[Amended 11-14-2017 by Ord. No. 294-2017; 6-13-2023 by Ord. No. 335-2023]
A. General provisions and procedures. An applicant has the option of either applying for an administrative SUP or proceeding directly to the P&Z to consider the SUP at a public hearing; however, if there are any code violations on the property that cannot be remedied by the SUP, the violations shall be corrected before the public hearing is scheduled and staff may require that the applicant proceed directly to a public hearing. The Zoning Administrator may administratively approve a special use permit if no written objections are received within 21 days from the date that notice is provided consistent with §
350-204C, provided all agency review comments are satisfactorily addressed. The notice shall identify the property and state the nature of the SUP requested, and shall also state that if no written objections to the SUP are received within 21 days of the date of the notice, the SUP may be granted administratively without a hearing. If written objections are received within the twenty-one-day period, the SUP will be submitted to the P&Z for a public hearing. Special use permits shall not be considered a zone change.
B. Application procedure. An applicant for an SUP shall complete and
submit an approved application form in accordance with the procedures
established herein. The applicant shall be the property owner or have
the written consent and signature of the property owner. The applicant
shall also submit the following information with the application:
(1)
Narrative indicating the reason for the request, the purpose
and use of the property, scope of work, hours of operation, number
of clients, all improvements to be made, and the best management practices
that will be utilized to optimize resources to prevent or reduce the
discharge of pollutants and control fugitive dust.
(2)
Site plan meeting the specifications of §
350-208B, Detailed site plan requirements.
(3)
Grading and drainage plan, traffic impact analysis (TIA) or
environmental impact statement (EIS) may be required by County staff.
(4)
The Zoning Administrator may place appropriate conditions on
environmentally sensitive areas, areas of historical significance
or areas that contain endangered or rare species of animal or plant
life.
(5)
Any analysis required and requested by the County shall be undertaken
at the applicant's expense.
C. Notice procedure for special use permits.
(1)
For administrative SUPs:
(a)
Signs supplied by the CDD shall be posted on or near the property
lines and be maintained by the applicant for a minimum of 21 days
on the subject property, in conspicuous locations, in a manner that
is reasonably calculated to notify adjacent property owners and passersby
of the proposed administrative special use request. Failure to do
so may result in a postponement and renotification of your case.
(b)
Notice of deadline for public input for an administrative SUP
shall be published one time at least 21 days prior to the date of
the administrative decision in a newspaper of general circulation
in the jurisdiction of the County.
(c)
Notice of an administrative SUP shall be mailed by first-class
mail to the adjacent property owners, as shown by the records of the
County Assessor, of properties within 300 feet of any lot line of
the site in question, excluding streets, alleys, channels, canals
or other public rights-of-way and railroad rights-of-way. A minimum
of 10 different owners shall be required to be notified.
(2)
SUPs decided by public hearing:
(a)
Signs supplied by the CDD shall be posted on or near the property
lines and be maintained by the applicant for a minimum of 21 days
on the subject property, in conspicuous locations, in a manner that
is reasonably calculated to notify adjacent property owners and passersby
of the hearing for the proposed special use permit. Failure to do
so may result in a postponement and renotification of the public hearing.
(b)
Notice of public hearing shall be published one time at least
21 days prior to the date of the hearing in a newspaper of general
circulation in the jurisdiction of the County.
(c)
Notice of the SUP shall be mailed by first-class mail to the
adjacent property owners, as shown by the records of the County Assessor,
of properties within 300 feet of any lot line of the site in question,
excluding streets, alleys, channels, canals or other public rights-of-way
and railroad rights-of-way. A minimum of 10 different owners shall
be required to be notified.
