(a)

Carlsbad planning and zoning commission. In addition to the responsibilities conferred by New Mexico Statutes upon the commission, the commission shall have the following powers and duties under the provisions of this Zoning Ordinance:

1.

Conflicts of interest. A member of the commission having a financial interest in the outcome of any policy, decision or determination before the commission shall, as soon as possible after such interest becomes apparent, disclose to each of the other members voting on the matter the nature of his or her financial interest in the issue and shall be disqualified from participating in any discussion, decision or vote relating to that issue.

2.

Prohibitions. Members of the Carlsbad Planning and Zoning Commission shall not:

(a)

Communicate, directly or indirectly, with any party or his or her representatives in connection with the merits of any issue before the commission prior to the commission's hearing on the issue; or

(b)

Use or rely upon any communication, reports, staff memos or other materials prepared in connection with a public hearing unless it is made part of the record; or

(c)

Inspect the site at issue with any party or his or her representative, except as part of a publicized and organized visit involving the entire commission, the public, and any other parties. Observing the site individually and from the public right-of-way, without accompaniment by any party to the issue or other commission member, is permitted.

3.

Advisory committee. From time to time, the city council may appoint one or more persons to help the commission carry out its planning responsibilities. Members of any such advisory committee shall not be members of the commission and shall have no vote, but shall lend their talents, energies and expertise to the commission. However, all formal recommendations to the city council shall be made by the commission.

(b)

City council. In addition to the responsibilities conferred by New Mexico Statutes upon the city council as the Governing Body of the City of Carlsbad, the city council shall have the following powers and duties under the provisions of this Zoning Ordinance:

1.

Planning and zoning commission appeals. Consider and decide appeals taken from the final decisions of the planning and zoning commission;

2.

Ordinance and map amendments. Enact amendments to this Zoning Ordinance and the official zoning map;

3.

Authority deferral. Defer authority to make decisions on specific types of items to city staff as an administrative delegation;

4.

Study and refine additional development criteria. Study issues, as necessary, which may impact the future growth, development and preservation of the environment of the city, and adopt ordinances, rules, regulations, codes and policies related to such issues;

5.

Establish policy and rules for ordinance administration. Establish from time to time such policies and rules not in conflict with other laws as it may deem necessary to assure the proper administration and enforcement of this Zoning Ordinance.

(c)

City administrator. Whenever the city administrator or any other city official is named, the reference to such official shall include his or her designee, and the named official shall not be required to take the specified action personally if the action has been delegated to another individual within the city administration.

(d)

Planning director. The planning director shall have the following responsibilities and duties under this Zoning Ordinance:

1.

Provide interpretations. Review, consider and render interpretations of the text of this Zoning Ordinance;

2.

Administer zoning. Review and decide whether applications are complete and eligible for processing pursuant to the terms of this Zoning Ordinance;

3.

Recommend disposition of applications. Review and prepare staff reports with recommendations for the disposition of applications made pursuant to the terms of this Zoning Ordinance;

4.

Public notice. Ensure that adequate public notice is provided pursuant to the terms of this Zoning Ordinance;

5.

Maintain records. Maintain the permanent files of each application and for each enforcement action undertaken pursuant to the provisions of this Zoning Ordinance. Records shall be maintained for the time period specified for such records by state law;

6.

Review submitted documentation. Review site plans, drawings and specifications for building permits in coordination with the city's building official;

7.

Provide comprehensive planning updates. Undertake current and long-range planning responsibilities. Review, as necessary, but at least every five years, this Zoning Ordinance and recommend amendments to the planning and zoning commission and the city council;

8.

Maintain official maps. Maintain the official zoning map;

9.

Serve as liaison with other planning and permitting efforts. Coordinate with other local, regional, state and federal planning organizations and permitting processes affecting the city; and

10.

Conduct examinations and surveys. Enter upon any land which is the subject of an application or enforcement proceeding to make examinations and surveys and place and maintain necessary monuments and markers.

(e)

City attorney. The city attorney shall have the following responsibilities and duties under this Zoning Ordinance:

1.

Review for form and findings. Upon request, draft or review for form written findings of fact, ordinances and resolutions, development agreements, easements, letters of credit or other such documents;

2.

Initiate legal proceedings. Initiate legal proceedings against violators of this Zoning Ordinance as may be directed by the city council;

3.

Monitor the conduct of public hearings. Ensure that the public hearings required by this Zoning Ordinance are conducted in the manner required by law; and

4.

Provide consultation on legal issues. Advise the planning and zoning commission and the city council in regard to legal issues which may arise during the implementation of the this Zoning Ordinance.

(f)

City engineer. The city engineer shall have the following responsibilities and duties under this Zoning Ordinance:

1.

Public infrastructure. Inspect the progress of construction of improvements on land designated for public use and inspect the installation of public facilities (including utilities, water, sewer, and roads) and halt construction if the city engineer finds that the required construction or installation is not in conformance with the approved plans, specifications and drawings; and require that defects be remedied before construction or installation is resumed; and

2.

Ordinance compliance. Review and make recommendations regarding applications where required by this Zoning Ordinance or requested by the city administrator; and

3.

Establish standards. Establish criteria, procedures, standards and specifications for design and construction of flood control, drainage control, erosion control, and utilities and street improvements, within the city; and

4.

Maintain records. Produce, approve, make and retain records, as per state requirements, of all drainage plans, drainage reports, design analyses, design drawings, as-built drawings and maintenance schedules related to all development, drainage control, flood control and erosion control facilities constructed within the city; and

5.

Provide consultations on engineering issues. Review and make determinations regarding applications for drainage and grading permits and other permit applications requiring engineering review.

(g)

Building official. The city's building official, certified by the State of New Mexico Construction Industries Division, shall have such powers and duties as provided by all applicable ordinances, laws, rules, regulations, codes, and policies. In addition, the building official shall have the following responsibilities and duties under this Zoning Ordinance:

1.

Private buildings and structures. Inspect the progress of construction for compliance with the applicable building codes and this chapter. Halt construction if the required construction or installation is not in conformance with the approved building plans, specifications and drawings; and require that defects be remedied before construction or installation is resumed;

2.

Ordinance compliance. Review and make recommendations regarding applications where required by this Zoning Ordinance or requested by the city administrator;

3.

Issue permits. Issue building permits for development in conformance with all applicable building codes and this chapter;

4.

Maintain records. Produce, approve, make and retain records of all building permits and building inspections conducted in the city and within the city's planning and platting jurisdiction; and

5.

Provide consultations on building. Review and make determinations regarding applications for building permits and other permit applications requiring building review.

(h)

Code enforcement officer. The city's code enforcement officer shall have such powers and duties as provided by all applicable ordinances, laws, rules, regulations, codes, and policies. In addition, the code enforcement officer shall have the following responsibilities and duties under this Zoning Ordinance:

1.

Investigate complaints and violations of this Zoning Ordinance.

2.

Maintain records.

Maintain the permanent files for each enforcement action undertaken pursuant to the provisions of this Zoning Ordinance. Records shall be maintained for the time period specified for such records by state law.

