10.1.1
This chapter establishes additional or alternative standards for
particular uses. The purpose of this chapter is to establish standards
for specific uses which require special design considerations in order
to: protect surrounding property values and uses; protect the public
health, safety, and general welfare; and implement the SGMP. These
standards seek compatibility with the principal uses permitted in
a zoning district. It is the intent of the County that supplemental
uses comply with the standards that have been created to address the
particular impacts and characteristics.
10.1.2
This chapter provides supplemental standards for certain uses, structures,
and facilities. These standards are in addition to the other applicable
standards of the SGMP. In some cases, the establishment of these standards
streamlines the permitting process by permitting the use as of right
in certain districts subject to the supplemental regulations. In other
instances, the unique development challenges of certain uses and structures
require case-by-case consideration under the conditional use permit
process.
(Ordinance 2016-9 adopted 12/13/16; Ordinance 2021-03 adopted 7/30/21)
10.2.1
Applicability.
These regulations shall apply to all
zoning districts in which the particular use being regulated is permitted.
10.2.2
Compliance Mandatory.
No supplemental use may be initiated,
established, or maintained unless it complies with the standards set
forth for such use in this chapter.
10.2.3
Requirements Supplement.
The requirements of this chapter
shall supplement the requirements of the applicable base and overlay
zoning district regulations and the other applicable standards of
this chapter. These standards are in addition to, and do not replace,
the other standards for development set forth in other chapters of
the SLDC unless otherwise provided. To the extent that there is a
conflict between a standard in another chapter of the SLDC and a standard
in this chapter, the standard in this chapter governs unless otherwise
indicated.
(Ordinance 2016-9 adopted 12/13/16; Ordinance 2021-03 adopted 7/30/21)
10.3.1
Applicability.
Where a principal use or structure is
permitted, the Use Matrix may permit certain accessory structures
subject to this Section. Accessory structures shall be clearly incidental
and subordinate to the principal use, customarily found in connection
with the principal use, and located on the same tract or lot as the
principal use.
10.3.2
Requirements.
10.3.2.1
Accessory structures shall not be constructed or established on a
lot until construction of the principal structure is completed or
the principal use is established; however, an accessory structure
may be constructed before the principal structure when development
approval has been granted for both the principal and accessory structures.
An accessory structure may be approved on a lot adjacent to a lot
containing a principal structure where the lots are in common ownership
and there are terrain or locational constraints on the lot with the
principal structure.
10.3.2.2
The accessory structure shall share a driveway and utilities with
the principal use or structure unless prohibited by terrain constraints.
10.3.2.3
The accessory structure shall not contain a kitchen or cooking facilities,
including kitchen appliances, unless approved as part of an approved
home occupation or nonresidential use. If a kitchen is provided for
such use, the accessory structure shall not also contain a half bathroom.
10.3.2.4
Agricultural and grazing and/or ranching accessory structures shall
be permitted on property where the principal use is agriculture, grazing
and/or ranching, provided that a development permit is obtained in
accordance with the siting and design standards of this SLDC.
10.3.2.5
Residential accessory structures shall not be designed such that they can be used for dwelling purposes. Accessory dwelling units are governed by Section 10.4.
10.3.2.6
Residential accessory structures shall not contain a full bathroom;
a toilet and sink shall be permitted but no shower or bath shall be
permitted.
10.3.2.7
An accessory structure may be approved on a lot adjacent to a lot
containing a principal structure where both lots are in common ownership,
where the lot with the principal structure has terrain or locational
constraints.
(Ordinance 2016-9 adopted 12/13/16; Ordinance 2021-03 adopted 7/30/21)
10.4.1
Purpose and Findings.
Accessory dwellings units are
an important means by which persons can provide separate and affordable
housing for elderly, single-parent, and multi-generational family
situations. This Section permits the development of a small dwelling
unit separate and accessory to a principal residence. Design standards
are established to ensure that accessory dwelling units are located,
designed and constructed in such a manner that, to the maximum extent
feasible, the appearance of the property is consistent with the zoning
district in which the structure is located.
10.4.2
Applicability.
This Section applies to any accessory dwelling unit located in a building whether or not attached to the principal dwelling. Accessory dwelling units shall be clearly incidental and subordinate to the use of the principal dwelling. Accessory dwelling units are permissible only: (a) where permitted by the Use Matrix; and (b) where constructed and maintained in compliance with this Section 10.4.
10.4.2.1
Number Permitted.
Only one accessory dwelling unit shall
be permitted per legal lot of record. Platted major subdivisions shall
only be permitted to have an accessory dwelling unit if their approval
and reports and SRAs allowed and accounted for this.
10.4.2.2
Size.
The heated area of the accessory dwelling unit
shall not exceed the lesser of: (a) fifty percent (50%) of the heated
floor area of the principal residence; or (b) 1,400 square feet.
10.4.2.3
Building and Site Design.
1.
In
order to maintain the architectural design, style, appearance, and
character of the main building as a single-family residence, the accessory
dwelling unit shall be of the same architectural style and of the
same exterior materials as the principal dwelling.
2.
An
accessory dwelling shall not exceed one story in height and may not
exceed the height of the principal dwelling unit.
3.
An
accessory dwelling shall be accessed through the same driveway as
the principal residence. There shall be no separate curb cut or driveway
for the accessory dwelling.
10.4.2.4
Utilities.
Water and electricity for the accessory dwelling
unit shall be shared with the principal residence. Liquid waste disposal
shall be in common with the principal residence; however, if the principal
residence is on a septic system, then any modifications to the system
to accommodate the accessory dwelling unit shall be approved by NMED.
(Ordinance 2016-9 adopted 12/13/16; Ordinance 2021-03 adopted 7/30/21)
10.5.1
Purpose and Findings.
This Section is designed to protect
the rights of handicapped and disabled persons subject to the federal
Fair Housing Act (FHA), 42 U.S.C. Section 3601 et seq. and the Developmental
Disabilities Act (Sections 28-16A-1 to 28-16A-18 NMSA 1978), and to
accommodate housing for persons protected by the FHA by establishing
uniform and reasonable standards for the siting of group homes and
criteria that protect the character of existing neighborhoods.
10.5.2
Applicability.
This Section applies to all group homes.
For purposes of this Section, a “group home” means a residential
facility in which any handicapped or disabled persons unrelated by
blood, marriage, adoption, or guardianship reside with one or more
resident counselors or other staff persons.
10.5.3
Location.
Group homes are permitted as of right in all
residential zoning districts, all commercial zoning districts, and
other zones as specified in the SLDC. Pursuant to the requirements
of the federal FHA and applicable case law, the SLDC does not require
a conditional use permit or any other form of discretionary development
approval for a group home. A variance is required only to the extent
that the group home seeks a variance from the standards that apply
to other uses in the base zoning district.
10.5.4
Standards.
The standards applicable to group homes are
the same as for single-family dwelling units located within the base
district. Evidence of any license, certification, or registration
required for the group home by State or federal standards, or a copy
of all materials submitted for an application for any such license,
shall be provided.
(Ordinance 2016-9 adopted 12/13/16; Ordinance 2021-03 adopted 7/30/21)
10.6.1
Purpose.
The Purpose of this Section is to stimulate
economic development in the County and promote energy efficiency by
promoting home occupations and home businesses while ensuring the
compatibility of home-based businesses with other uses permitted in
the community. Any home-based business that exceeds the standards
of this Section, either at its commencement or through business growth,
shall be located in or relocated to an appropriate nonresidential
area.
10.6.2
Permit Required.
Home occupations require a permit as
specified in Table 10-1. A permit will not be issued for a home occupation
where:
10.6.2.1
Code violations are present on the property;
10.6.2.2
Adequate access is not available;
10.6.2.3
Adequate infrastructure is not in place;
10.6.2.4
The proposed home occupation is a roofing or towing business, construction
yard, port-a-potty leasing business, involves retail sales open to
the public, vehicle leasing business, crematories, auto paint and
body shop, heavy industrial uses, a cannabis establishment, cannabis
consumption area, or cannabis courier.
10.6.3
Requirements for all home occupations.
10.6.3.1
Location.
A home business may be located in any residential
district, subject to the provisions of this Section.
10.6.3.2
Owner-occupied.
The operator of the home business shall
reside in a dwelling unit on the property.
10.6.3.3
Hours of Operation.
All employee ingress/egress activity
and deliveries shall occur between the hours of 8 a.m. and 8 p.m.
Monday through Saturday.
10.6.3.5
Exterior Storage.
Limited storage of business-related
property is allowed outside of the residence, but the storage area
shall count as part of the square footage allocation shown in Table
10-1 and shall be shielded from the view of nearby properties. Where
additional storage is allowed in accessory buildings, no display of
goods or merchandise shall be visible from outside the enclosed building
space, and a partition wall at least six feet in height shall separate
business storage from other residential storage space.
10.6.3.6
Noise, Vibration, Glare, Fumes and Odors.
The home business
shall not create noise, vibration, glare, fumes or odors detectable
to reasonable sensory perception outside the boundaries of the property.
10.6.4
Types of Home Occupations.
The three categories of home
occupations are described below and the requirements for each are
set forth in Table 10-1.
10.6.4.1
No Impact Home Occupation.
A “no impact”
home occupation includes business activity by the resident and up
to one non-resident employee. All business activity shall occur within
the home and any permitted accessory buildings. A “no impact”
home occupation is one in which there is no exterior evidence that
business is occurring on property.
10.6.4.2
Low Impact Home Occupation.
A low impact home occupation
includes business activity by the resident and up to three non-resident
employees. A “low impact” home occupation is one in which
the business is allowed a limited number of visitors/appointments
and a small identification sign. The only exterior evidence of the
home business is in the form of slightly increased visitation and/or
traffic.
10.6.4.3
Medium Impact Home Occupation.
A medium impact home
occupation includes business activity by the resident and up to five
non-resident employees. Because of the larger impacts from increased
employees and visitors, a medium impact home occupation requires a
Conditional Use Permit to determine whether the business is appropriate
for the area and whether additional conditions are required to ensure
the residential character of the area is maintained.
|
Table 10-1: Home Occupation Requirements
| |||
|---|---|---|---|
|
|
No Impact
|
Low Impact
|
Medium Impact
|
|
Permit type
|
Business Registration
|
Development Permit
|
Conditional Use Permit
|
|
Non-resident employees (max)
|
1
|
3
|
5
|
|
Area used for business (maximum)
|
25% of heated square footage
|
35% of heated square footage
|
50% of heated square footage
|
|
Accessory building storage
|
100 SF
|
600 SF
|
1,500 SF
|
|
Appointments/patron visits (max/day)
|
0
|
4
|
12
|
|
Business traffic
|
none
|
see Section 10.6.5
|
see Section 10.6.5
|
|
Signage
|
not permitted
|
see Section 7.9.10
|
see Section 7.9.10
|
|
Parking and access
|
Resident and employee only
|
see Section 10.6.5
|
see Section 10.6.5
|
|
Heavy Equipment
|
None
|
Up to 2
|
3-6
|
10.6.5
Parking and Access Requirements for Low and Medium Impact Home Occupations.
10.6.5.1
Parking.
Parking associated with the home occupation
shall be regulated as follows:
1.
Vehicles
associated with the business shall not be stored, parked or repaired
on public rights-of-way. On-site parking for all associated vehicles
shall be provided.
2.
The
parking, storage, repair or use of any commercial scale vehicle or
equipment shall not be allowed.
3.
Parking
spaces needed for employees or customers/clients shall be provided
in defined areas of the subject property. Such areas shall be accessible,
usable, designed and surfaced appropriately.
4.
Vehicles
to be repaired shall be located within an enclosed building or in
an area not visible from public view.
10.6.5.2
Traffic.
The maximum number of vehicles that are associated
with the business and located on the subject property shall not exceed
six at any time, including, but not limited to, employee vehicles,
customer/client vehicles, and vehicles to be repaired. No more than
two pieces of heavy equipment may be located on the property at any
time for a low impact home occupation. A Conditional Use Permit is
required for any more than two pieces of heavy equipment for a Medium
Impact Home Occupation.
(Ordinance 2016-9 adopted 12/13/16; Ordinance
2021-03 adopted 7/30/2021)
10.7.1
Applicability.
This Section applies to all residential
condominium declarations recorded on or after the date of the adoption
of the SLDC that either create or amend an existing condominium declaration
to create condominium units or change the number of condominium [units].
10.7.2
Requirements.
A condominium shall comply with the requirements
of Chapter 8 (Zoning) and Chapter 5 (Subdivisions). No condominium
declaration may be recorded in the Office of the County Clerk in the
absence of a written verification from the Administrator that the
condominium complies with these Chapters.
10.7.3
Written Confirmation of Compliance.
If the proposed or amended condominium declaration complies with Section 10.7.2, the Administrator shall issue a written confirmation to the condominium declarant for inclusion in the contents of the condominium declaration as required by 47-7B-5 NMSA 1978. The Administrator shall maintain copies of written confirmations issued pursuant to this Subsection.
10.7.4
Existing Residential Condominiums.
10.7.4.1
Conforming.
A condominium (including constructed condominium
units and unconstructed condominium units) is in conformance with
this Section when:
1.
The
condominium meets the zoning density requirements of Chapter 9 [8]
of this SLDC; or
2.
The
condominium met the zoning density requirements in effect when the
most recent condominium declaration was recorded; and
3.
The
condominium meets the requirements set forth in the New Mexico Subdivision
Act as set forth in Chapter 5.
10.7.4.2
Nonconforming.
A condominium (including constructed condominium units and unconstructed condominium units) existing at the adoption of this Section that is not in conformance with Section 10.7.4.1 above is a nonconforming condominium. Nonconforming condominiums are subject to the following:
1.
Constructed Units.
Constructed condominium units are
legal nonconforming uses and structures with regard to the density
requirements of Chapter 9 [8]. A constructed condominium unit that
is destroyed by any means may be reconstructed only if the reconstructed
unit at the time of reconstruction is made to comply with all other
applicable sections of the SLDC in effect.
2.
Unconstructed Units.
Unconstructed condominium units
in excess of the zoning density requirements of Chapter 9 [8] are
not legal and may not be developed.
3.
Units Constructed without Required Approvals.
Units
that were constructed without required development approvals are not
legal. Such units shall be brought into compliance with the SLDC.
(Ordinance 2016-9 adopted 12/13/16)
No on-site borrow may be removed from a site except removals
associated with a grading permit granted by the Administrator, without
a conditional use permit; provided, however, that building materials
such as adobes and rammed dirt may be excavated as a part of construction
on the property without a permit.
(Ordinance 2016-9 adopted 12/13/16)
10.9.1
Applicability.
Authorized temporary commercial uses are authorized so long as all requirements of this Section are complied with. Table 10-2 provides the rules under which the temporary uses may be accommodated. Additional requirements for certain uses are included in Sections 10.9.2–10.9.6.
|
Table 10-2: Temporary Uses
| ||||
|---|---|---|---|---|
|
Activity
|
Permitted district
|
Duration
|
Maximum times/year per lot/parcel
|
Permit required?
|
|
Auctions
|
any
|
3 days
|
1
|
no
|
|
Christmas tree sales
|
CG, CN, I, IL, P/I, MU, PD, A/R, RUR, TC
|
60 days
|
1
|
no
|
|
Office in a model home
|
any
|
24 months, renewable for additional (up to) 12-month periods
|
n/a
|
yes
|
|
Fireworks stand
|
CG, I
|
30 days
|
1
|
yes
|
|
Temporary outdoor retail sales
|
CG, CN
|
10 days
|
4
|
yes (unless shown on approved site development plan)
|
|
Produce stand or farmers’ market
|
any
|
90 days renewable for additional (up to) 6-month periods
|
n/a
|
no
|
|
Public assembly (carnival, fair, circus, festival, show, exhibit,
concert, or similar)
|
CG, CN, I, IL, P/I, MU, PD, A/R, RUR, RUR-F
|
up to 2 weeks
|
n/a
|
yes
|
|
Yard/garage sales
|
any residential
|
2 consecutive days, limited to daylight hours
|
n/a
|
no
|
|
Film production
|
any
|
As needed
|
n/a
|
yes
|
10.9.2
Constructed Temporary Uses.
Temporary buildings and
structures are permitted in any zoning district while approved building,
land development or redevelopment is occurring. Such buildings or
structures may include offices, construction trailers or construction
dumpsters and storage buildings.
10.9.3
Dumpsters.
Construction dumpsters are subject to the
following:
10.9.3.1
No construction dumpster may impede pedestrian or vehicular access
to and from adjoining properties or otherwise create an unsafe condition
for pedestrian and vehicular traffic;
10.9.3.2
Every construction dumpster shall clearly identify the owner of such
dumpster and telephone number and shall be clearly labeled for the
purpose of containment of construction materials only; and
10.9.3.3
Every construction dumpster shall be routinely emptied so it does
not create an unsightly or dangerous condition on the property resulting
from the deposit, existence, and accumulation of construction materials
and stagnant water.
10.9.4
Public Assembly.
Temporary buildings, structures, or
tents for public assembly (including carnivals, circuses, and similar
events) are permitted as specified in Table 10-2, provided that:
10.9.4.1
No such building, structure, or tent shall be permitted to remain
on the site for a consecutive period exceeding two weeks;
10.9.4.2
Sufficient space for parking shall be provided on the site to meet
the anticipated needs;
10.9.4.3
Adequate provision shall be made for utility services; and
10.9.4.4
No exterior amplifiers, speakers, or other similar equipment shall
be permitted outside of the temporary building, structure, or tent.
10.9.5
Yard/Garage Sales.
Outdoor yard/garage sales are permitted
in all residential zoning districts without a permit. Items purchased
elsewhere expressly for resale at a yard/garage sale are prohibited.
Goods intended for sale shall not be stored or displayed in the front
or side yards of a dwelling except on the day or days of the sale.
Commercial outdoor sales activities are prohibited. For purposes of
this Subsection, a “yard/garage sale” means a public sale
at a dwelling at which personal items belonging to the residents of
the dwelling are sold.
10.9.6
Film Production and Related Activity.
See County Ordinance
2010-6.
10.9.7
Removal of Temporary Structures.