D. Decisional criteria for special use permits. A proposed SUP, supporting
documentation and site plan shall be consistent with the health, safety,
and general welfare of the residents of the County per the intent
of this chapter. The Zoning Administrator, P&Z, and BOCC shall
use the following general criteria and may require that additional
information be presented when reviewing special use permits. The burden
of proof shall rest solely with the applicant and shall clearly demonstrate
how the proposed SUP shall meet the following decisional criteria,
but are not limited to:
(1)
Potential traffic flows and impacts:
(a)
Adequate measures shall be provided to accommodate ingress and
egress to avoid congestion, impede surrounding traffic flows or create
hazardous or unsafe conditions; and
(b)
The proposed SUP contains sufficient off-street parking and
loading facilities that will be developed in accordance with this
chapter;
(2)
The public need for the commercial or residential activity and
how it complies with Plan 2040, the Comprehensive Plan of Dona Ana
County;
(3)
Potential water and sewer needs and supporting documentation
showing that the infrastructure is available to support this proposed
use;
(4)
The extent to which the capacity of existing infrastructure,
public facilities and services are available, are adequate to meet
the demand generated by the proposed use and can accommodate the development;
(5)
Environmentally sensitive areas in the vicinity, areas of historical
significance, or areas that contain endangered or rare species of
animal and plant life and how the SUP will mitigate the affected areas,
if applicable;
(6)
The impact of a proposed SUP because of its size and intensity
on surrounding properties and how it provides a positive impact on
adjacent properties and is not detrimental to the public health, safety
and general welfare of the neighboring residents; and
(7)
Implementation of best management practices for the development
shall be demonstrated by submitting a schedule of activities, maintenance
procedures, other management practices and site development work that
optimizes resources to be used to prevent or reduce the discharge
of pollutants to the MS4 and waters of the US.
E. Approval procedures and conditions. The Zoning Administrator, P&Z or the BOCC may approve, conditionally approve or deny the SUP with right of appeal in accordance with the provisions of §
350-216, Appeals. Approval may be granted with conditions that are deemed necessary to ensure that the purpose and intent of this chapter are met and to mitigate potentially detrimental effects of the SUP to surrounding properties. In addition to the conditions, a time limitation on the SUP may be imposed. The SUP shall not be considered as establishing a binding precedent to grant other special use permits. If a special use has not commenced within, or is discontinued for, a period of one year, said permit shall automatically expire. All improvements shall be in accordance with the development standards applicable to the zoning district or community type, and Article
VI, except as otherwise authorized by the SUP.
F. SUP site plan revisions. Minor revisions to a detailed site plan, following final approval, may be subsequently approved by the Zoning Administrator without a public hearing. Major revisions to the detailed site plan are subject to the same requirements as an original application and may require a public hearing. Minor and major revisions to site plans are defined in §
350-208E. Site plan revisions.
G. Recording of the special use permit. After approval, the special
use permit shall be recorded in the office of the County Clerk and
shall include all information, conditions, reference to site plans,
other provisions and conditions of the special use. The special use,
as granted, shall be shown on the Official Zoning Map as a special
use permit indicating its location with a designation of "SUP."
A temporary use is a land use that may include, but not be limited
to, outdoor concerts, tent revivals, circuses, carnivals or festivals.
A permit shall be required for all temporary uses.
A. Application procedure. Applications for a temporary use permit shall
be obtained from the CDD and shall include a narrative indicating
the reason for the request, the purpose and use of the property, and
a site plan showing the proposed layout of the event or use.
B. Site plan for temporary use permits. A site plan for a temporary
use permit shall include the following:
(1)
Location of permanent and temporary structures, including lighting
and signage.
(2)
Vehicular access and circulation.
(3)
Area designated for off-street parking.
(4)
Location of portable restrooms and trash receptacles.
C. Additional information required.
(1)
Written approval of the property owner.
(2)
Valid Doña Ana County business registration.
(3)
Proof of necessary inspections (building, fire, etc.) deemed
necessary by the CDD.
(4)
Any additional information deemed necessary by the Zoning Administrator.
D. Applicant requirements.
(1)
Make provisions for adequate traffic control, fire protection,
erosion control, dust mitigation, solid and liquid waste removal.
(2)
Locate all mechanical and electrical machinery not intended
to be accessed by the public away from publicly accessible areas.
(3)
Mitigate dust by watering down or using dust suppressants on
any dirt or graveled portions of the property, parking areas and access
points prior to any event and periodically during the duration of
the temporary use permit (to be specified at the time of application
approval).
(4)
Any other mitigation deemed necessary to protect the public
interest by the Zoning Administrator or ESD including but not limited
to lighting, visibility, erosion, or pollution control measures.
E. Review, notification and approval procedures. A temporary use permit shall be reviewed and approved or denied by the Zoning Administrator on a case by case basis using requirements of §
350-205D to ensure the public health, safety and welfare is secured after consulting with the appropriate agencies.