(Ord. No. 2011-15, 10-11-11)

(a)

Pre-application conference. To expedite the application review process and reduce subdivision, site design and development costs, an applicant may request an informal pre-application conference with the planning director. No fee shall be required at the pre-application stage.

1.

Documentation. The applicant may submit any information that he or she believes will assist the planning director in understanding the type and scale of the proposed development, including any available drawings of the proposed development.

2.

Preliminary determination of procedural requirements. The planning director shall summarize the requirements of the Zoning Ordinance and the applicable goals and policies of the comprehensive plan. The planning director shall make a preliminary determination of the type of development approvals and permits required by the applicant, discuss the procedures for application submittal and review, and provide the applicant with the appropriate application and a checklist of the submittal requirements.

3.

Informal exchange of information. The pre-application stage is for the informal exchange of information only, and neither the applicant nor the city staff, planning and zoning commission nor the city council, shall be bound by any statements or determinations made during the pre-application conference. Any time limits imposed by this Zoning Ordinance will not be applicable to the pre-application conference.

(b)

Types of permits. The use of property may not be changed, substantial clearing, grading, or excavation may not commence, and buildings or other structures may not be constructed, erected, moved, or altered except in accordance with and pursuant to one or more of the following permits:

1.

Building permit;

2.

Conditional use permit;

Discontinuation of a permitted conditional use for 12 consecutive months shall make null and void a conditional use permit for the specific use. Transfer to another person or address is not allowed. If another person wants to continue the use, or if the permittee wants to continue the use in another location, a separate conditional use permit must be obtained. The conditional use permit is for a specific person at a specific location.

3.

Drainage and grading permit;

4.

Encroachment permit;

5.

Home occupation permit;

6.

Zoning permit;

7.

Temporary use permit; and

8.

Fence permit.

(c)

Application process. Applications shall be made on the forms provided by the planning director.

1.

Owner's affidavit. When the applicant is not the owner of record, the application shall be accompanied by an owner's affidavit approving of the application and authorizing the agent to act on the owner's behalf in processing the application. When the owner of record resides out-of-state, the affidavit shall designate a local agent capable of receiving notices.

2.

Required copies. The number of required copies shall be indicated on the application forms provided by the planning director. Additional copies may be required, as needed. It is the applicant's responsibility to provide all required copies.

3.

Application submittal. Applications shall be submitted to the planning director, who shall have responsibility for determining whether the submitted application is complete.

(a)

The time frames for review and action set forth in this Zoning Ordinance shall begin when the planning director deems the application complete.

(b)

If the planning director determines that the application is not complete, he or she shall notify the applicant of the deficiencies within ten days of submission of the application.

(c)

Applications shall be deemed abandoned when information and/or fees identified as necessary by the planning director for the completion of the application are not received by the planning director within 90 days of notification. During the 90 days time period, the applicant may request an extension of up to 90 days to complete the application. No review or public hearings shall be conducted on incomplete or abandoned applications.

(d)

Fees. Reasonable fees sufficient to cover the costs of administration, inspection, publication of notice and similar matters may be charged to applicants. The amount of the fees shall be set forth and amended from time to time by a fee schedule adopted by the city council. Reasonable fees for consultants may be charged in those cases where the proposed development is unusually complex or requires additional review beyond the expertise of the city staff. Fees shall be paid at the time the application is submitted, and shall not be refunded for applications that are withdrawn, abandoned, or denied.

(e)

Applications to be processed expeditiously. Recognizing that inordinate delays in acting upon appeals or applications may impose unnecessary costs to the applicant or appellant, the city shall make every reasonable effort to process permit applications and appeals as expeditiously as possible, consistent with the need to ensure that all developments conform to the requirements of this Zoning Ordinance.

(f)

Information required.

1.

Written application form. Every applicant shall complete a written application form containing at least the following information:

(a)

The name, address, and contact numbers of the applicant;

(b)

If the applicant is not the owner of the property in question:

(i)

The name, address, and phone number of the owner;

(ii)

The legal relationship of the applicant to the owner that entitles the applicant to make the application; and

(iii)

The affidavit of the owner authorizing the applicant to act on behalf of the owner in processing the application;

(c)

The date of the application;

(d)

Identification of the particular permit, or development approval sought;

(e)

A statement describing the nature of the request; and

(f)

Identification of the property in question by street address and legal description:

(i)

The zoning district within which the property lies;

(ii)

Additional information as requested by the planning director.

2.

Site plans. If a site plan is required, the requirement shall be indicated on the application form provided by the planning director. Generally, site plans will be required for building permits, conditional use permits, encroachment permits, drainage and grading permits, home occupation permits, and other permits as necessary. The site plan shall:

(a)

Be stamped by an architect or engineer registered in the State of New Mexico, if necessary, and be drawn on paper or mylar no less than 8.5 inches by 11 inches or larger when required for legibility;

(b)

Provide on the cover page:

(i)

A vicinity map that illustrates the location of the project in the broad context of the city; and

(ii)

The name of the project, applicant and developer; and

(iii)

A north arrow, legend and engineering scale and bar scale; and

(iv)

The zoning district in which the property lies; and

(v)

A signature block for the following, as evidence of review and approval of the site plan by the fire marshall, planning director, public works director, city engineer, environmental services manager, building inspector and/or utility providers, as needed.

(c)

Plans must be drawn to scale, whereby all features are readily discernible but no smaller than one inch equal one hundred feet, and/or drawn with accurate dimensions. For sites less than five acres the following may be included on one sheet. For sites five acres or greater in size, the site plan submittal shall include the following on separate sheets:

(i)

Site plan (scale, bar scale, north arrow, property lines, total lot area, net lot area, existing and proposed structure locations and dimensions, ingress, egress, internal circulation, parking areas and dimensions, and right-of-way); and

(ii)

Landscaping plan as required in section 4.2.4[sic]; and

(iii)

Drainage and grading plan (scale, bar scale, north arrow, property lines, existing and proposed drainage easements, flood zone information, existing and proposed contour lines at five-foot maximum intervals, drainage ways, storm water drainage retention and/or detention facilities including dimensions and other drainage or grading information, as necessary); and

(iv)

Utilities plan (scale, bar scale, north arrow, property lines, existing and proposed utility easements and existing and proposed water, sewer, electric, fiber optic, gas and other utility lines); and

(v)

Architectural elevations (architectural scale, architectural bar scale, building elevations from the north, south, east and west with materials description and overall structure dimensions and dimensions of all doors, windows and framing).

(d)

Additional information required. In addition to an application form and/or site plan and when necessary for understanding the overall impact of a proposed development, the planning director may require the following information or documents be provided by the applicant:

(i)

Documentation confirming that the applicant has a legally sufficient interest in the property proposed for development to use it in the manner requested, or is the duly appointed agent of such person.

(ii)

Certifications from the appropriate agencies that proposed utility systems are or will be adequate to handle the proposed development and that all necessary easements have been provided.

(iii)

Legal documentation establishing a homeowners association or other legal entity responsible for control and maintenance of required common areas and facilities.

(iv)

Bonds, letters of credit, or other surety devices.

