3.1.1 Rural (Ru) District. The Rural District is intended to protect existing rural land uses that are characterized by low density single-family residential uses on large lots and agricultural uses, including livestock for personal use within the guidelines of the Municipal Code. Limited commercial activity that is compatible with rural residences and agriculture is also permitted.

3.1.2 Residential A Single-Family (RA) District. The Residential A District is intended to accommodate low-density and medium-density single-family and, through conditional use approval, two-family residential development and to provide land-use protection for areas that develop in such a manner.

3.1.3 Residential B Restricted Single-Family and Attached Housing (RB-1) District. The Residential B Single-Family and Attached Housing District is intended to accommodate low, medium, and moderate-density single-family, two-family, and multi-family residential development containing no more than ten dwelling units, not including single-section manufactured homes, and to provide land-use protection for areas that develop in such a manner.

3.1.4 Residential B Mixed Housing Types (RB-2) District. The Residential B Mixed Housing Types District is intended to accommodate low, medium and moderate-density single-family, two-family, and multi-family residential development, and to provide land-use protection for areas that develop in such a manner. The RB District shall exist until the adoption of an amended official zoning map designating RB-1 and RB-2. Uses and dimensional requirements for the existing RB district shall be as established herein for the RB-2 zoning district.

3.1.5 Residential C Manufactured Home Park and Attached Housing (RC) District. The Residential C District is intended to accommodate higher density, single-family, two-family, multi-family, and manufactured home residential developments and to provide land-use protection for areas that develop in such a manner.

3.1.6 Historic Downtown Commercial (C-HD) District. The Historic Downtown Commercial (C-HD) District is intended to accommodate a mix of commercial uses serving residents and visitors, mixed-use buildings, and residential buildings in the historic central business core, and to provide a variety of building sizes compatible with the character of the Silver City Historic District. The district encourages a high level of vitality through diverse activities conveniently accessible to pedestrians.

3.1.7 Light Commercial (C-Lt) District. The Light Commercial (C-Lt) District is intended to accommodate a mix of commercial uses largely serving residents of neighborhoods and the region, including retail, commercial, government, financial establishments, professional offices, and medical facilities. Commercial and institutional uses, mixed-use and higher density residential buildings may be more intense in the generation of traffic, noise and lights than in the historic downtown commercial district.

3.1.8 Highway Commercial (C-Hwy) District. The Highway Commercial District is intended to accommodate a broad mix of commercial uses serving residents and visitors, including businesses that are highly accessible by vehicles. This district is intended for employment activities and uses that may be more intense than in the historic downtown commercial and light commercial districts in the creation of traffic, noise, and lights. Higher density residential buildings and mixed-use buildings containing residential units that do not front on the highway are appropriate.

3.1.9 Mixed-use (MU) District. The Mixed-use (MU) District is intended to accommodate a mix of small scale commercial and residential uses and to provide a transition between commercial and surrounding residential neighborhoods. Reinvestment, limited expansion of existing residential and commercial buildings and new mixed-use, residential and commercial uses are encouraged.

3.1.10 Industrial (I) District. The Industrial District is intended to accommodate areas of heavy and/or concentrated fabrication, manufacturing, and industrial uses.

3.1.11 Planned Unit Development (PUD) District. The Planned Unit Development District is intended to accommodate only uses that are allowed in other zoning districts, but to allow more innovative design, massing, orientation, and clustering in development patterns. The district is not intended to reduce quality standards below those applicable elsewhere in the Town.

3.1.12 Open Space (OS) District. The Open Space District is intended to preserve and enhance public open space. Purposes served by such lands include recreational uses such as hiking and bicycling, preservation of scenic vistas, preservation of sensitive lands, protection of natural vegetation, wildlife and land forms, and protection of natural areas for such natural processes as flooding to occur without damaging development.

(Ord. No. 1239, 6-9-2015)

The principal uses allowed within all zoning districts are identified in Table 3.2 in this chapter, with the exception of the PUD and Open Space zone districts which are addressed in Section 3.2.6.

3.2.1 Use Categories and Specific Uses. If a Specific Use Type is listed in the table, that use type is allowed only within the districts indicated, not within the districts that allow the broader Use Category. Most of the Specific Use Types listed in the second column of Table 3.2 are defined in Article II.