Structures related
to a temporary use shall be completely removed within 60 days of the
expiration of the permit for the temporary use.
(Ordinance 2016-9 adopted 12/13/16)
10.10.1
Applicability; Exceptions.
10.10.1.1
This Section shall apply to the activities of itinerant vendors operating
within the County.
10.10.1.2
The provisions of this Section shall not apply to persons, business
entities or their agents selling only fruits, vegetables, berries,
eggs, or any farm produce in accordance with the locations and durations
identified in Table 10-2.
10.10.2
License/Permit.
An itinerant vendor shall operate at
all times under an approved business license issued by the County.
An itinerant vendor operating in a Traditional Community, shall obtain
a conditional use permit and a business license.
10.10.3
Standards.
Itinerant vendors shall conform to the following
standards:
10.10.3.1
An itinerant vendor may only operate in nonresidential, mixed-use
and traditional community zones as defined in Chapter 8.
10.10.3.2
An itinerant vendor shall not obstruct, or cause or permit the obstruction
of, the passage of any sidewalk, road, avenue, alley or any other
public place, by reason of people congregating at or near the place
where goods, wares, food, or merchandise of the vendor is being sold
or offered for sale.
10.10.3.3
An itinerant vendor shall locate outside of any public right-of-way
and shall not locate a vehicle, other conveyance, temporary stand,
or merchandise within twenty feet (20') of any public road or within
twenty feet (20') of the intersection of any public road and private
driveway. Access to the itinerant vendor’s vehicle, conveyance
or stand from a public right-of-way shall be clear and unobstructed
and shall not impede the ordinary flow of traffic on said right-of-way.
10.10.3.5
No vehicle, other conveyance or temporary stand of an itinerant vendor
shall be located closer than twenty feet (20') from any building or
structure on the licensed property or adjoining property.
10.10.3.6
No vehicle, other conveyance or temporary stand of an itinerant vendor
shall locate closer than fifty feet (50') from flammable combustible
liquid or gas storage and dispensing structures.
10.10.3.7
All itinerant vendors shall place at least one (1) thirty (30) gallon
garbage receptacle upon the site.
10.10.3.8
Itinerant vendor sites shall be cleaned of all debris, trash, and
litter at the conclusion of daily business activities. Additionally,
all vehicles, trailers, displays, pushcarts or other conveyances containing
the wares of itinerant vendors shall be removed from the vendor site
at the conclusion of each daily business activity.
10.10.3.9
An itinerant vendor shall not sell or vend from his or her vehicle
or conveyance:
1.
Within three hundred feet (300') of any public or private school
grounds during the hours of regular school session, classes, or school
related events of said public or private school, except when authorized
by said school.
2.
Within three hundred feet (300') of the entrance to any business
establishment while open for business that offers for sale as a main
featured item or items similar to those of the itinerant vendor, unless
authorized by said business owner.
3.
Within three hundred feet (300') of any public park where any county
authorized concession stand is located during times other than during
the course of a public celebration or unless approved by the Administrator.
10.10.3.10
An itinerant vendor that operates continuously at the same location,
may only operate at that location for a total of 60 days in any calendar
year and shall relocate to a new location or cease to operate.
10.10.4
Health Regulations.
All itinerant food vendors shall
comply with all laws, rules, and regulations regarding food handling,
and all vehicles used for the sale of food shall comply with all the
laws, rules, and regulations respecting such vehicles as established
by the New Mexico Environment Department and the County.
(Ordinance 2016-9 adopted 12/13/16)
10.11.1
Applicability.
This Section applies to the regular sales and display of retail goods in parking areas, sidewalks, and other locations outside of an enclosed building. This Section does not apply to farmers’ markets or produce stands where permitted by the applicable zoning district. Temporary outdoor retail sales are governed by Section 10.9.
10.11.2
Permitted.
10.11.2.1
Outdoor sales and display of retail goods, wares, and merchandise
are permitted accessory uses in the Commercial General (CG) and Mixed
Use (MU) districts if shown on the approved site development plan.
10.11.2.2
An outdoor sales and display shall be customarily incidental to a principal use in the district in which the outdoor sales and display is permitted. Only the business or entity occupying the principal use or structure shall sell merchandise in the outdoor display areas, except as provided in Section 10.10 (Itinerant Vendors).
10.11.2.3
An outdoor display is subject to a minimum setback of 20 feet from
an adjoining property line.
10.11.2.4
Outdoor display shall be screened from view along any property line
abutting a residential zoning district. To the extent that buildings
on the premises are located in order to screen views from adjacent
roads and properties, such buildings may be considered to be part
of the required screening in lieu of landscaping, fences, walls, and
enclosures.
10.11.2.5
All outdoor displays shall be located on the same lot as the principal
use.
10.11.2.6
Areas used for such display shall be furnished with a hard surface
material.
10.11.2.7
Merchandise shall not be placed or located where it will interfere
with pedestrian or building access or egress, required vehicular parking
and handicapped parking, aisles, access or egress, loading space parking
or access, public or private utilities, services or drainage systems,
fire lanes, alarms, hydrants, standpipes, or other fire protection
equipment, or emergency access or egress.
10.11.2.8
Outdoor display areas shall not be located on any parking spaces
needed to comply with the minimum parking ratios Chapter 7. Outdoor
display areas shall be considered part of the floor area of the principal
use or structure for purposes of computing the minimum number of parking
spaces required.
(Ordinance 2016-9 adopted 12/13/16)
10.12.1
Purpose and Findings.
This Section establishes regulations
for permanent storage areas in the “I” (Industrial) zoning
district.
10.12.2
Applicability.
This Section applies to industrial outdoor
storage (with the exception of salvage operations and yards as defined
and regulated by the SLDC), including contractors’ yards, building
supply sales, coal sales and storage and scrap metal storage.
(Ordinance 2016-9 adopted 12/13/16)
10.13.1
Purpose and Findings.
This Section establishes standards
to permit the establishment of self-storage facilities, along with
standards designed to protect surrounding neighborhoods and to implement
the SGMP.
10.13.2
Applicability.
This Section applies to any self-storage
facility.
10.13.3
Standards.
10.13.3.1
The total area covered by building shall not exceed 50 percent of
the site.
10.13.3.2
No outside storage is permitted except outdoor storage of recreational
vehicles and boats in areas so designated on an approved site development
plan.
10.13.3.3
The storage of hazardous, toxic, or explosive substances, including,
but not limited to, but excluding the storage of, hazardous waste,
industrial solid waste, medical waste, municipal solid waste, septage,
or used oil, is prohibited.
10.13.3.4
The facility shall be enclosed by a non-climbable fence or wall at
least six feet in height; and
10.13.3.5
The facility shall be screened from view along any property line
abutting a residential zoning district.
10.13.3.6
No business activity other than the rental of storage units shall
be conducted on the premises.
10.13.3.7
One dwelling unit is permitted on the same lot for use as a caretaker
dwelling.
(Ordinance 2016-9 adopted 12/13/16)
10.14.1
Applicability.
Regardless of whether a mobile home park
is a subdivision, condominium, or site-lease facility, the provisions
of this Section shall apply in addition to the other applicable provisions
of the SLDC, including the density provisions of the zoning district
in which the park is located.
10.14.2
Design Standards.
All mobile home parks shall comply
with the following design standards. For mobile home parks that are
subdivisions, the design standards of this Section shall supersede
any conflicting standards of Chapter 5 (Subdivisions and Land Divisions).
10.14.2.1
Home sites/lots shall have a minimum lot size of thirty-five hundred
(3,500) square feet. Note that the zoning requirements of the district
in which the park is located (see Chapter 8) may dictate a larger
minimum lot size.
10.14.2.2
Mobile homes shall be located on each lot so as to provide:
1.
Not less than twenty (20) feet of clearance between mobile homes;
2.
Not less than ten (10) feet between a mobile home and any other structure
within the park, including storage units, porches or portals;
3.
Not less than ten (10) feet between a mobile home and any property
line of the park which does not abut upon a public road or highway;
4.
Not less than twenty-five (25) feet between a mobile home and any
property line of the park abutting upon a public road or highway,
unless the zoning standards of the district require a greater setback;
and
5.
For the purpose of this Section, the distance from a mobile home
shall be calculated to include any porch, attached room or deck, or
any similar addition or improvement.
10.14.2.3
Two (2) off-road parking spaces shall be provided for each mobile
home space, which shall be gravel or paved in concrete or asphalt.
10.14.2.4
Walkways from all mobile home spaces to all common areas within the
mobile home park shall be provided, and such walkways shall not be
less than thirty-six (36) inches wide and constructed of a hard surface
material (e.g., concrete, asphalt, brick or flagstone).
10.14.2.5
Lighting shall be provided for all roads and walkways.
10.14.2.6
Roads within the park shall comply with Chapter 7.
10.14.2.7
The perimeter of the park shall be landscaped to blend with the surrounding
land contours and vegetation.
10.14.2.8
A step pad shall be located adjacent to each mobile home stand and
constructed of hard surface material (e.g., concrete, asphalt, brick
or flagstone), with a minimum area of seventy-two (72) square feet
and a minimum thickness of four (4) inches.
10.14.2.9
All service buildings and grounds of the mobile home park shall be
maintained in a clean condition and kept free of any conditions that
will menace the health or safety of any occupant and the public and
shall not constitute a nuisance.
(Ordinance 2016-9 adopted 12/13/16)
10.15.1
Applicability.
This Section shall apply to all trade
contractor businesses.
10.15.2
Standards.
Trade contractor businesses located within
a Residential Base Zoning District shall meet design standards within
this SLDC in addition to the following standards:
10.15.2.1
No more than five (5) large commercial vehicles shall be permitted
in a trade contractor business;
10.15.2.2
Outside storage shall not exceed 1500 square feet, including vehicle
storage, and shall be screened by a six-foot-high solid wall or fence.
All other storage shall be within a building.
(Ordinance 2016-9 adopted 12/13/16)
10.16.1
Purpose.
The purpose of this Section is to promote environmental
sustainability, economic development, public safety and general welfare
by fostering the development of the County’s wind power resources
and by providing standards for the safe, sustainable design and aesthetic
provision of wind energy facilities.
10.16.2
Conflict.
If any provision of this Section imposes restrictions
in conflict with those of any Chapter of the SLDC, or any other ordinance,
rule, regulation, statute or other provision of law, the provision
that is more restrictive or imposes higher standards shall control,
unless preempted by federal or state law.
10.16.3
General Requirements.
10.16.3.1
Appearance.
1.
No wind energy facility shall be used for signage, promotional or
advertising purposes, including but not limited to company names,
phone numbers, flags, banners, streamers, or balloons except for equipment
manufacturer’s name or logo on the equipment itself.
2.
Wind energy facilities shall be painted or finished with a non-reflective,
unobtrusive color and shall incorporate non-reflective surfaces to
minimize visual disruption.
3.
No wind energy facility shall be artificially lighted except to the
extent required by the Federal Aviation Administration or other applicable
authority.
10.16.3.2
Safety Standards.
1.
Towers shall be constructed to provide one of the following means
of access:
3.
At least two signs shall be posted on the tower at a height of five
feet warning of electrical shock or high voltage and harm from revolving
machinery.
4.
Anchor points for any guy wires for a system tower shall be located
within the site and not on or across any above-ground electrical transmission
lines. The point of attachment for the guy wires shall be enclosed
by a fence or sheathed in bright orange or yellow covering from three
to eight feet above the ground.
5.
The wind energy facility shall be equipped with an automatic and
redundant braking or governing system to prevent uncontrolled rotation,
over-speeding, and excessive pressure on the tower structure, rotor
blades and other wind energy components and mechanical brakes. Mechanical
brakes shall be operated in a fail-safe mode. Stall regulation shall
not be considered a sufficient braking system for over-speed protection.
6.
The wind energy facility shall not interfere with electromagnetic communications such as radio, telephone or television or emergency communication systems. If it is demonstrated that a facility is causing disruptive interference beyond the site, the operator or owner shall promptly eliminate the disruptive interference or cease operation of the facility and remove it pursuant to Section 10.16.4.3.
7.
The wind energy facility shall meet all applicable federal, State
and County Fire Prevention and Building Code requirements.
8.
If connected to a public utility system for net-metering purposes,
the facility shall meet the requirements for interconnection and operation
as set forth in the public utility’s current service regulations
applicable to wind power generation facilities, and the connection
shall be inspected by the appropriate public utility.
9.
If more than one wind energy facility is installed, a distance equal
to 1 times the height of the tallest small-scale wind energy facility
shall be maintained between the bases of each wind energy facility.
10.
For building-mounted wind systems, a letter or certificate bearing
the signature of a duly registered New Mexico professional engineer
shall be submitted to the Administrator, indicating that the existing
structure onto which the wind energy facility [is attached] is capable
of withstanding the additional load, force, torque, and vibration
imposed by the wind energy facility for the foreseeable future; will
comply with seismic and structure provisions set out in County and
State building codes; and if constructed in accordance with the plans,
the entire facility, including the building onto which the facility
will be attached, will be safe, will be in accordance with all applicable
governmental building codes, laws, and regulations, and in accordance
with generally accepted engineering practices and industry standards,
including, without limitation, acceptable standards for stability,
wind and ice loads.
10.16.4
Small-Scale Wind Energy Facilities.
Small-scale wind
facilities are designed for single parcel use and not for selling
power to other entities, and are equal to or less than ninety (90)
feet in total height above ground level including the highest extension
of the turbine blade.
10.16.4.1
Development Standards.
1.
No exposed moving part of any small-scale wind energy facility shall,
at the lowest point of its extension, be less than twenty (20) feet
above the ground. Notwithstanding the foregoing, the lowest extension
of any blade or other exposed moving component of the facility shall
be at least fifteen (15) feet above the ground (at grade level) and
in addition at least fifteen (15) feet above any outdoor surfaces
intended for human occupancy, such as swimming pools, recreational
facilities, back yards, balconies or roof gardens, that are located
directly below the facility. All building-mounted facilities shall
be attached to a building, garage or separate structure.
2.
For parcels up to ten acres in size, only one turbine shall be permitted.
The maximum height of the tower and turbine blade shall not exceed
55 feet.
3.
For parcels equal to or greater than 10 acres, the maximum height
of the tower and turbine shall not exceed 90 ft.
10.16.4.2
Noise.
Small-scale wind energy facilities shall
not exceed 55 dBA or 5 dBA above ambient noise levels, whichever is
less as measured at the property line. The level, however, may be
exceeded during short-term events such as utility outages or severe
wind storms.
10.16.4.3
Removal.
1.
If any small-scale wind energy facility ceases to perform its originally
intended function for more than twelve (12) consecutive months, or
the facility is required to be dismantled, the property owner shall
so notify the Administrator in writing within thirty (30) days after
the end of such twelve-month period, and the property owner shall
remove the tower, rotor, guy wires, and associated equipment and facilities
by no later than ninety (90) days after the end of the twelve (12)
month period.
2.
If the property owner fails to remove the small-scale wind energy
facility within the timeframe described above, the small-scale wind
energy facility shall be deemed a public nuisance subject to the provisions
of Chapter 14.
10.16.5
Large Wind Energy Facilities.
A large wind energy facility
is any wind-based electric generating facility that generates power
for sale or profit, in excess of 90 feet in height as measured from
the lowest level or portion of the wind energy facility (slab or base)
in contact with the ground surface to the highest point of any part
of the facility, with moving parts measured at the highest points
of their extension.
10.16.5.1
Procedural Requirements.
1.
Development approval.
A large wind energy facility shall
obtain a conditional use permit.
2.
Modification to Existing Facility.
Any substantial physical
modification to an existing and permitted large wind energy facility
that materially alters the size or type of turbines by more or other
equipment shall require a conditional use permit amendment. Like-kind
replacements, repairs or maintenance made within ninety (90) days
of the large wind energy facility part needing replacement shall not
require a permit modification. For the purposes of this Section, “substantial
physical modification” means an alteration visible by a person
of normal vision from a property line or a public road or an alteration
having a cost greater than or equal to five percent (5%) of the assessed
value of the facility.
10.16.5.2
Design and Installation.
1.
Design Safety Certification.
The design of the facility
shall conform to applicable industry standards, including those of
the American National Standards Institute. The applicant shall submit
certificates of design compliance obtained by the equipment manufacturers
from Underwriters’ Laboratories, Det Norske Veritas, Germanishcer
LloydSE, or other similar certifying organizations.
2.
Setbacks.
a.
Buildings and accessory structures shall be at least one hundred
(100) feet distant from the property boundary.
b.
Wind turbines shall be set back from the nearest on-site building
or structure a distance of not less than two times the height of the
tower and turbine total height of the tower and turbine shall be required
from all property lines.
c.
Wind Turbines shall be set back from the nearest occupied building
or structure located on an adjacent landowner’s property a distance
of not less than five (5) times the total height of the turbine tower
and blade, as measured from the center of the turbine base to the
nearest point on the foundation of the occupied building.
d.
Large-scale wind energy facilities are prohibited within 500 feet
of public parkland, areas of historical or cultural significance,
natural areas and nature preserves.
e.
Wind turbines shall be set back from the nearest public right-of-way
a distance of not less than two times the total turbine height, as
measured from the right-of-way line of the public road to the center
of the turbine base.
f.
Large-scale wind energy facilities shall be set back a distance of
not less than eight times the total turbine height from public parkland,
areas of historical or cultural significance, a natural area, or nature
preserves.
3.
Use of public roads.
a.
The applicant shall identify all state and local public roads to
be used within the County to transport equipment and parts for construction,
operation or maintenance of the large wind energy facility.
b.
The County Department of Public Works or a qualified third party
engineer hired by the County and paid for by the applicant, shall
document road conditions prior to construction. The engineer shall
document road conditions again thirty (30) days after construction
is complete or as weather permits.
c.
The County may require that the applicant provide a permanent bond
against any damage to the road from the transportation of the large
wind turbine to and from the site.
d.
Any road damage caused by the applicant or its contractors shall
be promptly repaired at the applicant’s expense.
e.
The applicant shall demonstrate that it has appropriate financial
assurance to ensure the prompt repair of damaged roads.
10.16.5.3
Local emergency services.
1.