(v)

Complete documentation justifying any requested deviation from specific requirements established by this Zoning Ordinance.

(vi)

Time schedule for completion of phases in staged development.

(vii)

A lighting plan, traffic and pedestrian circulation plan, environmental impact assessment, drainage study, historic or cultural properties survey, or other plans or studies, as needed.

(g)

Staff report. For applications requiring review by the planning and zoning commission or the city council, the planning director shall refer the application to the appropriate review agencies and prepare a staff report that indicates whether the development application complies with all applicable standards of this Zoning Ordinance and other adopted plans and policies. Conditions for approval may also be recommended to eliminate any areas of existing non-compliance or mitigate any adverse impacts of the development proposal. Prior to the public hearing, the planning director may request appropriate city departments and public agencies to comment on the application. Comments received shall be made a part of the record of the public meeting or hearing.

(h)

Public hearings. All public hearings shall follow the provisions of this section.

1.

Scheduling. When the planning director determines that the application is complete and that a public hearing is required by this Zoning Ordinance, the hearing shall be scheduled for the next regular meeting according to the adopted schedule of the planning and zoning commission or city council, whichever is the decision making body, providing adequate time to ensure that the public notice requirements can be satisfied, or such later time as is mutually agreed upon by the applicant and the planning director.

2.

Attendance by applicant. The applicant or designated agent shall be present at the public hearings in order for the case to be heard by the decision-making body.

3.

Order of proceedings for planning and zoning commission hearings. The order of the proceedings shall be in accordance with Robert's Rules of Order and other accepted standard practice and as follows for individual hearings:

(a)

All parties providing testimony are sworn in and state their name and address for the record.

(b)

The planning director, or designated representative, shall present a written staff report which shall become part of the record and that includes a narrative and/or graphic description of the application and a recommendation. The planning director shall have ten minutes to provide a description of the application and any unresolved issues.

(c)

The applicant shall have ten minutes to provide a description of the project and address any unresolved issues.

(d)

The applicant and staff shall answer questions and present any information required by the decision-making body.

(e)

Public testimony and evidence may be taken under oath if requested by the decision-making body.

(f)

Any person may appear at a public hearing to ask questions and submit testimony or evidence. If the person represents an organization, the chairperson may request written evidence of that person's authority to speak on behalf of the organization in regard to the matter under consideration.

(g)

If requested by any member of the commission, the applicant may respond to any person providing testimony or evidence.

(h)

The planning director, planning department staff, the city attorney, the city engineer, and any other city staff may respond to or clarify any statement made by the applicant or any public comment.

4.

Limitation on presentations. The decision-making body may impose reasonable limitations on the length of testimony or comments from the parties, public, or staff.

5.

Deferral. The decision-making body may defer the public hearing of a particular item to a fixed date, time, and place announced prior to recess as permitted by law. An applicant shall have the right to request a deferral of the public hearing for their item, in which case the deferral shall be requested, in writing, to the planning director, within 72 hours of the scheduled hearing. Any subsequent deferrals requested by the applicant shall be granted at the discretion of the body conducting the public hearing. A fee for applicant-requested deferrals may be set and amended from time to time.

6.

Continuance. Once a public hearing on an item has begun, the decision-making body may continue the public hearing to a fixed date, time, and place announced prior to recess as permitted by law.

7.

Revision of application. In response to questions or comments by persons appearing at the hearing or to suggestions or recommendations by the planning and zoning commission, the applicant may agree to modify his or her application, including the plans and specifications submitted. Unless such modifications are so substantial or extensive that the decision-makers cannot reasonably understand the nature and impact of the proposed changes without revised plans before it, the decision-makers may schedule a continuance and require the applicant to provide the commission via the planning director with revised plans or approve the application with the condition that the permit will not be issued until plans reflecting the agreed upon changes are submitted to the planning director.

8.

Record of hearing. The commission shall record, or cause to be recorded, the public hearing. The approved minutes, all applications, exhibits and papers submitted, the staff report and the decision of the decision-making body shall constitute the record.

9.

Notice of decision. The commission shall provide, or cause to be provided, the applicant with an official notice of decision, within 15 days of the hearing. The official notice of decision shall contain the date, time and location of the hearing when the decision was made, a description of the application, any findings or conditions associated with the decision, and information about appeal of the decision.

10.

Inspection of public records. All records of decision-making bodies shall be public records, open for inspection as required by law.

11.

Transcripts. A copy of the public hearing record may be obtained as permitted by law.

(i)

Notice required. Notices required pursuant to this Zoning Ordinance shall conform to the requirements of state law and this section in order to afford the applicant, the public, and interested citizens an opportunity to fully participate in the process.

1.

Requirement. Notice of public hearings shall be provided for each item below in accordance with the following requirements (2 through 6 below):

(a)

Adoption and/or amendments to the official zoning map.

(b)

Adoption and/or amendments to the text of this Zoning Ordinance.

(c)

Adoption of and/or amendments to any regulations, rules, or resolutions which implement a specific provision of this Zoning Ordinance, excluding policy guides of a technical nature used for design purposes.

(d)

Appeals and variances taken pursuant to the terms of this Zoning Ordinance.

(e)

Conditional use permits.

2.

Content. All notices shall include the date, time and place of the hearing, a brief description of the application or matter to be considered, a physical description of the land involved and the place where copies of the application or information to be considered may be obtained.

3.

Mailing of notice. Notice shall be provided as required by law. In conformance with state statute, the applicant shall mail notice, via certified mail, to all property owners within 100 feet of the subject site, excluding all streets and alleys. For amendments to the official zoning map, a minimum of 15 days' notice shall be given. For variances, a minimum of five days' notice shall be given.

4.

Mailing of notice to others. The city shall attempt to provide written notice to any person who has made a written request for notice and paid current postage fees.

5.

Posting of notice. The applicant shall post and maintain on the property one or more signs, regarding the first scheduled public meeting or hearing, as provided by the planning director, at least five days prior to the date of the public meeting or hearing. One sign shall be posted along each public right-of-way abutting the subject site, if possible or in a location visible from the nearest public right-of-way. Each sign shall be at least nine square feet in area with a white background and black letters at least three inches high. The applicant shall be responsible for removing the sign(s) within five days following the final public hearing. Failure to properly post and maintain sign(s) during the posting period is grounds for deferral or denial of the application.

6.

Identification of property owners. The owners of real property to be notified pursuant to this section shall be those owners identified on the latest county assessor's ownership maps and records. The mailed notice requirement is satisfied when notice is mailed to these addresses. Any person who attends the public hearing shall be considered to be legally notified.

(j)

General considerations in rendering decisions. This Zoning Ordinance is intended to protect the interests of both present and future residents, landowners, tenants, and the general public. In rendering a decision, the decision-makers shall be bound to use the standards of this Zoning Ordinance and other applicable laws, rules, regulations, codes, and policies in addition to evidence provided by parties at the hearing. The following rules shall govern decisions:

1.

General standards. Except as provided in 2 and 3 below, all decisions shall be based on this Zoning Ordinance, and other relevant city, county, state, or federal laws, rules, regulations, codes and policies.

