All regulations contained in this Ordinance and pertaining to the several zone classifications as noted herein shall be subject to the general provisions, conditions and exceptions contained in this article.

Except as provided in this article, no building shall be erected, reconstructed, or structurally altered, nor shall any building or land be used for any purpose other than is specifically permitted in the same zone in which such building is located.

If ambiguity arises concerning the appropriate classification of a particular use within the meaning and intent of this Ordinance, or if ambiguity exists with respect to matters of height, yard requirements, or zone boundaries, as set forth herein and as they may pertain to unforeseen circumstances, it shall be the duty of the Planning Commission to ascertain all pertinent facts and by formal resolution set forth its findings and interpretations, and such resolution shall be forwarded to the City Council, and if approved by the City Council, such interpretation shall thereafter govern.

The provisions of this Ordinance shall not be construed to limit or interfere with the installation, maintenance and operation of any public utility lines providing water, sewage disposal, electric, gas, telephone, or telegraph services to the public, provided such lines are installed, maintained, and/or operated in accordance with all other applicable laws.

A non-conforming use of land or of a building shall not be expanded or extended in any manner except as expressly permitted by the provisions of this Ordinance.

The non-conforming use of land, where no main buildings are involved, may be continued, subject to the following conditions:

(a)

No such non-conforming use of land shall be expanded or extended in any way either on the same or adjoining property.

(b)

These provisions do not apply to land used for agricultural purposes.

A non-conforming building may be maintained provided no additions nor enlargements are made therein except those required by law or expressly permitted by this Ordinance. If any such non-conforming building is removed, every future use of the land on which the building is located and any future building constructed thereon shall conform to the provisions of this Ordinance.

A building or structure which does not conform to the yard regulations applicable to the land on which such building or structure is located may be structurally altered or added to provide:

(1)

Such alteration does not change the horizontal exterior dimensions.

(2)

Addition either conforms to the applicable yard regulations as established by this Ordinance.

(3)

Does not project further into any yard than any substantial portion of the existing building or structure. "Substantial portion" for the purpose of this section, shall mean fifty percent (50%) or more of the length of the wall.

Where a non-conforming use of a conforming building exists at the time the provisions of this Ordinance become applicable to such building, such non-conforming use may be continued and such non-conforming use may be expanded or extended throughout such building, provided no structural alterations are made therein except those required by law. If such non-conforming use is discontinued, any future use of such building shall conform to the provisions of this Ordinance.

The non-conforming use of a non-conforming building may be continued and may be expanded or extended throughout such building provided no structural alterations are made therein except those required by law. If such non-conforming use is discontinued, any future use of such building shall conform to the provisions of this Ordinance.

The provisions of this Ordinance shall not prevent the reconstruction, repair, or rebuilding of any non-conforming building damaged by fire, explosion, earthquake or other act of God or the enemy, subsequent to the effective date of this Ordinance.

The foregoing provisions of this article shall apply to buildings, structures, land and uses which are now non-conforming and those which hereafter become non-conforming due to any reclassification of zones or land under this Ordinance.

(a)

Use and occupancy for dwelling purposes of mobile homes that are located on lots or tracts having structures used for dwelling or commercial purposes shall be discontinued within seven (7) years from the effective date of this ordinance or when the mobile home shall have been removed, whichever occurs first. Provided that mobile homes that are located upon real property owned by the occupant of the mobile home may continue to be used by the owner without regard for the seven (7) years removal date, and should the mobile home so occupied by the owner thereof be damaged by fire, explosion, earthquake or other acts of God subsequent to the effective date of this ordinance or should the owner wish to exchange such mobile home, then such damaged or destroyed mobile home may be reconstructed, repaired or replaced at any time within 90 days. To be exempt from the removal, a mobile home occupied by the owner shall be properly connected with the public water supply, the City sanitary sewer system, and constructed and located in compliance with all requirements of the building, plumbing, sanitary, health and zoning ordinances and codes of the City of Portales and the rules and regulations of the State of New Mexico and of any agency or department thereof, and must be located with the required set back lines as specified in this ordinance and shall not be inhabited by a greater number of occupants than that for which the mobile home was designed.

