This article implements § 350-103, Intent, by providing procedures for complying with the regulations of this chapter.
A.
Legislative hearing procedures. In addition to the legislative amendments contained in § 350-107A, the Planning and Zoning Commission (P&Z) shall review proposed legislation in a public meeting per the New Mexico Open Meetings Act where it shall seek public input. The P&Z shall consider all input and presentations and shall make a formal recommendation to the BOCC regarding legislative matters. The following procedures shall be followed for public hearings of the Board of County Commissioners (BOCC) for legislative matters:
(1)
Legislative changes to zoning regulations.
(a)
A majority of the BOCC may order publication of the title and
a general summary of a proposed ordinance in a newspaper of general
circulation in the County at least once a week for two consecutive
weeks prior to the date of the meeting of the BOCC at which the ordinance
is to be submitted for final passage. The date of the meeting shall
be included in the published notice. The style and form of the ordinance
shall be determined by the BOCC. [NMSA 1978, § 3-21-14]
(b)
A proposed ordinance shall be passed only by a majority vote
of all the members of the BOCC, and an existing ordinance shall be
repealed by the same vote. [NMSA 1978, § 3-21-14]
(c)
The original copy of the ordinance together with the proof of
publication and supporting maps shall be filed in a book kept for
that purpose and authenticated by the signature of the County Clerk.
The County Clerk shall keep the book together with supporting maps
in the Clerk's office. The title and a general summary of the ordinance
shall be published in a newspaper of general circulation in the County
once each week for two consecutive weeks, the last date of publication
being not less than 15 nor more than 30 days prior to the effective
date of the ordinance. No ordinance shall take effect until at least
15 days after the last date of publication. It is a sufficient defense
to any prosecution for violation of an ordinance to show that no publication
was made. Copies of the proposed ordinance shall be made available
to interested persons during normal and regular business hours of
the County Clerk upon request and payment of a reasonable charge,
beginning with the date of publication and continuing to the date
of consideration by the BOCC. [NMSA 1978, § 3-21-14]
(2)
Legislative changes to subdivision regulations.
(a)
The BOCC shall authorize publication of title and general summary
one time at least two weeks prior to the public hearing to consider
the amendment, which shall become effective 30 days after it has been
recorded in the Office of the County Clerk [NMSA 1978, §§ 4-37-7
and 9].
(b)
Prior to adopting, amending or repealing any subdivision regulation,
the BOCC shall consult with representatives of the State Engineer's
Office, the NM Environment Department, the Office of Cultural Affairs,
all Soil and Water Conservation Districts within the County, the NM
Department of Transportation and the Attorney General about the subjects
within their respective expertise for which the BOCC is considering
promulgating a regulation. In the process of the consultation, the
representatives of each of the state agencies shall give consideration
to the conditions peculiar to the county and shall submit written
guidelines to the BOCC for its consideration in formulating regulations
[NMSA 1978, § 47-6-10].
(c)
A subdivision regulation may not be adopted, amended or repealed
until after a public hearing held by the BOCC. Notice of the hearing
shall be given at least 30 days prior to the hearing date and shall
state:
[1]
Subject of the regulation;
[2]
Time and place of the hearing;
[3]
Manner in which interested persons may present their views;
and
[4]
Place and manner in which interested persons may secure copies
of any proposed regulation. The BOCC may impose a reasonable charge
for the costs of reproducing and mailing of the proposed regulations.
(d)
The notice shall be published in a newspaper of general circulation
in the County.
(e)
Reasonable effort shall be made to give notice to all persons
who have made a written request to the BOCC for advance notice of
its hearings.
(f)
The BOCC shall give the state agencies listed above 30 days'
notice of its regulation hearings.
(g)
At the hearing, the BOCC shall allow all interested persons
reasonable opportunity to submit data, views or arguments, orally
or in writing. The BOCC shall keep a complete record of the hearing
proceedings.
(h)
Representatives from the above listed state agencies shall be
given the opportunity to make an oral statement at the hearing and
to enter into the record of the hearing a written statement setting
forth any comments that they may have about the proposed regulation,
whether favorable or unfavorable, when the proposed regulation relates
to an issue that is within the agencies' respective areas of expertise.
(i)
A regulation is not invalid because of the failure of a state
agency to submit a guideline prior to the promulgation of the regulation
or because the representative of a state agency did not appear at
a public hearing on the regulation or did not make any comment for
entry in the hearing record.
(j)
The BOCC shall act on the proposed regulation at the subdivision
regulation hearings or at a public meeting to be held within 30 days
of the hearing on the proposed regulations. Upon adopting, amending
or repealing the regulations, the BOCC shall include in the record
a short statement setting forth the BOCC's reasoning and the basis
of the BOCC's decision, including the facts and circumstances considered
and the weight given to those facts and circumstances.
(k)
Any person heard or represented at the hearing shall be given
written notice of the BOCC's decision, including the facts and circumstances
considered, if the person makes a written request to the BOCC for
notice of its decision.
(l)
A regulation, amendment or repeal is not effective until 30
days after it is filed with the County Clerk and the State Records
Administrator.
B.
General quasi-judicial hearing procedures. The following procedures
shall apply to quasi-judicial hearings of the BOCC and P&Z:
(1)
In the hearing, the P&Z and BOCC shall consider all oral
and written statements from reviewing agencies, the applicant, the
public and County staff.
(2)
Any party may submit written protests or statements to the Zoning
Administrator prior to the public hearing that the P&Z and BOCC
may consider in their decision. These shall include the name, address,
and signature of the party or parties.
(3)
The P&Z and BOCC may approve a matter by a majority of the
full membership if it is in the public interest, is in conformance
with the goals of the Comprehensive Plan and meets all other decisional
criteria articulated in this chapter except as limited by NMSA 1978,
§ 3-21-6.C.
C.
Specific rules of due process for quasi-judicial hearings.
(1)
All persons giving oral testimony before the P&Z or the
BOCC in quasi-judicial hearings, including staff, shall be sworn in,
and testimony shall be taken under oath or affirmation.
(2)
Parties appearing before the P&Z or the BOCC shall be afforded
a reasonable opportunity to present documentary and physical evidence,
the testimony of witnesses, and argument, to cross-examine all persons
testifying before the P&Z or BOCC, and to rebut evidence presented
by opposing parties. In the interest of preserving an orderly and
efficient hearing, the P&Z or the BOCC may require that cross-examination
of a witness be accomplished by directing questions of the witness
through the Chair of the P&Z or the BOCC.
(3)
Subject to the limitations herein, persons desiring to present
testimony to the BOCC in quasi-judicial hearings may do so without
having to establish an appearance on the record in the prior related
hearing on the matter before the P&Z.
(4)
So-called "statements" contained within documents offered as
evidence shall not be excluded solely on grounds that such "statements"
are not subject to cross-examination. However, the P&Z or the
BOCC may upon other grounds limit the introduction of, or the weight
given to, such documents and the "statements" they contain.
(5)
The formal rules of evidence applicable in civil judicial proceedings
shall not apply to quasi-judicial hearings before the P&Z or the
BOCC.
(6)
All relevant evidence and testimony having probative value,
including hearsay, is admissible in quasi-judicial hearings if it
is the type of evidence on which reasonable, prudent persons are accustomed
to rely in the conduct of their serious affairs.
(7)
Irrelevant, immaterial or unduly repetitious evidence shall
be excluded.
(8)
All persons desiring to submit documentary evidence to the P&Z
or BOCC are strongly encouraged to present such evidence to the appropriate
Planning Staff sufficiently in advance of the hearing for inclusion
in the P&Z or BOCC agenda packets. If, during a hearing on a particular
matter, a person offers documentary evidence that was not included
in the P&Z or the BOCC agenda packets for that matter, the P&Z
or BOCC may recess, table, or postpone further action on the matter
until the P&Z or BOCC has had sufficient opportunity to review
the offered documentary evidence, or may take such other action as
the interests of justice and due process may require.
(9)
All persons intending to submit documentary evidence to the
BOCC during a hearing shall provide a minimum of 10 copies of such
documentary evidence at the time it is offered. All persons intending
to submit documentary evidence to the P&Z during a hearing shall
provide a minimum of 12 copies of such documentary evidence at the
time it is offered.
