Espanola City Zoning Code
ARTICLE X
Public Hearing and Decisionmaking Procedures
§ 1001 Public hearings.
A.
Purpose. The purpose of this article is to specify the procedures required for taking action on development applications. The Planning Director, the Planning Commission, or City Council, as applicable, shall conduct a public hearing to consider and review applications in accordance with this article and shall take action in accordance with the applicable section of this article.
B.
Public hearing procedure.
(1)
General. The public hearing will be called to order by the responsible official at the time specified on the public notice. If the hearing is before the Planning Commission or the City Council, a quorum of the body must be present. Staff shall confirm that the public notice requirements were met. The hearing shall be conducted in a manner to protect the due process rights of parties and affected parties, as required by New Mexico law. To the extent required by law, all information presented by the applicant, any affected party, by any witness for a party, or by City of Española staff (other than legal advice given by the City Attorney) will be given under oath, and subject to cross-examination of any persons presenting information at the public hearing by the owner, any affected party, and City of Española staff as directed by the presiding official. Before hearing the matter, the members of the decisionmaking authority will disclose any conflicts and ex parte contacts.
(2)
DRT reports. With respect to applications relating to a particular property, the DRT shall provide, at the request of the decisionmaking authority, factual information regarding the particular property, such as the lot dimensions, location, and topography. The DRT report may also include reference to and copies of applicable code requirements and other relevant factual information.
(3)
Hearings on applications. The applicant shall present evidence supporting the application and shall bear the burden of demonstrating that the application should be granted. The decisionmaking authority may ask attendees to select representatives to express their views, in the interest of time, under the standard that all persons shall have a reasonable right to be heard. Objections may be made by aggrieved parties and such objections will be noted in the record. The decisionmaking authority may question the applicant, other parties and witnesses at the hearing, and the staff at any time during the proceedings.
(4)
Deliberations. Deliberations will be guided by Robert's Rules of Order and such other rules and procedures as may be adopted by the decisionmaking authority. The decisionmaking authority shall adopt written findings explaining the decision at the subsequent meeting.
(5)
Approval by affirmative vote. Approval by the Planning Commission of an application requires a motion and affirmative vote of a majority of the members present. Failure to approve an application prior to the close of the meeting, unless tabled to a specific date, shall constitute denial of the application based on the requirements set forth in this chapter.
§ 1002 Decisionmaking.
A.
Amendment to text.
(1)
If the Planning Commission, after hearing and deliberation, determines (after making such changes as it deems necessary) that:
(a)
The amendment to text is in conformity with the provisions of § 407 and is not materially detrimental to the public welfare, the Planning Commission shall forward a recommendation (supported by findings) to the City Council that the proposed amendment to text be approved.
(b)
The proposed amendment to text does not conform to the provisions of § 407, it shall forward its recommendation for denial to the City Council.
(c)
It is unable to arrive at a recommendation within 30 days from the date of the first published legal notice, the proposed amendment to text shall automatically be forwarded without recommendation to the City Council for consideration.
(2)
City Council determination. Following receipt of the Planning Commission recommendation for the proposed amendment to text, the City Council shall schedule and hold a public hearing as set forth in § 503, to consider the proposed amendment to text and the recommendation of the Planning Commission. The City Council, after public hearing, shall approve, modify or disapprove the proposed amendment, based on the provisions of § 407, or shall vote to refer the matter back to the Planning Commission for further proceedings, in which case the City Council shall specify the time within which the Planning Commission shall report back to the City Council its findings and recommendation on the matter(s) referred to it. The final form and content of this ordinance, in any event, shall be determined by the City Council.
B.
Amendment to Official Zoning Map.
(1)
If the Planning Commission, after hearing and deliberation, determines that:
(a)
The amendment to the Official Zoning Map is in conformity with the provisions of § 404 and is not materially detrimental to the public welfare or the property of other persons located in the vicinity, it shall forward a recommendation (supported by findings) to the City Council that the proposed amendment to the Official Zoning Map be approved.
(b)
The proposed amendment to the Official Zoning Map does not conform to the provisions of § 404 or is otherwise not appropriate, it shall forward its recommendation for denial to the City Council.
(c)
It is unable to arrive at a recommendation within 30 days from the date of the first published legal notice, the proposed amendment to the Official Zoning Map shall automatically be forwarded with no recommendation to the City Council.
(2)
City Council determination. Following receipt of the Planning Commission recommendation for the proposed amendment to the Official Zoning Map, the City Council shall schedule and hold a public hearing as set forth in § 503 to consider the proposed amendment to the Official Zoning Map and the recommendation of the Planning Commission. The City Council, after public hearing, shall approve or deny the proposed amendment to the Official Zoning Map based on the provisions of § 404 or shall vote to refer the matter back to the Planning Commission for further proceedings, in which case the City Council shall specify the time within which the Planning Commission shall report back to the City Council its findings and recommendations on the matter(s) referred to it. Final approval of the amendment to the Official Zoning Map shall, in any event, be determined by the City Council.
C.