(b)

The use and occupancy of mobile homes that are located on lots or tracts in violation of any of the provisions of any other ordinance of the City of Portales, New Mexico shall be discontinued within three (3) months from the effective date of this ordinance.

(c)

The use and occupancy of mobile homes that would otherwise be in conformity with the provisions of this ordinance except that they fail to meet the setback requirements shall either be removed or made to comply within three (3) months of the effective date of this ordinance.

Any use customarily incidental and accessory to the principal use of a lot or a building permitted in the respective zones may be permitted, including private garages.

One, and only one, residential structure within any new subdivision may be used as a combined temporary real estate office and model home, provided that such residential structure shall be completely restored to its originally intended residential character not later than twelve (12) months following the date of the resolution by the City Council accepting the final layout of the subdivision in which said structure is located.

(a)

Every building, or portion of building, hereafter erected shall be provided with permanently maintained parking space as provided in this article, and such parking space shall be made permanently available and be permanently maintained for parking purposes; provided, however, that any alterations, remodeling, reconstruction of existing building, or additions providing less than five hundred square feet of additional floor space shall be exempted from this requirement. Provided, further, that when an addition is made to an existing building, only the square feet in the addition need to be used in computing the required off-street parking.

(b)

In lieu of providing all or any part of the permanently maintained parking space, as provided in this article, a sum of money may be contributed to the "Public Parking Facility Fund." The amount of the contribution shall be calculated by multiplying the required number of spaces, as hereafter provided, times a unit cost of each parking space. Said unit cost per space shall be established by resolution of the City Council of the City of Portales. All funds so contributed to the "Public Parking Facility Fund" shall be used for the purpose of providing public parking facilities. Fractions shall be disregarded.

(c)

Parking Spaces Required—The number of off-street parking spaces required shall be no less than as set forth in the following:

(d)

PARKING REQUIREMENTS FOR USES NOT SPECIFIED: Where the parking requirements for a use are not specifically defined herein, the parking requirements for such use shall be determined by the Planning Commission and such determination shall be based upon the requirements for the most comparable use specified herein.

(e)

PARKING PROVISIONS MAY BE WAIVED BY COMMISSION: The Commission may, by resolution, waive or modify the provisions as herein set forth establishing required parking areas for uses such a electrical power generating plants, yards, or other uses of a similar or like nature requiring a very limited number of persons.

(f)

GENERAL REQUIREMENTS: The following general requirements shall apply:

1.

Size and Access: Each off-street parking space shall have an area of not less than one hundred eighty (180) square feet exclusive of drivers or aisles, and a width of not less than nine (9) feet. Each space shall be provided with ingress and egress.

2.

Location: In the event permanently maintained off-street parking facilities on a non-contiguous parcel are to be provided by private parties, said facilities shall be located as hereinafter specified. Where a distance is specified, such distance shall be the walking distance measured from the nearest point of the parking facility to the nearest point of the building that such facility is required to serve:

(a)

For all dwellings parking facilities shall be located on the same or a contiguous lot or building site as the buildings they are required to serve.

(b)

For hospitals, sanitariums, homes for the aged, asylums, orphanages, rooming houses, lodging houses, club rooms, fraternity and sorority houses and not more than one hundred fifty (150) feet from the buildings they are required to serve; and

(c)

For uses other than those specified above, not over three hundred (300) feet from the building they are required to serve.

3.

Mixed Occupancies in a Building: In the case of mixed uses in a building or on a lot, the total requirements for off-street parking facilities shall be the sum of the requirements for the various uses computed separately. Off-street parking facilities for one use shall not be considered as providing required parking facilities for any other use except as hereinafter specified for joint use.