(10)
For purposes of this chapter, documentary evidence includes,
but is not limited to, letters, written statements, spreadsheets,
petitions, reports, diagrams, charts, photographs, computer discs,
and presentations in printed or electronic form.
(11)
All parties in interest and citizens shall have an opportunity to be heard subject to the limitations consistent with Subsection C(7) above. Normally, more formal presentations by parties, such as those involving slide presentations, charts, handouts, or expert testimony, should be limited to 15 minutes. Less formal comments from members of the public should normally be limited to three minutes. The P&Z and the BOCC may grant or limit such time for presentations, testimony, and comments as justice and fairness under the circumstances may require.
(12)
The P&Z and the BOCC may determine the credibility of witnesses
and the weight to be accorded to any testimony or evidence presented.
D.
Representation; legal argument; spokesperson designation for quasi-judicial
hearings.
(1)
Individual parties, groups, and entities appearing at quasi-judicial
hearings before the P&Z or the BOCC, and interested members of
the public desiring to present public comment, are not required to
be represented by an attorney although they may be represented by
an attorney at their own expense and have that attorney speak on their
behalf.
(2)
If any person, or their attorney, intends to present legal argument
referencing specific ordinance sections, statutes, judicial decisions,
or other legal authority at the hearing, a written memorandum containing
such legal argument, along with citations to the specific legal authorities
relied upon, shall be submitted to the appropriate County staff sufficiently
in advance of the hearing for inclusion in the P&Z or BOCC agenda
packets. If at a hearing any person, or their attorney, presents legal
argument referencing specific ordinance sections, statutes or judicial
decisions without having submitted a memorandum in advance of the
hearing, the P&Z or BOCC may recess, table, or postpone further
action on the matter until the appropriate County staff have had sufficient
opportunity to analyze the citations to authority, and may take such
other action as the interests of justice and due process may require.
(3)
Entities such as neighborhood associations and other groups
of individuals with members sharing common positions or comments may
designate a single non-attorney spokesperson to present the common
positions or comments of the entity or group of individuals to the
P&Z or BOCC in lieu of individual testimony or comment. Nothing
in this chapter shall authorize the practice of law by a non-attorney
on another person's behalf.
E.
Ex-parte communication.
(1)
All communication with members of the P&Z or BOCC occurring
outside of a public hearing and concerning the substance of a specific
matter that is pending, or that may reasonably be brought before the
P&Z or BOCC for quasi-judicial action, constitutes ex-parte communication
and is prohibited. Ex-parte communication includes, but is not limited
to, communication by telephone, voicemail message, note, letter, document,
text message, email, photograph, or facsimile transmission, and includes
communication from an applicant, proponent, opponent, adjacent property
owner, or any member of the public with an interest in the particular
matter.
(2)
Ex-parte communication does not include P&Z or BOCC communication
with County staff.
(3)
Outside of a public hearing, an applicant, a proponent, an opponent,
an adjacent property owner, or a member of the public with an interest
in a particular matter that is pending, or that may reasonably be
brought, before the P&Z or BOCC for quasi-judicial action should
communicate only through the appropriate County staff and not with
a member of the P&Z or BOCC.
A.
Town hall meeting. The town hall meeting is intended to provide for
an exchange of information between the applicant, community residents
and property owners of affected adjacent properties. The applicant
shall present a conceptual site plan and other associated information
explaining the land use proposal. This meeting affords the community
with the opportunity to provide input regarding health, safety and
quality of life concerns prior to major investment for a development
project. The town hall meeting also aligns with the Livability Principles
of the Comprehensive Plan.
(1)
The applicant shall convene a town hall meeting for the following:
(2)
The applicant shall provide a notice of the town hall meeting
at least 21 days prior to the date of the meeting and shall be:
(a)
Published one time in a newspaper of general circulation in
the County;
(b)
Posted at local community centers and post office;
(c)
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. This area shall be the area of notice; and
(d)
Signs, supplied by the CDD, posted on the subject property in
conspicuous locations to notify adjacent property owners and passersby
of the proposed land use request.
(3)
No P&Z or BOCC Commissioner shall attend the town hall meeting.
(4)
The applicant shall arrange for the use of the facilities in
which the town hall meeting is to be held at the nearest available
facility to the land subject of the application, including accessible
locations and accommodations for English/Spanish translation prior
to the meeting. County staff shall be in attendance to observe, take
notes, and answer any questions related to the Code of Dona Ana County.
[Amended 12-8-2020 by Ord. No. 317-2020]
(5)
The applicant shall hire a moderator to preside over the town
hall meeting. The moderator shall conduct the meeting, decide all
questions of order and manage the order of speakers at the meeting.
The moderator may order the removal of a person who persists in behaving
in a disorderly manner.
(6)
The town hall meeting shall occur after a preapplication conference following the requirements of § 350-202C, Preapplication conference, and prior to submittal of the development application.
(7)
The applicant shall submit a town hall meeting summary report
within 10 working days to the CDD that includes:
(a)
Town hall meeting(s) location, noting date and facility; the
number of people that attended; and copies of sign-in sheets;
(b)
Copies of comment letters, petitions, and other pertinent information
received from residents and other interested parties; and
(c)
Summary of the issues and concerns discussed at the meeting(s)
including a list of potential solutions and any subsequent agreements,
and unresolved issues and concerns, if applicable.
B.
General notice requirements. Unless specific procedures are required
elsewhere in this chapter, the following notice requirements shall
apply:
(1)
Signs, supplied by the CDD, shall be posted for a minimum of
21 days on the subject property in conspicuous locations to notify
adjacent property owners and passersby of the proposed land use request.
(2)
Notice of the time and place of the 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 County.
(3)
Whenever a parcel, lot, or area of land is to be considered
for a zone change, special use permit, variance, master plan, community
type, or subdivision, notice of public hearing 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 but
the area of notice shall not exceed a one-mile radius;
[Amended 12-8-2020 by Ord. No. 317-2020]
C.
Preapplication conference. The applicant for a land use request shall
attend at least one preapplication conference with CDD staff. In this
conference, the applicant shall be given general advice about the
procedures and data requirements for the land use request. The applicant
shall prepare a conceptual plan prior to the first preapplication
conference. CDD staff shall review the proposed land use request and
shall inform the applicant as to the reviews and approvals required.
Neither the applicant nor the County shall be bound by any statements
or determinations made during the preapplication conference.
A.
Zone changes may be initiated by the CDD, P&Z, BOCC, or by application
submitted by any person or property owners (including all parties
having an equitable interest, trustees of an estate, all persons having
a specific power of attorney or have the written consent and signature
of the property owner) to be considered for a zone change.
B.
Other than zone changes initiated by the CDD, P&Z, or BOCC, an
applicant for a zone change shall complete and submit an application
in accordance with the procedures established herein. In addition,
the application shall include the following information:
(1)
The legal description and address of the property for the zone
change;
(2)
The property's current and proposed zoning classification;
(3)
The justification for the zone change addressing the decisional criteria contained in § 350-203D; and
(4)
A conceptual site plan showing arrangement of uses proposed
and the relationship to adjacent natural and built networks. The conceptual
site plan is for information only and is not intended to be used in
approval of subsequent building plans, unless required by the P&Z
or BOCC at a public hearing.
C.
Public hearing for a zone change. No zone change shall be approved until a public hearing has been held by the P&Z, who shall approve, conditionally approve, or deny in accordance with the general notice requirements established in § 350-202B.
(1)
No zoning regulation, restriction or boundary shall become effective,
amended, supplemented or repealed until after a public hearing at
which all parties in interest and residents shall have an opportunity
to be heard. Notice of the time and place of the public hearing shall
be published, at least 21 days prior to the date of the hearing, within
its respective jurisdiction. Whenever a change in zoning is proposed
for an area of one block or less, notice of the public hearing shall
be mailed by certified mail, return receipt requested, to the owners,
as shown by the records of the County Assessor's, of lots of land
within the area proposed to be changed by a zoning regulation and
within 300 feet, excluding public right-of-way, of the area proposed
to be changed by zoning regulation.