The applicant shall provide a copy of the project summary and site
plan to local emergency services, including paid or volunteer fire
departments; and
2.
Upon request, the applicant shall cooperate with emergency services
to develop and coordinate implementation of an emergency response
plan for the facility.
10.16.5.4
Noise.
Audible sound from a large energy facility
shall not exceed fifty-five (55) dBA or 5 dBA above ambient whichever
is less as measured at the property line. The level, however, may
be exceeded during short-term events such as utility outages or severe
windstorms. Methods for measuring and reporting acoustic emissions
from wind turbines and the large wind energy facility shall be equal
to or exceed the minimum standards for precision described in AWEA
Standard 2.1-1989 titled Procedures for the Measurement and Reporting
of Acoustic Emissions from Wind Turbine Generation Systems Volume
I: First Tier.
10.16.5.5
Signal interference.
The facility shall not interfere
with electromagnetic communications such as radio, telephone or television
or emergency communication systems. If it is demonstrated that a facility
is causing disruptive interference beyond the site, the applicant
shall mitigate any interference with electromagnetic communications,
such as, but not limited to, radio, telephone, or television signals,
including any public agency radio or microwave systems, caused by
the facility.
10.16.5.6
Liability insurance.
There shall be maintained
a current general liability policy covering bodily injury and property
damage with limits of at least $1 million per occurrence. Certificates
shall be made available to the County upon request.
10.16.5.7
Development agreement.
A development agreement
can be entered into between the property owner, the County and the
facility owner, carrying out all conditions of the development order
approving or conditionally approving the large wind energy facility,
and all other requirements of this Section and the requirements of
other applicable County, state or federal ordinances, regulations
or laws.
10.16.5.8
Decommissioning.
1.
The owner/operator shall, at its expense, complete decommissioning
of the facility or of any individual turbine, within twelve (12) months
after the end of the useful life of the facility or of any individual
turbine. The facility or individual turbines will presume to be at
the end of its useful life if no electricity is generated for a continuous
period of twelve (12) months.
2.
Decommissioning shall include removal of turbines, buildings, structures,
cabling, electrical components, roads, and foundations to a depth
of thirty-six (36) inches, as well as any other associated facilities/equipment.
Disturbed earth shall be graded and reseeded with native flora.
3.
An independent and New Mexico state certified professional engineer
shall be retained to estimate the total cost of decommissioning (“Decommissioning
Costs”) without regard to salvage value of the equipment, and
the cost of decommissioning net salvage value of the equipment (“Net
Decommissioning Costs”). Said estimates shall be submitted to
the County after the first year of operation and every fifth year
thereafter.
4.
The large wind energy facility owner/operator shall post and maintain
funds (“Decommissioning Funds”) in an amount equal to
Net Decommissioning Costs; provided that at no point shall the Decommissioning
Funds be less than twenty-five percent (25%) of Decommissioning Costs.
5.
The Decommissioning Funds shall be posted and maintained with a bonding
company or Federal or State chartered lending institution chosen by
the facility owner/operator posting the financial security, provided
that the bonding company or lending institution is authorized to conduct
such business within the State and is approved by the County.
6.
Decommissioning Funds may be in the form of a performance bond, surety
bond, letter of credit, corporate guaranty or other form of financial
assurance as may be acceptable to the County.
a.
If the facility owner/operator fails to complete decommissioning
within six (6) months after the end of the twelve-month period, then
the County may take such measures as necessary to complete decommissioning,
at the expense of the facility owner/operator.
b.
The escrow agent shall release the Decommissioning Funds when the
facility owner/operator has demonstrated and the County concurs that
decommissioning has been satisfactorily completed, or upon written
approval of the County in order to implement the decommissioning plan.
(Ordinance 2016-9 adopted 12/13/16)
10.17.1
Applicability; Exceptions.
Section 10.17 shall apply to the installation, construction, modification or operation of any wireless communication facility located within the unincorporated areas of the County, with the following exceptions:
10.17.1.1
Satellite earth stations, satellite dishes and TV antennas; and
10.17.1.2
Routine maintenance of any existing wireless communication facility
that does not include the placement of a new wireless communication
facility, modification of an existing wireless communication facility,
or installation of a collocation.
10.17.2
Purpose; Intent.
The purpose and intent of this Section
is to ensure that the placement, construction, and modification of
wireless communications facilities are conducted with due regard for:
the County’s health, safety, public welfare; environmental features
of the County; the nature and character of the communities and neighborhoods
and other aspects of the quality of life specifically listed elsewhere
in this Section; compliance with generally applicable building, structural,
electrical and safety codes; and compliance with laws and county ordinances
codifying objective standards reasonably related to health and safety.
Accordingly, the County hereby adopts this Section to achieve the
following goals of:
10.17.2.1
Requiring a wireless communication permit or CUP permit for the placement,
construction of any new wireless communication facility, or for the
collocation or modification of an existing wireless communication
facility;
10.17.2.2
Implementing an application process for a person(s) or entity(ies)
seeking a wireless communication permit or CUP permit;
10.17.2.3
Minimizing the impact of wireless communication facilities on surrounding
areas by establishing standards for location, structural integrity,
and compatibility;
10.17.2.4
Encouraging whenever possible the location and collocation of wireless
communication equipment on existing structures, thereby minimizing
adverse visual, aesthetic, and public safety impacts and effects upon
the natural environment and wildlife, and reducing the need for additional
antenna supporting structures;
10.17.2.5
Accommodating the growing need and demand for wireless communication
services;
10.17.2.6
Encouraging coordination between providers of wireless communication
services;
10.17.2.7
Protecting the character, scale, stability, and aesthetic quality
of the County’s residential districts by imposing reasonable
restrictions on the placement of certain amateur radio facilities;
10.17.2.8
Establishing review procedures to ensure that applications for wireless
communication facilities are reviewed and acted upon within a reasonable
period of time;
10.17.2.9
Providing for the removal of discontinued antenna supporting structures;
10.17.2.10
Providing for the replacement or removal of nonconforming antenna
supporting structures;
10.17.2.11
Complying with the policies embodied in the federal Telecommunications
Act of 1996 (47 U.S.C. 332(c)) in such a manner as to:
1.
Not unreasonably discriminate among providers of functionally equivalent
services, and not prohibiting or have the effect of prohibiting the
provision of personal wireless services;
2.
Provide for the County to act on any request for authorization to
place, construct, or modify a personal wireless service facility within
a reasonable period of time after the request is duly filed, and payment
is made of the applicable application fee;
3.
Provide that any development order issued on an application for development
approval which denies or conditionally approves a request to place,
construct, or modify personal wireless service facilities shall be
in writing and supported by substantial evidence contained in a written
record; and
4.
Provide that no County development order shall regulate the placement,
construction, and modification of personal wireless service facilities
on the basis of the environmental effects of radio frequency emissions
beyond such facilities complying with the Federal Communication Commission’s
regulations concerning such emissions.
10.17.2.12
Complying with the policies embodied in § 6409(a) of the
federal Spectrum Act (47 U.S.C. 1455), adopted by Congress in Title
VI of the Middle Class Tax Relief and Job Creation Act of 2012 (Pub.
L. No. 112-96, Feb. 22, 2012), relative to the processing of any application
for an eligible facilities request for a modification of an existing
wireless tower or base station that does not substantially change
the physical dimensions of the tower or base station. Acknowledging
that according to the FCC, the clear intent of Congress in adopting
this Act was to advance wireless broadband deployment, which it is
believed will promote billions of dollars in private investment and
create tens of thousands of jobs.
10.17.2.13
Determining when an eligible facilities request is specifically
made under the Spectrum Act and herein, which imposes mandatory approval
and establishes a 60-day timeline for processing a request to modify
an existing wireless tower or base station where the modification
does not substantially change the physical dimensions of an existing
tower or base station.
10.17.2.14
Determining when a requested modification of an existing wireless
tower or base station does or does not constitute a substantial change
under the Spectrum Act.
10.17.3
Structural and Other Standards Applicable to Antenna Supporting Structures.
10.17.3.1
Height.
The height limitations of wireless communication facilities shall be governed by Table 10-3. Except for stealth facilities, amateur radio antennas as covered in Section 10.17.14 below, or height restrictions as otherwise provided in this Section below, the overall height of any antenna supporting structure shall not exceed 150 feet:
1.
AM and FM broadcast antenna supporting structures may not exceed
200 feet in overall height;
2.
Television broadcast antenna supporting structures may not exceed
250 feet; and
3.
Antenna supporting structures proposed of a height of more than 200
feet or within proximity of an airport as set forth in 47 CFR section
17.7 (Antenna Structures Requiring Notification to the FAA) and Title
14 CFR Part 77 (Safe, Efficient Use, and Preservation of the Navigable
Airspace) both as most recently amended, shall comply with the provisions
of those regulations and provide the Administrator with a copy of
either the Determination of Hazard to Navigation or the No Determination
of Hazard to Navigation, whichever has been issued pursuant to 14
CFR section 77.9.
|
Table 10-3: Wireless Communications Facility Height Limitations
by Zoning District
| |||||
|---|---|---|---|---|---|
|
Zoning District
|
New tower and substantial modification
(ft)
|
No substantial modification
(ft)
|
Roof-Mounted
|
Surface-Mounted
|
Stealth
|
|
A/R
|
150
|
75
|
See section 10.17.6.1
|
See section 10.17.7.1
|
See section 10.17.8.1
|
|
RUR
|
120
|
75
|
"
|
"
|
"
|
|
RUR-F
|
90
|
50
|
"
|
"
|
"
|
|
RUR-R
|
75
|
50
|
"
|
"
|
"
|
|
RES-F
|
n/a
|
40
|
"
|
"
|
"
|
|
RES-E
|
n/a
|
36
|
"
|
"
|
"
|
|
RES-C
|
n/a
|
30
|
"
|
"
|
"
|
|
TC
|
n/a
|
24
|
"
|
"
|
"
|
|
CG
|
75
|
50
|
"
|
"
|
"
|
|
CN
|
n/a
|
40
|
"
|
"
|
"
|
|
I/IL
|
90
|
50
|
"
|
"
|
"
|
|
P/I
|
60
|
40
|
"
|
"
|
"
|
|
MU
|
60
|
40
|
"
|
"
|
"
|
|
PD
|
60
|
40
|
"
|
"
|
"
|
10.17.3.2
Setbacks.
1.
Antenna supporting structures, equipment enclosures, and ancillary
appurtenances shall meet the minimum setback requirements for the
zoning district in which they are proposed.
2.
To provide for public safety in the event of an antenna catching
fire or becoming structurally unstable and falling to the ground,
all new antenna supporting structures shall be set back from the property
line a distance equal to at least its potential fall radius, as certified
in writing by a New Mexico professional engineer duly licensed by
the State of New Mexico Board of Licensure for Professional Engineers
and Professional Surveyors. When computing the potential fall radius
of a new antenna supporting structure, the following additional conditions
shall apply:
a.
an applicant shall take future modifications to its structure into
consideration that could add height and thus increase the fall radius;
b.
except for an antenna supporting structure sited in a residential
zone, the potential fall radius shall, at a minimum, be at least the
height of a tower and, in the event of its fall, cannot fall outside
of the boundaries of the property on which it is sited;
c.
no new antenna supporting structure shall be placed adjacent an existing
tower such that if it fell to the ground, it would not fall against
any existing antenna supporting structure; and
d.
no new antenna supporting structure shall be placed adjacent an existing
electrical power line, including its supporting tower(s), such that
if it fell to the ground, it would not fall against the power line
or its supporting tower(s).
3.
In addition to any minimum setback requirements described in paragraph
1 above, antenna supporting structures with a tower height of at least
20 feet sited adjacent to residential property shall be set back a
minimum of 100 feet, or a distance equal to twice the tower height,
whichever is greater, measured from the property line of any property
on which a residence is located. An antenna supporting structure shall
be sited such that if it falls, it will not fall outside of the boundaries
of the property on which it is sited nor will it fall onto any residence
or accessory structure of an abutting property. It shall be certified
in writing by a New Mexico professional engineer duly licensed by
the State of New Mexico Board of Licensure for Professional Engineers
and Professional Surveyors that an antenna supporting structure satisfies
these setback and fall restrictions. This Section shall not apply
in a P/I district for emergency communication facilities.
10.17.3.3
Construction.
Antenna supporting structures shall
be of a monopole-type construction only, guyed or unguyed, except
as follows:
1.
Broadcast structures with an overall height of greater than 200 feet
may have a lattice-type construction;
2.
Amateur radio antennas may have a monopole-, lattice-, or guyed-type
construction; and
3.
AM broadcast antenna supporting structures may have a monopole- or
guyed-lattice-type construction.
10.17.3.4
Lighting.
1.
Except for motion sensing security lighting to deter intruders, no lights, signals, or other illumination shall be permitted on any antenna supporting structure or ancillary appurtenances unless that lighting is required by the FAA or the FCC. The installation and use of any security lighting shall comply with Section 7.8.5.3 of this Code.
2.
Site lighting may be placed in association with an approved equipment
enclosure but shall be shielded to prevent light trespass. Site lighting
shall remain unlit except when authorized personnel are present.
10.17.3.5
Intensity Requirements.
The floor area for a wireless
communication facility shall be calculated based on the total square
footage of all equipment enclosures associated with the facility.
10.17.3.6
Color.
Antenna supporting structures and ancillary
appurtenances, including transmission lines, shall maintain a tan
adobe finish or other contextual or compatible color as determined
by the Administrator, except as otherwise required by the FAA or the
FCC.
10.17.3.7
Fencing.
A fence of at least six (6) feet but
no more than eight (8) feet in height from finished grade shall be
installed in order to completely enclose the base of the antenna supporting
structure and associated equipment. Access to the antenna supporting
structure shall be controlled by a locked gate. The fence shall be
constructed in accordance with Chapter 7 of this Code. Any access
gate(s) shall be secure and kept locked except for access by Applicant’s
personnel including any maintenance individuals.
10.17.3.8
Signage.
1.
No signs may be placed on antenna supporting structures, ancillary
appurtenances, equipment enclosures, or on any fence or wall except
as required by this Section.
2.
If high voltage is necessary for the operation of a proposed wireless
antenna structure, bold-lettered “High Voltage–Danger”
and “No Trespass” warning signs not greater than one square
foot in area shall be permanently attached to the fence or wall at
a height of at least five (5) feet and spaced at intervals of at least
40 feet and also upon the access gate. Such signs shall be maintained
so they are clearly visible and not obstructed by landscaping.
3.
A sign not greater than one square foot in area shall be attached
to the access gate that indicates the following information: FCC Registration
Number, if applicable, name of owner or contact person; and emergency
contact number which shall be kept current.
10.17.3.9
Safety; ANSI/TIA-222-G Compliance.
All antenna
supporting structures shall comply with the safety standards contained
in the American National Standards Institute/Telecommunications Industries
Association (ANSI/TIA) document 222-G, “Structural Standard
for Steel Antenna Towers and Supporting Structures,” as amended,
revised or supplemented by addenda. ANSI/TIA-222-G addresses such
factors that include, but are not limited to, default design parameters,
wind speed resistance based on a three-second-gust wind speed, ice
formation, climber safety, structure load details, mounting frames,
classification of structures, earthquake design, topographic categories,
ground surface exposure categories and soil parameters.
10.17.3.10
Accommodation of Future Collocations.
1.
Antenna supporting structures shall be designed to accommodate future
collocations. The estimated amount of additional equipment to be accommodated
by applicant shall be disclosed during the pre-application conference.
2.
As a condition of approval under this chapter, the applicant shall
submit a shared use plan that commits the owner of the proposed antenna
supporting structure to accommodate future collocations where reasonable
and feasible in light of the criteria set forth in this Section.
3.
Except for amateur radio or stealth facility structures, all new
or modified antenna supporting structures up to eighty (80) feet shall
be engineered and constructed to accommodate no less than two (2)
antenna arrays; all antenna supporting structures between eighty-one
(81) feet and one hundred (100) feet, shall be engineered and constructed
to accommodate no less than three (3) antenna arrays; all antenna
supporting structures between one hundred one (101) feet and one hundred
fifty (150) feet, shall be engineered and constructed to accommodate
no less than four (4) antenna arrays.
10.17.3.11
Proliferation Minimized.
1.
Generally.
New antenna supporting structures will not
be permitted unless the applicant indicates that the proposed antenna(s)
cannot be accommodated on an existing building or structure or by
construction of a stealth facility.
2.
Letters of coordination.
At the pre-application conference,
the applicant of a new antenna supporting structure shall provide
documentation that the following notice was mailed, via certified
mail, return receipt requested, or delivered by courier service to
all providers or, where applicable, to owners of existing antenna
supporting structures, and that the applicant was unable to secure
a lease agreement with a provider to allow the placement of the proposed
antenna(s) on an existing structure or building within the geographic
search area, as follows:
|
Pursuant to the requirements of the Santa Fe County Sustainable
Land Development Code, (NAME OF APPLICANT) is providing you with this
notice of intent to meet with the Administrator in a pre-application
conference to discuss the location of a freestanding wireless communication
facility to be located at (LOCATION).
|
|
(APPLICANT) plans to construct an antenna supporting structure
of (NUMBER OF) feet in height for the purpose of providing (TYPE OF
WIRELESS SERVICE).
|
|
Please inform the County Administrator and (APPLICANT) if you
intend to own/operate any other wireless communication facility/ies
within two miles of the proposed facility, or if you have knowledge
of an existing building or antenna supporting structure that might
accommodate the antenna(s) associated with our proposed facility.
|
|
Please provide us with this information within 10 days following
the receipt of this letter.
|
|
Sincerely,
(APPLICANT, WIRELESS PROVIDER)
|
The Administrator shall maintain a list of known wireless
service providers and owners, including their contact information.
Letters of coordination shall be mailed not less than 10 business
days prior to the pre-application conference required by this Section
and shall request a response from the recipient within 10 days of
receipt.
3.
Siting priorities.
In order to justify the construction
of an antenna supporting structure, the applicant shall demonstrate
that higher-ranking alternatives in the following order do not constitute
feasible alternatives: (a) collocated or combined antennas; (b) surface-mounted
antennas; (c) roof-mounted antenna supporting facility; and (d) stealth
wireless communication facility. Such demonstration shall be made
by submission of a statement of position, qualifications, and experience
by a licensed radio frequency engineer.
