) If any of the obstruction standards set forth in this subsection are
exceeded, the proposed structure is presumed to have a substantial
adverse effect upon the safe and efficient use of the navigable airspace
and would be a hazard to air navigation if constructed. Except as
provided in section 9 of this chapter, the department shall not issue a
permit for any proposed structure that would exceed any of the
following obstruction standards:
(1) A height that is five hundred (500) feet above ground level at
the site of the object anywhere in the state.
(2) A height that is two hundred (200) feet above ground level or
above the established airport elevation, whichever is higher,
within three (3) nautical miles of the established reference point
of a public-use airport, excluding heliports, and that height
increases in the proportion of one hundred (100) feet for each
additional nautical mile of distance from the airport up to a
maximum of five hundred (500) feet.
(3) A height within a terminal obstacle clearance area, including
an initial approach segment, a departure area, and a circling
approach area, as defined by federal law and regulations, which
would result in the vertical distance between any point on the
object and an established minimum instrument flight altitude
within that area or segment to be less than the required obstacle
clearance.
(4) A height within an enroute obstacle clearance area, as defined
by federal law and regulations, including turn and termination
areas of a federal airway or approved off-airway route that would
increase the minimum obstacle clearance altitude.
(5) The surface of a takeoff and landing area of a public-use
airport or heliport or any imaginary surface as established under
section 8 of this chapter. However, no part of the takeoff or
landing area itself will be considered to be an obstruction.
(b) (c) Except for traverse ways on or near an airport with an
operative ground traffic control service, furnished by an air traffic
control tower or by the airport management and coordinated with the
air traffic control service, the standards set forth above in subsection
(a) (b) apply to traverse ways used or to be used for the passage of
mobile objects only after the heights of these traverse ways are
increased by the following:
(1) Seventeen (17) feet for an interstate highway where
overcrossings are designed for a minimum of seventeen (17) feet
vertical distance.
(2) Fifteen (15) feet for any other public roadway.
(3) Ten (10) feet or the height of the highest mobile object that
would normally traverse the road, whichever is greater, for a
private road.
(4) Twenty-three (23) feet for a railroad.
(5) For a waterway or any other traverse way not covered by
subdivisions (1) through (4), an amount equal to the height of the
highest mobile object that would normally traverse it.
SECTION 5.
IC 36-7-4-604
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 604. (a) Before the plan
commission certifies a proposal to the legislative body under section
605 of this chapter, the plan commission must hold a public hearing
under this section.
(b) The plan commission shall give notice of the hearing by
publication under
IC 5-3-1.
The notice must state:
(1) the time and place of the hearing;
(2) either:
(A) in the case of a proposal under section 606 or 607 of this
chapter, the geographic areas (or zoning districts in a specified
geographic area) to which the proposal applies; or
(B) in the case of a proposal under section 608 of this chapter,
the geographic area that is the subject of the zone map change;
(Subdivision (2) does not require the identification of any real
property by metes and bounds.)
(3) either:
(A) in the case of a proposal under section 606 of this chapter,
a summary (which the plan commission shall have prepared)
of the subject matter contained in the proposal (not the entire
text of the ordinance);
(B) in the case of a proposal under section 607 of this chapter,
a summary (which the plan commission shall have prepared)
of the subject matter contained in the proposal (not the entire
text) that describes any new or changed provisions; or
(C) in the case of a proposal under section 608 of this chapter,
a description of the proposed change in the zone maps;
(4) if the proposal contains or would add or amend any penalty or
forfeiture provisions, the entire text of those penalty or forfeiture
provisions;
(5) the place where a copy of the proposal is on file for
examination before the hearing;
(6) that written objections to the proposal that are filed with the
secretary of the commission before the hearing will be
considered;
(7) that oral comments concerning the proposal will be heard; and
(8) that the hearing may be continued from time to time as may be
found necessary.
(c) The plan commission shall also provide for due notice to
interested parties at least ten (10) days before the date set for the
hearing. The commission shall by rule determine who are interested
parties, how notice is to be given to interested parties, and who is
required to give that notice. However, if the subject matter of the
proposal abuts or includes a county line (or a county line street or road
or county line body of water), then all owners of real property to a
depth of two (2) ownerships or one-eighth (1/8) of a mile into the
adjacent county, whichever is less, are interested parties who must
receive notice under this subsection.