(2)
Whenever a change in zoning is proposed for an area of more
than one block, notice of the public hearing shall be mailed by first
class mail to the owners, as shown by the records of the County Assessor's,
of lots or of land within the area proposed to be changed by a zoning
regulation and within 300 feet, excluding public right-of-way, of
the area proposed to be changed by zoning regulation. If the notice
by first class mail to the owner is returned undelivered, the zoning
authority shall attempt to discover the owner's most recent address
and shall remit the notice by certified mail, return receipt requested,
to that address.
(3)
If the owners of 20% or more of the area of the lots and of
land included in the area proposed to be changed by a zoning regulation
or within 100 feet, excluding public right-of-way, of the area proposed
to be changed by a zoning regulation, protest in writing the proposed
change in the zoning regulation, the proposed change in zoning shall
not become effective unless the change is approved by a two-thirds
vote of all the members of the BOCC.
(4)
A case may be postponed until the next regular meeting or until
such time as the matter may be resolved.
D.
Decisional criteria for a zone change.
(1)
A proposed zone change shall be consistent with the intent of
this chapter and promote the health, safety, and general welfare of
the residents of the County. Additional factors that the P&Z and
BOCC may consider in decisions include but are not limited to:
(a)
Potential number of homes, if applicable;
[Amended 12-8-2020 by Ord. No. 317-2020]
(b)
Population;
(c)
Demographics;
(d)
Potential traffic flows and impacts;
(e)
Need for new commercial or residential activity;
(f)
Potential water and sewer needs;
(g)
Existing infrastructure capacities and the ability of existing
systems to accommodate new development;
(h)
Environmentally sensitive areas, areas of historical significance,
or areas that contain endangered or rare species of animal and plant
life;
(i)
The impact of a proposed zone change on surrounding properties;
and
(j)
Implementation of best management practices for the development.
(2)
The cost of land or other economic considerations pertaining
to the applicant shall not be the sole determining factor for a zone
change.
(3)
Stability of land use and zoning is desirable; therefore, the
applicant shall provide a sound justification for the zone change.
The burden is on the applicant to show why the change should be made.
(4)
A proposed zone change shall not be in significant conflict
with the Comprehensive Plan or other adopted or approved County plans
and amendments thereto, including privately developed area plans that
have been adopted by the County.
(5)
The applicant shall demonstrate that the requested zone change
is supported by a:
[Amended 12-8-2020 by Ord. No. 317-2020]
(6)
Where evidence of a change or mistake is adduced, there is no
reciprocal right to a change in zoning, nor is there a threshold evidentiary
standard which when met compels rezoning. Even with very strong evidence
of a change or mistake, a zone change may be granted, but is not required
to be granted, except where a failure to do so would deprive the owner
of all economically viable use of the property.
(7)
The applicant has the burden of overcoming the presumption that
the current zoning district designation is the most appropriate designation.
(9)
Location on a collector or major thoroughfare is not in itself
sufficient justification for apartment, office, commercial or industrial
zoning.
(10)
A zone change that results in a zone different from surrounding
zoning on a strip of land along a thoroughfare is generally called
"strip zoning." Strip commercial zoning may be approved only where:
(a)
The change will clearly facilitate realization of the Comprehensive
Plan; and
(b)
The area of the proposed zone change is different from surrounding
land as it could function as a transition between adjacent zones;
because the site is not suitable for the uses allowed in any adjacent
zone due to topography, traffic, or special adverse land uses nearby;
or because the nature of structures already on the premises makes
the site unsuitable for the uses allowed in any adjacent zone due
to traffic or special adverse land uses nearby.
(11)
Spot zoning is prohibited. Spot zoning is an attempt to wrench
a single lot from its environment and give it a new rating that disturbs
the tenor of the neighborhood, and which affects only the use of a
particular piece of property or a small group of adjoining properties
and is not related to the general plan for the community as a whole,
but is primarily for the private interest of the owner of the parcel.
Spot zoning is determined on an ad hoc basis depending on the facts
and circumstances of each case. Factors to be considered are:
(12)
Approval procedures and conditions. The P&Z may approve, conditionally approve or deny a zone change with a right to appeal to the BOCC 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 zone change to surrounding properties in order to protect the public interest.
[Added 12-8-2020 by Ord. No. 317-2020]
E.
Change-mistake rule. In the event of a zoning classification error
by the County on the official County Zoning Map, the County shall
correct the error through a County-initiated zone change at no cost
to the applicant.
[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.
(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:
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.
[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.
A.
Detailed site plan review and approval. No person shall commence
any use or construction for which a detailed site plan is required
under this chapter without first obtaining approval of such site plan.
A detailed site plan shall be required for all uses and buildings.
All detailed site plans for commercial, industrial and multifamily
uses shall be prepared by a professional engineer, architect, or surveyor
licensed in the State of New Mexico.
[Amended 12-8-2020 by Ord. No. 317-2020]
B.
Detailed site plan requirements. A site plan and its accompanying
materials shall indicate the following:
(1)
Location and legal description of the property.
(2)
Location, arrangements, and dimensions of the property and of
all existing and proposed uses, buildings, structures, landscaping
and buffering, contours or spot elevations of terrain, paving, drainage
structures, utilities and septic facilities. These shall be labeled
according to their use.
(3)
Lot coverage data including all impervious areas expressed in
square footage and percentage of total lot area.
(4)
(5)
The location, dimensions and descriptions of all existing and
proposed utility easements, ingress and egress, driveway(s), parking,
including number of spaces, location and dimensions of all parking
and loading areas, bicycle parking areas, accessible spaces, driveways
and islands, and best management practices if applicable.
[Amended 12-8-2020 by Ord. No. 317-2020]
(6)
The location, dimensions, names, and widths of any adjacent
thoroughfares, including bicycle and pedestrian facilities and parkway
widths and landscaping or any other community amenity.
(7)
The location of any required setbacks or other horizontal and
vertical dimensional requirements for the subject property and for
abutting properties.
(8)
The location and dimensions of any proposed signs.
(9)
The location, dimensions, and intensity in lumens of all existing
and proposed exterior lighting.
(10)
The location, dimensions, and capacity of any watercourses on
or adjacent to the property, including watercourses with intermittent
or ephemeral flow.
(11)
The Zoning Administrator, P&Z, BOCC, and other reviewing
agencies may require additional data in report form for uses with
the potential to impact residential development abutting the property,
or within a three-hundred-foot radius of the property, with excessive
traffic, changes in drainage, noise, odor, vibration or concussion,
smoke, fumes, chemical usage or emissions, dust, glare, hazard, or
increased fire danger.
C.
Application. The applicant shall submit a land use application, detailed
site plan and supporting documentation, and shall pay an application
fee. The Zoning Administrator shall review these materials in consultation
with other agencies as appropriate, and shall submit the materials
to those agencies for review and comment. The CDD shall inform the
applicant of any additional data required for the application.
D.
Zoning Administrator determination. The Zoning Administrator shall approve, conditionally approve, or deny the site plan in writing only after determining that the proposed use and site plan are permitted and conform to the standards of this chapter. Approval becomes effective on the date signed by the Zoning Administrator and shall remain valid until the use(s) commence, but not to exceed one year, after which a new application and site plan shall be required. If the site plan is denied, the Zoning Administrator shall state the reasons in writing and mail the letter by first class mail or via facsimile or email within 10 working days of the date of the decision indicating the reasons for denial and instructions for appeal per § 350-216, Appeals.
E.
Site plan revisions. The Zoning Administrator may approve certain
minor revisions to the approved site plan as listed below. Major revisions
and all other minor revisions require new agency review and approval
by the appropriate approving body.
(1)
Minor revisions to dimensional variations less than 25% that
shall be approved by the Zoning Administrator:
(2)
Major revisions including dimensional variations of 25% or more,
include, but are not limited to, the following:
(a)
Change in land use or intensity;
(b)
Modifications of vehicular or traffic volumes and circulation;
(c)
Modifications to pedestrian connectivity;
(d)
Increase in size of property or change in location or configuration
of structures; and
(e)
Revisions to approved access, circulation, drainage, grading,
frontage and height.
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.
A.
Building permits. A building permit shall be required for all construction
within the County as specified in the latest Building Code adopted
by the County. All building permit applications submitted to the Building
Services Division (BSD) shall be reviewed in accordance with the currently
adopted Building Code in effect and subsequent amendments thereto.