4.

Joint Use: The Planning Commission, may, upon application by the owner or lessee of any property, authorize the joint use of parking facilities by the following uses or activities under the conditions specified herein:

(a)

Up to fifty percent (50%) of the parking facilities required by this article for a use considered to be primarily a daytime use may be provided by the parking facilities of a use considered to be primarily a night-time use: provided such reciprocal parking area shall be subject to conditions set forth in paragraph (c) below.

(b)

The following uses are typical daytime uses, banks, business offices, retail stores, personal service shops, clothing or shoe repair or service shops, manufacturing or wholesale buildings and similar uses. The following uses are typical night-time and/or Sunday uses, auditorium incidental to a public or parochial school, churches, dance halls, theaters and bars.

(c)

Conditions required for joint use:

(1)

The building or use for which application is being made for authority to utilize the existing off-street parking facilities provided by another building or use shall be located within one hundred fifty (150) feet of such parking facility.

(2)

The applicant shall show that there is no substantial conflict in the principal operating hours of the buildings or uses for which the joint use of off-street parking facilities is proposed.

(3)

Parties concerned in the joint use of off-street parking facilities shall evidence agreement for such joint use by a proper legal instrument approved by the City Attorney as to form and content. Such instrument when approved as conforming to the provisions of this Ordinance, shall be recorded in the office of the County Clerk and copies thereof filed with the City Clerk and the Planning Commission.

5.

Common Facilities: Common parking facilities may be provided in lieu of the individual requirements contained herein, but such facilities shall be approved by the Planning Commission as to size, shape and relationship to business sites to be served, provided the total of such off-street parking spaces, when used together, shall not be less than the sum of the various uses computed separately. When any such common facility is to occupy a site of five thousand (5,000) square feet or more, then the parking requirements as specified herein for each of two or more participating buildings or uses may be reduced not more than fifteen percent (15%) upon approval of development plans by the Planning Commission.

6.

Plans: The plan of the proposed parking area shall be submitted to the building department at the time of the application for the building permit for the building to which the parking area is accessory. The plan shall be drawn to scale and clearly indicate the proposed development, including location, size and shape, design, curb cuts, lighting, landscaping, and other features and appurtenances of the proposed parking lot. (see "Minimum Design Standard" below).

All parking areas shall be subject to the same restrictions governing an accessory building as defined in the zone in which said parking area is located.

(g)

COMPREHENSIVE PLANNED FACILITIES: Areas may be exempted from the parking requirements as otherwise set up in this article, provided:

1.

Such area shall be accurately defined by the Planning Commission after processing in the same manner required for an amendment to the Zoning Ordinance.

2.

Before such defined district shall be exempt as provided in this section, active proceedings under any applicable legislative authority shall be instituted to assure that the exempted area shall be provided with comprehensive parking facilities which will reasonably serve the entire district.

(h)

REQUIRED IMPROVEMENT AND MAINTENANCE OF PARKING AREA: Every lot used as a public or private parking area shall be developed and maintained in the following manner:

1.

Minimum Design Standards: Off-street parking areas in "C" and "M" zones shall be so designed as to conform to the following minimum requirements:

(a)

Parking stalls shall be not less than 9' by 20'

(b)

Aisles for circulation shall be:

(1)

For parallel parking—12 feet wide

(2)

For 30° and 45° parking—15 feet wide

(3)

For 60° parking—18 feet wide

(4)

For 90° parking—24 feet wide

(c)

Ingress to and from required off-street parking areas shall be so designed as to eliminate any necessity of backing from said parking area into any public right-of-way.

(d)

Circulation aisles within required off-street parking areas shall be so designed as to eliminate any necessity of vehicles entering a public right-of-way when passing from one aisle to another.