(d) The hearing must be held by the plan commission at the place
stated in the notice. The commission may also give notice and hold
hearings at other places within the county where the distribution of
population or diversity of interests of the people indicate that the
hearings would be desirable. The commission shall adopt rules
governing the conduct of hearings under this section.
(e) A zoning ordinance may not be held invalid on the ground that
the plan commission failed to comply with the requirements of this
section, if the notice and hearing substantially complied with this
section.
(f) The files of the plan commission concerning proposals are public
records and shall be kept available at the commission's office for
inspection by any interested person.
(g) METRO. In the case of a proposal to amend a zoning map under
section 608 of this chapter or in the case of a proposed approval of a
development plan required by a zoning ordinance as a condition of
development, a person may not communicate before the hearing with
any hearing officer, member of the historic preservation commission,
or member of the plan commission with intent to influence the officer's
or member's action on the proposal. Before the hearing, the staff may
submit a statement of fact concerning the physical characteristics of the
area involved in the proposal, along with a recital of surrounding land
use and public facilities available to serve the area. The staff may
include with the statement an opinion of the proposal. The statement
must be made a part of the file concerning the proposal not less than six
(6) days before the proposal is scheduled to be heard. The staff shall
furnish copies of the statement to persons in accordance with rules
adopted by the commission.
(h) METRO. In the case of a proposal to amend a zoning map under
section 608 of this chapter, this subsection applies if the proposal
affects only real property within the corporate boundaries of an
excluded city. Notwithstanding the other provisions of this section, the
legislative body of the excluded city may decide that the legislative
body rather than the plan commission should hold the public hearing
prescribed by this section. Whenever the plan commission receives a
proposal subject to this section, the plan commission shall refer the
proposal to the legislative body of the excluded city. At the legislative
body's first regular meeting after receiving a referred proposal, the
legislative body shall decide whether the legislative body will hold the
public hearing. Within thirty (30) days after making the decision to
hold the hearing, the legislative body shall hold the hearing, acting for
purposes of this section as if the legislative body is the plan
commission. The legislative body shall then make a recommendation
on the proposal to the plan commission. After receiving the excluded
city legislative body's recommendation (or at the end of the thirty (30)
day period for the public hearing if the proposal receives no
recommendation), the plan commission shall meet and decide whether
to make a favorable recommendation on the proposal. If the proposal
receives a favorable recommendation from the commission, the
proposal shall be certified to the county legislative body as provided in
section 605 of this chapter.
(i) Before a proposal involving a structure regulated under
IC 8-21-10
may become effective, the plan commission must have
received:
(1) a copy of:
(A) the permit for the structure issued by the Indiana
department of transportation; or
(B) the Determination of No Hazard to Air Navigation
issued by the Federal Aviation Administration; and
(2) evidence that notice was delivered to a public use airport
as required in
IC 8-21-10-3
not less than sixty (60) days before
the proposal is considered.
SECTION 6.
IC 36-7-4-918.5
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 918.5. (a) A board of
zoning appeals shall approve or deny variances from the development
standards (such as height, bulk, or area) of the zoning ordinance. A
variance may be approved under this section only upon a determination
in writing that:
(1) the approval will not be injurious to the public health, safety,
morals, and general welfare of the community;
(2) the use and value of the area adjacent to the property included
in the variance will not be affected in a substantially adverse
manner; and
(3) the strict application of the terms of the zoning ordinance will
result in practical difficulties in the use of the property. However,
the zoning ordinance may establish a stricter standard than the
"practical difficulties" standard prescribed by this subdivision.
(b) Before approval of a proposal involving a structure
regulated under
IC 8-21-10
may become effective, the board of
zoning appeals must have received:
(1) a copy of:
(A) the permit for the structure issued by the Indiana
department of transportation; or
(B) the Determination of No Hazard to Air Navigation
issued by the Federal Aviation Administration; and
(2) evidence that notice was delivered to a public use airport
as required in
IC 8-21-10-3
not less than sixty (60) days before
the proposal is considered.