F. Time limitations and revocations. A temporary use permit may be issued
for a period of time not to exceed 30 days, which may be extended
one time for an additional two weeks. Noncompliance with any provision
of this section shall be cause for immediate revocation of the permit
and appropriate enforcement action.
Temporary relief from development requirements may be permitted
at the Zoning Administrator's discretion for a period of time not
to exceed 180 days. The relief may be granted upon determination by
the Zoning Administrator that (1) the hardship to the applicant if
the chapter is strictly enforced significantly outweighs the potential
impact to surrounding properties, and (2) the hardship will terminate
within the duration of the temporary relief granted. The Zoning Administrator:
A. Shall make specific written findings as to the reasons for granting,
granting with conditions, or denying the temporary relief.
B. May extend the temporary relief time period one time up to 180 days.
Any request for temporary relief beyond 180 days extension shall be
decided by the P&Z at a public hearing.
(1)
Applications for all extensions for temporary relief shall be
made 45 days prior to the date of expiration.
[Amended 12-8-2020 by Ord. No. 317-2020]
The intent of variances allows an applicant to deviate from
the requirements of this chapter and are generally considered for
the following cases: height, setbacks, lot area, parking and loading,
and sign and fence requirements. Any proposed development that does
not conform to any of the standards of development in this chapter
may not commence without obtaining a variance. A variance shall not
be granted unless the variance fulfills the requirements of this section.
In granting a variance, any reasonable conditions may be imposed to
minimize any potential adverse effects to property within the area
of notice.
A. Public hearing and approval. Upon receipt of the variance application and any supplementary data, the Zoning Administrator shall provide the required notices and shall schedule a public hearing with the P&Z per §
350-202B. The P&Z shall approve, conditionally approve or deny the application per the findings of §
350-207B. The decision of the P&Z on the variance application is final, unless it is appealed to the BOCC.
B. Findings. The P&Z and the BOCC, if the matter is appealed, may
grant, grant with conditions, or deny a variance after making specific
findings on whether the applicant has adequately demonstrated:
(1)
The variance will not constitute a grant of special privilege
inconsistent with the limitations on other properties in the area
of notice;
(2)
The variance will not be detrimental to the public health, safety,
or welfare, or be materially injurious to properties or improvements
in the area of notice;
(3)
There is a physical hardship resulting from the size or shape
of the parcel; or from existing structures on the parcel; or from
topographic or physical conditions on the site or in the area of notice
and the hardship is not self-imposed; and
(4)
The variance upholds the purpose and intent of this chapter,
public safety and welfare are secured, and substantial justice is
done.
C. Administrative variances.
(1)
The Zoning Administrator may administratively approve a variance based on §
350-207B, Findings, under the following circumstances:
(a)
Deviation from a numerical standard of 20% or less, or another
specific type of deviation specifically authorized by this chapter;
(b)
Numerical deviation to comply with the prevailing setback of
buildings within 100 feet and on the same block and thoroughfare as
the lot; or
(c)
Variance to an otherwise conforming permit on a property that
contains a legal nonconforming use, where the permit would bring the
property into greater conformance.
(2)
The Zoning Administrator shall review the application in consultation
with other agencies as appropriate, and shall transmit the application
to those agencies. The CDD shall inform the applicant of any supplementary
data required for the application.
(3)
The Zoning Administrator may impose reasonable conditions regarding
further expansions, maximum height limits, time limitations, types
of construction, and landscaping to assure the requirements of this
chapter are met.
(4)
The following notification requirements shall apply to administrative
variances:
(a)
Signs supplied by the CDD shall be posted for a minimum of 21
days on the subject property, in conspicuous locations, in a manner
that is reasonably calculated to notify adjacent property owners and
passersby of the proposed special use request.
(b)
Notice of deadline for public input for the administrative variance
shall be published one time at least 21 days prior to the date of
the decision in a newspaper of general circulation in the jurisdiction
of the County.
(c)
Notice of the administrative variance shall be mailed by first-class
mail to the adjacent property owners, as shown by the records of the
County Assessor, of properties within 300 feet of any lot line of
the site in question, excluding streets, alleys, channels, canals
or other public rights-of-way and railroad rights-of-way. A minimum
of 10 different owners shall be required to be notified.