4.
Additional evidence.
As appropriate, the following evidence
may also be submitted to demonstrate compliance with this Section:
(a) that no existing wireless communication facility within the geographic
search area meets the applicant’s radio frequency engineering
or height requirements; (b) that no building or structure within the
geographic search area has sufficient structural strength to support
the applicant’s proposed antennas; or (c) that there are other
limiting factors that render collocated, surface-mounted, roof-mounted,
or stealth facilities unsuitable or unreasonable.
10.17.3.12
Visual Impacts Minimized.
1.
Generally.
Antennas shall be configured on antenna supporting
structures in a manner that is consistent with the character of the
surrounding community and that minimizes adverse visual impacts on
adjacent properties.
2.
Antenna type priorities.
In order to justify the use
of an antenna type lower in the hierarchy, the applicant shall adequately
demonstrate that higher-ranked alternatives in the following order
cannot be used: flush-mounted, panel, whip or dish. Such demonstration
shall be made by submission of a statement of position, qualifications,
and experience by a licensed radio frequency engineer familiar with
said alternatives.
10.17.3.13
District Impacts Minimized.
In order to justify
locating a proposed antenna supporting structure within a zoning district
lower in the hierarchy, the applicant shall adequately demonstrate
that siting alternatives within higher-ranked districts in the following
order are not reasonable or feasible: developments of countywide impact;
industrial; commercial; agricultural/ranching; planned districts;
residential and rural residential; flood hazard areas, habitat areas
and corridors, mountains and hillsides, rivers and streams, wetlands,
scenic byways and trails; or airport overlay. Such demonstration shall
be made by submission of a statement of position, qualifications,
and experience by a licensed radio frequency engineer.
10.17.3.14
Unpermitted Wireless Transmission Equipment.
Any
tower or base station that exists upon the effective date of this
Code that was constructed or deployed without proper review by the
County, was not required to undergo siting review, or supports transmission
equipment that did not receive any State or County regulatory approval
shall not be subject to the granting of a collocation application.
The restrictions in this Section do not apply to femtocells, satellite
dish antennas or personal TV antennas, when each is installed for
personal use. It shall also not apply to a stealth facility.
10.17.3.15
Restricted and sensitive sites.
In addition to
any potential sites for constructing antenna supporting structures
that are restricted or subject to compliance requirements under the
National Environmental Policy Act of 1969 (NEPA), the National Historic
Preservation Act of 1966 (NHPA) or related rules of the FCC, no antenna
supporting structure shall be constructed on any property, dwelling
or structure in the County listed as an archeological, historic, scientific,
architectural or cultural property or resource on the “New Mexico
Register of Cultural Properties” pursuant to rules of the Cultural
Properties Review Committee and Historic Preservation Division of
the New Mexico Department of Cultural Affairs. Nor shall an antenna
supporting structure be constructed on any land that is the subject
of a conservation easement or that has been designated as open space.
10.17.3.16
Licensure of Installation Contractor.
Any New
Mexico business entity contracted to construct a broadcast tower or
wireless communication tower under this Section shall be a licensed
GF-7 contractor pursuant to state rule 14.6.6 NMAC (“Classifications
and Scopes”) as most recently amended, which rule was adopted
by the Construction Industries Division of the Regulation and Licensing
Department.
10.17.4
Standards for Modifications.
10.17.4.1
The short processing time and mandatory approval for a modification
under the Spectrum Act applies to an eligible facilities request for
modification of an existing wireless tower or base station that substantially
changes the physical dimensions of an eligible support structure,
and involves:
10.17.4.2
Substantial Modifications.
In determining whether
a modification substantially changes the physical dimensions of an
eligible support structure, changes in height shall be measured from
the original support structure in cases where deployments are or will
be separated horizontally such as on a building’s rooftop. In
other circumstances, changes in height shall be measured from the
dimensions of the tower or base station, inclusive of originally approved
appurtenances and any modifications that were approved prior to the
passage of the Spectrum Act (February 22, 2012). A substantial change
occurs, if it meets any of the following criteria:
1.
For towers other than towers in the public rights-of-way, it increases
the height of the tower by more than 10% or by the height of one additional
antenna array with separation from the nearest existing antenna not
to exceed twenty (20) feet, whichever is greater; for other eligible
support structures, it increases the height of the structure by more
than 10% or more than ten (10) feet, whichever is greater;
2.
For towers other than towers in the public rights-of-way, it involves
adding an appurtenance to the body of the tower that would protrude
from the edge of the tower more than twenty (20) feet, or more than
the width of the tower structure at the level of the appurtenance
to the body of the structure that would protrude from the edge of
the structure by more than six (6) feet;
3.
For any eligible support structure, it involves installation of more
than the standard number of new equipment cabinets for the technology
involved, but not to exceed four (4) cabinets; or, for towers in the
public rights-of-way and base stations, it involves installation of
any new equipment cabinets on the ground if there are no pre-existing
ground cabinets associated with the structure, or else involves installation
of ground cabinets that are more than 10% larger in height or overall
volume than any other ground cabinets associated with the structure;
4.
It entails any excavation or deployment outside the current site;
5.
It would defeat the concealment elements of the eligible support
structure; or
6.
It does not comply with conditions associated with the siting approval
of the construction or modification of the eligible support structure
or base station equipment, provided however that this limitation does
not apply to any modification that is noncompliant only in a manner
that would not exceed the thresholds identified in paragraphs 1 through
4 above.
10.17.4.3
Nonsubstantial Modifications.
A modification that does not substantially change the physical dimensions of an eligible support structure would consist of proposed dimensions or increases that are less than any of the dimensions or increases described in paragraphs 1 through 4 of Section 10.17.4.2 above. Additionally, a modification that does not substantially change the physical dimensions of an eligible support structure is one that does not entail any excavation or deployment outside the current site of an existing facility, or its modification would defeat the concealment elements of a stealth facility.
10.17.4.4
Color.
All collocated antennas and ancillary appurtenances
shall maintain a sandstone finish or other contextual color that is
compatible with the environment or the building to which they are
attached.
10.17.4.5
Visual impact minimized.
The visual impact requirements and hierarchy set forth at Section 10.17.3.12 shall apply to the approval of collocations.
10.17.5
Standards for Water Tower-Mounted Antenna Supporting Structure.
Even though a water tower may be considered an accessory structure
or its use an accessory use, antennas may be placed on water towers
in zoning districts where antennas for wireless communication facilities
are designated as conditional uses in the use matrix. No portion of
any water tower-mounted antenna or its base station shall extend above
the height of the water tower walls unless specifically permitted
as part of a conditional use for good reason demonstrated.
10.17.6
Standards for Roof-Mounted Antenna Supporting Structure.
10.17.6.1
Height.
1.
For purposes of public safety in order to prevent or reduce the potential
for damage and bodily injury from such an antenna supporting structure
or modification thereto, any roof-mounted antenna supporting structure,
attachment device, equipment enclosure, and/or any ancillary appurtenance
may not extend above the roof line of the building upon which it is
attached by more than twenty (20) feet.
2.
Roof-mounted antenna supporting structures proposed within proximity
of an airport as set forth in 47 CFR section 17.7 (Antenna Structures
Requiring Notification to the FAA) and Title 14 CFR Part 77 (Safe,
Efficient Use, and Preservation of the Navigable Airspace) both as
most recently amended, shall comply with the provisions of those regulations
and provide the Administrator with a copy of either the Determination
of Hazard to Navigation or the No Determination of Hazard to Navigation
notice, whichever is issued pursuant to 14 CFR section 77.9.
3.
An antenna located on a building roof shall, in addition to the requirements
of paragraphs 1 to 3 above, be governed by the regulations for the
maximum height of structures of the applicable district.
10.17.6.2
Location and placement.
Roof-mounted antennas
may be placed only on commercial nonresidential, institutional, industrial,
and multifamily buildings.
10.17.6.3
Screening and placement.
1.
If practicable by reason of the roof design, roof-mounted wireless
communication facilities should be mounted as near to the center of
the roof as possible. Whenever practicable, roof-mounted structures
should be screened by a parapet or other device such as a camouflage
application in order to minimize their visual impact as viewed from
the lot line of the subject property.
2.
Transmission lines placed on the exterior of a building shall be
camouflaged or otherwise shielded within an appropriate material that
is the same color as, or a color consistent with, the building to
which they are attached.
10.17.6.4
Construction.
Roof-mounted antennas shall be of
a monopole-type construction.
10.17.6.5
Color.
Roof-mounted structures, ancillary appurtenances,
and equipment enclosures shall maintain a color to match as closely
as possible the color and texture of the wall of the building on which
they are mounted.
10.17.6.6
Signage.
No signs may be placed on any roof-mounted
structure, ancillary appurtenances, or equipment enclosures.
10.17.6.7
Visual impact minimized.
The visual impact requirements and hierarchy set forth at Section 10.17.3.12 shall apply to the approval of roof-mounted structures.
10.17.7
Standards for Surface-Mounted Antennas.
10.17.7.1
Height and placement.
Surface-mounted antennas
shall be placed not less than 15 feet from the ground and, where proposed
for placement on a building, shall be placed so that the antenna shall
be at least three feet below the roof line.
10.17.7.2
Color.
Surface-mounted antennas and associate
ancillary appurtenances shall maintain a color that is the same as
the surface to which they are attached, unless another color is more
compatible within the context of the proposed facility and the surrounding
environment. Transmission lines shall be camouflaged or otherwise
shielded within an appropriate material that is the same color as,
or a color consistent with, the building or structure to which they
are attached.
10.17.7.3
Visual impact minimized.
The visual impact requirements and hierarchy set forth at Section 10.17.3.12 shall apply to the approval of surface-mounted structures.
10.17.8
Standards for Stealth Facilities.
10.17.8.1
Height.
The overall height of a proposed stealth
wireless communication facility shall be limited to that which is
allowed within the zoning district in which the facility is to be
located, and which is consistent with the surrounding community. However,
in no case may the overall height of any stealth facility exceed 50
feet. Stealth wireless communication facilities proposed within a
O-AN district and within proximity of an airport, as set forth in
47 CFR section 17.7 (Antenna Structures Requiring Notification to
the FAA) and Title 14 CFR Part 77 (Safe, Efficient Use, and Preservation
of the Navigable Airspace) both as most recently amended, shall comply
with the provisions of those regulations and provide the Administrator
with a copy of either the Determination of Hazard to Navigation or
the No Determination of Hazard to Navigation notice, whichever is
issued pursuant to 14 CFR section 77.9.
10.17.8.2
Setbacks.
1.
Stealth wireless communication facilities, ancillary appurtenances,
and equipment enclosures shall meet the minimum setback requirements
for the zoning district in which they are proposed. However, the minimum
separation from any existing residential structure shall be 150% of
the tower’s height.
2.
Setback requirements for stealth facilities may be reduced if it
is determined that such a reduction is necessary to reduce the visual
impact or enhance the compatibility of the proposed facility.
10.17.8.3
Aesthetics.
No stealth facility may have antennas
or ancillary equipment that is readily identifiable from the public
domain as wireless communication equipment. Stealth facilities shall
be designed to be reasonably consistent with the surrounding built
or natural environment. In order to determine compliance with this
requirement, the following criteria shall be considered:
1.
Overall height;
2.
The compatibility of the proposed facility with surrounding built
and natural features;
3.
Scale;
4.
Color;
5.
The extent to which the proposed facility has been designed to reasonably
replicate a non-wireless facility (e.g., a silo, flagpole, or tree);
and
6.
The extent to which the proposed facility is not readily identifiable
as a wireless communication facility.
10.17.9
Permitting of Temporary Towers.
Temporary towers shall
require permitting but under an expedited review process that shall
be completed, after payment of a permitting fee, which shall be within
five (5) working days.
10.17.9.1
The need for temporary towers arises when there is insufficient time
to complete an environmental notification process before a temporary
tower must be deployed to meet short-term wireless communication demands.
Such need for deployment includes:
1.
newsworthy events that occur without any prior notice and require
immediate deployments, such as natural disasters and other natural
or local emergency or urgent events;
2.
other events that occur with less than thirty (30) days’ advance
notice, such as political events and parades for sport teams;
3.
events for temporary towers are unknown until days before the event,
such as fairs and major sporting events; and
4.
situations in which unexpected difficulties with permanent structures
require the deployment of temporary towers to restore lost communications
while permanent facilities are repaired or replaced.
10.17.9.2
Temporary towers are authorized subject to the following restrictions:
1.
they shall be in place for no more than sixty (60) days subject to
one 60-day extension due to changed circumstance or information that
emerged after the exempted temporary tower was deployed;
2.
they shall comply with any notice of construction requirements of
the FAA;
3.
they do not require any marking or lighting under FAA or state regulations;
4.
they shall be greater than thirty (30) but less than two hundred
(200) feet in height; and
5.
they either will involve no excavation or excavation only where the
depth of previous disturbance exceeds the proposed construction depth
excluding footings and other anchoring mechanisms by at least two
(2) feet.
10.17.9.3
Thirty (30) days shall elapse following the removal of one temporary
tower before the same applicant may rely on the authority for another
temporary tower covering substantially the same service area.
10.17.10
Application and Development Review Process.
10.17.10.1
Generally.
Unless excepted by Section 10.17.1, all wireless telecommunication facilities are subject to zoning approval in accordance with Chapter 8 of the SLDC and this Section. The use matrix sets forth the process required based on the applicable location and facility type.
10.17.10.2
General Application Requirements.
1.
In addition to the application form for a wireless communication development permit and conditional use permit (if applicable), the applicable submittal requirements as indicated in Table 10-4, the SRAs required by Chapter 6, and the sustainable design standards of Chapter 7, shall be furnished with the application and satisfied prior to review of an application for any new wireless communication facility. This requirement is not applicable to replacement of an existing wireless communication facility or to nonsubstantial modifications of existing antenna supporting structures including the installation of collocations. (For provisions governing replacement, see Sections 10.17.4.1, 10.17.10.6 and 10.17.14.)
2.
All applications must be signed by the property owner, the applicant,
and the provider who will be placing antennas on the proposed facility.
If the property owner is not the provider, the application shall include
a copy of an executed lease agreement between the applicant or property
owner and a provider, or, where no lease agreement has been executed,
an affidavit signed by a carrier attesting to an intent to place antennas
on the wireless communication facility if the application is approved.
3.
If the application is for a new antenna supporting structure, the
applicant shall also comply with the pre-application meeting requirements
of the SLDC. This provision is not applicable to replacement antenna
supporting structures unless they exceed the height of the existing
structure. Prior to the pre-application meeting, the applicant shall
provide the following information regarding the proposed facility:
a.
A detailed site plan that shows:
(i)
location and dimensions of the proposed facility;
(ii)
maximum height above ground of the proposed facility;
(iii)
The elevation of the proposed facility including the benchmarks
and data used to compute;
(iv)
Any and all existing setbacks on the proposed site; and
(v)
The location of all existing access ways to the proposed location
and design of any proposed access ways.
b.
Number of antennas proposed, including those of other providers;
c.
Type or types of wireless communication to be provided;
d.
The full name and address of the owner of the parcel;
e.
Applicant’s certification that they have the legal authority
to collocate/modify support structure which may include obtaining
approvals from the Administrator authoring the initial placement of
transmission equipment on the tower or other structure; and
f.
Proof that the letters of coordination were mailed as required by Section 10.17.3.11 regarding accommodation of future collocations.
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Table 10-4: Submittal Requirements for Wireless Telecommunication
Facilities
| |||||
|---|---|---|---|---|---|
|
Antenna Supporting
|
Collocations
|
Roof-Mounted
|
Surface-Mounted
|
Stealth Facilities
|
Required Submissions:
|
|
*
|
*
|
*
|
*
|
*
|
A complete application on a form provided by the Administrator.
|
|
*
|
*
|
*
|
*
|
*
|
A signed assurance from the facility’s owner, owner’s
agent or operator stating that the radio frequency emissions for the
proposed facility or device shall not exceed the FCC’s maximum
permissible exposure limits for the general population set forth in
47 CFR section 1.1310.
|
|
*
|
*
|
*
|
*
|
*
|
The maximum tower height and maximum power output in megahertz
and watts of any proposed wireless communication facility including
any proposed modifications or collocations of an existing facility.
|
|
*
|
*
|
*
|
*
|
*
|
Proof that the proposed facility meets or exceeds the standards
for wind resistance, mount loads and mounting frames covered by ANSI/TIA
222-G as amended, revised or supplemented by addenda.
|
|
*
|
|
*
|
|
*
|
Proof that the proposed antenna supporting structure has been
designed so that, in the event of structural failure, the facility
will collapse within the boundaries of the lot on which it is located.
|
|
*
|
|
|
|
*
|
A license (and for broadcast structures, a construction development
approval) issued by the FCC to transmit radio signals in the County.
|
|
*
|
*
|
*
|
*
|
*
|
The contact information for the owner of any proposed or existing
antenna supporting structure, and a statement that such information
will be updated annually or upon a change of ownership.
|
|
*
|
*
|
*
|
*
|
*
|
A statement of the height above sea level of the highest point
of the proposed facility, including any modifications or collocations.
|
|
*
|
*
|
*
|
|
*
|
A stamped or sealed structural analysis of the facility prepared
by a professional engineer, certified by the State of New Mexico indicating
the proposed and future loading capacity of the facility and its compliance
with ANSI/TIA 222-G as amended, revised or supplemented by addenda.
|
|
*
|
|
|
|
*
|
One original and two copies of a survey of the lot completed
by a registered land surveyor indicating all existing uses, structures,
and improvements.
|
|
*
|
|
|
|
*
|
Photo-simulated post-construction renderings of the proposed
facility, equipment enclosures, and ancillary appurtenances as they
would look after construction from locations to be determined by the
participants during the pre-application conference.
|
|
*
|
|
*
|
*
|
*
|
Proof of FAA compliance with Subpart C of the Federal Aviation
Regulations Part 77 by providing a copy of either a “Determination”
or “No Determination” “of Hazard to Navigation”
notice pursuant to 14 CFR Section 77.9.
|
|
*
|
*
|
*
|
*
|
*
|
A letter of consent from the airport authority if within any
noise or safety zone.
|
|
*
|
|
*
|
*
|
*
|
Shared use plan.
|
|
*
|
|
|
|
*
|
If required by the U.S. Fish and Wildlife Service, a letter
indicating that the proposed antenna supporting structure and appurtenances
are in compliance with all applicable federal rules and regulations.
|
|
*
|
*
|
*
|
*
|
*
|
A graphical representation with statement of the coverage area
planned for the cell to be served by the proposed facility.
|
|
*
|
*
|
*
|
*
|
*
|
Antenna heights and power levels of the proposed facility and
all other facilities on the subject property.
|
|
*
|
|
|
*
|
|
A geotechnical report addressing the soil type and soil properties
at the proposed site to avoid having a tower anchor corrode and fail
to support the tower. (ANSI/TIA 222-G, annex of values representative
of soil types)
|
10.17.10.3
Application Review Standards.