Additionally, all building permit applications shall be reviewed for
compliance with the requirements of this chapter, an approved site
plan, delinquent taxes, and all other applicable state and local laws.
B.
Mobile home installation permits. Mobile home installation permits
(MHIP) shall be required for the placement of all mobile homes. All
applications for mobile home installation permits shall be submitted
to the BSD for review. All mobile home installation permit applications
shall be reviewed for compliance with the most current installation
and location standards for the placement of mobile homes in effect,
and subsequent amendments thereto, including the requirements of this
chapter and for compliance with an approved site plan. A mobile home
installation permit application may be approved only if the contents
of that application meet the installation and location standards for
the placement of mobile homes in effect at the time of application.
A MHIP may be refused until compliance with all County Codes is demonstrated.[1]
A.
Subdivisions authorized. Subdivisions are authorized by NMSA 1978,
§ 47-6-1 et seq., § 4-37-1, § 3-20-5,
§ 3-20-6, § 3-20-9.
B.
Approval required. The P&Z shall make a recommendation to the
BOCC on preliminary plats. The BOCC shall approve, approve with conditions,
or deny proposed preliminary and final plats and vacation of plats.
C.
Subdivision conformance. Subdivisions shall conform to the provisions
of this chapter prior to being approved by the BOCC and recorded in
the Office of the County Clerk. Subdivisions may be approved along
with related zone changes at the same hearing.
D.
If a previously approved, filed and recorded subdivision plat specifically
lists or illustrates the actual setbacks or zoning classification
setbacks for that particular platted subdivision, the CDD will not
enforce these building setback descriptions or illustrations. Rather,
the current applicable UDC zoning district building setback standards
of this chapter shall apply.
[Added 11-14-2017 by Ord.
No. 294-2017; 12-8-2020 by Ord. No. 317-2020]
A.
General rule.
(1)
No person shall divide a surface area of land into two or more parcels for the purpose of sale, lease or other conveyance or for building development, whether immediately or in the future, except as provided herein or by submitting a claim of exemption for a matter falling under an enumerated exception to the definition of subdivision in Article VII, Glossary of Terms. The Zoning Administrator shall approve, approve with conditions, or deny the claim of exemption. The definition of "subdivision" and matters eligible for exemptions are provided in Article VII of this chapter. The County, property owner, or their authorized representative may initiate a subdivision application.
[Amended 12-8-2020 by Ord. No. 317-2020]
(2)
The subdivision application may include the following procedures:
(a)
At least one preapplication conference prior to submission of
a formal application and initiation of engineering or design work;
(b)
Pre-engineering conference for subdivisions that include thoroughfares;
(c)
Agency review;
(d)
Summary plat review;
(e)
Preliminary plat review; and
(f)
Final plat review.
(4)
Subdivisions may be submitted in phases and final plats for
each phase may be filed separately.
B.
Preapplication conferences. An applicant for a subdivision shall attend at least one preapplication conference with County staff. In this conference, the applicant shall be given general guidance about the procedures and data requirements for the subdivision application. The applicant may be informed as to the availability of alternatives for the proposed plan, available programs, and other options. The applicant shall prepare a sketch plan for at least one preapplication conference, but shall not prepare engineering or architectural drawings prior to the first preapplication conference. The Zoning Administrator shall review the proposed subdivision and shall advise the applicant as to the fees, reviews and approvals required. Article IV, Subdivisions, outlines the required documentation for submittal. Neither the applicant nor the County shall be bound by any statements or determinations made during the preapplication conference.
C.
Pre-engineering conference for thoroughfare network and traffic impact
analysis. The applicant may be required to submit a traffic impact
analysis (TIA) with the preliminary plat. However, prior to detailed
calculation of the traffic impacts, and prior to summary review by
the Zoning Administrator or preliminary plat review by the P&Z,
the applicant's engineer shall confer with the Engineering Services
Department (ESD) and other County staff to ensure the layout of the
thoroughfare network is likely to satisfy the requirements of this
chapter.
D.
Agency review.
(1)
Within five working days of the plat application package being
deemed complete, the CDD shall forward a copy of the plat and supporting
documentation to the following state and local agencies by either
electronic or certified mail, receipt requested, with a request for
review and opinions:
[Amended 12-8-2020 by Ord. No. 317-2020]
(a)
New Mexico Office of the State Engineer;
(b)
New Mexico Environment Department;
(c)
New Mexico Department of Transportation;
(d)
Soil and Water Conservation District in which the proposed subdivision
is located;
(e)
New Mexico Historical Preservation Division;
(f)
Appropriate school district; and
(g)
Other agencies deemed necessary by the CDD.
(2)
Requests for review shall be delivered to County Departments
through interoffice mail, and the date stamped by each department
on the material received shall serve as receipt of delivery.
(3)
All reviewing agencies shall have 30 days from their receipt
of the plat to review and return an opinion regarding the plat for
the initial review and 15 days thereafter for subsequent reviews,
unless additional time is requested by the reviewing agency. The CDD
shall maintain receipts or other proof showing the date the opinion
request was received by each state or local agency.
[Amended 12-8-2020 by Ord. No. 317-2020]
(4)
Prior to approving any subdivision, the P&Z and the BOCC
shall ensure that the following agencies have been contacted and provided
an opportunity to comment on the subdivision within 30 days receipt
of the plat, and that their comments on the subdivision, if any, have
been received within the time limits permitted in this chapter and
have been given due consideration. In addition to the following agencies,
the zoning administrator, the P&Z and the BOCC may also request
opinions from any other agency or individual with specific expertise
relating to the development of a given subdivision. The following
agencies will be contacted:
[Amended 12-8-2020 by Ord. No. 317-2020]
(a)
State Engineer to determine:
[1]
Whether the applicant can furnish sufficient water quantity
to fulfill the maximum annual water requirements of the subdivision,
including water for indoor and outdoor domestic uses; and
[2]
Whether the applicant can fulfill the proposal in the disclosure
statement concerning water, excepting water quality.
(b)
Department of Environment to determine:
[1]
Whether the applicant can furnish water of an acceptable quality
for human consumption and measures to protect the water supply from
contamination in conformity with state regulations;
[2]
Whether there are sufficient liquid and solid waste disposal
facilities to fulfill the requirements of the subdivision in conformity
with state regulations; and
[3]
Whether the applicant can fulfill the proposals contained in
the disclosure statement concerning water quality and concerning liquid
and solid waste disposal facilities.
(c)
New Mexico Department of Transportation to determine whether
the applicant can fulfill the state highway access in conformity with
state regulations.
(d)
Soil and Water Conservation District to determine:
(e)
State Historic Preservation Division to determine that cultural
properties directly affected by the subdivision are identified and
protected, as required by the Cultural Properties Act, NMSA 1978,
§§ 18-6-1 through 18-6-17.
(f)
Elephant Butte Irrigation District to determine whether the
proposed subdivision infringes on the District's rights-of-way and
whether the lots that will utilize surface water rights are adequately
served with irrigation easements and whether surface water is proposed
for use in the subdivision.
(g)
County Fire Chief to determine whether the subdivision proposal
complies with applicable portions of the International Fire Code (IFC)
and the National Fire Protection Association (NFPA).
(h)
County Engineering Services to determine whether the design,
layout, construction details, disclosure statement and all other facets
of the plan and specific components of the subdivision proposal conform
to all applicable standards.
(i)
County Flood Commission to:
[1]
Determine whether the subdivision lies within a FEMA-designated
floodplain;
[2]
Notify the developer of any ongoing or proposed flood-control
projects that will affect the proposed subdivision; and
[3]
Determine whether the design, layout, construction details,
disclosure statement and all other facets of the subdivision proposal
conform to all applicable standards, as they relate to drainage.
(j)
All utility companies affected by the proposed subdivision to
determine whether the proposed subdivision can provide easements to
meet their respective service needs.
(k)
The affected school district to review the plat and state whether
a school site is proposed in or adjacent to the subdivision.