(d)
If a written objection is received within 21 days, the administrative
variance application will be submitted to the P&Z for a public
hearing. The procedures under this section shall be followed for notification
of the P&Z meeting.
(5)
The Zoning Administrator shall notify the applicant of the approval,
approval with conditions, or denial for the administrative variance
in writing. The notice shall either state the nature and conditions
of approval of the administrative variance or shall state the reasons
for denial of the variance. The notice shall also advise the applicant
of the next action.
Uses and structures that were lawful at the time they were established
but would now be prohibited are legal nonconforming uses. Such legal
nonconforming uses shall be permitted to continue, but any enlargement,
expansion, or extension of the nonconforming use or structure shall
be permitted only if the nonconforming use or structure complies with
the requirements of this chapter, except as herein stated. Refer to
Table 5.1, Land Use Classification Matrix: Zoning Districts.
A. Continuance of legal nonconforming uses.
[Amended 12-8-2020 by Ord. No. 317-2020]
(1)
Unless otherwise specifically provided for in this chapter,
legal nonconforming uses that were otherwise lawful on the effective
date of this chapter may be continued in current form regardless of
ownership until the current use changes.
(2)
Upon written request and when appropriate, a letter of legal
nonconforming use will be issued by the Zoning Administrator and shall
be required for all nonconforming uses of land, buildings, signs,
structures or mobile homes created by the adoption of this chapter.
It is the responsibility of the property owner(s) to furnish three
documents to the zoning administrator, such as affidavits or other
legal documents, establishing the legal nonconforming use status of
the land, buildings, or mobile homes.
B. Maintenance permitted. A legal nonconforming use, building or structure may be maintained and the occupancy of such building or structure may be continued; however, the nonconforming use shall not be changed or expanded, except as provided for in §
350-209.
C. Expansions, repairs and alterations. Repairs and structural alterations
may be made to a nonconforming mobile home, building or to a building
housing a nonconforming use; however, the nonconforming use shall
not be expanded or intensified. The modification of existing buildings
is permitted by right if such changes result in greater conformance
with the specifications of this chapter.
D. Restoration of damaged buildings. Structures housing a legal nonconforming
use damaged or destroyed by fire, flood or other disaster or act of
nature may resume the legal nonconforming use, provided that restoration
pursuant to current adopted Building Code is commenced within a period
of one year from the date of destruction and is diligently pursued,
without abandonment of the project, to completion. Such restoration
shall not increase the floor area devoted to the nonconforming use
over that which existed at the time the structure came into nonconforming
status, unless required by the current adopted building codes. Any
increase of the floor area shall not exceed the minimum required by
such Building Code. A building permit or mobile home installation
permit shall be obtained and countersigned by the Zoning Administrator
noting any restrictions and requirements to enable the nonconforming
use to continue without violation of this chapter.
E. Discontinuance or abandonment. A legal nonconforming use, building,
mobile home or structure or portion thereof or a lot occupied by a
nonconforming use that is or hereafter becomes abandoned or is discontinued
for a continuous period of one year shall not thereafter be occupied
except by a use that conforms to the regulations of the zone in which
it is located and the standards set forth in this chapter.
F. Transfer of use. If a legal nonconforming use is sold, leased or
otherwise transferred, the use may continue with no change or expansion
of use, unless the change is to a conforming use under this chapter.
G. Change of use. The legal nonconforming use of a building or structure
may not be changed except to a conforming use, but where such change
is made, the use shall not thereafter be changed back to a nonconforming
use.
H. Expansion of use permitted. A legal nonconforming use may be extended
throughout any portion of a completed building when the use was made
nonconforming by this chapter and when it was clearly designed or
arranged to accommodate such use.
I. Nonconforming use of land. The legal nonconforming use of land, existing
at the time this chapter became effective, may be continued, provided
that no such nonconforming land use shall in any way be expanded,
extended or increased in intensity of use, either on the same or adjoining
property, and provided that if such nonconforming use of land or any
portion thereof is abandoned for a period of one year or more, any
future use of such land shall be in conformity with the provisions
of this chapter.