Application review standards are indicated by facility type below in Sections 10.17.10.5 through 10.17.10.7 and are in addition to the applicable standards of Chapters 7 and 8 herein.
10.17.10.4
Expert Review of Application.
1.
Due to the complexity of the methodology or analysis required to
review an application for a wireless communication facility including
modification/ collocation to an existing facility, the Administrator
or the Planning Commission may require a technical review by a third-party
expert, the cost in an amount specified in the fee ordinance, which
shall be borne by the applicant. The expert review may address the
following:
a.
The accuracy and completeness of submissions;
b.
The applicability of analysis techniques and methodologies;
c.
The validity of conclusions reached;
d.
Whether the proposed wireless communication facility complies with
the applicable approval criteria set forth in this chapter, other
sections of the SLDC, federal and state laws and regulations; and
e.
Any other matters deemed by the Administrator to be relevant in determining
whether a proposed wireless communication facility complies with the
provisions of this Chapter, the SGMP, other sections of the SLDC,
federal and state laws and regulations.
2.
Based on the findings and conclusions of the expert review, the Administrator may require changes to the applicant’s application or required submissions. However, any such required changes or submissions shall be treated as an incomplete submission and governed by Sections 10.17.10.5 through 10.17.10.7 respectively, depending on the type and size of the facility.
3.
The applicant shall reimburse the County for the engineering review required in Section 10.17.10.4 by depositing funds or a letter of credit with the Administrator in an amount specified in the fee ordinance. Any refund or requirement for additional amounts will be determined within 10 working days of the date of receipt of an invoice for expenses associated with the third-party expert’s review of the application. Failure by the applicant to make reimbursement pursuant to this Section will suspend the pending application until payment in full is received.
10.17.10.5
Application for a new wireless communication facility.
Notwithstanding any other review/approval timeframes for development
permits or CUP permits under this SLDC, an application for the siting
of a new wireless communication facility shall be reviewed and a final
decision issued by the Administrator or Planning Commission within
150 days from the date of submittal of the application.
1.
If an application is determined to be incomplete, the Administrator
or Planning Commission must notify the applicant in writing of the
incompleteness within 30 days of receipt of the application, which
notification shall toll the 150-day timeline for processing an application
only until the applicant submits the additionally requested documents
or information.
2.
Any notice of incompleteness shall inform the applicant what specific
documents or information are missing from the application, and what
Code provision, ordinance or application procedure requires the documentation
or information to be submitted.
3.
Upon receipt of the applicant’s supplemental submission, if
the Administrator or Planning Commission still considers the application
to be incomplete, a notice of incompleteness must be submitted to
the applicant within 10 days of receipt detailing what specific documents
or information are still missing.
4.
If the Administrator or Planning Commission issues a second or subsequent
notices of incompleteness in response to subsequent supplemental submissions,
such notices may not seek missing documents or information that were
not previously delineated in the original notice of incompleteness.
5.
If the Administrator or Planning Commission does not render a decision
on the application within 150 days, even factoring in any additional
days due to tolling, such indecision shall constitute “failure
to act” and authorize the applicant to commence an action in
court under § 332(c)(7)(B)(v) of the Telecommunications Act of
1996. The applicant need not appeal to the Board prior to taking the
matter to court for failure to act.
10.17.10.6
Application for modification of a wireless tower or base station
that does not substantially change the physical dimensions of the
tower or base station.
Notwithstanding any other review/approval
timeframes for development permits or CUP permits under this SLDC,
an application for modification of an existing wireless communication
facility that does not substantially change the physical dimensions
of an eligible support structure shall be reviewed and a final decision
issued by the Administrator within 60 days from the date of submittal
of the application to the Administrator. “Modification”
of a wireless tower or base includes collocation of new transmission
equipment, removal of transmission equipment, or replacement of transmission
of equipment.
1.
Processing covered and non-covered requests.
a.
An application for development permit for modification of a wireless
communication facility that does not substantially change the physical
dimensions of a tower or base station must specifically assert in
its application that the requested modification constitutes a “covered
request” under § 6409(a) of the Spectrum Act.
b.
If the Administrator determines that a request is not a covered request,
then the application is not entitled to consideration for mandatory
approval under the Spectrum Act. Instead, such modification application
shall still be considered for approval but under the 150-day Telecommunications
Act timeline, which timeframe commences upon issuance of the Administrator’s
decision that § 6409(a) of the Spectrum Act does not apply.
c.
An application for a collocation which is determined by the Administrator
to be non-covered shall be considered for approval within 90 days
from the date that determination is made.
2.
Addressing incomplete applications.
a.
If an application is determined to be incomplete, the Administrator
must notify the applicant in writing of the incompleteness within
30 days of receipt of the application, which notification shall toll
the 60-day timeline for processing an application only until the applicant
submits the additionally requested documents or information.
b.
Any notice of incompleteness shall inform the applicant what specific
documents or information are missing from the application and what
Code provision, ordinance or application procedure requires that documentation
or information to be submitted.
c.
Upon receipt of the applicant’s supplemental submission, if
the Administrator still considers the application to be incomplete,
a notice of incompleteness must be submitted to the applicant within
10 days of receipt detailing what specific documents or information
are still missing.
d.
If the Administrator issues second or subsequent notices of incompleteness
in response to subsequent supplemental submissions, such notices may
not seek missing documents or information that were not previously
delineated in the original notice of incompleteness.
e.
All subsequent notices of incompleteness shall further toll the 60-day
timeline for processing an application only until the applicant submits
the additionally requested documents or information.
f.
The 60-day timeline may be tolled at any time by mutual agreement
in a document signed by the Administrator and the applicant.
3.
If the Administrator does not render a decision on the application
within 60 days, even factoring in any additional days due to tolling,
such indecision shall constitute “failure to act” and
the applicant’s request shall be deemed granted. That an applicant’s
request is deemed granted shall not become effective until the applicant
notifies the Administrator in writing after the review period has
expired, including any tolling, that the application has been deemed
granted.
4.
If the Administrator renders a decision denying the application, the applicant may, pursuant to Section 4.5 of the Code, appeal that decision within 5 days to the Planning Commission, and if still aggrieved, appeal that decision within 30 days to the Board.
5.
Availability of court review.
Either the Applicant or
the Administrator may, within 30 days of the relevant event, bring
claims related to the Spectrum Act to any court of competent jurisdiction.
By way of example:
a.
the Administrator could invoke litigation to challenge an applicant’s
written assertion of a deemed grant when the Administrator believes
the underlying application did not meet the criteria in the Spectrum
Act for mandatory approval, would not comply with applicable building
codes, or would not comply with other non-discretionary structural
and safety codes.
b.
the applicant could invoke litigation to challenge the Administrator’s
denial of application approval, the Administrator’s determination
of incompleteness, or to obtain a declaratory judgment or other order
confirming that its application is deemed granted.
10.17.10.7
Application for modification of a wireless tower or base station
that substantially changes the physical dimensions of the tower or
base station.
Notwithstanding any other review/approval timeframes for development permits under this SLDC, an application for modification of an existing wireless communication facility that substantially changes the physical dimensions of an eligible support structure shall be reviewed and a final decision issued by the Planning Commission within 150 days from the date of submittal of the application to the Administrator; or within 90 days from the date of submittal of the application to the Administrator if the modification application is for collocation of new transmission equipment. The procedures in paragraphs 1 through 6 of Section 10.17.10.5 above shall apply.
10.17.11
Discontinuance and removal of facilities.
10.17.11.1
Action by Administrator upon discontinued use.
In the event that all legally approved use of an antenna supporting
structure or antenna has been discontinued for a period of at least
180 consecutive days, the Administrator shall make a preliminary determination
of discontinuance and revocation of the development permit or CUP
permit. In making such a determination, the Administrator may request
documentation and/or affidavits from the property owner and/or the
owner of the wireless facility as to the continued use of the facility.
10.17.11.2
Annual continued use report.
The property owner
and owner/operator of the wireless facility shall file a consolidated
annual report with the Administrator as to the continued use of the
facility and provide updated contact information. Such report shall
be due every 12 months on the anniversary of the granting of the wireless
communication facility development permit or CUP permit. Failure on
the part of a property owner or owner of the wireless facility to
provide the annual report shall be presumptive evidence of discontinuance.
10.17.11.3
Notice of discontinuance and revocation.
At such
time as the Administrator reasonably determines that an antenna supporting
structure or antenna has been discontinued, the Administrator shall
provide the property owner and owner/operator of the wireless facility
with a written notice of discontinuance and revocation of the CUP
by certified mail or hand-delivered, at the last and usual place of
business or residence, and set the matter for a public hearing with
the Planning Commission for the first available date no sooner than
30 days after the notice of discontinuation and revocation of the
CUP was mailed.
10.17.11.4
Planning Commission hearing.
The Administrator
shall establish at a public hearing by a preponderance of evidence
that the subject facility has discontinued its operation by at least
180 consecutive days. Failure on the part of the property owner or
owner/operator of the wireless facility to respond to the notice of
discontinuance and revocation of the CUP, or to dispute discontinuance
of its operation, will be evidence of discontinuance.
10.17.11.5
Planning Commission final determination; written decision.
Based on the foregoing, or on any other relevant evidence submitted,
or on testimony presented during the hearing including failure to
respond, the Planning Commission shall make a final written determination
on the issue of whether discontinuance of the operation by at least
180 consecutive days has occurred.
1.
Such determination the Planning Commission shall be supported by
written findings and conclusions and shall be based on a preponderance
of the evidence.
2.
If the Planning Commission determines that the use of the wireless
communication facility has been discontinued, it shall issue a development
order revoking the development order or CUP upon such reasonable terms
as the Planning Commission in its quasi-judicial capacity shall determine.
3.
The development order shall be served upon the property owner and
the owner/operator of the wireless facility by certified mail return
receipt requested, or by hand-delivery at the last and usual place
of business or residence.
4.
If the Planning Commission determines after hearing that the use
of the wireless communication facility has not been discontinued,
it shall issue and serve a written decision to that effect pursuant
to the procedures described herein.
5.
In the event of a finding of non-discontinuance, the wireless communication
facility can continue to operate and shall file appropriate papers
with the Administrator that provides contact information, the scope
of its intended operation and such other information necessary to
its operation and permitting by the County required by the Administrator.
10.17.11.6
Removal of facility.
Unless the written decision of the Planning Commission is timely appealed pursuant to Section 4.5.4 of this Code, within 120 days of a determination of discontinuance, the property owner or facility owner/operator shall either:
1.
Reactivate the use of the structure as a wireless communication facility
under a timetable and conditions set by the Planning Commission;
2.
Transfer ownership of the structure to a successor owner who will
make appropriate use of the facility pursuant to the terms of the
CUP or applicable development order; or
3.
If neither paragraphs 1 or 2 of this subsection has occurred, the
Administrator may, upon 10 days’ written notice to the property
owner and the owner/operator of the wireless facility, enter upon
the property and dismantle and remove the facility, with all costs
subject to reimbursement jointly and severally by the property owner
and the owner/operator.
10.17.12
Nonconforming Antenna Supporting Structures.
Where any existing antenna supporting structure is made nonconforming by implementation of this Section and its owners or operators seek to make a modification that substantially changes the physical dimensions of the tower or base station, any such modification shall require both the existing supporting structure and the modification to be in compliance with Section 10.17 of this Code. The owner or operator of the facility may apply for a variance and further demonstrate that the requirements of this Section impose an unreasonable burden on the ability of a provider to provide personal wireless services pursuant to a license from the FCC or by reason of federal law.
10.17.13
Variance Criteria.
No variance shall be granted
under the provisions of this Section unless the Planning Commission
makes at least one of the following written findings of fact and conclusions:
10.17.13.1
That failure to grant the variance would prohibit or have the
effect of prohibiting the provision of personal wireless services
in violation of a license issued by the FCC or federal law;
10.17.13.2
That failure to grant the variance would unreasonably discriminate
among providers of functional equivalent personal wireless services;
10.17.13.3
That the variance will obviate the need for additional antenna
supporting structures;
10.17.13.4
That the variance is necessary to ensure adequate public safety
and emergency management communications; or
10.17.13.5
That the variance is the minimum necessary in order for the
applicant to provide broadcast services pursuant to an FCC-issued
construction development approval.
10.17.14
Amateur radio antennas and radio facilities.
Amateur
radio antennas and radio facilities may be allowed as an accessory
use to other permitted uses subject to a permit issued by the Administrator
pursuant to the procedures in this Code. Operators of such facilities
shall comply with the following standards:
10.17.14.1
Amateur radio antennas and radio facilities shall be owned and
operated by a person holding either a valid Technician License, General
License or Amateur Extra License issued by the FCC, or an unexpired
grandfathered Novice, Technician Plus or Advanced license that was
previously issued by the FCC, which licensee shall also hold a valid
Station License, all as issued by the FCC pursuant to 47 CFR Part
97.
10.17.14.2
A minimum setback of a distance equal to the height of the radio
antenna or tower shall be required and no antenna or its supporting
structure shall be located in the front setback.
10.17.14.3
Guyed structure’s anchors of any radio antenna shall be
set back at least five feet from the property line.
10.17.14.4
All lattice towers shall be within the licensed operator’s
property where it shall either be enclosed by a six-foot perimeter
fence of solid construction or protected by a climb guard device at
least six feet in height.
10.17.14.5
Maintenance or replacement of existing facilities that does
not increase the height and otherwise complies with the restrictions
herein shall be allowed without a permit.
10.17.14.6
Fixed amateur radio antennas and radio facilities shall not
exceed 45 feet in height from ground level.
10.17.14.7
Crank-up amateur radio antennas may extend to a maximum height
of 75 feet from ground level, provided the lowered height does not
exceed 45 feet and the crank-up tower is retracted when not in use.
10.17.14.8
Heights greater than those described above may be approved by
application for a Conditional Use Permit, provided that the structure
is reasonably necessary for the principal use, the proposed height
is the minimum necessary for proper functioning, and the proposed
accessory structure will not adversely affect neighboring properties.
10.17.14.9
No amateur radio station antenna or tower shall be sited such
that, in the event of its fall, it could fall outside of the boundaries
of the property on which it is sited.
10.17.14.10
Antenna support structures shall be located on property so as
to provide adequate setbacks from above-ground utility power lines.
10.17.14.11
Before placing an amateur radio station on land of environmental
importance or that is significant in American history, architecture
or culture, the amateur radio station applicant may be required to
take certain actions prescribed by 37 CFR sections 1.1305 to 1.1319
of FCC regulations.
10.17.15
Violation of Standards.
The property owner(s),
as well as the tower owners or operators, shall be co-responsible
for any violations of applicable standards in this Code which may
be enforced pursuant to any of the remedies contained in Chapter 14
of this Code or otherwise provided by law.
(Ordinance 2016-9 adopted 12/13/16)
10.18.1
Applicability.
This Section applies to any satellite
dish antenna use except:
10.18.1.1
An antenna that is one meter (3.28 feet) or less in diameter and
is used to receive direct broadcast satellite service, including direct-to-home
satellite service, or to receive or transmit fixed wireless signals
via satellite;
10.18.1.2
An antenna that is one meter (3.28 feet) or less in diameter or diagonal
measurement and is used to receive video programming services via
multipoint distribution services, including multichannel multipoint
distribution services, instructional television fixed services, and
local multipoint distribution services, or to receive or transmit
fixed wireless signals other than via satellite;
10.18.1.3
An antenna of any size that is used for residential purposes to receive
television broadcast signals and high speed internet; and
10.18.3
Development Permit.
A satellite dish antenna in excess
of the dimensions described above requires a development permit with
site development plan approval.
10.18.4
Screening.
Without restricting its operation, a satellite
dish antenna located on the ground shall be screened from view from
public roads and from adjacent properties.
10.18.5
Height.
A satellite dish antenna located on the building
roof shall be governed by the regulations for the maximum height of
structures of the applicable district.
(Ordinance 2016-9 adopted 12/13/16)
10.19.1
Applicability.
This Section applies to any mineral extraction activity for construction materials, including but not limited to, stone, sand, gravel, aggregate, or similar naturally occurring construction materials that affects less than 10 acres of land and extracts less than 20,000 tons of construction material and does not use blasting. Such activity shall be allowed where permitted by the Use Table, Exhibit B [Appendix B], subject to approval of a conditional use permit (Section 14.9.6) and the additional requirements of this section. If the extraction activity requires blasting, then this Section shall not apply and the operation will be treated as a Development of Countywide Impact under Chapter 11. The extraction activity includes all areas for removal, stockpiling, processing, and all ancillary uses, such as office, parking, vehicle storage and loading, and is limited to a total of 10 acres under this Section.
10.19.2
Related Uses.
Related office and material processing
activity may be permitted at the sand and gravel extraction sites
where approved as part of the conditional use permit and constructed
and operated in compliance with the SLDC and so long as the use is
consistent.
10.19.3
Application.
In addition to the submittal requirements for a conditional use permit (Section 4.9.6 [14.9.6]), including any studies, reports and assessments required by Table 6-1, an application for approval of a small-scale sand and gravel extraction activity shall include the following:
10.19.3.1
Operations Plan.
An operations plan for the small-scale
sand and gravel activity consisting of the following:
1.