(5)
If, in the opinion of the appropriate public agency or an Indian nation, tribe or pueblo, a subdivider cannot fulfill the requirements of Subsection D(4) above and § 350-407, or, if the appropriate public agency or the Indian nation, tribe or pueblo does not have sufficient information upon which to base an opinion on any one of these subjects, the subdivider shall be notified of this fact by the BOCC, and the procedure set out below shall be followed:
(a)
If the appropriate public agency or the Indian nation, tribe
or pueblo has rendered an adverse opinion, the Board of County Commissioners
shall give the subdivider a copy of the opinion;
(b)
The subdivider shall be given 30 days from the date of notification
to submit additional information to the public agency or the Indian
nation, tribe or pueblo through the Board of County Commissioners;
and
(c)
The public agency or the Indian nation, tribe or pueblo shall have 30 days from the date the subdivider submits additional information to change its opinion or issue a favorable opinion when it has withheld one because of insufficient information. No more than 30 days following the date of the expiration of the thirty-day period, during which the public agency or the Indian nation, tribe or pueblo reviews any additional information submitted by the subdivider, the Board of County Commissioners shall hold a public hearing in accordance with § 350-212E below to determine whether to approve the preliminary plat. Where the public agency has rendered an adverse opinion, the subdivider has the burden of showing that the adverse opinion is incorrect either as to factual or legal matters. Where the Indian nation, tribe or pueblo has rendered an adverse opinion, the subdivider may submit additional information to the Board of County Commissioners. If a public agency disagrees with an adverse opinion rendered by an Indian nation, tribe or pueblo, that agency shall submit a response to the Board of County Commissioners.
E.
Public hearings on preliminary and final plats.
(1)
Notice of the hearing before the P&Z and BOCC shall be given
at least 21 days prior to the hearing date and shall state the:
(2)
The notice shall be published one time in a newspaper of general
circulation in the County.
(3)
Reasonable effort shall be made to give notice to all persons
who have made a written request for advance notice of the public hearings.
(4)
Public hearings on preliminary and final plats shall be held
within 30 days from the receipt of all requested public agency opinions
where all such opinions are favorable, or within 30 days from the
date all public agencies complete their review of any additional information
submitted by the applicant. If the BOCC does not receive a requested
opinion within the thirty-day period, the BOCC shall proceed with
the public hearing.
(5)
At the public hearing, all interested persons shall be given
a reasonable opportunity to submit data, views or arguments, orally
or in writing, and to examine witnesses testifying at the hearing.
(6)
Within 60 days after the public hearing by the P&Z, providing
all conditions are met, the BOCC shall approve, approve with conditions,
or deny the preliminary plat at a public hearing; this provision is
directory in nature, and the failure to act shall not be deemed an
approval of an application or favorable determination of an appeal
in any manner. The CDD shall inform the applicant in writing of the
decision of the BOCC.
[Amended 12-8-2020 by Ord. No. 317-2020]
(7)
Approval or conditional approval of a preliminary plat shall
constitute approval of the proposed subdivision design and layout
of streets, lots, blocks and utilities submitted on the preliminary
plat, and shall be used as a guide in the preparation of the final
plat.
F.
Summary plat review.
(1)
The following type three and type five subdivisions as defined in Article VII shall be submitted to the County for administrative approval under the summary review procedure:
[Amended 12-8-2020 by Ord. No. 317-2020]
(a)
Type three subdivisions containing five or fewer parcels of
land, unless the land within a subdivision has been previously identified
in the County Comprehensive Plan or this chapter, as an area subject
to unique circumstances or conditions that require additional review
or was previously created by summary review process.
(b)
All type five subdivisions.
(2)
A preapplication conference is required before the submittal of an application for summary review and approval. The preapplication process is described in § 350-212B, Preapplication conferences, of this chapter.
(3)
Summary review plat submittal is initiated by completing an application on a prescribed form obtainable from the CDD, and upon payment of the required administrative fees. An applicant shall prepare a summary review plat, disclosure statement and supporting documentation in accordance with the requirements provided in Article IV of this chapter. The summary review plat shall follow the data requirements of a final plat per Article IV, suitable for filing with the County Clerk.
(4)
Within 10 working days of receipt of the complete application,
fees, summary review plat and supporting documentation, the CDD shall
determine whether review by other state or local agencies is required,
whether or not all required items have been submitted and shall notify
the applicant in writing. If the summary review plat application package
is incomplete, the applicant shall be notified and be given time to
correct the deficiencies and return the summary review plat for consideration.
If any additional information requested is not received by the County
within six months of the date of notification, resubmittal of a new
application package will be required.
(5)
Within 30 days of the date the summary review plat application is deemed complete, review shall be afforded to all County and outside agencies in accordance with § 350-212D, as the Zoning Administrator deems necessary to ensure complete review.
(6)
Signs, supplied by the CDD, shall be posted for a minimum of
21 days on the subject property in conspicuous locations to notify
adjacent property owners and passersby of the proposed land use request.
(7)
If, at the time of approval of the summary review plat, any
public improvements have not been completed by the applicant as required
by this chapter, the Zoning Administrator shall, as a condition preceding
approval of the summary review plat, require the applicant to enter
into a development agreement with the County, on mutually agreeable
terms, to thereafter complete the improvements at the applicant's
expense.
(8)
If the Zoning Administrator does not act upon a summary review
plat within the required period of time, the applicant shall give
the County Manager written notice of the County's failure to act.
If the County fails to approve or reject the summary review plat within
30 days after such notice, the County shall, upon demand by the applicant,
approve the plat without further delay.
G.
Preliminary plat review.
(1)
Preliminary plats shall be submitted for type one, type two, type three for six lots or more, and type four subdivisions as defined per Article VII.
[Amended 12-8-2020 by Ord. No. 317-2020]
(2)
The applicant shall prepare a preliminary plat in compliance with Article IV and pay a fee for preliminary plat review.
(3)
The County staff shall:
(a)
Review the preliminary plat and disclosure statement in consultation with other agencies and transmit the preliminary plat to those agencies for review and comment per § 350-212D;
(b)
Inform and obtain any supplemental data from the applicant required
for the application as requested by the reviewing agency. If any additional
information requested is not received by the County within six months
of the date of notification, resubmittal of a new application package
will be required;
H.
Expiration of preliminary plat.
(1)
An approved or conditionally approved preliminary plat shall
expire 36 months after its approval or conditional approval by the
BOCC. However, if the applicant proposes to file multiple final plats
as provided for under this chapter governing phased development, each
filing of a final plat shall extend the expiration of the approved
or conditionally approved preliminary plat for an additional 36 months
from the date of its expiration or the date of the previously filed
final plat, whichever is later. The number of phased final plats shall
be determined by the BOCC at the time of the approval or conditional
approval of the preliminary plat.
(2)
The expiration of the approved or conditionally approved preliminary
plat shall terminate all proceedings on the subdivision, and no final
plat shall be filed without first processing a new preliminary plat.
[NMSA 1978, § 47-6-11.1]
[Amended 12-8-2020 by Ord. No. 317-2020[1]]
[1]
Editor's Note: This ordinance also repealed former Subsection
H(3), regarding expiration of the approved or conditionally approved
preliminary plat, which immediately followed.
I.
Final plat review and BOCC action.
(1)
Before approving the final plat for a subdivision containing 10 or more parcels, any one of which is two acres or less in size, the BOCC shall require that the applicant provide proof of a service commitment from a water provider and an opinion from the state engineer that the applicant can fulfill the requirements of Paragraph (1) of Subsection F of NMSA 1978, § 47-6-11.
(2)
Upon receipt of the proposed final plat, disclosure statement and any supplementary data, the Zoning Administrator shall provide the required notices and shall schedule a public hearing per § 350-202B, General notice requirements, and § 350-212E, Public hearings on preliminary and final plats, for consideration of the subdivision application by the BOCC.
(3)
After the approval or conditional approval of a preliminary
plat and prior to the expiration of such plat, the applicant may prepare
a final plat in accordance with the approved or conditionally approved
preliminary plat.
(4)
The BOCC shall not deny a final plat if it has previously approved
a preliminary plat for the proposed subdivision and it finds that
the final plat is in substantial compliance with the previously approved
preliminary plat. Denial of a final plat shall be accompanied by findings
identifying the requirements that have not been met.
(5)
If, at the time of approval of the final plat, any public improvements have not been completed by the applicant as required by the BOCC pursuant to this chapter, the BOCC shall, as a condition precedent to the approval of the final plat, require the applicant to enter into an improvement agreement or a modified development agreement with the County upon mutually agreeable terms to thereafter complete the improvements at the applicant's expense consistent with the requirements of Article IV of this chapter.