2.

Minimum standards. The minimum standards of this Zoning Ordinance shall be met; however, if written findings are made regarding unusual health, safety or general welfare concerns of a particular project or a particular site, higher standards may be imposed.

3.

Interpretations. The planning director shall provide official interpretation of this Zoning Ordinance when needed. Where interpretation is required in rendering a decision, the purposes set forth in section 56-3 shall be used to guide decisions.

(k)

Opportunity for appeal. Pursuant to this Zoning Ordinance, administrative decisions made by the planning director may be reviewed on appeal by the planning and zoning commission. All final decisions made by the planning and zoning commission may be reviewed on appeal to the city council. Final decisions of the city council may be appealed to district court pursuant to Section 3-21-9 NMSA 1978. A decision made pursuant to this Zoning Ordinance is final unless an appeal is filed, within 15 days, and as required by law. Substantial deviations from this Zoning Ordinance are considered variances and are a form of appeal and may not be approved by city staff but rather shall be considered by the planning and zoning commission.

(l)

Compliance with permit conditions. Permits are issued only when a review of the application submitted indicates that the development, if completed as proposed, will comply with the provisions of this Zoning Ordinance.

1.

Issuance of permits. Permits shall be issued in the name of the applicant (except that applications submitted by an agent or contractor shall be issued in the name of the agent or contractor), shall identify the property involved and the proposed use, shall incorporate by reference the plans submitted, and shall contain any special conditions or requirements lawfully imposed.

2.

Consistency with plans and specifications. Approved plans and applications are incorporated into any permit issued, and all development shall occur strictly in accordance with such approved plans and applications.

(m)

Effect of permit on successors and assigns. Permits issued pursuant to this Zoning Ordinance authorize the permittee to make use of land and structures in a particular way. Such permits (except home occupation permits) are transferable with the title of the property to which they relate. The terms and requirements of the permit apply to all successors and assigns until such time when the use or structure is completed, modified or discontinued.

(n)

Deviations from permits and plans.

1.

Minor deviation. Minor deviations from this Zoning Ordinance may be approved by the planning director. Applications for minor deviations shall be submitted to the planning director on prescribed forms. No fee shall be charged, and a public hearing is not required. The planning director shall approve or deny all changes in writing. No request for an increase in density, an increase in structure height, a decrease in open space or required landscaping, or a reduction in any required setback may be processed as a minor deviation.

2.

Substantial deviation. All deviations that are not considered minor shall be considered substantial and a variance to this Zoning Ordinance. Substantial deviations may not be approved by staff but rather may only be considered by the planning and zoning commission.

3.

Authority of planning director. The planning director shall determine whether a request qualifies as a minor deviation or a substantial deviation under the definitions set forth in this Zoning Ordinance.

(o)

Expiration of permits.

1.

Automatic expiration. Permits issued pursuant to the terms of this Zoning Ordinance shall expire automatically according to the following table:

Table 15: Permits

2.

Requirement for extension of time. The planning director may grant a total of two successive 90-day extensions if he or she concludes that:

(a)

The permit has not yet expired;

(b)

The permit recipient has proceeded with due diligence and in good faith; and

(c)

The conditions have not changed so substantially as to warrant a new application.

3.

Applications approved prior to ordinance effective date. Notwithstanding any of the provisions of article VI non-conforming uses and structures, this section shall be applicable to permits issued prior to the date this Zoning Ordinance becomes effective.

(p)

Reasonable conditions. Any conditions imposed on development shall be directly related to, and roughly proportional to, the impacts created by that development.

(Ord. No. 2011-15, 10-11-11; Ord. No. 2016-18, Att., 9-13-16)

(a)

Summary table of administrative procedures. Table 16 summarizes the review and approval procedures for specific types of applications.

Table 16: Administrative Procedures

R = Review and Recommendation

D = Decision-Maker, final action

H = Public Hearing

A = Considers Appeal

*Building Permits are appealed to the State of New Mexico Construction Industries Division.

**After a hearing and decision by the appellate body, an appeal may be filed in district court, in accordance with the court's process.

(b)

Amendments to official zoning map or text of this Zoning Ordinance. This section provides a means for changing the boundaries of the official zoning map or the text of this Zoning Ordinance. It is not intended to relieve particular hardships, or to confer special privileges or rights to any person, but only to make necessary adjustments in light of changed conditions or changes to the comprehensive plan or other city master plan.

1.

Initiation of amendments.

(a)

An amendment to the official zoning map may be proposed by the city council, the planning and zoning commission, the planning director, or the landowner by application. At the time of application and via first-class mail, the applicant shall provide notification of the date, time and location of the first public meeting regarding the proposed amendment to all property owners of record within 100 feet of the subject site boundary. In accordance with section 56-140(i), additional public notification is required prior to consideration of the amendment at a public hearing.

(b)

An amendment to the text of this Zoning Ordinance may be proposed by the city council, the planning and zoning commission, the planning director, or a resident by application. At the time of application and via notification in local newspapers of general circulation, the applicant shall provide notification of the date, time and location of the first public meeting regarding the proposed amendment. In accordance with section 56-140(i), additional public notification is required prior to consideration of the amendment at a public hearing.

(c)

An amendment shall be introduced in the form of an ordinance.

2.

Review procedures.

(a)

The planning director shall prepare a staff report concerning the proposed amendment which shall include his or her recommendation to approve, modify or deny the proposed amendment.

(b)

The planning and zoning commission shall consider the proposed amendment during at least one public meeting and make a recommendation to the city council to approve, modify or deny the proposed amendment.

(c)

Following the recommendation by the planning and zoning commission, the city council shall, at a regularly scheduled meeting, set a date for the public hearing and publish notice of said hearing in a newspaper of general circulation not less than 30 days prior to the hearing date. In addition, for a zoning map amendment of less than one block, the city shall provide notice by certified letter, or of more than one block, by first class mail, no less than 15 days prior to the hearing date, to all property owners of record within 100 feet of the subject property. The notice shall include the date, time, and location of the hearing and a description of the request.

(d)

At the conclusion of the public hearing on a proposed amendment, the city council may proceed to vote on the proposed amendment, refer it back to the planning and zoning commission for further study, or take any action consistent with its rules of procedure.

3.

Protests. If the owners of 20 percent or more of the area of the lots of land included in, or within 100 feet of, the area proposed to be changed by a zoning regulation, excluding public right-of-way, protest in writing to the proposed change, then the proposed change in zoning shall not become effective unless the change is approved by a majority vote of all of the members of the city council.

4.