Maps, plans, graphics, descriptions, timetables, and reports which
correlate and specify:
a.
a detailed description of the method(s) or technique(s) to be employed
in each stage of the activity where any surface disturbance will occur;
b.
the size and location of area(s) to be disturbed, which includes
excavations, overburden spoils, topsoil stockpiles, driveways and
roads;
c.
pursuant to the standards of Section 7.17 (Terrain Management), a description of all earthmoving activities, including backfilling of cuts and leveling or compaction of overburden;
d.
if applicable, the location and size of all water diversions and
impoundments or discharge of water used in extraction activity;
e.
areas to be used for storage of equipment and vehicles;
f.
location and size of any structures;
g.
areas designated to be reclaimed;
h.
hours of operation and, if applicable, a description of outdoor lighting;
i.
fire protection plans; and
j.
environmentally sensitive land, floodplains, and wild life corridors.
2.
A description of how construction materials will be processed on
and/or removed from the site.
3.
A description of how each phase of exploration or extraction correlates
to the reclamation plan.
4.
A timetable for each phase of extraction operations and reclamation.
5.
A description of the steps to be taken to comply with applicable
air and water quality laws and regulations and any applicable health
and safety standards.
6.
A drainage control plan showing methods which will be utilized to
avoid erosion on and adjacent to the site.
7.
A description of all hazardous materials to be used and transported
in connection with the small-scale sand and gravel extraction activity
and a description of steps that will be taken to insure that the use
of such materials will have no adverse impact on the residents or
environment of Santa Fe County.
8.
A description of the projected noise to be generated and an explanation of how the operator will comply with the requirements of Section 7.21.4 (Noise).
9.
A statement concerning compliance, as applicable, with regulations
of the Federal Aviation Administration (FAA).
10.19.3.2
Operational Standards and Requirements.
1.
State Permits.
All small-scale sand and gravel extraction
activities shall submit all required state permits, FEMA and/or Army
Corps of Engineers permits with the conditional use permit application.
2.
Duration and Hours of Operation.
Extraction activity
for a small scale sand and gravel operation shall be limited to a
two (2) year duration. This two year limit shall not include initial
set up of the operation and reclamation. Additional two year extensions
may be granted by the Board. Hours of operation are limited to the
period between sunrise or 7:00 a.m. whichever is latest, and sunset
or 6:00 p.m., whichever is earliest, Monday through Saturday.
3.
Water Supply.
Extraction and filling of a reservoir
shall not infringe on a downstream appropriator’s rights.
4.
Project Traffic Impacts:
a.
All roads carrying small-scale sand and gravel extraction related traffic shall conform to the requirements of Section 7.11 (Road Design Standards) of the SLDC.
b.
Transportation Facility Improvements.
An analysis of
all roads accessing the site shall be submitted to the County with
detailed information concerning the ability of the roads to adequately
support the projected traffic, including projected weight of vehicles
for 20 years or the life of the small-scale sand and gravel extraction
activity. Cost of all improvements required, on- and off-site, shall
be borne entirely by the applicant.
c.
Trip Generation.
The Planning Commission may establish
a maximum number of truck trips allowed to enter and exit a processing
location.
d.
Traffic Counts.
Traffic counts at the entrance of the
operation may be required.
e.
Designation of construction and haul routes.
The application
shall designate proposed truck haul and traffic routes that shall
be subject to limitation by the Planning Commission, which proposal
shall:
i.
identify the primary haul route including existing road conditions;
ii.
identify residential areas, commercial areas, environmentally and
visually sensitive areas, schools and other civic buildings along
the haul route,
iii.
identify alternative routes;
iv.
identify the timing of truck haul traffic; and
v.
include a fugitive dust plan for designated routes to prevent loss
of loads and fugitive dust during transportation.
5.
Project Description.
The applicant shall provide a detailed
statement describing the proposed small-scale sand and gravel extraction
activity including:
a.
The amount and type of materials to be excavated;
b.
Duration of the excavation activity and reclamation activity;
c.
The proposed method of excavation;
d.
The amount of fill to remain on site; and
e.
A statement from a New Mexico professional engineer indicating the
type of material(s) to be excavated and their suitability for road
and structural fill construction.
6.
Access.
Adequate and available access required per Section 7.4 (Access and Easements) of the SLDC.
7.
Visual Screening Measures.
Visual screening, which shall include all phases, is required per Section 7.6 (Landscaping and Buffering) of the SLDC plus the following standards:
a.
General.
The view from all public roads, rivers, parks,
open space and adjoining residential areas shall be screened.
b.
Buildings.
All buildings’ design, scale, and location
shall be minimized.
c.
Surrounding Vegetation.
Any vegetation on site that
can act as screening of the extraction area shall be preserved, including
vegetation existing in the required setbacks.
8.
Lighting.
All small-scale sand and gravel extraction activity must comply with Section 7.8 (Lighting) of the SLDC.
9.
Signs.
All small-scale sand and gravel extraction activity must comply with Section 7.9 (Signs) of the SLDC, but are limited to two signs of 4 square feet each.
10.
Parking and Loading.
All small-scale sand and gravel extraction activity must comply with Section 7.10 (Parking and Loading) of the SLDC.
11.
Hazardous Materials.
Any fuel, explosives, or other
hazardous materials stored on the site shall be contained within an
impoundment structure.
12.
Wildlife.
Protection is required for critical environmental
resources including wetlands, riparian areas, and important wildlife
habitats.
a.
Any modification of the terrain within a floodplain area shall be
environmentally sound and not result in net loss of wildlife habitat.
b.
All small-scale sand and gravel extraction activity shall be limited
to locations and times of year that ensure no significant negative
impacts to federally listed endangered species.
c.
No small-scale sand and gravel extraction activity shall interrupt
a wildlife corridor.
13.
Protection of Historic and Archaeological Resources.
Any application for small-scale sand and gravel extraction activity shall submit an archaeological report conforming to the requirements of Section 7.16.3 (Protection of Historic and Archaeological Resources) of the SLDC.
14.
Terrain Management.
Requirements of Section 7.17 (Terrain Management) of the SLDC shall be met.
a.
Removal of Organic Materials.
Fill areas shall be properly
prepared by removing organic materials, such as vegetation and rubbish,
and any other material which is detrimental to the proper compaction
of the site or not otherwise conducive to the stability of the site.
b.
Site Vegetation Removal and Revegetation.
The removal
of existing vegetation shall not occur more than 30 days prior to
the commencement of grading; however, permanent revegetation shall
be commenced as soon as practical after the completion of grading.
Site specific native seed mixtures shall be used to revegetate all
disturbed areas with the exception of lawn and landscaped areas if
any. Mulching shall be used in order to assure vegetation growth.
c.
Topsoil, Stripping, Stockpiling, and Redistribution.
The existing topsoil shall be stripped and stockpiled on-site for
redistribution over the completed final grade.
d.
Cut and Fill Slopes.
Cut and fill slopes shall be graded
to a slope no steeper than 2:1, or 50%, to allow for permanent revegetation
or landscaping unless a retaining wall is used or a steeper slope
is approved by the County. The County may require the submission of
a detailed engineering report and analysis prepared by a professional
engineer or landscape architect relative to the safety of such cuts
and fills, if necessary considering soil type, soil stability, and
any proposed structures.
15.
Sediment and Erosion Control.
Practices for sediment
and erosion control shall be designed, constructed and maintained
to mitigate further entry of sediment to streams, lakes, ponds, or
any land outside the permit area. Where applicable, sediment and erosion
control measures to prevent degradation of the environment shall be
instituted and consist of utilization of proper reclamation methods
and sediment control practices including, but not limited to:
16.
Air Quality and Noise.
a.
The requirements of Section 7.21 (Air Quality and Noise) of the SLDC shall be met; however, only a preliminary air quality report is required for submittal with the application. Once approved, a final air quality permit is required prior to commencement of any activity on the site.
b.
Noise Study.
A noise study showing the projected noise
from the specific equipment to be used is required to be submitted
with the application. Such noise study shall provide a baseline of
three consecutive weekdays representative of existing conditions.
c.
Fugitive Dust Control.
Dust control is required for
all active small-scale sand and gravel extraction activity.
i.
The presence of fugitive dust at a small-scale sand and gravel extraction
activity is attributable to earth moving, soil or surface disturbance,
construction or demolition; movement of motorized vehicles on any
paved or unpaved roadway or surface, right-of-way, lot or parking
area; and the tracking out or transport of bulk material (i.e., sand,
gravel, soil, aggregate, or any other inorganic or organic material
capable of creating fugitive dust related to extraction activities)
onto any paved or unpaved roadway in Santa Fe County.
ii.
Fugitive dust consists of airborne particulate matter from a
source, resulting in particulate matter emissions that can be detected
by the human eye.
iii.
Dust control measures include but are not limited to the use
of wet suppression through manual or mechanical application; the use
of fabric fencing material or equivalent that shall be a minimum of
24 inches in height and anchored 6 inches below the surface on the
bottom edge installed around the perimeter of the disturbed surface
area; the use of dump truck tarps; and the use of chemical dust suppressant
applied in amounts, frequency, and rates recommended by the manufacturer.
iv.
In no circumstances shall a small-scale sand and gravel extraction
operator continue extraction activity during a high wind event.
v.
All small-scale sand and gravel extraction activity shall incorporate
an entry/exit apron, steel grates, or other equivalent devices capable
of removing bulk material from the tires of vehicle traffic.
vi.
An applicant for a small-scale sand and gravel extraction activity
conditional use permit shall submit a fugitive dust control plan as
part of the application. The fugitive dust plan must detail the control
measures the operator intends to use to reduce the quantity of visible
fugitive dust, transported material, temporary cessation of activity
during a high wind event and track-out leaving the property or area
under the control of the operator.
17.
Setbacks.
The extraction activity shall comply with
the following setbacks:
a.
200 feet from all property lines;
b.
200 feet from all public road rights-of-way, public recreational
easements, and environmentally sensitive lands;
c.
1,000 feet from any existing residential structure; and
d.
Vegetation within the setbacks from the property boundary shall be
preserved and supplemented, as necessary, for mitigation of negative
impacts. Existing native vegetation on the entire operation site shall
be preserved to the maximum extent possible
18.
Protection From Trespassing.
The proposed use shall be fenced in accordance with the standards in Section 7.7 (Fences and walls) of the SLDC, for health and safety protection.
19.
Height.
Any equipment used for small-scale sand and gravel extraction activity must meet the height standards for the zoning district in which it is located. Height shall be measured from existing grade prior to commencement of any grading activity on the site, and shall also conform to the height measurement requirements of Section 7.17.9.3.
20.
Activities In or Near Water Bodies.
a.
Uncontrolled/Natural Watercourses.
When working near
uncontrolled, or naturally flowing, watercourses, the proposed activity
shall be conducted in a manner that improves fisheries and waterfowl
habitat. This requirement shall apply to any water body, which shall
include: naturally occurring rivers, streams, ponds, lakes, seasonal
streams and seasonal lakes.
b.
Minimum Buffer.
A minimum 100-foot buffer of natural
vegetation between the water’s edge and any small-scale sand
and gravel extraction activity site is required.
c.
No Negative Impact.
No extraction activity shall be
permitted that is deemed by the County to have a negative impact on
the water body or neighbors.
21.
Solid Waste.
All small-scale sand and gravel extraction activity must comply with Section 7.20 (Solid Waste) of the SLDC.
22.
Water Supply and Liquid Waste.
All small-scale sand and gravel extraction activity must comply with the requirements of Section 7.13 (Water Supply, Wastewater and Water Conservation) of the SLDC.
23.
Phasing.
All phases shall be clearly staked prior to
commencement of any activity on the property. The applicant must GPS
all stakes and make them digitally available to the County upon request
in GIS format based on the standard Santa Fe County GIS spatial reference.
a.
Only one phase of the development shall be excavated at a time.
10.19.3.3
Reclamation Plan, Bonding and Financial Guarantee.
A reclamation plan shall be provided that is designed and certified by a New Mexico registered professional engineer or landscape architect, and meets the reclamation standards specified below in Section 10.19.3.4. The plan shall restrict extraction activity to areas of workable size so that no area is left inactive and unreclaimed for more than 60 days, unless approved by the conditional use permit. The plan shall specify any phasing of reclamation and estimate the cost of the entire reclamation project. A financial guarantee shall be posted to implement the reclamation plan at 125% of expected cost of the reclamation. The reclamation plan does not replace a landscape plan that may be required for any subsequent development of the gravel processing and extraction site.
10.19.3.4
Reclamation Standards.
The reclamation plan shall
comply with the following standards:
1.
General.
Reclamation shall restore land areas to a condition
suitable for new land uses. Wildlife habitat shall be restored in
a manner comparable or better, to the habitat conditions that existed
prior to the small-scale sand and gravel activity. In general, all
slopes shall be graded to 3:1 or flatter to promote revegetation.
2.
Grading.
Disturbed areas shall be re-graded to blend
into and conform to the general natural form and contours of the adjacent
areas. In general, all slopes (cut or fill) shall be graded to 3:1
or flatter. Such methods must be approved as part of the reclamation
plan.
3.
Revegetation of all disturbed areas is required.
The
reclamation plan shall describe the vegetation prior to any grading
of the site and shall demonstrate how the site will be returned to
its original, or better vegetated condition.
4.
Small-scale sand and gravel extraction activity shall be allowed
to progress so long as the disturbed areas within previous phases
have been reclaimed within 6 months after the commencement of the
new phase; provided that, the County will consider extensions due
to weather conditions and taking into account seasonal changes. Reclamation
shall commence within 30 days of the commencement of a new phase of
extraction.
5.
Prior to Approval of Reclamation Study.
In no case shall
a location and time of excavation be approved that may have negative
impacts on any state or federally designated endangered or threatened
species, or critical habitat.
10.19.3.5
Annual Operating Plan and Monitoring Report.
An
annual operating plan and monitoring report, capable of audit, shall
be prepared and submitted to the Land Use Administrator by January
31st each year. The report shall summarize the operations of the previous
year including number of truck trips and sizes of trucks, the area
mined, quantities mined in tonnage and cubic yards, the amount of
area undergoing reclamation, and the success of reclamation including
any notices of violation issued and their outcome.
10.19.3.6
Existing small-scale sand and gravel extraction uses.
Any small-scale sand and gravel extraction activity existing
prior to January 1, 1981 and having been in continuous operation,
may continue operations and may expand up to 25% beyond the area currently
and formerly mined on that parcel. Any small-scale sand and gravel
extraction activity approved by the County prior to the adoption of
this SLDC may continue operations in accordance with their final County
approvals. Any new phase or further expansion proposed, not previously
approved, shall comply with this SLDC.
(Ordinance 2016-9 adopted 12/13/16)
10.20.1
Purpose and Intent.
It is the purpose of this Section
to regulate sexually oriented businesses in order to promote the health,
safety, and general welfare of the citizens of the County, and to
establish reasonable and uniform regulations to prevent the negative
secondary effects of sexually oriented businesses within the County,
which include increased crime, neighborhood blight and reduced property
values. The provisions of this Section have neither the purpose nor
effect of imposing a limitation or restriction on the content of or
reasonable access to any communicative materials, including sexually
oriented materials. Similarly, it is not the intent or effect of this
Section to restrict or deny access by adults to sexually oriented
materials protected by the First Amendment of the U.S. Constitution
or Article II, Section 17 of the New Constitution, or to deny access
by the distributors and exhibitors of sexually oriented entertainment
to their intended market. Neither is it the intent nor effect of this
Section to condone or legitimize the distribution of obscene material.
The provisions of this Section are intended to address the following
issues:
10.20.1.1
Sexually oriented businesses require special supervision from the
public safety agencies of the County in order to protect and preserve
the health, safety, and welfare of the patrons of such businesses
as well as the citizens of the County;
10.20.1.2
The concern over sexually transmitted diseases is a legitimate health
concern of the County which demands reasonable regulation of sexually
oriented businesses in order to protect the health and well-being
of the citizens;
10.20.1.3
Licensing is a legitimate and reasonable means of accountability
to ensure that operators of sexually oriented businesses comply with
reasonable regulations and to ensure that operators do not knowingly
allow their establishments to be used as places of illegal sexual
activity or solicitation;
10.20.1.4
There is convincing documented evidence that sexually oriented businesses,
because of their very nature, have a negative effect on both the existing
businesses around them and the surrounding residential areas adjacent
to them, causing increased crime, potential for excessive noise, disorderly
conduct, and the downgrading of property values;
10.20.1.5
It is recognized that sexually oriented businesses, due to their
nature, have serious objectionable operational characteristics, particularly
when they are located in close proximity to each other, thereby contributing
to blight and downgrading the quality of life in the adjacent area;
10.20.1.6
It is desirable to minimize and control these adverse effects and
thereby protect the health, safety, and welfare of the citizenry;
preserve the quality of life; preserve property values and the character
of surrounding neighborhoods and deter the creation of blight;
10.20.1.7
It is not the intent of this Section to suppress any speech activities
protected by the First Amendment of the U.S. Constitution or Section
17 of the New Mexico Constitution, but to enact content neutral requirements
in a Code which address the negative secondary effects of sexually
oriented businesses; and
10.20.1.8
Evidence exists concerning the adverse secondary effects of adult
uses on the community presented to the Board, which relies on the
authority established in cases such as City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres,
427 U.S. 50 (1976), FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990),
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), City of Erie v.
Pap’s A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000), City of Littleton
v. Z.J. Gifts D-4, LLC, 541 U.S. 774 (2004), Fantasyland, Video Inc.,
v. County of San Diego, 505 F.3d 996 (9th Cir. 2007), SOB, Inc. v.