(e)

In the case of required off-street parking areas on interior lots having access to but one public right-of-way and having such narrow width as to permit only one aisle for both ingress and egress, said aisle shall be made not less than eighteen (18) feet in width and shall be terminated on the side of the parking area furthest from the ingress-egress point by turning area having a minimum radius of twenty (20) feet.

(f)

Uni-directed entrances and exits shall have a minimum width of fourteen (14) feet and combined entrances-exits shall have a minimum width of twenty-six (26) feet.

(g)

All entrances, exits and parking stalls shall be clearly marked, and directional markings showing permissible traffic flow shall be placed in all aisles.

2.

Surfacing: Off-street parking areas shall be paved or otherwise surfaced and maintained so as to eliminate dust or mud and shall be so graded and drained as to dispose of all surface water. In no case shall such drainage be allowed across sidewalks. Surface to be approved.

In addition to requirements 1 and 2 above, every parking lot, either public or private, having a capacity of five or more vehicles shall be developed and maintained as follows:

3.

Border, Barricades, Screening and Landscaping:

(a)

Every parking area that is not separated by a fence from any street or alley property line upon which it abuts, shall be provided with a suitable concrete curb or timber barrier not less than six (6) inches in height, located not less than two (2) feet from such street or alley property lines and such curb or barrier shall be securely installed and maintained; provided no such curb or barrier shall be required across any driveway or entrance to such parking area.

(b)

Every parking area abutting property located in one of the "R" zones shall be separated from such property by a solid wall, view-obscuring fence or compact evergreen hedge six (6) feet in height measured from the grade of the finished surface of such parking lot closest to the contiguous "R" zone property, provided that along a required front yard the fence, wall, or hedge shall not exceed forty-eight (48) inches in height. No such wall, fence, or hedge shall be provided where the elevation of that portion of the parking area immediately adjacent to an "R" zone is six (6) feet or more below the elevation of such "R" zone property along the common property line.

(c)

Any lights provided to illuminate any public parking area, semi-public area, or used car sales area, permitted by this Ordinance shall be so arranged as to reflect the light away from any premises upon which a dwelling unit is located.

4.

Entrances and Exits: The location of all entrances and exits shall be subject to the approval of the Chief of Police provided that no entrance or exit other than to or from an alley shall be closer than five (5) feet to any lot located in an "R" zone.

(Ord. No. 430, § 3, 9-6-77; Ord. No. 465, § 1, 3-17-81)

Any lot or building site shall be deemed to meet the minimum area requirements of the zone in which it is located when:

(a)

It existed as an entire lot, or as an entire parcel, for which either a deed was of record in the office of the County Clerk or a bona fide contract of sale was in full force and effect prior to the effective date of this Ordinance.

(b)

The owner thereof owns no adjoining land, and

(c)

It is not the result of a division of land in violation of any State land law or City Ordinance.

Except as provided in this article, no building or structure shall be erected, reconstructed, or structurally altered to exceed the height limit established by this Ordinance for the zone in which such building or structure is located.

Where the average slope of a lot is greater than one foot (1') rise or fall in five feet (5') of horizontal distance, an additional story will be permitted on the downhill side of any building.

Penthouses or roof structures for the housing of elevators, stairways, tanks, ventilating fans or similar equipment required to operate and maintain the building, and fire or parapet walls, sky lights, towers, church steeples, roof signs, flagpoles, chimneys, smoke stacks, silos, water tanks, windmills, windbreaks, wireless masts, or other similar structures may be erected above the height limits established for the various zones in which such structures are located, provided, however, that no structure in excess of the allowable building height shall be used for sleeping or eating quarters, nor shall such structure exceeding the allowable building height be allowed for the purpose of providing additional floor space.

Except as provided in this article, every required front, side, and rear yard shall be open and unobstructed from the ground to the sky, provided, however, that when the common boundary line separating two (2) or more contiguous lots is covered or partially covered by a building or permitted group of buildings, or when two (2) or more such lots are used as a single building site, such lots shall constitute a single building site and the yard spaces as required by this Ordinance shall then not apply to such common boundary line.