Site plans. If the Planning Director or Planning Commission, as applicable, after hearing and deliberation, determines that:
D.
Special use permits. If the Planning Commission, after hearing and deliberation, determines that:
E.
F.
Adoption of or amendment to the Comprehensive Plan.
(1)
If the Planning Commission, after hearing and deliberation, determines (after making such changes as it deems necessary) that:
(a)
The adoption of or amendment to the Comprehensive Plan is in the best interests of the community and is not materially detrimental to the public welfare, the Planning Commission shall forward a recommendation to the City Council that the proposed Comprehensive Plan or amendment thereto be approved.
(b)
The proposed adoption of or amendment to the Comprehensive Plan is not in the best interest of the community, it shall forward its recommendation for denial to the City Council.
(c)
It is unable to arrive at a recommendation, the proposed Comprehensive Plan or amendment thereto shall be forwarded without recommendation to the City Council for consideration.
(2)
City Council determination. Following receipt of the Planning Commission recommendation for the proposed adoption of or amendment to the Comprehensive Plan, the City Council shall schedule and hold a public hearing to consider the application and the recommendation of the Planning Commission. The City Council, after public hearing, shall approve, modify or disapprove the proposed adoption or amendment, or shall vote to refer the matter back to the Planning Commission for further proceedings, in which case the City Council shall specify the time within which the Planning Commission shall report back to the City Council its findings and recommendation on the matter(s) referred to it.
(3)
The City Council may adopt the Comprehensive Plan submitted by the Planning Commission, as a whole, by a single resolution, or may from time to time approve and adopt a part or parts thereof, any such part to correspond generally with one or more of the functional subdivisions of the subject matter of the plan.
(4)
The plan so submitted to the City Council shall only become effective as the Comprehensive Plan of the City of Española upon approval by resolution of the City Council. The resolution shall refer expressly to the maps, descriptive matter or other matters intended by the Planning Commission to form the whole or part of the Comprehensive Plan.
(5)
The action taken by the City Council shall be recorded on the approved and adopted plan or part thereof by the identifying signature of the Mayor, attested to by the City Clerk. A copy of the plan or part thereof shall be recorded in the office of the City Clerk.
G.
H.
Temporary uses.
(1)
(2)
In issuing a temporary use permit, the Planning Director may require information and impose conditions to assure area, sanitary facilities and parking spaces are adequate for the proposed use; indicate the permitted hours of operation, and any other conditions such as lighting, parking or protective fences, which are deemed necessary to protect adjacent property or the public health, safety and welfare. Each site occupied by a temporary use shall be left free of debris, litter or any evidence of the temporary use upon the expiration of the temporary use permit and the cessation of the temporary use.
(3)
Before issuing a temporary use permit, the Planning Director may require a cash deposit or letter of credit as may be determined to be adequate to ensure the cleaning up of the property covered by the temporary use permit. If the property and the surrounding area are not in the condition required, then the City of Española may restore it to that condition, in which event the City shall have the right to be reimbursed for the costs incurred from the deposit or other security.
(4)
The cash deposit or letter of credit shall not be released except on written release from the Planning Director, finding that the premises have not been damaged and have been returned to the condition required under the terms of the temporary use permit.
(5)
Upon written application, the Planning Director may modify any of the conditions contained in the temporary use permit, if the Planning Director determines that the modification does not conflict with the purposes of the zoning requirements.
(6)
Upon written application, the Planning Director may extend the time of operation of the temporary use permit no more than 20% above the total time allowed for the temporary use involved. Extension of time beyond 20% shall be approved by formal action of the Planning Commission.
§ 1003 Appeals from action of Planning Director.
Appeals from action of the Planning Director shall be made in accordance with Article XI.
§ 1004 Appeals.
A.
Jurisdiction over administrative appeals.
(1)
Appeal of any action taken by the Planning Director and authorized by § 201 of this chapter is to the Planning Commission.
(2)
Appeal of any interpretation of the City of Española Development Code by the Planning Director made in accordance with § 201 is to the Planning Commission.
(3)
Appeal of any action taken by the Planning Commission is to the City Council.
(4)
Appeal of a decision of the City Council is to the District Court as provided by law.
B.
Applications.
(1)
Administrative appeals shall be filed at the City of Española Planning Department. Any decision which can be appealed under Article XI is final unless an appeal is initiated by application to the City of Española within 15 days of the announced decision. The City of Española may prescribe forms for appeal, in which event the appeal may be made on the prescribed form. The date of a determination is not included in the fifteen-day period for filing an appeal, and if the 15th day falls on a Saturday, Sunday, or holiday, the appeal must be filed no later than the next business day.
(2)
Persons who have a personal or pecuniary interest or property right adversely affected by the decision, which right or interest is more than merely nominal or remote, may file an appeal of the decision. The following persons are deemed to meet this criteria:
(a)
Persons who were parties at the hearing conducted by the decisionmaking authority, or the applicant for those matters decided by the Planning Director without a public hearing.
(b)
Persons who own a property interest within 100 feet of the subject site or whose property will be adversely affected by the decision.