County of Benton, 317 F.3d 856 (8th Cir. 2003), Zibtluda LLC v. Gwinnett
County Georgia Bd. of Commissioners, 411 F.3d 1278 (11th Cir. 2005),
Abilene Retail #30, Inc. v. Bd. of Comm’rs of Dickinson County,
492 F.3d 1164 (10th cir. 2007), and further relies on studies commissioned
by other communities including, but not limited to, Phoenix, Arizona
(1979 & 1995-1998); Minneapolis, Minnesota (1980); St. Cloud,
Minnesota (1994); Houston, Texas (1983 & 1997); Indianapolis,
Indiana (1984), Amarillo, Texas (1977); Garden Grove, California (2001);
Los Angeles, California (1977); Whittier, California (1978); Spokane,
Washington (2001); Oklahoma County, Oklahoma (1986); Greensboro, North
Carolina (2003); Beaumont, Texas (1994); Dallas, Texas (1997); Newport
News Virginia (1996); Bellevue, Washington (1998); Seattle, Washington
(1989); New York, New York (1994); and St. Croix County, Wisconsin
(1993); and also the Report of the Attorney General’s Working
Group On The Regulation Of Sexually Oriented Businesses (June 6, 1989,
State of Minnesota). This evidence justifies the limited and targeted
regulation described in succeeding paragraphs.
10.20.2
Classification.
Sexually oriented businesses consist
of one or more of the following:
10.20.3
License Required.
10.20.3.1
It is unlawful for any person to operate a sexually oriented business
without holding a valid sexually oriented business license issued
by the County pursuant to this Section.
10.20.3.2
An application for a license shall be made on a form provided by
the County. If made by an individual, it shall be signed by that person;
if made by a corporation, it shall be signed by the president or vice-president;
if made by a general or limited partnership, it shall be signed by
a general partner; if made by a limited liability company, it shall
be signed by the manager.
10.20.3.3
The application shall be signed and notarized and shall include all
information required in this Section, including the following:
1.
The full true name and any other names used in the preceding five
(5) years, current street address, and date of birth;
2.
The current business address of the applicant, which shall be a street
address and not a post office or other commercial mailbox address;
3.
An original set of fingerprints of the signing applicant for conducting
a criminal history background check pursuant to this Section;
4.
The name, business location, business mailing address and phone number
of the proposed sexually oriented business;
5.
Written proof of age of the applicant, in the form of a copy of a
birth certificate, a valid picture driver’s license, which will
be photocopied by the Administrator, a valid passport or other picture
identification issued by a governmental agency which will be photocopied
by the Administrator;
6.
A disclosure and listing of all prior and [sic] licenses or permits
held by the applicant relating to a sexually oriented business, including
their effective dates, the name and address of the government entity
that issued them, and whether any such license or permit has been
denied, revoked or suspended, or their business determined to be a
public nuisance, and if so, the reason or reasons given.
7.
If the application for a sexually oriented business license is by
a domestic or foreign business entity, the name and address of the
registered agent or other agent, if any, authorized to receive service
of process.
10.20.3.4
Information provided pursuant to licensing shall be supplemented in writing by certified mail, return receipt requested, or in-hand delivery to the Administrator within (30) thirty working days of any change of circumstances that would render the information previously submitted false, incomplete or misleading. This shall be a continuing duty and failure to timely supplement the information provided shall be grounds for suspension or revocation of this license. An applicant whose fingerprint-based background check discloses any history of Specified Criminal Activity listed in the definition section of Appendix A, shall be responsible for providing documentary proof to the Administrator of the disposition of those cases disclosed.
10.20.3.5
If an omission or error is discovered by the Administrator or the
applicant has improperly completed the application, the application
will be returned to the applicant who shall be afforded (21) twenty-one
calendar days to correct it. During the period in which the applicant
is given to correct the application, the time period for granting
or denying the license shall be stayed until a corrected application
is submitted. No additional fee will imposed upon the applicant.
10.20.3.6
The application for a sexually oriented business license shall be
accompanied by a sketch or diagram showing the configuration of the
premises, including a statement of total floor space occupied by the
business. The sketch or diagram need not be professionally prepared,
but shall be drawn to a designated scale or drawn with marked dimensions
of the interior of the premises to an accuracy of plus or minus six
(6) inches.
10.20.3.7
A person who possesses a valid business license from the County is
not exempt from the requirement of obtaining a sexually oriented business
license if seeking to operate such a business.
10.20.3.8
If the applicant discloses the holding, suspension or revocation
of a sexually oriented business license from a government entity other
than the County, the Administrator shall have the right to request
true and complete copies of any such licenses or rejections thereto
together with any related documents. Applicant shall provide copies
of the requested document within (10) ten calendar days of the request.
10.20.4
Approval or Denial of a License.
10.20.4.1
Within twenty (20) business days of the filing of a completed application
for a sexually oriented business license, the Administrator shall
issue the license to the applicant unless one or more of the following
is determined to be true:
1.
The applicant is less than eighteen (18) years of age.
2.
The applicant is delinquent in the payment to the County of taxes,
fees, fines, or penalties assessed against or imposed upon the applicant
in relation to a sexually oriented business.
3.
The applicant has failed to provide any of the information or documents
required by this Section for the issuance of the license.
4.
The applicant has been convicted of a Specified Criminal Activity.
The fact that an appeal is pending on a conviction for a Specified
Criminal Activity at the time of application shall not negate the
effect of that conviction in disqualifying the applicant. A person
whose conviction for Specified Criminal Activity has been reversed
on appeal by the time of application, or while the application is
being considered is brought to the attention of the Administrator,
shall not be considered to be someone with a conviction. A conviction
shall include a finding of guilty after a trial, a guilty plea, a
plea of nolo contendere, or any disposition entered by a trial court
recognized as a conviction by the laws and appellate court decisions
of New Mexico.
5.
The required license application fee has not been paid.
6.
The applicant has made a false or misleading statement on the application
or provided false or misleading information or documentation in connection
with the application.
7.
The proposed sexually oriented business is in a zoning district other
than a district in which sexually oriented businesses are allowed
to operate, or is not in compliance with the location restrictions
established for sexually oriented businesses in the appropriate zoning
district(s).
8.
The applicant has had a sexually oriented business license revoked
or suspended anywhere in the country within one year prior to the
application, or has had a sexually oriented business license determined
to be a public nuisance under any state law or county or municipal
ordinance within one year prior to the application.
10.20.4.2
An applicant that is ineligible for a license due to a Section 10.20.4.1.4
conviction may qualify for a sexually oriented business license only
after five (5) years have elapsed since the date of the conviction
or since the date of completion of the terms and conditions of parole
or probation, whichever is later. An applicant with a conviction or
claiming completion of the terms and conditions of parole or probation
shall provide documentary proof of same to the Administrator as part
of his/her application.
10.20.4.3
The license, if granted, shall state on its face the name of the
person or business entity to whom it is granted, the number of the
license issued to that applicant, the expiration date, and that the
license is for a sexually oriented business. The sexually oriented
business license shall be posted in a conspicuous place at or near
the entrance to the sexually oriented business so that it may be easily
read at any time.
10.20.5
Fees.
The initial application fee and annual renewal
fee for a sexually oriented business license shall be set by the Board
and due at the time of filing of the initial or renewal application.
Either fee is nonrefundable.
10.20.6
Expiration of License.
10.20.6.1
Each license shall expire one (1) year from the date of issuance
and may be renewed by paying the required renewal fee and filing a
renewal application not less than forty-five (45) calendar days before
the expiration date, and when made less than forty-five (45) calendar
days before the expiration date, the expiration of the license will
not be affected so long as the application is filed prior to its expiration.
Because a sexually oriented business shall be prohibited from operating
if its license expires while awaiting a determination on it renewal
application, early filing is encouraged. The Administrator shall approve,
approve with conditions or deny renewal of the license within twenty
(20) business days.
10.20.6.2
When the County denies renewal of a license, the applicant shall not be permitted to reapply for one (1) year from the date of denial. If, subsequent to the denial, the Administrator finds that the basis for denial of the license has been corrected, abated or was minor, the applicant shall be granted a renewal license. Any denial of renewal of a license is, in any event, appealable pursuant to Section 10.20.12 herein.
10.20.7
Manager and Employee Requirements.
10.20.7.1
Unless operated by the licensee who shall be at least 21 years of age, a sexually oriented business shall be operated by one or more registered managers who is at least 21 years of age and who shall be on the premises of the business at all times when open to the public. At all times while on duty on the premises of the business, a manager shall wear a badge indicating his/her status as a manager. No person other than a licensee of at least 21 years of age shall operate a sexually oriented business without first submitting a completed registration form with the Administrator. The registration form shall require the applicant to provide his/her legal name including any aliases, home address (other than a post office box), telephone number, date of birth after showing proof of age with a government-issued picture identification card, and signed certification that he/she has not been convicted of a Specified Criminal Activity listed in Appendix A within a five (5) year period prior to the date of filing the registration.
10.20.7.2
A manager of a sexually oriented business shall possess a copy of
his/her registration at all times while on duty. While it need not
be on his/her person at all times, it shall be physically available
on the premises if requested during inspections.
10.20.7.3
The Administrator can deny or revoke a manager registration by written
letter if an applicant for registration fails or refuses to provide
a completed registration form, refuses to sign the form, provides
false or misleading information on the form, discloses a conviction
for a Specified Criminal Activity, or is convicted of a Specified
Criminal Activity after issuance of the manager registration.
10.20.7.4
Licensee shall not employ or permit the employment of any person under the age of 18 at the licensed establishment; nor shall any person convicted of a Specified Criminal Activity listed in Appendix A within a five (5) year period prior to the date of hiring be employed. It shall be the responsibility of the licensee to verify the age and criminal history of each potential and active employee, including any performer on the premises.
10.20.8
Transfer/Change and Display of License.
10.20.8.1
A licensee shall not transfer his or her license to another, nor
shall a licensee operate a sexually oriented business under the authority
of a license at any place other than the address designated in the
application.
10.20.8.2
Licensee shall report to the Administrator within ten (10) business
days any formal change in name of the sexually oriented business or
any change in name of the business entity. Once reported, an amended
license will be issued which issuance shall not change the duration
of the license.
10.20.8.3
A sexually oriented business license shall be prominently displayed
in a common area on the premises and visible to the public at all
times it is open to the public.
10.20.9
Location of Sexually Oriented Businesses.
No sexually
oriented business shall be located:
10.20.9.1
Within one thousand (1,000) feet of a church, synagogue, mosque,
temple, or building which is used primarily for religious worship
and related religious activities;
10.20.9.2
Within one thousand (1,000) feet of a public or private educational
facility including, but not limited to, child day care facilities,
preschools, state-approved pre-kindergarten facility, kindergartens,
elementary schools, public or private schools of any grade or specialty,
vocational schools, charter schools, continuation schools, colleges
and universities; school includes school grounds, but does not include
facilities used primarily for another purpose and only incidentally
as a school;
10.20.9.3
Within one thousand (1,000) feet of a boundary of a residential zoning
district;
10.20.9.4
Within one thousand (1,000) feet of a public park or recreational
area which has been designated for park or recreational activities,
including, but not limited to, a park, playground, nature trails,
swimming pool, reservoir, athletic field, basketball or tennis courts,
pedestrian/bicycle paths, or other similar public land within the
County which is under the control operation, or management of the
County park and recreation authorities;
10.20.9.5
Within one thousand (1,000) feet of the property line of a residential
use lot;
10.20.9.6
Within one thousand (1,000) feet of an entertainment business which
is oriented primarily towards children or family entertainment; or
10.20.9.7
Within one thousand (1,000) feet of any business selling alcoholic
beverages.
10.20.9.8
Within one hundred (100) feet of another sexually oriented business.
10.20.10
Performance and Operational Standards.
The following
performance and operational standards shall apply to those who operate,
are performers at or employees of a sexually oriented business:
10.20.10.1
No sexually oriented business shall open for business or permit
patrons on its premises from one o’clock a.m. (1:00 a.m.) until
eight o’clock a.m. (8:00 a.m.) Mondays through Saturdays, and
from one o’clock a.m. (1:00 a.m.) until twelve o’clock
noon (12:00 p.m.) on Sundays.
10.20.10.2
No employee or performer mingling with patrons or serving food
or beverages shall be unclothed or in such attire, costume or clothing
as to expose to view the male or female genitals, pubic hair, anus,
or female breast with less than a fully opaque covering of any part
of the nipple.
10.20.10.3
No employee or performer shall encourage or knowingly permit
any person while inside or outside of the premises of a sexually oriented
business [to] touch, caress or fondle the breasts, buttocks, anus
or genitals of any patron or employee.
10.20.10.4
No employee or performer shall wear or use any device or clothing
that simulates a nude female breast, male or female genitals, an anus
or pubic hair.
10.20.10.5
No nude or semi-nude performer shall perform, simulate or use
any objects to simulate or perform any obscene acts such as acts of
sexual intercourse, masturbation, oral sex or sodomy.
10.20.10.6
A list of food, beverages and their prices shall be conspicuously
displayed at least once in every area of the premises where they are
permitted by the business to be consumed.
10.20.10.7
No alcoholic beverages may be sold or consumed on the premises
of a sexually oriented business.
10.20.10.8
Any tips for performers shall be placed by a patron in a tip
box and no tip may be handed directly to a performer or inserted into
the clothing of a performer.
10.20.10.9
A sexually oriented business that permits tipping shall use
a tip box or tip boxes and shall have a sign conspicuously placed
in at least two common areas inside of the premises that provides
in at least one inch (1") high capital letters: SANTA FE COUNTY ORDINANCE
REQUIRES THAT ANY TIPS MUST BE PLACED IN A TIP BOX AND NOT HANDED
DIRECTLY TO A PERFORMER OR STUCK IN THE PERFORMER’S CLOTHING.
ANY PHYSICAL CONTACT BETWEEN A CUSTOMER AND A PERFORMER IS PROHIBITED.
10.20.10.10
No employee or performer who dances or provides any other form
of expressive performance for view by patrons shall be totally nude,
semi-nude or clothed in such attire, costume or clothing so as to
expose any portion of the male or female genitals, pubic hair, the
anus, or the female nipple. All dances or performances for patrons
shall take place only on a stage at least eighteen inches (18") above
the immediate floor level.
10.20.10.11
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from a manager’s station
of every area of the premises to which any patron is permitted access
for any purpose, excluding restrooms. Restrooms may not contain visual
surveillance or reproduction equipment. If the premises has two or
more manager’s stations designated, then the interior of the
premises shall be configured in such a manner that there is an unobstructed
view of each area of the premises to which a patron is permitted access
for any purpose from at least one of the manager’s stations.
The view required in this Section shall be by direct line of sight
from the manager’s station. It shall be the duty of the licensee
to ensure that the required view area remains unobstructed at all
times by any doors, curtains, partitions, walls, merchandise, display
racks, or other materials.
10.20.10.12
No viewing room or booth may be occupied by more than one (1)
person at any time.
10.20.10.13
The premises shall be equipped with overhead lighting fixtures
of sufficient intensity to illuminate every place to which patrons
are permitted access at an illumination of not less than two (2) footcandles
as measured at the floor level, and except for an adult motion picture
theater, illumination shall be turned on and left on at all times
that any patron is present.
10.20.10.14
To prevent patrons, performers and employees from having physical
contact, no licensee shall allow openings of any kind to exist or
be made in the walls between viewing rooms or booths. The licensee
shall at least daily inspect the walls or partitions between viewing
booths and promptly correct any openings or holes.
10.20.10.15
The licensee shall cause all wall surfaces, floor coverings
and viewing booths to be nonporous, easily cleanable surfaces, with
no rugs or carpeting.
10.20.10.16
No adult entertainment occurring inside the premises of a sexually
oriented business shall be visible at any time from outside of the
premises.
10.20.11
Suspension or Revocation of License.
The Administrator
may suspend a sexually oriented business license for a definite period
not to exceed twelve (12) months, or revoke that license permanently,
if he/she determines that:
10.20.11.1
Licensee or an employee of a licensee has violated or is not in compliance with any portion of Section 10.20.
10.20.11.2
Licensee or an employee of a licensee has permitted or been
unable to prevent repeated instances of disorderly conduct anywhere
on the premises of the Sexually Oriented Business which tend to disturb
the peace.
10.20.11.3
Licensee or an employee of a licensee has offered for sale,
permitted the offering for sale, or sold or permitted the sale or
use, of any liquor or controlled substances anywhere on the premises
of the sexually oriented business.
10.20.11.4
Neither licensee nor a registered manager is physically present
at the licensed premises at all times the sexually oriented business
is open to the public.
10.20.11.5
Adult entertainment permitted by the license was offered at the licensed establishment during hours prohibited by section 10.20.10.1 of the Code.
10.20.11.6
The licensee, manager or an employee has permitted or failed to prevent patrons from engaging in public displays of indecency in violation of state law or Section 10.20.13 of this Code; or has permitted or failed to prevent patrons or employees from engaging in acts of prostitution or negotiations for acts of prostitution whether inside or outside of the licensed establishment.
10.20.11.7
The licensee made a false or misleading statement or provided
false or misleading information in connection with licensee’s
application for an initial or renewed license.
10.20.11.8
The licensee or manager is discovered to be under the age of
21, an employee is discovered to be under the age of 18, or a licensee
or manager hired or permitted someone under the age of 18 to work
or perform at the licensed premises.
10.20.11.9
The business entity of a licensee is no longer in good standing
or authorized to do business in this state.
10.20.11.10
The licensee is delinquent in the payment to the County or state
of any taxes or tax penalties.
10.20.11.11
The licensee or manager has knowingly permitted or failed to
prevent any act of sexual intercourse, sodomy, oral sex or masturbation
to occur whether inside or outside of the licensed establishment's
premises.
10.20.11.12
The licensee, manager or an employee is convicted of a Specified
Criminal Act. The fact that a conviction is being appealed shall have
no effect on the suspension or revocation of the license. However,
if such conviction has been reversed on appeal by the time of the
application or while the application is being considered which is
brought to the attention of the Administrator or Hearing Officer,
the license will be reinstated, the appeal dismissed, and both sides
will be responsible for only their own legal fees including any costs.
As used herein, “conviction” shall include a finding of
guilty after a trial, a guilty plea, a plea of nolo contendere, or
any disposition entered by a trial court recognized as a conviction
by the laws and appellate court decisions of New Mexico.
10.20.11.13
The licensee, manager or an employee refused to allow an inspection
of the sexually oriented business premises as authorized by this Code.
10.20.12
Appeal; Hearing; License/Application Denial, Suspension, Revocation.