Findings required. A statement of fact regarding each of the following findings is required. An amendment to the official zoning map or to the text of this Zoning Ordinance must be justified by one or more of the following findings:

(a)

The proposed amendment will or will not adversely impact the public health, safety or general welfare and will or will not promote the original purposes of the Zoning Ordinance; and

(b)

The proposed amendment responds or does not respond to changed conditions, such as changes in public capital investments, road locations or functional classification, population trends, density, use or further studies that have been completed since adoption of the Zoning Ordinance; and

(c)

The proposed amendment is or is not necessary in order to respond to state and/or federal legislation; and

(d)

The proposed amendment provides or does not provide additional flexibility in meeting the objectives of this Zoning Ordinance without lowering the standards of the Zoning Ordinance; and

(e)

The proposed amendment is or is not in substantial compliance with the city's comprehensive plan or other city master plan; and

(f)

The proposed amendment will or will not adversely affect the implementation of the goals and policies of the city's comprehensive plan or other city master plan; and

(g)

The proposed amendment is justified in order to correct a mistake in the official zoning map or the text of the Zoning Ordinance; and

(h)

The proposed amendment is justified in order to respond to changes in the city's comprehensive plan or other city master plan including, but not limited to, changes in land use assumptions, surrounding uses, population forecasts, rates of land consumption, anticipated community needs or other factors.

5.

Effective date. An amendment to the Zoning Ordinance or the official zoning map shall become effective after the city has complied with public hearing, notice and publication required by law for adoption of ordinances.

6.

One year wait on denials. After the denial of an amendment request, no application for the same or similar amendment may be accepted for one year following the denial. This section shall not apply to applications denied without findings, which may be refiled within one year.

7.

Moratorium. The city council may declare a moratorium on the acceptance and processing of applications for development and/or issuance of building permits for a specific geographical area, type of development or use, and for a specified length of time for the purposes of preparing an amendment to the text of the Zoning Ordinance or any other ordinance.

(a)

City council shall initiate a moratorium by adopting a resolution. The planning director shall prepare a staff report with recommendations if requested to do so by the city council.

(b)

When adopting the moratorium resolution, the city council shall, at a minimum, make one of the following findings:

(i)

The moratorium is necessary to promote the health, safety and welfare of the city's residents or environs;

(ii)

The moratorium is necessary to permit the staff, planning and zoning commission, the city council, and the public to develop an amendment to the Zoning Ordinance;

(iii)

The moratorium is necessary because continued development during the proposed moratorium period could result in development that may conflict with the amendment or undermine the possible beneficial impacts of an amendment.

(c)

The final decision to approve, modify or deny a proposed moratorium shall be made by the city council after a public hearing.

(d)

A moratorium declared by the city council shall be in effect for no longer than six months from the date of adoption of the moratorium. The city council may extend the moratorium for a period not to exceed six additional months, after holding another public hearing on the matter, and confirming that substantial progress has been made toward the adoption of the proposed amendment to the Zoning Ordinance.

(c)

Appeals.

1.

Determination of standing to appeal. A person aggrieved by a decision of the planning director, city engineer, other city staff, or the planning and zoning commission, may file an appeal with the city administrator. An aggrieved person is one who has a personal or pecuniary interest or property right adversely affected by the decision. The interest must be immediate and substantial, not merely nominal or remote.

2.

Submittal requirements. An appeal is made by filing a written notice of appeal with the city administrator which clearly articulates the reasons for the appeal, specifically citing and explaining one or more alleged error:

(a)

In applying adopted city plans, policies and ordinances in arriving at the decision;

(b)

In the appealed action or decision, including its stated facts; and/or

(c)

In acting fraudulently, arbitrarily or capriciously.

3.

Review procedures.

(a)

An appeal must be filed with the city administrator within 15 days after the date of the decision. Untimely appeals shall not be considered.

(b)

Upon receipt of a notice of appeal, the city administrator shall transmit to the city council or the planning and zoning commission, whichever is the appellant body, all the papers and other documents which constitute the record relating to the action appealed. The appeal shall be heard no later than 45 days from receipt of the appeal by the city administrator, unless a waiver is mutually agreed upon by all concerned parties.

(c)

An appeal stays all actions by the planning director seeking enforcement of or compliance with the decision appealed, unless the planning director certifies to the city council that a stay would cause imminent peril to life or property, because of facts stated in the decision. In which case actions shall not be stayed except by order of the city council or a court.

(d)

After determining that the appellant has standing to appeal and reason(s) for appeal, the city council, by a concurring vote of two-thirds of all members, or the planning and zoning commission, by a simple majority, whichever the case might be, may reverse, affirm (wholly or partly), remand back or modify the requirement, decision or determination and shall make any requirement, decision or determination that, in its opinion, ought to be made in order to remedy those situations noted in the appeal. In the event of a tie, the appeal is deemed denied.

4.

Criteria. The purpose of the appeal procedure is to determine if the decision being appealed meets the requirements of this Zoning Ordinance. The city council or the planning and zoning commission, when hearing an appeal, is limited to the following determinations:

(a)

The decision-maker made an error in reviewing whether a standard was met, by a misreading of the facts, plans, regulations or an error in judgment.

(b)

Where conflicting evidence exists, the appeal is limited to determining what evidence or testimony bears the greatest credibility.

(c)

The decision-maker made the decision on standards not contained in this or other city ordinances, regulations or state law; or a standard was applied more strictly or broadly than is appropriate to implement the city's comprehensive plan and this Zoning Ordinance.

(d)

A hardship exists that is due to the unique shape, topography or significant variation from surrounding lots. The hardship shall neither be simply pecuniary nor a result of action, or lack thereof, taken by the applicant.

5.

Judicial review. The final decision on any application may be appealed to district court, pursuant to NMSA 1978, Section 3-21-9, provided all administrative remedies have been exhausted.

(d)

Beneficial use determination. The purpose and intent of this Zoning Ordinance is that every property owner in the city should enjoy a beneficial use of his or her property. It is also the intent that such use of the property not increase the potential for damaging the health, safety or welfare of current or future users or neighbors of the property.

1.

Purpose. In the event that a property owner in the city believes that all beneficial use of his or her property has been denied, or "taken," by the application of this Zoning Ordinance, then he or she shall submit an application for a beneficial use determination. A beneficial use determination is a process by which the city evaluates such an allegation, and by which the city can provide relief from the regulations by granting additional development potential. The procedures provided herein shall be used prior to seeking relief from the courts in order that any denial of beneficial use of property may be remedied through a non-judicial forum.

2.

Submittal requirements. The nature of this beneficial use determination requires detailed financial information on the property that is not required in normal applications. The following data shall accompany all applications for a beneficial use determination:

(a)

Documentation of the date of purchase and the purchase price of the property.

(b)

A description of the physical features present on the property, the property's total acreage, the present use of the property, and the use of the property at the time of adoption of this Zoning Ordinance.

(c)

The specific regulations which are alleged to result in an elimination of all beneficial use of the property and any actions taken by the city related to the property.

(d)

All appraisals, documentation, studies, and other evidence of the alleged elimination of beneficial use.

(e)

A description of the use which the property owner believes represents the minimum beneficial use of the property and any documentation, studies and other evidence supporting that position.

(f)

Documentation that the property has been listed for sale at least six months after the adoption of this Zoning Ordinance, and originals or copies of all bids, offers-to-purchase, and other correspondence regarding the sale of such property.

3.

Review procedures.

(a)

As may be directed by the city administrator, the planning director shall prepare a staff report concerning the application for a beneficial use determination which shall include his or her recommendation.