In any residential zone, as defined in this Ordinance, in case of a corner lot abutting upon two (2) streets, all buildings shall have a minimum setback of ten (10) feet from the side lot line adjacent to the side street.

A through lot shall maintain a front yard adjacent to each street upon which it fronts.

Any front yard requirement shall be deemed to be met when the depth of the front yard provided at least equals the average of that established by existing buildings which occupy fifty (50%) percent or more of the lots within the same block or zone.

The depth of front yards on unimproved lots in any block where all existing main buildings have front yards with a depth greater than required by the provisions of this Ordinance for the particular zone shall be not less than the minimum depth of such existing front yards, but need not be more than ten (10) feet in excess of that required by said provisions in any case. Buildings which are totally confined to the rear half of the lot shall not be considered in interpreting and applying the provisions of this section.

In all zones which require front, side, and/or rear yards, the required depth of said yards shall be measured from the property line along a line perpendicular to the property line.

In the case of lots having more than four lot lines or lots which vary considerably from a rectilinear or trapezoidal shape, the rear lot line shall be considered as the line most nearly opposite from and parallel with the street line on which the lot abuts. In the case of a triangular or gore-shaped lots, the rear lot line shall be considered as a straight line fifteen feet (15) in length which, (a) is parallel to the front lot line or its chord and (b) intersect the two side lot lines at points most distant from the front lot line.

On lots less than sixty feet (60) in width and of record prior to the effective date of the Ordinance, the required side yard may be reduced one and one-half inches (1 ½) for each foot such lot is less than sixty feet (60) provided that in no case shall the width of the side yard be reduced to less than five feet (5).

The Planning Commission may, by resolution, adopt a formula or establish standard practices by which to determine an appropriate and practical modification of required front, side, and rear yard depths or widths in all zones, if geometric shape, dimensions and/or topography are such as to make impractical the literal application of yard requirements contained in this Ordinance. Following adoption of such formula or standard practices, and approval thereof by the City Council, they shall be applied as an administrative act.

Canopies or roofs in any combination and the accessory buildings in a required rear yard shall in no case occupy more than fifty percent (50) of the required rear yard area.

The following structures may intrude into any required yard which is five feet (5) or greater in width or depth, provided however, that no such structure shall intrude into the required yard a distance greater than is permitted in this section:

(a)

Cornices, eaves, belt courses, sills, buttresses, or other similar architectural features—one and one-half feet (1½).

(b)

Fireplace structures not wider than eight (8) feet measured in the general direction of the wall of which it is a part—two feet (2).

(c)

Open stairways, balconies, and fire escapes—two and one-half feet (2½).

(d)

Uncovered porches and platforms which do not extend above the floor level of the first floor—two and one-half feet (2½) into required side and rear yards and six feet (6) into required front yards.

(e)

Planting boxes or masonry planters not exceeding forty-two inches in height—two feet (2).

(f)

Guard railings for safety protection around depressed ramps—two and one-half feet (2½).

The depth of required front yards may be modified on unimproved lots intervening between lots having non-conforming front yards of a depth less than required by this Ordinance. Such modification shall permit the unimproved lot to have a front yard depth equal to the average depth of the front yards on the two adjacent lots, provided, however, that no such modification shall permit a front yard depth of less than fifteen feet (15).

No fence, wall, or hedge shall be permitted which exceeds the following height limits above the existing ground level:

(a)

The height of a fence, wall or hedge in the front setback area can reach a maximum height of forty-eight inches (48"), except that the height on corner lots must conform to the specifications under clear sight triangle.

(b)

Fences built within the side yard setback, behind the front setback to the rear setback can be a maximum of six (6) feet.