J.
Substantial completion of subdivision infrastructure improvements.
(1)
The issuance of permits for building construction within subdivisions
in situations where required subdivision infrastructure improvements
such as roadways, drainage facilities, water, and wastewater are not
substantially complete can create risks to the health, safety and
welfare of the occupants of such buildings and to County residents.
The purpose of this section is to prevent such risks by requiring
substantial completion of required subdivision infrastructure prior
to issuance of building permits. This section applies to permits for
construction of residential, commercial or industrial buildings in
the unincorporated areas of Doña Ana County.
(2)
The County shall not issue building permits or certificates
of occupancy for construction of residential, commercial or industrial
buildings within a subdivision or phase of a subdivision until all
required subdivision infrastructure improvements for the subdivision
or phase of the subdivision have been determined by the County to
be substantially complete under this section. The applicant is responsible
for ensuring such subdivision improvements are completed.
(3)
A developer, lot owner, or other applicant for a building permit
or certificate of occupancy may appeal the CDD's determination that
a subdivision or phase of a subdivision is not substantially complete
under the provisions of this section. The appeal shall be initiated
by filing a written notice of appeal with the CDD within 10 working
days from the date of the CDD's final written determination. The notice
of appeal shall cite the specific reasons for the appeal and the relief
sought, and shall be accompanied by the appropriate fee and supporting
information. The appeal shall be heard by the BOCC.
(4)
Notwithstanding the provisions of § 350-212 J(2) above, the County may issue a limited number of conditional building permits for construction of residential, commercial or industrial buildings within a subdivision. The building permit for a particular subdivision, or phase thereof, shall be limited to 10% of the total lots contained in the subdivision or phase thereof. If the calculation of the number of conditional building permits that may be eligible to be issued for a subdivision or phase thereof results in a fraction, then the County shall round up to the nearest whole number. The applicant and the property owner(s) requesting a conditional building permit shall acknowledge in writing, in a form acceptable to the County, that the conditional building permit is subject to the following conditions and restrictions:
(a)
No final inspection shall be conducted, and no certificate of occupancy shall be issued, for any building constructed under a conditional building permit, as provided in this section, until the required subdivision infrastructure is deemed substantially complete by the County, pursuant to the terms of this section. Notwithstanding the prohibitions in this subsection, and in Subsection J(4)(b) and (c) below, a final inspection may be conducted and a certificate of occupancy may be issued for one building per subdivision or phase thereof, to be used solely as a model home or sales office for the subdivision, prior to the infrastructure for the subdivision or phase thereof being deemed substantially complete by the County.
(b)
The applicant and property owner(s) shall not occupy and shall
not allow any other person to occupy the building subject to the conditional
building permit until the required subdivision infrastructure is deemed
substantially complete and a certificate of occupancy is issued by
the County.
(c)
The applicant and property owner(s) shall not make, request,
or allow any final connection of any water, electric or gas utility
service to the building and shall not make, request or allow any water,
electric or gas meter to be installed for the building unless and
until the required subdivision infrastructure is deemed substantially
complete by the County, pursuant to the terms of this chapter. This
subsection does not apply to the temporary connection of water or
electric service solely for the purpose of facilitating building construction.
(d)
The applicant and the property owner(s) shall assume all risks,
liability and damages associated with the commencement of building
construction prior to the substantial completion of the required subdivision
infrastructure, and shall agree to hold harmless Doña Ana County,
its officers, officials, agents and employees.
(e)
A conditional building permit may be revoked for violation of any of the conditions or restrictions applicable to conditional building permits issued under this section, and any such violation shall, in addition to any other remedies provided by law, constitute a petty misdemeanor punishable as set forth in Doña Ana County Code § 1-20.
(f)
The fee for a conditional building permit under this section
shall be the same as that established for regular building permits.
K.
Recording plats.
(1)
A final plat is in full force and effect only after having been
recorded in the Office of the County Clerk. When the improvements
required on the final plat are in place, and have been inspected and
approved by the County Engineer, the County Engineer shall transmit
to the Zoning Administrator an authorization to record the final plat
and disclosure statement in the Office of the County Clerk. The plat
may not be recorded until all improvements have been completed or
upon posting a financial guarantee on a form approved by the BOCC.
(2)
If an applicant wishes to submit the final plat for review,
approval, and recording before completion of required improvements,
the applicant shall post a financial guarantee in an amount recommended
by the County Engineer. The guarantee shall be not less than 125%
of the estimated cost of the required improvement. This guarantee
may be included in a development agreement, including, but not limited
to, a bond, letter of credit, escrow deposit, or other method explicitly
approved by the BOCC.
(3)
One-year construction warranty and release of collateral shall
follow the requirements of this chapter.
L.
Requirements for sale, lease, or other conveyance. It is unlawful
to sell, lease, or otherwise convey land within a subdivision before:
(1)
The required and approved disclosure statement and final plat
has been recorded in the Office of the County Clerk;
(2)
All corners of all parcels and blocks within the subdivision
have been permanently marked with metal stakes in the ground and a
reference stake placed beside one corner of each parcel;
(3)
The prospective purchaser, lessee or other person acquiring
an interest in the subdivided land has been given a copy of the disclosure
statement accompanied by a readable copy of the final plat; and
(4)
Supporting documentation and sources of information provided
in the disclosure statement shall be cited and, if applicable, engineering
certification provided.
M.
Acceptance of thoroughfares. Upon full conformity with the requirements
of this chapter, the thoroughfares may be accepted for maintenance
by the County. Acceptance of offers of dedication on a final plat
shall not be effective until the final plat is filed in the Office
of the County Clerk or a resolution of acceptance by the BOCC is filed
in that Office. Upon receipt of a letter of non-acceptance from the
CDD, the applicant may make the necessary corrections and resubmit
the application.
N.
Succeeding subdivisions.
(1)
Unless subject to a variance approved pursuant to § 350-207, any proposed subdivision shall be combined with a previous subdivision and upgraded for classification purposes and improvement requirements by the BOCC if the proposed subdivision includes:
(a)
A part of a previous subdivision that has been created in the
preceding seven-year period;
(b)
Any land retained by an applicant after creating a previous
subdivision if the previous subdivision was created in the preceding
seven-year period; or
(c)
Land adjoining a previous subdivision that is owned by the original
applicant.
(2)
The cost of improvements required to upgrade the subdivision
shall be the responsibility of the owner of the lot or lots being
subdivided or of the party initiating the action.
O.
Vacation of plats.
(1)
Any final plat filed in the Office of the County Clerk may be
vacated or a portion of the final plat may be vacated if:
(a)
The owners of the land proposed to be vacated sign an acknowledged
statement, declaring the final plat or a portion of the final plat
to be vacated, and the statement is approved by the BOCC; or
(b)
The BOCC finds that a plat was obtained by misrepresentation
or fraud and orders a statement of vacation to be prepared by the
County.
(2)
The vacation of all or a portion of a final plat shall be initiated
by submittal of the statement of vacation to the Zoning Administrator,
along with the names of all owners of record of property within the
subdivided land to be vacated, the names of all owners of record of
property contiguous to the subdivided land to be vacated, and statements
of acceptance by public utilities. The authorized representatives
of all utility companies that have easements within the subdivision's
proposed vacation of the plat must sign a notarized statement agreeing
to the proposed vacation.
(3)
Within 60 days after the date of receipt of the statement of
vacation and payment of appropriate review fees, the BOCC shall approve
or deny the vacation, subject to the following:
(4)
In approving the vacation of all or a part of a final plat,
the BOCC shall decide whether any person is adversely affected by
the vacation. In approving the vacation of all or a portion of a final
plat, the BOCC may require that roads dedicated to the County in the
final plat continue to be dedicated to the County.
(5)
The approved statement declaring the vacation of a portion or
all of a final plat shall be filed in the Office of the County Clerk.
The final plat shall be marked with the words "Vacated" or "Partially
Vacated" and refer on the final plat to the volume and page that the
statement of vacation is recorded.
(6)
The rights of any utility existing before the total or partial
vacation of any final plat are not affected by the vacation of a final
plat.
P.
Exemptions.