10.20.12.1
If the Administrator determines that facts exist for denial,
suspension, revocation or nonrenewal of a license under this Code,
the Administrator shall notify the applicant/licensee in writing of
the intent to deny, suspend or revoke the license, including the grounds
therefor, by personal delivery, or by certified mail. Such notice
of intent shall be issued within twenty (20) business days of the
Administrator’s receipt of a completed application for an initial
or renewed license or within one (1) year of discovery of the grounds
of revocation or suspension. The notification shall be directed to
the most recent business address appearing on the application.
10.20.12.2
Within ten (10) working days of receipt of such notice, the applicant/licensee may file a written appeal with the Administrator on the denial, suspension, revocation or nonrenewal of the application/license; applicant/licensee may include a statement of reasons why the application/license should not be denied, suspended, revoked or nonrenewed. Within five (5) working days of receipt of applicant’s/licensee’s written appeal, the Administrator or a Hearing Officer shall notify the appealing party in writing of the place, date and time of hearing, which shall be held within thirty (30) calendar days. This and all other timelines in Section 10.20.12 can be waived if agreed to by the appellant and the Administrator in writing. Prior to the hearing, both sides shall provide copies of all documents they relied on and intend to introduce as evidence at the hearing as well as a list of witnesses they intend to call during the hearing. Such evidence and witness list shall be shared by the parties no later than seven (7) calendar days before the hearing. No other discovery shall be permitted. Upon request, the Hearing Officer may consider appropriate sanctions if either side fails or refuses to timely provide the other side with copies of documents or a witness list as required by this Section.
10.20.12.3
At the hearing, both the appellant and the Administrator shall
have the right to present documentary evidence and witnesses. The
Administrator shall proceed first and has the burden of proof which
shall be by a preponderance of the evidence. Both sides may cross-examine
the witnesses called by the other side. After the Administrator has
rested and appellant has provided its defense and rested, both sides
shall be given an opportunity to present a closing argument with the
Administrator going first, followed by the appellant, and a rebuttal
permitted by the Administrator.
10.20.12.4
The technical rules of evidence shall not apply, but in ruling
on the admissibility of evidence, the Hearing Officer may require
reasonable substantiation of statements or records tendered where
the accuracy or truth of which is in reasonable doubt.
10.20.12.5
Irrelevant, immaterial, unreliable, unduly repetitious or cumulative
evidence, and evidence protected by the rules of privilege (such as
attorney-client, physician-patient or special privilege) shall be
excluded by the Hearing Officer upon timely objection.
10.20.12.6
Witnesses shall be sworn and the hearing recorded, and either
party may, at their own expense, make arrangements to have the hearing
transcribed by a certified court reporter.
10.20.12.7
The Hearing Officer shall issue a written recommended decision
to the parties and the Board of County Commissioners within ten (10)
business days of the hearing on the issues raised by the appeal. The
recommended decision shall include written findings of fact, conclusions
of law and a proposed decision. The Administrator and applicant/licensee
can settle a matter at any time prior to the Hearing Officer’s
issuance of a recommended decision. The Administrator shall cause
the recommended decision to be placed on the agenda of the Board at
its next available meeting so long as its placement complies with
the notice requirements of the Open Meetings Act.
10.20.12.8
The Board shall issue a final decision that accepts or rejects
the findings, conclusions or recommended decision of the Hearing Officer.
If the Board rejects or deviates from the recommended decision of
the Hearing Officer, its final decision shall be supported by a preponderance
of the evidence after conducting an independent review of the recording
or transcript of the hearing together with all documents introduced.
No further testimony or evidence shall be presented to the Board by
anyone during this proceeding. Any final decision by the Board shall
include a statement advising the applicant/licensee of the right to
appeal a final decision to a court of competent jurisdiction. If the
Board determines that no grounds exist for denial, suspension or revocation
of a license/application, then the Administrator shall promptly issue
the initial or renewed license as the case may be.
10.20.12.9
Upon a licensee’s/applicant’s filing of any court
action to appeal, challenge, restrain, or otherwise enjoin the County’s
enforcement of the denial, suspension, or revocation, the Administrator
shall immediately issue the aggrieved party a Provisional License.
The Provisional License shall allow the aggrieved party to continue
operation of the sexually oriented business and will expire upon the
court’s entry of a judgment on the aggrieved party’s court
action.
10.20.12.10
Only a final written determination of the Administrator to deny,
suspend, revoke or non-renew a license or application may be appealed
for hearing before a Hearing Officer.
10.20.13
Criminal Penalties Related to Nudity and the Presence of Minors.
It shall be a misdemeanor subject to imposition of a fine of
up to three hundred dollars ($300.00) against a person for each separate
violation of the following:
10.20.13.1
Knowingly and intentionally appearing in a state of nudity or
engaging in Specified Sexual Activities at a sexually oriented business;
or for an employee or licensee to knowingly and intentionally permitting
[permit] such conduct from a patron.
10.20.13.2
Knowingly and intentionally appearing in a semi-nude condition
in a sexually oriented business, unless the person is an employee
who, while semi-nude, shall be at least six (6) feet from any patron
or customer and on a stage at least two (2) feet from the floor.
10.20.13.3
For an employee, while semi-nude in a sexually oriented business,
to receive directly any pay or gratuity from any patron or customer,
or for any patron or customer to pay or give any gratuity directly
to any employee, while that employee is semi-nude in a sexually oriented
business.
10.20.13.4
For an employee on the premises of a sexually oriented business,
while semi-nude, to knowingly and intentionally touching [touch] a
customer or the clothing of a customer.
10.20.13.5
Knowingly and intentionally allowing a person under the age
of eighteen (18) years on the premises of a sexually oriented business
whether as an employee or a patron.
10.20.14
Exemptions.
It is a defense to prosecution under Section 10.20.13 that a person appearing in a state of nudity did so in a modeling class operated:
10.20.14.1
By a proprietary school licensed by the State of New Mexico
Higher Education Department (“HED”); or
10.20.14.2
By any post-secondary educational institution or regionally
accredited college or university within the oversight of, or requiring
registration by, the HED.
(Ordinance 2016-9 adopted 12/13/16)
10.21.1
Parking.
Multifamily development shall provide the following
minimum off-street parking spaces:
10.21.2
Units.
There shall be no more than 12 units per building.
10.21.3
Egress.
Units shall have a means of egress separate
from the commercial use. No access to the units shall be through a
commercial establishment.
(Ordinance 2016-9 adopted 12/13/16)
10.22.1
In addition to the applicable authority set forth elsewhere
in the SLDC and State law, the zoning and other regulations in this
section are enacted pursuant to the County's authority in Section
12 of the Cannabis Regulation Act, Laws 2021 (1st S.S.), Chapter 4,
and NMSA 1978, §§ 24-16-2 (1985) and 24-16-20 (2007).
10.22.2
The Board makes the following findings with regard to cannabis:
10.22.2.2
The SLDC, however, previously established
comprehensive zoning for certain cannabis-related uses authorized
by the Lynn and Erin Compassionate Use Act, NMSA 1978, Chapter 26,
Article 2B.
10.22.2.3
The Cannabis Regulation Act has authorized
a variety of uses related to the legalization of commercial cannabis
activities, which legalization has the potential to greatly expand
the legal cannabis market.
10.22.2.4
Cannabis cultivation, production, and manufacturing
creates strong odors, can involve the use of significant amounts of
energy and water, and requires security and other measures to reduce
the risk of theft or other diversion to the illegal cannabis market,
including possession and use by persons under the age of twenty-one.
10.22.2.5
Cannabis is an intoxicating drug, making
it appropriate to regulate the hours during which cannabis products
may be sold and the areas in which cannabis products may be consumed.
10.22.2.6
The smoking of cannabis products may create
health risks due to exposure to secondhand smoke and vaporized cannabis
concentrates.
10.22.2.7
Density limits are necessary to ensure that
cannabis retailers and consumption areas are not unduly concentrated
and do not crowd out other nonresidential uses.
10.22.2.8
The Board has determined that cannabis establishments
and cannabis consumption areas should be allowed in those Zoning Districts
where similar uses are allowed, such similarity determined by the
Board in an exercise of legislative discretion based upon, among other
factors, off-site impacts, compatibility, and the need for services.
10.22.3
For purposes of any Use Table in the SLDC and the Use Matrix
in Appendix B[2] and subject to the density and setback requirements in Sections 10.22.4 and 10.22.5:
10.22.3.1
Cannabis testing laboratories and cannabis
research laboratories shall be treated the same as the following uses:
Research and Development Services (scientific, medical, and technology).
10.22.3.2
Cannabis manufacturers shall be treated the
same as the following uses: Food, Textiles, and Related Products.
10.22.3.3
A cannabis producer or cannabis producer
microbusiness that cultivates cannabis plants indoors shall be treated
the same as the following use: Commercial Greenhouse.
10.22.3.4
A cannabis producer or cannabis producer
microbusiness that cultivates cannabis plants outdoors shall be:
10.22.3.5
A cannabis retailer shall be treated the
same as the following use: Store or Shop.
10.22.3.6
Cannabis consumption areas are subject to
the following:
1.
A cannabis consumption area in which consumption is limited
to consumption by qualified patients or reciprocal participants may
be located inside any cannabis retailer; provided, however, that smoking
of cannabis products in such consumption areas is only allowed if
the cannabis consumption area occupies a standalone building from
which smoke does not infiltrate other indoor workplaces or other indoor
public places where smoking is otherwise prohibited pursuant to the
Dee Johnson Clean Indoor Air Act, NMSA 1978, Chapter 24, Article 16.
2.
Cannabis consumption areas that allow consumption by consumers
shall be treated the same as the following uses: Bars, taverns and
nightclubs. Cannabis consumption areas that are open to consumers
are also subject to the following:
a.
The smoking of cannabis products is not allowed outdoors;
b.
The smoking of cannabis products is only allowed within a licensed
cannabis consumption area that occupies a standalone building from
which smoke does not infiltrate other indoor workplaces or other indoor
public places where smoking is otherwise prohibited pursuant to the
Dee Johnson Clean Indoor Air Act, NMSA 1978, Chapter 24, Article 16;
and
c.
Access to cannabis consumption areas open to consumers is restricted
to persons twenty-one years of age and older.
10.22.3.7
Cannabis couriers fall within the following
use: Courier and messenger service facilities.
10.22.3.8
Vertically integrated cannabis establishments
and integrated cannabis microbusinesses may only be located in a Zoning
District in which each of the authorized activities proposed for the
licensed premises is an allowed use, whether as a permitted use or
pursuant to an approved Conditional Use Permit. For example:
1.
A vertically integrated cannabis establishment that is a cannabis
manufacturer, cannabis producer that cultivates cannabis plants outdoors,
and a cannabis retailer could not be located at a single licensed
premises within an Industrial Light Zoning District, since the outdoor
cultivation of cannabis plants is not allowed in the Industrial Light
Zoning District.
2.
An integrated cannabis microbusiness that is a cannabis manufacturer
and a cannabis producer that cultivates cannabis plants outdoors would
require conditional use permits for those uses to be located at a
single licensed premises within the Rural Fringe Zoning District.
[2]
Editor's note—Appendix B is included as an attachment
to this exhibit.
10.22.4
No cannabis establishment, cannabis consumption area, or cannabis
courier may be located within 300 feet of a school or daycare center
in existence at the time a license was sought for the cannabis establishment,
cannabis consumption area, or cannabis courier. For purpose of this
section, all measurements for the purpose of determining the location
of a cannabis establishment, cannabis consumption area, or cannabis
courier in relation to schools or daycare centers shall be the shortest
direct line measurement between the actual limits of the real property
of the school or daycare center and the actual limits of the real
property of the proposed cannabis establishment, cannabis consumption
area, or cannabis courier.
10.22.5
Cannabis retailers and cannabis consumption areas may not be
located within 200 feet of another cannabis retailer or cannabis consumption
area. For purpose of this section, all measurements taken in order
to determine the location of a cannabis retailer or cannabis consumption
area in relation to another cannabis retailer or cannabis consumption
area shall be the shortest direct line measurement between the actual
limits of the licensed premises of the existing cannabis retailer
or cannabis consumption area and the actual limits of the proposed
licensed premises of the proposed cannabis retailer or cannabis consumption
area.
10.22.6
Unless further restricted in a Conditional Use Permit, cannabis
retailers and cannabis consumption areas may only operate during the
following hours:
10.22.7
Cannabis producers that cultivate cannabis plants indoors and
cannabis manufacturers must use industry standard techniques to minimize
odorous matter, toxic or noxious matter, such as activated carbon
filtration and regular maintenance of HVAC systems.
10.22.8
Cannabis cultivation and production for personal use in quantities
and as permitted by the Cannabis Regulation Act and Lynn and Erin
Compassionate Use Act is allowed anywhere in the County.
10.22.9
Applicability of Other Laws.
10.22.9.1
All cannabis uses are subject to all other
applicable sections of the SLDC and other County ordinances.
10.22.9.2
Any person engaged in commercial cannabis
activities and activities under the medical cannabis program other
than personal production and use must obtain a County business license.
10.22.10
Nothing in this Section shall preclude different
cannabis regulations from being adopted for Community District Overlays
in ordinances adopted after the effective date of Ordinance No. 2021-03.
(Ordinance 2021-03 adopted 7/30/2021)
10.23.1
Applicability.
This Section shall apply to all automotive
paint and body businesses.
10.23.2
Standards.
Automotive paint and body businesses shall
meet design standards within this SLDC in addition to the following
standards:
10.23.2.1
All automotive paint and body work shall be conducted within an insulated
building with appropriate air filters to minimize both noise and odors;
10.23.2.2
Stored vehicles shall be located behind a six-foot-high solid wall
or fence;
10.23.2.3
Structures related to a paint and body business shall be set back
a minimum of 75 feet from residential property boundaries.
(Ordinance 2016-9 adopted 12/13/16)
10.24.1
Applicability.
This Section shall apply to all tap rooms
or tasting rooms.
10.24.2
Standards.
Tap rooms or tasting rooms shall meet design
standards within this SLDC in addition to the following standards:
10.24.2.1
Tap rooms and tasting rooms may conduct tastings of and sell (i)
wine and beer or (ii) spirituous liquors for onsite consumption and
in unbroken packages for consumption off premises, but not for resale.
10.24.2.2
Hours of operation shall be between the hours of 10:00 a.m. and 9:00
p.m. within a residential zone.
10.24.2.3
The operator of the tap room and tasting room must hold a valid Craft
Distiller’s License, Winegrower’s License, or Small Brewer’s
License issued by the State of New Mexico pursuant to NMSA 1978, §§
60-6A-6.1, 60-6A-11, or 60-6A-26.1, respectively, as such may be amended
or recompiled from time to time.
10.24.2.4
Sales at and operations of the tap room or tasting room shall otherwise
be in accordance with applicable law, including but not limited to,
NMSA 1978, §§ 60-6A-6.1, 60-6A-11, or 60-6A-26.1, as such
may be amended or recompiled from time to time.
(Ordinance 2016-9 adopted 12/13/16)
10.25.1
Purpose and Findings.
The purpose of regulating community
solar is to facilitate the development of renewable resources to serve
the County's constituents and to meet the goals of the Sustainable
Growth Management Plan. The County aims to accommodate the needs of
community solar development and to only require the minimum standards
to attempt to minimize the adverse effects on neighboring properties.
10.25.2
Applicability.
Community solar projects are considered
a permitted use in all zoning Districts.
10.25.3
Standards.
1.
Buffering and screening is not required for ground mounted facilities.
If fencing is proposed for security purposes, agricultural fencing
with six (6) inch knots for wildlife is recommended.
2.
External access roads for ground mounted facilities may reduce
the road easement width for off-site and on-site driveways to no less
than twenty (20) feet if adequate drainage control is provided and
may allow the surface to be hardpacked dirt with compaction of 95%
of the maximum density. If the access road adjoins a paved road, an
asphalt or concrete apron of ten (10) feet in width will be required
to protect the pavement.
3.
On-site driveways for ground-mounted facilities may reduce standards as identified in Section 7.11.12.2 (additional standards for residential driveways), as access will be minimal for this type of development.
4.
Disturbed area shall be reseeded with drought tolerant native
plant species for pollinator friendly habitat. Weeds and plant materials
shall be properly managed to reduce fire risks.
5.
Utility lines shall comply with Section 7.12 of the SLDC. The connection between the community solar facility and the electric utility infrastructure shall be considered a local distribution facility.
6.
A five (5) foot setback is required on all sides of a community
solar facility that is twenty (20) feet in height or less. A community
solar facility that is over twenty (20) feet in height shall meet
the setback requirements of the zoning district in which the facility
is located.
7.
Community solar facilities located on a non-residential or multifamily
rooftop shall be allowed to be eight (8) feet higher than the building
on the rooftop of which the community solar facilities are located
but in no event more than eight feet (8') above the height limit otherwise
imposed on structures in that zoning district. Rooftop community solar
facilities shall be set back five (5) feet from the sides of the building.
8.
State approval shall be submitted prior to development permit
issuance.
9.
Community solar facilities shall be set back three hundred (300)
feet from rivers, streams, wetlands and all riparian areas.
10.
Decommissioning:
a.
The owner/operator shall, at its expense, complete decommissioning
of the community solar facility within twelve (12) months after the
end of the useful life of the facility. Decommissioning must occur
in the event the facility is not generating electricity for twelve
(12) consecutive months.
b.
Decommissioning shall include removal of all solar panels, structures,
cabling, electrical components, roads, and foundations to a depth
of thirty-six (36) inches, as well as any other associated facilities/equipment
with satisfactory disposal and recycling of equipment. Disturbed earth
shall be graded and reseeded with drought-tolerant native plant species.
c.
An independent and New Mexico state certified professional engineer
shall be retained to estimate the total cost of decommissioning ("Decommissioning
Costs") without regard to salvage value of the equipment, and the
cost of decommissioning net of salvage value of the equipment ("Net
Decommissioning Costs"). Said estimates shall be submitted to the
County after the first year of operation and every fifth year thereafter.
d.
The owner/operator shall provide assurances that financial resources
will be available to fully decommission the site.
e.
The owner/operator is required to post a bond, letter of credit,
or the establishment of an escrow account to ensure proper decommissioning.
(Ordinance 2022-05 adopted 7/12/2022)