(c)

Fences or structures over eight feet (8) in height, to enclose a tennis court or other game areas within the rear half of the lot, shall be composed of wire mesh or steel mesh, capable of admitting ninety percent (90) of light as measured on a reputable light meter. Such fences shall be permitted to extend to the rear and side lines of the lot if, after investigation by the Planning Commission, it is the opinion of the Commission that such an enclosure will not constitute a nuisance to abutting property. Said Commission opinion shall be in written form and shall be made a part of the Commission's Official Records.

(Ord. No. 611, §§ 1, 2, 8-4-98)

Editor's note— Section 1 of Ord. No. 545, adopted Aug. 6, 1991, repealed § 214 in its entirety. Formerly, § 214 pertained to the depth of a rear yard may include an alley in certain cases, and derived from Ord. No. 387, adopted April 3, 1973.

No lot or building site area shall be so reduced or diminished to the extent that the yards or other open spaces shall be smaller than prescribed by this Ordinance.

No lot shall be reduced in size so that the area thereof is less than the minimum required area for a lot in the zone in which such lot is located except when such reduction results from partial acquisition for public use.

Where a lot or building site is devoted exclusively to public buildings and uses, and said lot or building site is owned by a town, and/or county, or other political subdivision or by a public utility company, and no living quarters are located on such lot or building site. A special use permit may be issued authorizing a reduction in the minimum required area for such lot or building site.

Detached accessory buildings, i.e., garage, storage, gazebo, in any Residential Zone (R1, R2) shall conform to the following regulations as to size and location on the lot or building site:

(a)

Maximum height is limited to one (1) story with a maximum roofline not to exceed that of the main building.

(b)

Any accessory building shall be no closer than six (6) feet from any other building, except that private garages or carports may be closer to the main building, if adjoined to the main building by an enclosed walkway or covered breezeway.

(c)

In addition to the area in which the main building would be permitted, construction would be allowed in a required rear yard area, provided it is no closer than three (3) feet from the side property line.

(d)

Construction would be allowed provided the accessory building occupies no more than fifty (50) percent of the required rear yard area.

(Ord. No. 545, § 2, 8-6-91)

Editor's note— Section 219, pertaining to signs, was deleted by § 4 of Ord. No. 430, adopted Sept. 6, 1977.

(a)

It shall be unlawful for any person to occupy any property, including any building or part of a building or any addition to an existing building or any building in which structural alterations or repairs have been made unless there has been issued by the Building Inspector of the City of Portales a Certificate of Occupancy and Use specifying the particular type or class of occupancy for which said property, building or part of a building may be used. The Certificate of Occupancy and Use shall be issued only after the building or part of a building, or any alterations or repairs thereof, have been completed and finally inspected by an authorized representative of the Planning Commission and Fire Department and has been found by them to comply with all the requirements of the Portales Building Code, and with the laws of the State of New Mexico, for said occupancy and use specified in said certificate.

(b)

Written application for a Certificate of Occupancy and Use for the use of vacant land or for a change in character of the use of land, as herein provided, shall be made before any such land shall be so occupied or used. Said application shall be filed with the Planning Commission and the proposed use shall be investigated by the Planning Commission, and, if the proposed use conforms to the provisions of this Ordinance, a Certificate of Occupancy and Use shall be approved prior to the issuance of any other permit or license as may be required under the Provision of the Portales Building Code.

(c)

One copy of the Certificate of Occupancy and Use shall remain on file in the office of the Planning Commission and a duplicate copy shall be furnished to the City Clerk. The Certificate of Occupancy and Use shall contain the following information:

(1)

Name and Address of owner or lessee.

(2)

Address of property on which use is proposed.

(3)

Type of proposed use or occupancy.

(4)

Uses incidental to proposed use or occupancy.

(5)

Approval of City Clerk, and Planning Commission (Certificates of Occupancy and Use for use of vacant land as noted in "b" above may be approved by the City Clerk only if it is determined that no structures or fire hazards are involved.)

(6)

Signature of applicant.