[Amended 12-8-2020 by Ord. No. 317-2020]
(1)
It is unlawful for any person to divide a surface area of land, including land within a previously approved subdivision, into two or more parcels for the purpose of sale, lease or other conveyance or for building development, whether immediate or future, unless such person either obtains approval for a subdivision as provided in this chapter or files and obtains approval for a claim of exemption as provided in this chapter. Claims of exemption shall not be permitted in subdivisions that were approved and recorded by the County or the ETZ subdivision process. A replat or a new subdivision application shall be required in order to further divide a platted subdivision lot. For a list of exemptions, see definition of "subdivision" in Article VII, Glossary of Terms.
(2)
Verification of exemption.
(a)
Any person claiming entitlement to an exemption under the provision
of this chapter shall file a written claim of exemption on the form
prescribed in the Appendix of this chapter[2] with the Zoning Administrator before making the land division
for which the claim of exemption is made.
(b)
The Zoning Administrator shall review the claim of exemption
and supporting documents and shall notify the applicant within 30
days by either personal notification or first-class mail; however,
the thirty-day period shall not begin to run until the person claiming
the exemption has delivered a completed claim of exemption application,
including all supporting documents, to the Zoning Administrator. The
date of notification is either the date of mailing or the personal
notification.
[1]
A claim of exemption shall be approved by the Zoning Administrator unless the request does not qualify for an exemption as stated within the definition of a "subdivision" contained within Article VII, or because of lot size, drainage conditions, fire suppression, and access requirements, and the request is not subject to a common promotional plan as stated in this chapter. If the claim of exemption is approved, or if the Zoning Administrator fails to notify the applicant within 30 days after receipt of the completed claim of exemption and all supporting documents, the person claiming the exemption may divide the land in the manner provided by the exemption under which the application was made without complying with the provisions of this section. If approved, the claim of exemption form shall be filed along with the conveyance documents in the Office of the County Clerk.
[2]
In denying a claim of exemption, the Zoning Administrator shall cite the reason the request does not qualify for an exemption as stated within the definition of a subdivision contained within Article VII, or because of lot size, drainage conditions, fire suppression, and access, and the request is not subject to a common promotional plan as stated in this chapter. If the claim of exemption is denied, the person claiming the exemption may appeal the denial as provided in § 350-216, or submit an application for a subdivision as provided in this chapter.
Q.
Amended plats and replats. If an applicant amends a previously approved
and recorded subdivision plat, which is not permitted upon a claim
of exemption application, the following will apply:
[Amended 12-8-2020 by Ord. No. 317-2020]
(1)
A minor replat is any amended plat for the purpose of correcting
an error on a previously approved and filed subdivision if the amendment
creates no additional lots and does not materially affect any existing
lots, dedicated rights-of-way, or easements. Minor replats will be
processed and approved by the Zoning Administrator.
(2)
A major replat is any amendment to a final plat that alters or increases the number of lots, dedicated rights-of-way, or easements in a previously platted subdivision, and creates no more than five additional lots that conforms to zoning. Major replats shall meet the requirements of a final plat, and will be processed and reviewed as a summary plat review per § 350-212F.
(3)
Any plat amendment not described as a minor or major replat
in this subsection shall require the submission of a new subdivision
application and will be processed and reviewed accordingly as determined
by the zoning administrator.
R.
Affordable housing subdivision design. This subsection provides a
subdivision design option to enhance the development of affordable
housing located in the County, consistent with the Comprehensive Plan,
the Doña Ana County Affordable Housing Plan (Resolution 2015-64),
the Affordable Housing Program Ordinance (Ord. No. 280-2015), and
to ensure compliance with the New Mexico Subdivision Act (NMSA 1978,
§ 47-6-9).
(1)
The Affordable Housing Subdivision Design (AHSD) option utilizes
traditional and community type development best practices. DRC flexibility
for an AHSD during the rezoning, site plan, or subdivision plat process
will be based on the following decisional criteria:
(2)
The AHSD will be coordinated with the Zoning Administrator to ensure consistency with the design review and approval process per § 350-212.
(3)
The AHSD shall include the following BMPs in Article VI:
(b)
Grading and predevelopment best management practices [§ 350-601G(3)];
(c)
Road and thoroughfare best management practices [§ 350-602E(7)];
(d)
Roadway drainage best management practices [§ 350-605M(5)];
(e)
Detention pond best management practice [§ 350-615O(3)];
(f)
Water conservation best management practice [§ 350-606B(4)].
A.
General provisions and procedures. Approval of a community type shall not be considered a zone change. A community type as defined in Article III is an optional development standard permitted in every zoning district, except R5L and industrial zones, on any parcel of land 10 acres or greater within the County. Community types shall be in accordance with the sector plan as defined by the Comprehensive Plan in Table 3.1, Community Types by Sector. The development of community types is intended to promote mixed-use communities, including neighborhoods at various scales that include residential, commercial, institutional, civic spaces and have access to water and wastewater services; see Table 3.2, Community Types, Criteria. Development intensities for mixed-use community types include Small Villages, Villages, Towns, Neighborhoods, and Urban Centers as specified in Table 3.3 Community Types, Areas and Civic Space.
[Amended 11-14-2017 by Ord. No. 294-2017]
B.
Application requirements. Community types shall include the submittal and review of a community type application per the standards of Articles III, IV, and V, and all other applicable sections of this chapter. The community type shall be designed and structured by the percentages of development intensities as shown in Table 3.3. The application for a community type shall include the following:
(1)
A conceptual site plan including details such as, but not limited
to:
(a)
Size and location of community type;
(b)
Description of the thoroughfare network;
(c)
Locations and percentages of development intensities;
(d)
Proposed dwelling unit densities;
(e)
Main civic space type, location, and size;
(f)
Location and percentage of additional civic space;
(g)
Connectivity of pedestrian sheds;
(h)
Description and location of existing and proposed utilities;
(i)
Description of transportation adjacency, if required; see Table
3.2;
(j)
Description of community adjacency, if required; see Table 3.2;
(k)
Sector plan allocation type; and
(l)
Any other information that the Zoning Administrator deems reasonably
necessary to properly assess the request.
(2)
A site threshold analysis and traffic impact analysis (TIA) meeting the requirements outlined in Article VI, Development Construction Standards. The level and extent of the required TIA shall be determined by the County Engineering Services based on the review of the site threshold analysis (STA).
C.
Decisional criteria for community types. The P&Z may approve
a community type based on the following:
(1)
A proposed community type per the intent of this chapter must
be consistent with the health, safety, and general welfare for the
residents of the County.
(2)
A proposed community type shall not be in significant conflict
with adopted elements of the Comprehensive Plan, other approved County
Plans or other sub-area master plans including privately developed
area plans that have been adopted by the County.
(4)
Each community type shall meet the requirements of Table 3.2,
Community Types, Criteria, pertaining to water and wastewater services
and adjacency requirements.
(5)
Each community type shall meet the requirements of Table 3.3
pertaining to the characteristics, design and the percentages of development
intensities.
D.
Notice and approval procedures for community types.
(1)
The Zoning Administrator shall follow the agency review requirements of § 350-212D for any community type.
(2)
Review and discussion of the proposed plan by the DRC.
(3)
A town hall meeting shall be held for a community type in accordance with the procedures established pursuant to § 350-202A.
(4)
The Zoning Administrator may impose reasonable conditions regarding
further expansions, maximum height limits, time limitations, types
of construction, buffering and landscaping to assure the requirements
of this chapter are met.
(5)
If applicable, a community type may be approved in conjunction
with a subdivision application based on the requirements of this chapter.
(6)
No community type shall be approved until a public hearing has been held by the P&Z, who shall approve, conditionally approve, or deny in accordance with the general notice requirements established in § 350-202B.
(7)
The Zoning Administrator shall notify the applicant of the approval,
approval with conditions, or denial for the community type in writing.
The notice shall either state the nature and conditions of approval
of the community type or shall state the reasons for denial of the
community type. The notice shall also advise the applicant of the
next action they may take to address any outstanding issues.
(8)
When approved, the community type shall be mapped on the Official
Zoning Map of Doña Ana County.
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.
A.