(b)

The planning and zoning commission shall consider the application for a beneficial use determination during at least one public meeting and make a recommendation to the city council.

(c)

Following the public meeting and recommendation by the planning and zoning commission, the city council shall conduct at least one public hearing to make the final decision.

(d)

At the conclusion of the public hearing on the application for a beneficial use determination, the city council may proceed to vote on the application, refer it back to the planning and zoning commission for further study, or take any action consistent with its rules of procedure.

4.

Criteria. In determining whether a property owner has been deprived of all beneficial use of his or her property, the city council shall take into account the following factors:

(a)

The value of the property prior to adoption of this Zoning Ordinance or to any decision pursuant to this Zoning Ordinance which caused the property owner to apply for relief as compared to the value of the property with the regulations as applied. The value shall be determined by an appraisal performed by an independent, certified appraiser. A mere diminution in value does not deprive the property owner of a beneficial use; the diminution must be so drastic that it effectively deprives the property owner of any significant use or enjoyment of the property.

(b)

A use common to the city and/or the area of the subject site, although it may not involve further development of the land, is considered a beneficial use. Attention shall also be given to land uses that are considered to be the lowest intensity in the city or adjoining areas but which uses still provide for occupation and living by the property owner. These land uses shall be considered beneficial uses.

(c)

The city council shall consider whether the property is being singled out for treatment different than similarly situated properties under this Zoning Ordinance.

(d)

A minimum beneficial use of the land should be one that does not have any governmental subsidy attached to the use or long-term safe occupation of the property. If such subsidy exists, then it should be reflected in considering minimum beneficial use on a valuation basis. The public costs of a subsidy should be considered as a payment to the property owner for the restriction on the property if there is an annual subsidy that enhances the economic return of the existing use to the property owner.

(e)

The extent to which the regulations protect users or neighbors from threats to health, safety or welfare shall be fully accounted. A use that seriously threatens the health, safety or welfare of neighbors or future residents, or that would constitute a nuisance, is not a beneficial use.

(f)

Subjective expectations of the owner shall, in general, not be considered. Only expectations backed by investments made prior to the adoption of this Zoning Ordinance or the restrictions or decision at issue, that are substantially above the cost of the land and normal planning investments, shall be considered.

(g)

In no case shall a use that is a nuisance per se, or a use that in that particular location constitutes a nuisance, be granted relief. Such uses are not legal uses of the land and thus no taking of beneficial use of the land can occur through denial of such uses.

5.

Granting relief. If the city council finds that a property owner has been denied all beneficial use of his or her property, then the following relief may be granted:

(a)

The property owner shall be given the minimum increase in development intensity or other variations from the requirements of this Zoning Ordinance in order to permit a beneficial use of the land. The highest use, or even an average reasonable expectation, is not required or intended as the appropriate remedy. The following guidelines shall be used for determining the minimum beneficial use of the property and, therefore, the amount of relief to be granted a property owner:

(i)

Any limitations on development potential caused by the natural conditions of the property shall not be attributed to the regulations applied to the property. If the property is such that it cannot safely accommodate development with normal grading and clearing practices, this fact shall be taken into account in identifying the best site for development that minimizes costs of development.

(ii)

The potential for damage to either residents or property on or near the site in question shall be assessed in determining a beneficial use. Conditions shall be placed on sites where damage from building or hazardous circumstances is likely to occur. The conditions may include location restrictions, size limitation, construction practices and shall require a structure to be built so it will not be damaged, and so that it will not damage other property.

(iii)

The city council shall make its decision by resolution. Based on the findings of the public hearing, the city council may also direct that public hearings be held to amend this Zoning Ordinance so as to prevent a similar development of beneficial use in the future.

(e)

Building permit.

1.

Review procedures.

(a)

The building official shall have responsibility for reviewing applications for building permits and rendering a decision to grant or deny such a permit.

(b)

The decision of the building official may be appealed to the State of New Mexico Construction Industries Division.

2.

Criteria. The building permit shall be issued if the application is in conformity with this code, the building code(s) as adopted by the city, any approvals granted for the parcel pursuant to this code, and all other applicable laws, rules, regulations, policies, and codes.

(f)

Conditional use permit.

1.

Purpose. A conditional use permit shall be required for those uses that are not permitted in the district 'by right', and denoted as a "C" in the Use Tables in order to ensure that the use will not be detrimental to the public health, safety, and welfare of the community and will not impair the integrity and character of the zoning district in which it is located.

2.

Submittal requirements. Every applicant shall complete a conditional use permit application which shall include all required documentation and information.

3.

Review procedures.

(a)

The planning director shall prepare a staff report that includes his or her recommendation to approve, modify or deny the requested conditional use permit.

(b)

The planning and zoning commission shall conduct at least one public hearing in accordance with the notification and hearing procedures of this code and make a determination to approve, modify or deny the conditional use permit.

(c)

All conditions and restrictions shall be in writing and given to the applicant within seven days of the decision by the planning and zoning commission. The applicant shall acknowledge and agree in writing to the conditions within 14 days of receipt. If there is no signed agreement within such time, the application shall be considered denied.

(d)

The decision of the planning and zoning commission shall be final unless appealed to the city council in accordance with the procedures for appeals.

4.

Criteria. The planning and zoning commission, in approving a conditional use permit, shall make the following findings and may attach to the permit such reasonable conditions of approval, in addition to those specified in this Zoning Ordinance, to ensure that the development in its proposed location:

(a)

Will not endanger the public health, safety, or welfare; and

(b)

Will not adversely impact abutting or nearby properties; and

(c)

Will not impair the integrity and character of the zoning district in which it is located; and

(d)

Will be in conformity with the city's comprehensive plan and other plans officially adopted by the city.

5.

Issuance of permit.

(1)

If the applicant has agreed to the conditions, they shall be entered on the conditional use permit and shall be enforceable in the same manner and to the same extent as any other applicable requirement of this Zoning Ordinance. If the applicant does not agree with the conditions, a conditional use permit shall not be issued. A conditional use permit may be issued for a specified duration of time.

(2)

Conditional use permits issued for home occupations shall be issued to the resident of the dwelling unit in which the home occupation is to be conducted. If the resident rents the dwelling unit, the resident shall provide written permission from the dwelling unit's owner as part of the permit application.

6.

Non-transferable. Conditional use permits shall not be transferable and shall not run with the land. All conditional use permits shall expire upon the sale, transfer, or lease of the property to a new owner or tenant.

(g)

Drainage and grading permit.

1.

Purpose. A drainage and grading permit authorizes the applicant to undertake grading, paving, excavating, filling, dredging or other activity which is in compliance with design requirements of this Zoning Ordinance and other local, state and federal regulations. The design, construction and maintenance of all drainage control, flood control and erosion control facilities within the city shall be performed in accordance with the procedures, criteria, and standards contained in this Zoning Ordinance and section 8-101 et seq. of the Carlsbad Code of Ordinances. A drainage and grading permit shall be required for the following:

(a)

New commercial or industrial development or that which is expanded greater than 1,000 square feet, or multi-family residential development containing five or more dwelling units;

(b)

Importation or excavation of material in excess of 500 cubic yards;

(c)

Grading of any area of one acre or more;

(d)

Any construction within a designated flood hazard area or adjacent to a major arroyo;

(e)

An increase in impermeable surface area of over 1,000 square feet; or

(f)

Any development requiring off-site drainage facilities.