(c)
An organized neighborhood association, if the subject site or a portion thereof is within the association's boundaries or within 300 feet of the subject site.
(3)
Applications for an appeal that do not articulate the reasons for the appeal and specifically cite one or more alleged errors will not be accepted and will be returned to the appellant. Errors may include:
§ 1005 Conditional approval.
A.
The Planning Director, Planning Commission, or City Council may impose conditions to assure the compatibility of the development, which is the subject of the application, with the surrounding area and with the Comprehensive Plan. A site plan shall be submitted as part of an application for a development plan, variance or special use permit. A site plan shall be required with applications for expansions of existing structures and parking lots or parking facilities and may be required for other zoning matters if deemed appropriate by the Planning Director. When this site plan is approved or conditionally approved by the Planning Director, the Planning Commission, or the City Council, the development must be in accordance with the site plan as it may be modified by any conditions attached to the approval.
B.
Applicants shall file a certificate of approval with the City Clerk within 30 days from the expiration of the appeal period or of the final decision on an appeal; and shall either obtain the necessary building permits or shall commence the use as approved or conditionally approved within 12 months after the filing of the certificate of approval with the City Clerk for approved or conditionally approved site plans, variances, parking lot or parking facility expansions, or special use permits. The Planning Director may grant no more than one twelve-month extension of time if the applicant, prior to the expiration of the initial twelve-month period, shows good cause, in writing, for such an extension.
C.
If an applicant fails to comply with the time requirements of Subsection B of this section, or if the approved use of land has ceased for a continuous period of more than 180 days, the site plan, special use permit, parking lot expansion or variance shall be deemed to be abandoned (also see Article VII, Nonconforming Uses) and shall be subject to revocation by the Planning Director upon the following procedures:
(1)
The Planning Director shall serve upon the applicant by certified mail, return receipt requested, a letter requiring the applicant to show good cause, in writing, within 30 days, why the site plan, special use permit, parking lot or parking facility expansion or variance should not be revoked. If the applicant fails to respond within 30 days from the receipt of the notice by the Planning Director, the Planning Director shall issue a certificate of revocation of the site plan, special use permit, parking lot expansion or variance. The Planning Director shall file the certificate of revocation with the City Clerk and serve upon the applicant a copy of the certificate of revocation by certified mail, return receipt requested.
(2)
If the applicant responds to the letter but fails to show cause, the Planning Director shall issue a certificate of revocation of the site plan, special use permit, parking lot or parking facility expansion or variance, the applicant shall have 15 days from such finding to file a written notice of appeal with the Planning Commission. The Planning Commission, upon appeal, shall conduct a public hearing and shall affirm or reverse the decision of the Planning Director to revoke the site plan, special use permit, or variance. Upon a final determination that the site plan, special use permit, or variance should be revoked, the Planning Director shall file a certificate of revocation with the City of Española Clerk and serve upon the applicant a copy of the certificate of revocation by certified mail, return receipt requested.
(3)
The Planning Director, upon being provided evidence that there is good cause for an extension of time, may grant a one-time extension not to exceed six months; provided there is clear evidence that issuance of building permits or commencement of the use will be completed within the six-month extension period. The Planning Director may revoke compliance by the establishment of due dates, a schedule of performance and other terms or conditions as may be deemed appropriate. Failing this time extension, the applicant shall be afforded the process of Subsection C(1) and (2) of this section.
§ 1006 Changes to original plan.
Proposed changes to approved or conditionally approved plans shall be submitted by the applicant, in writing, to the Planning Director. The Planning Director shall determine whether the proposed changes alter the approved or conditionally approved plan by greater than 20% of any site development standards. If the Planning Director determines that the proposed changes may be approved by the Planning Director in accordance with authority granted in § 201, the Planning Director shall approve the proposed changes, in writing, and the development shall be in accordance with the approved or conditionally approved plan as changed. If the Planning Director determines that the proposed changes may not be approved by the Planning Director in accordance with the authority granted in § 201 or are not in substantial compliance with this chapter or other ordinances, resolutions or regulations, the request for changes shall be treated in all respects as a new request and shall be resubmitted to the Planning Commission for review and final action.
§ 1007 Notification and recording of final action.
When an application for a site plan, variance, special use permit or any other matter pertaining to the use of land or zoning is acted upon by the decisionmaking authority, written notification of the final action listing any conditions imposed, if the action was approved, shall be sent to the applicant and to the City Manager, with a copy retained in the City of Española Planning Department. The action taken shall be final and conclusive unless, within 15 days of the effective date of the final action, an aggrieved party files an appeal as provided in this chapter. After the expiration of the fifteen-day appeal period with no appeal filed, or after approval or conditional approval or affirmation of approval or conditional approval on appeal, the Planning Director shall issue the certificate of approval, if appropriate, listing conditions that may have been imposed. The applicant or agent shall file and record the certificate of approval in the office of the City Clerk before proceeding with the development or use approved. No building permit, license or occupancy permit may be issued for the development or use approved before the expiration of the appeal period and the filing of the certificate of approval.