J. Nonconforming lots. When a legal nonconforming lot can be used in
conformity with all of the regulations applicable to the intended
use, except that the lot is smaller than the required minimum set
forth in this chapter, the lot may be used as zoned as if it were
conforming.
K. Permits granted prior to passage of Code. Authorization granted by
the County to construct a building or structure shall not be denied
or abridged in the event that a building permit has been issued and
such permit is still valid. In the case of a special use permit issued
prior to the effective date of this chapter, the use may be continued
as a nonconforming use and shall not be expanded or changed in use.
Any permit approved prior to adoption of this chapter and that has
not begun or does not comply with the approved conditions may not
be extended beyond the one-hundred-eighty-day period from issuance
of the permit.
All land use applications submitted to the CDD shall expire
by limitation and become null and void if no action is taken by the
applicant within 180 days after receiving written notification of
inaction from the Zoning Administrator. The Zoning Administrator may
grant extensions to the applicant for periods not exceeding 90 days
upon written request by the applicant explaining the circumstances
beyond the control of the applicant that have prevented any action
from being taken.
Any aggrieved person or party may appeal a final written decision of a decision-making authority listed in §
350-104A, other than a decision of the Zoning Administrator, to the next higher level within 30 days of the written and recorded decision. Appeal of a decision of the Zoning Administrator must be within 30 days of the written decision.
A. Procedure.
(1)
The appeal shall be initiated by the filing of a written notice
with the CDD prior to 5:00 p.m. on the 30th calendar day following
the date of the decision.
(2)
The notice of appeal shall concisely and specifically set forth
in writing the points on which it is urged the decision should be
set aside by the next higher level of Authority.
(3)
Appeal hearings before the P&Z and BOCC shall be de novo
hearings, and may include review and consideration of the record and
of any new evidence submitted prior to or during the hearing.
(4)
Public notice shall be given in the same manner as required
for the action being appealed.
(5)
The hearing on appeal shall be commenced within 60 days of the
filing of the notice of appeal.
(6)
Decisions on appeals by the BOCC shall be made by a majority
vote unless the decision being appealed required a greater than majority
vote of the P&Z, in which case the increased vote requirement
shall be applicable to the decision by the BOCC on the appeal.
(7)
The next level of administrative authority may approve or reverse
the decision of the lower level of administrative authority, or make
such modification on the appeal as it deems necessary, in order to
protect the public interest. The decision shall be based on findings
of fact.
(8)
Appeals of final administrative decisions of the BOCC to District
Court shall be governed by NMSA 1978, § 39-3-1.1, as amended.
B. Quasijudicial nature of appeals. Hearings on appeals shall include
the following:
(1)
A person or group filing an appeal shall include a written statement
of appearance giving the name and address of the person making the
appeal, signed by the person or the person's agent. This statement
will constitute an appearance of record.
(2)
The parties to a quasi-judicial matter shall be any of the following
who have entered an appearance of record:
(a)
The applicant or applicant's agent;
(b)
The owners, as shown on the records of the County Assessor,
of lots comprising the application site, and lots within the area
of notice of the original action;
(c)
The representatives of any department or agency of the County
that may be affected by the application; and
(d)
Any person or entity whom the P&Z or BOCC, acting as the
Board of Appeals, determines to be an aggrieved person or party.
(3)
A party shall be afforded the opportunity to present evidence
and argument and to question and cross-examine witnesses on all relevant
issues. The decision-making authority on appeal may impose reasonable
limitations on the number of witnesses heard, and on the nature and
length of testimony and questioning to avoid unnecessary and duplicative
testimony and assure that testimony and questioning is relevant to
the case.
(4)
The Zoning Administrator, the P&Z or the Board of Appeals
may question witnesses and may request to review documents presented.
The Zoning Administrator shall keep a record of all proceedings in
quasi-judicial matters heard by the P&Z. The County Clerk shall
keep a record of all proceedings in quasi-judicial matters heard by
the Board of Appeals.
(5)
All testimony shall be made under oath or affirmation.
C. Stay of proceedings. An appeal shall stay all proceedings in furtherance
of the action appealed unless the appellant certifies that by reasons
therein stated, a stay would cause imminent peril of life and property.
Upon certification, the proceedings shall not be stayed except by
order of a District Court after a notice is provided to the appellant.