2.

Submittal requirements. Every applicant shall complete a drainage and grading permit application which shall include a drainage and grading plan and all required documentation and information. The particular nature, location and scope of the proposed development will define the degree of detail required. However, at a minimum, the grading and drainage plan shall include:

(a)

Scale;

(b)

Bar scale;

(c)

North arrow;

(d)

Property lines;

(e)

Total lot area;

(f)

Net lot area;

(g)

Topography in the form of finished contour lines at five-foot minimum intervals;

(h)

Adjacent and proposed right-of-way;

(i)

Existing and proposed easements;

(j)

Existing and proposed drainage ways;

(k)

Location of all drive aisles;

(l)

Location of all buildings; and

(m)

Dust and erosion abatement statement.

3.

Applications for development of areas known to have been sanitary landfills shall be accompanied by a report which discusses the potential health and soil mechanics problems and their solutions. Such a report shall be prepared by a New Mexico Professional Engineer competent in soil mechanics.

4.

A geotechnical report may be required by the city engineer for cut and fill slopes which pose safety hazards. Such reports shall be prepared by a New Mexico Professional Engineer competent in soil mechanics.

5.

Review procedures.

(a)

The city engineer and floodplain administrator shall have joint responsibility for reviewing and making determinations regarding applications for drainage and grading permits, based on the criteria below. The determinations of the city engineer and floodplain administrator shall be in writing and state the reasons for the decisions.

(b)

The decisions of the city engineer and floodplain administrator may be appealed to the planning and zoning commission.

6.

Criteria. The city engineer and floodplain administrator shall issue drainage and grading permits if he or she finds the following:

(a)

The requested permit complies with all of the requirements of this section; and

(b)

The proposed drainage and/or grading activity will not result in post-development discharge from the site exceeding discharge from natural conditions prior to development. On-site detention, of the ten-year storm, is required where feasible, as determined by the city engineer; and

(c)

The proposed drainage and grading activity complies with section 8-101 et seq. of the Carlsbad Code of Ordinances regarding flood damage prevention.

(h)

Encroachment permit.

1.

Purpose. An encroachment permit authorizes the applicant to encroach upon the public right-of-way with a building or structure under certain conditions.

2.

Submittal requirements. Every applicant shall complete an encroachment permit application which shall include all required documentation and information.

3.

Review procedures.

(a)

The public works director shall have responsibility for reviewing and approving applications for encroachment permits. Conditions of approval may be attached to the permit.

(b)

The decision of the public works director shall be final unless appealed to the planning and zoning commission in accordance with the procedures for appeals provided herein.

4.

Criteria. The public works director may approve an encroachment permit if he or she finds that:

(a)

The requested permit is not in conflict with the city's comprehensive plan or other city master plan, the Zoning Ordinance, or any relevant policies adopted by the city; and

(b)

The proposed encroachment does not endanger the health, safety or general welfare of the community; and

(c)

The proposed encroachment is the minimum necessary to make reasonable use of the applicant's property.

5.

Removal of encroachment. The city may require removal of all or part of any encroaching structures or use after 90 days written notice to the property owners.

(i)

Interpretation.

1.

Purpose. An interpretation may be required when the provisions of this Zoning Ordinance are not clear or when a use is proposed that is not listed in the use tables.

2.

Submittal requirements. Every applicant shall complete an interpretation application which shall include all required documentation and information.

3.

Review procedures.

(a)

The planning director shall have responsibility for providing interpretations of this Zoning Ordinance upon the request of any member of the public, the planning and zoning commission or city staff. Such requests shall be in writing and the planning director shall provide his or her interpretation, in writing, within 14 days of the request.

(b)

The planning director shall maintain records of all written interpretations to ensure consistency and to provide guidance in the implementation of this Zoning Ordinance in the future. Such records shall be public and available for public inspection.

(c)

The planning director's interpretation may be appealed to the planning and zoning commission.

4.

Criteria.

(a)

Uses that are not listed in the use tables shall be placed in the most similar category, or the category with the most similar impacts on nearby streets and properties.

(b)

When evaluating a provision of this Zoning Ordinance as to its meaning or application, the intent of the city's comprehensive plan, or other city master plan, and the purposes listed in section 56-3 and other sections of this Zoning Ordinance shall be applied.

(c)

Interpretations shall not reduce protection to the public, but may provide greater flexibility in meeting the objectives of this Zoning Ordinance.

(d)

Interpretations shall protect the public health, safety, and welfare of the nearby residents and property and the city as a whole.

(j)

Planned unit development (PUD) review.

1.

Purpose. The purpose of the PUD review is to provide a process for reviewing applications for self-contained developments a minimum of ten acres in size, with a range of residential densities and/or a mix of residential and non-residential uses, and to allow for more innovative and efficient layout and design of such projects than would be possible through strict application of other zoning districts.

2.

Submittal requirements. Every applicant shall complete a planned unit development application which shall include all required documentation and information.

3.

Review procedures.

(a)

A PUD is approved in two steps. The first step involves review and approval of a zoning change application to the PUD zoning district with an accompanying concept plan. The second step involves review and approval of a final PUD plan for the development, and subdivision, in accordance with the city's subdivision regulations, if necessary. Applications for subdivision approval may be filed simultaneously with the PUD zoning change application; however, preliminary subdivision approval is contingent upon approval of the PUD zoning designation.

(b)

Sketch plan and pre-application meeting. Applicants are required to attend a pre-application meeting and to present a sketch plan of the proposed PUD, in a format established by the planning director. The planning director and other city staff will meet with the applicant, review the sketch plan and discuss the goals and policies of the city's comprehensive plan, the requirements of the Zoning and Subdivision Ordinances and any other matters that will assist the applicant in preparing the PUD concept plan.

(c)

Concept plan and PUD rezoning. A concept plan is a generalized land use and development plan for the area proposed to be included within a PUD zoning district and the surrounding area. It is required as a means of allowing early review of a proposed PUD before substantial planning work has been undertaken and before substantial expenses have been incurred. A concept plan must be processed and approved concurrently with a rezoning application to a PUD district. A concept plan must cover all of the land area to be included in the PUD and identify the type, total amount, and location of all development to occur within the PUD; a proposed plan for pedestrian and vehicular circulation within and leading to the PUD; a proposed plan for landscaping within and adjacent to the PUD; and identification of all utilities, easements, public areas including schools, parks and open space, and private facilities and services.

(d)

The concept plan and the PUD zoning change applications, along with the required fees, shall be submitted to the planning director.

(e)

The planning director may request review and comments from other city staff. The planning director shall review the concept plan and PUD zoning change applications, along with written comments provided by staff, and prepare a staff report to the planning and zoning commission.

(f)

The planning and zoning commission shall review the application and make a recommendation for the city council to approve, approve with conditions, or deny the application, based on the criteria in subsection [4(d)] below.

