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.
10.6.3.4
Signage.
Signage is governed by Table 10-1 and Section
7.9.10.
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.
10.10.3.4
Permits for signs or signage shall be in accordance with Section
7.9.12.
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.
|
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)