General provision and procedures. A master plan is considered part
of the planning process in which the proposal is viewed as a conceptual
tool reflecting the ideas and thoughts for future development and
the need for flexibility in land development. The master plan process
is intended to ensure that proposed development is suitable and appropriate
for a given parcel of land, based on its location and its environmental
characteristics, which may offer a change in design criteria and to
advance the goals and objectives of the Comprehensive Plan. The master
plan process permits changes that conform with the intent to provide
health, safety, and general welfare to County residents. Approved
master plans shall be used as a general guide to land development
with successive steps established for specific plans that shall be
consistent with the adopted master plan.
B.
General provisions.
(1)
A master plan shall be required when any of the following criteria
apply:
[Amended 11-14-2017 by Ord. No. 294-2017]
(a)
A development is to be divided into three or more phases;
(b)
A development application is proposing multiple land uses; or
(c)
When a commercial, office, or industrial development application
is proposing to use the summary subdivision procedure more than once
on contiguous parcels owned by the same owner.
(2)
[1] The subdivider is responsible for including on the master
plan all contiguous property owned, legally controlled by, or of any
development and/or financial interest to said subdivider.
(3)
A preliminary plat may be submitted simultaneously with the
master plan.
C.
Preapplication requirements. Prior to the filing of an application
for approval of a master plan, the applicant shall submit a conceptual
plan of the proposed development to the CDD. This does not require
a written application or fee, nor does the preapplication procedure
require formal approval by either the P&Z or BOCC. Conceptual
plans shall be presented to the first available DRC meeting for review
and comment. The DRC shall discuss with the developer, or the developer's
representative, the proposed conceptual plan and shall indicate any
changes that will be required for the formal submittal of the proposal.
(1)
A conceptual plan for the master plan shall include the following
information:
(a)
Name of master plan.
(b)
Vicinity map clearly showing the surrounding area and the proposal's
relationship to existing road networks, and existing natural and/or
built features that may impact the development or may be impacted
by the development. Detail must be sufficient so that the subject
property can be located in the field using the map.
(c)
North arrow, date of preparation, written and graphic scale.
(d)
A general legal description that includes approximate survey
ties and approximate acreage.
(e)
Name and address of the consultant preparing the master plan.
(f)
Name and address of the developer.
(g)
Boundary lines of the master plan, with approximate lengths
of lines.
(h)
Proposed land use, by parcel or phase. Residential parcels shall
provide gross density range.
(i)
Present zoning and proposed zoning (if applicable).
(j)
Contours: Twenty-foot intervals. In instances whereby twenty-foot
intervals are not appropriate or applicable, contours may be provided
at an appropriate interval that adequately presents the elevation
differences of the land as determined by the CDD.
(k)
Adjacent land use and zoning district identification.
(l)
Thoroughfare system: Proposed approximate location, length,
width and point of intersection of all major transportation systems,
which may include bikeways, pedestrian sheds, trails and any other
transportation lines. Identify existing and proposed classification
of roads per the design standards of this chapter and based on the
current MPO transportation plan.
(m)
Significant natural features, such as arroyos and approximate
one-hundred-year floodplains as determined by FEMA special flood hazard
areas and FIRM.
(n)
Adjacent roads and other transportation routes identified by
functional classification.
(o)
Road and utility easements.
(p)
Tabular information:
[1]
Land use of each phase or parcel.
[2]
Approximate acreage for each parcel or phase.
[3]
Total number of residential dwelling units, minimum and maximum
range.
[4]
Dwelling units per acre for each parcel or phase.
[5]
Approximate acreage proposed for open space, private and public
facilities, and right-of-way.
[6]
Approximate additional population to be generated by development,
based on census data.
[7]
Approximate additional traffic estimated to be generated by
development, utilizing ITE trip generation information, as amended.
(q)
Approval block signifying the final approved master plan to
be signed by the Zoning Administrator upon approval by the P&Z
and compliance with all conditions.
(r)
A conceptual utilities plan shall contain key information to
provide a general outline of the proposed utility-routing plans for
the development, including locations and sizes of existing and proposed
utilities to be provided to the development. Actual size and location
of utilities to be determined at time of development and subject to
change based on utility needs of the surrounding area.
(s)
A conceptual grading and drainage plan shall contain key information
to provide a general understanding of how drainage issues will be
addressed by the development.
D.
Application requirements.
(1)
The master plan, supplemental material and fees shall be submitted
to the CDD, and a receipt shall be issued. The Zoning Administrator
shall then have 10 working days to review the submittal for completeness.
If all of the required items have been submitted, and the master plan
submittal contains all necessary items per the requirements of this
chapter, the Zoning Administrator shall accept the submittal for review.
A proposed master plan shall not be accepted for review by the Zoning
Administrator if incomplete or substantially inaccurate. If a submittal
is found to be incomplete, the applicant shall have 10 working days
to correct the deficiencies.
(2)
The application shall be signed by all property owners for the
subject property, as recorded in the Office of the County Clerk.
(3)
Any pending litigation of any final order entered by any court
of law regarding the ownership of the subject property shall be disclosed
by the applicant at the time that the application is submitted.
(4)
The Zoning Administrator, the DRC, or the P&Z shall have
the authority to add submittal requirements if it is determined that
the additional information is reasonably necessary in order to accomplish
the objectives of this chapter. Any request for additional submittal
requirements shall be justified, in writing, by the requesting entity.
(5)
Master plans will be processed by the Zoning Administrator and
sent to the relevant departments for review, comment, and recommendation.
Each reviewing entity shall be requested to complete their review
within 10 working days. Written reports containing comments and recommendations
shall be returned to the Zoning Administrator.
(6)
The Zoning Administrator shall review all comments for applicability
and appropriateness to the master plan requirements and forward any
comments to the applicant or the applicant's representative for completion.
Master plan applications that are commented upon shall be returned,
amended, resubmitted and reviewed until the provisions set forth in
their respective regulations have been met.
F.
Decisional criteria for master plans.
(1)
Master plans shall be submitted to the DRC for review, comments and recommendations to the P&Z. The DRC shall review the master plan to determine whether it is consistent with the intent and purposes set forth in § 350-103 of this chapter. The DRC shall provide the P&Z with a report containing a recommendation that the master plan be either approved, conditionally approved, postponed or denied. The report shall include the reason(s) for the recommendation.
(2)
The P&Z shall review the master plan, report, comments and
recommendations received from the DRC, Zoning Administrator and presentations
from the applicant or the applicant's representative and from any
interested persons. Action from the P&Z shall be in the form of
approval, conditional approval, postponement, or denial. Action from
the P&Z shall be recorded in the minutes of the meeting. A copy
of the notice of decision that includes any changes or conditions
acted upon by the P&Z at the public hearing shall be furnished
to the applicant.
(3)
It is the requirement of the P&Z that no master plan shall
be reviewed unless either the applicant or the applicant's representative
is present at the public hearing. If neither party is present at the
public hearing, the master plan will be postponed until the next regular
P&Z meeting.
(4)
Upon approval of the master plan by the P&Z, the developer
may submit to the CDD any zoning applications, preliminary plats or
final plats as necessary and applicable that reflect the objectives
of the approved master plan.
(5)
The approval of the master plan shall be effective for a period
of five years, as described on the approval action form. If, at the
expiration of the five-year period, no single preliminary plat, building
permit, or any other development application, in conformance with
the approved master plan, has been submitted and approved, the master
plan shall expire. Such action does not necessarily have to encompass
the entire master-planned area in order for said master plan to remain
active. The developer may submit a request for extension prior to
the expiration date. The request will be reviewed by the Zoning Administrator
for consideration. Approval of a master plan does not prohibit the
utilities department from revising any utility requirements based
on projected needs or growth around the master-planned area.
(6)
Any substantial change to the master plan will require resubmittal
of the plan in its entirety. Minor modifications shall be reviewed
and considered by the Zoning Administrator. Substantial modifications
to the master plan are subject to a regular public hearing with the
same requirements as an original application. Substantial modifications
shall include, but are not limited to:
(a)
Any change in land use or use intensity;
(b)
Modifications of vehicular traffic circulation on arterials,
collectors or major local designated streets;
(c)
Increase in residential density;
(d)
Any extension of time limits beyond 20%; and
(e)
Any change in the master plan that is determined by the Zoning
Administrator to be substantial.
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.