(g)

After receiving the recommendation of the planning and zoning commission, the city council shall hold a public hearing on the proposed concept plan and PUD zoning change applications. At the close of the public hearing, the city council shall approve, approve with conditions or deny the zoning change and PUD concept plan, based on the criteria provided below. The decision of the city council shall be accompanied by written findings.

4.

Final PUD plans. Final PUD plan approval shall be required before the issuance of any permit for construction within the PUD district.

(a)

Applications for Final PUD plan approval shall be submitted to the planning director.

(b)

The planning director shall review the application to determine whether the application meets all of the applicable requirements of this Zoning Ordinance; the approved concept plan, including any conditions imposed by the city council, and the PUD regulations of this section and prepare a staff report with his or her determination.

(c)

The planning and zoning commission shall conduct a review of the final PUD plans and shall approve the final PUD plan if it meets all of the applicable requirements of this Zoning Ordinance, the approved concept plan and the PUD regulations. The decision of the planning and zoning commission shall be accompanied by written findings.

(d)

Criteria.

(i)

PUD zoning changes and concept plans may be approved by the city council and final plans may be approved by the planning and zoning commission only if the following criteria are met:

(ii)

The proposed concept plan is consistent with the city's comprehensive plan, other city master plans, Zoning Ordinance and other applicable codes and ordinances.

(iii)

The concept plan is necessary to address a unique situation or represents a substantial benefit to the city, compared to what could have been accomplished through strict application of otherwise applicable zoning district standards.

(iv)

The proposal is not significantly different from surrounding land uses in terms of density, intensity and impact, and it mitigates any potential adverse impacts to the maximum extent practical.

(v)

The facilities and services (e.g. sewage and waste disposal, domestic and irrigation water, gas, electricity, police and fire protection, roads and transportation, and schools, as applicable) will be available to serve the subject project while maintaining adequate levels of service to existing development.

(vi)

The same development could not be accomplished through the use of other techniques, such as zoning change to a non-PUD district, or variances.

(vii)

The proposal contains significant public amenities such as, but not limited to, open space, civic places, additional landscaping, or recreational trails.

5.

Development agreements.

(a)

Development agreements are required for all PUDs.

(b)

Prior to the issuance of a building permit for any building or structure in a PUD, proof of filing of the final subdivision plat, if applicable, with the county clerk must be provided.

6.

Lapse of PUD plans.

(a)

Concept plan. Approval of a PUD concept plan and zoning change that is not followed by a PUD final plan or subdivision plat within one year of the city council approval date shall become null and void. In which case, the planning director shall initiate action to rezone the property to the original zoning classification.

(b)

Final PUD plan. The right to develop in accordance with an approved final PUD plan shall lapse and be of no further effect if all development shown on the approved final plan is not completed within five years of the approval date. If approval lapses, the planning director may initiate action to rezone the property to the original zoning classification.

(k)

Variance.

1.

Purpose. Requesting a variance is a form of appeal. A variance allows a building or structure to be built that would not be permitted if the Zoning Ordinance was strictly enforced. Under no conditions shall a variance permit a use that is not otherwise permitted in the zone district where the property is located. A variance may be granted, subject to appropriate conditions and safeguards:

(a)

Which is not contrary to the public interest;

(b)

Where, owing to special conditions in the topography, site location or access, a literal enforcement of the Zoning Ordinance will result in unnecessary hardship; and

(c)

So that the spirit of the Zoning Ordinance is observed and substantial justice done.

2.

Submittal requirements. A variance request is initiated by filing an application with the planning director, which shall include all required documentation and information.

3.

Review procedures.

(a)

The planning director shall distribute copies of the request to the appropriate city staff for review and comment. The planning director shall prepare a staff report concerning the variance request which includes his or her recommendation to approve, modify or deny the variance, and may include comments from other city staff.

(b)

The planning and zoning commission shall conduct a public hearing in accordance with the notification and hearing procedures of this code on the request and at the close of the hearing shall render a decision to approve, approve with conditions, or deny the request.

(c)

The decision of the planning and zoning commission shall be final unless appealed to the city council in accordance with the procedures for appeals provided herein.

4.

Findings required. The planning and zoning commission shall only approve a variance if it makes the following findings:

(a)

The stated hardship is one that is unique to the applicant rather than one suffered by the neighbors or the general public, and

(b)

The hardship relates to the applicant's land, rather than personal circumstances, and

(c)

The hardship is not the result of the applicant's own actions, and

(d)

The granting of the variance is consistent with the city's comprehensive plan or other city master plan, and

(e)

The granting of the variance is in harmony with the purpose and intent of the Zoning Ordinance, and

(f)

The variance granted is the minimum necessary to make possible the reasonable use of the land or structure, and

(g)

The granting of the variance will not be injurious to adjacent property or the neighborhood or detrimental to the public health, safety or general welfare, and

(h)

The variance will neither result in the extension or expansion of a non-conforming structure or use in violation of article VII nor authorize the initiation of a non-conforming use of land.

5.

Issuance of a variance. In granting variances, the planning and zoning commission may impose reasonable conditions to ensure that the use of the property does not adversely affect surrounding properties. A variance may be issued for a specified duration of time. A description of the variance and the decision rendered with any conditions shall be mailed to the applicant within 14 days of the decision date. All such conditions are enforceable in the same manner as any other applicable requirement of this Zoning Ordinance.

(l)

Zoning permit.

1.

Purpose. The purpose of the zoning permit is to provide a method for reviewing proposed uses of land to ensure that the use complies with the standards in this Zoning Ordinance. A zoning permit shall be required prior to the issuance of a building permit, business license, or moving a mobile home onto a lot or parcel.

2.

Submittal requirements. Every applicant shall complete a zoning permit application which shall include all required documentation and information.

3.

Review and approval procedures.

(a)

An application for a zoning permit shall be submitted to the planning director who shall have responsibility for reviewing the application and making a determination whether to grant or deny the zoning permit. If the proposed use complies with the regulations of this code, the permit shall be granted. No hearing shall be required. However, if a zoning permit is related to another action which requires review by the planning and zoning commission or the city council, the zoning permit shall be granted or denied by the body having decision making authority.

(b)

The planning director may request opinions from other city departments and staff, as appropriate, to coordinate review that should occur prior to issuance of the zoning permit.

(c)

The decision to approve or deny the zoning permit request shall be in writing and be given to the applicant within five business days of the decision.

(d)

The decision of the planning director may be appealed to the planning and zoning commission.

4.

New permit required. A new zoning permit shall be required for expansion or change in use following the same procedure required for the initial permit.

5.

Expiration. A zoning permit shall expire and become null and void at the time specified in the permit. The time period may be extended by the planning director if the request for extension is in writing and submitted prior to the expiration date. The request shall state the reason for the extension.

6.

Revocation. A zoning permit may be revoked by the city council if it is found that the use in question is non-conforming to the underlying zoning or regulations.

(Ord. No. 2011-15, 10-11-11; Ord. No. 2016-18, Att., 9-13-16)