3.2.2 Allowed Uses. An "A" indicates that the listed use is allowed by right within that zoning district. Allowed uses must comply with all other applicable standards of this Land Use Code and obtain a Zoning Permit where applicable.

3.2.3 Conditional Uses. A "C" indicates that the listed use is allowed within that zoning district only after review and approval of a Conditional Use Permit, pursuant to the review procedures of Section 6.3.7. Conditional Uses are subject to all other applicable standards of this Land Use Code.

3.2.4 Prohibited Uses. An "X" indicates that the listed use type is not allowed within that zoning district.

3.2.5 Uses Subject to Specific Regulation. Many uses are subject to use-specific regulations, in addition to general regulations that apply to all development. The final column of the use table contains references to applicable use-specific standards.

3.2.6 Planned Unit Development and Open Space Zone District Uses. Uses allowed in the Planned Unit Development (PUD) and Open Space districts are stated as follows rather than in the use table.

A)

PUD. Any use may be included in a PUD zoning district subject to review and approval of the PUD zone district established in the review procedures of Section 6.3.13. PUD uses are subject to all other applicable standards of this Land Use Code, unless these standards are modified by the terms of the approved PUD.

B)

Open Space District. The only uses permitted in the Open Space Zone District are natural areas and accessory uses, trails, and structures directly incidental to such open space use, protection and maintenance, such as parking areas, hikers' shelters, and maintenance equipment sheds.

3.2.7 Interim Commercial (C) Zoning. In the interim time period until the C-Hwy, C-Lt, C-HD zone districts are designated on the official zoning maps, the Commercial (C) District shall continue to exist. The use and dimensional requirements for the existing C district shall be as established herein for the C-Hwy zoning district. After the C-Hwy, C-Lt, C-HD zone districts are designated on the official zoning maps, the Commercial (C) District shall be extinguished.

(Ord. No. 1239, 6-9-2015; Ord. No. 1250, 10-25-2016; Ord. No. 1276, 2-26-2019; Ord. No. 1307, § 1, 11-9-2021; Ord. No. 1314, § 1, 9-13-2022; Ord. No. 1333, § 1, 11-12-2024)

3.3.1 Use-Specific Standards.

A)

Adult Business Uses.

1)

Adult business uses shall not be established, operated, or maintained within 1,000 feet of any boundary of any residential zoning district, structure used for residential purposes, outdoor recreation facility, place of worship, public or private school, child care center, or another adult business use.

2)

Any adult business use lawfully operating as a conforming use shall not be rendered a non-conforming use by the subsequent location of any use listed in subsection (1) above.

3)

Advertisements, displays, or other promotional materials displaying or depicting adult materials shall not be shown or exhibited so as to be visible or audible to the public from adjacent streets, sidewalks, or walkways, or from other areas outside the establishment.

4)

All building openings, entries, and windows shall be located, covered, or screened in such a manner so as to prevent the interior of such premises from being viewed from outside the establishment.

B)

Alcohol Sales, Retail. A retail store for the sale of alcohol must comply with state licensing requirements, and shall not be established, operated, or maintained within 300 feet of a church, school or child care center. This limitation shall not be triggered by family child care homes, group child care homes or registered child care homes.

C)

Animal Care, Boarding, Sales. Boarding of animals outdoors overnight is allowed in the R zone, but is not allowed in the C zone.

D)

Animal Confinement/Pasture. Use must be approved by Town's animal control officer based upon regulations in Chapter 6, Article I, Section 6-6 of the Code of Ordinances.

E)

Artisan/Craftsman Shop. Business size is limited to 3,000 square feet except in the Industrial and C-Hwy districts, where size is not limited.

F)

Assisted Living Facilities and Treatment Facilities.

1)

No kitchen facilities shall be located in any bedroom.

2)

If located in an existing structure and designed to house more than five clients, such use shall meet the requirements set forth in the current IBC.

3)

Adequate provisions shall be made for access by emergency medical and fire vehicles.

4)

The number of unrelated individuals in residence at an assisted living facility or treatment facility, including staff, shall be based on zoning district, as follows (X = not allowed):

G)

Batch or Asphalt Plants.

1)

A site and rehabilitation plan shall be submitted to the Community Development Director, and shall contain the following information.

a)

The locations of all structures, the location of processing equipment, and adequate fencing and buffering of the site to prevent adverse impacts on neighboring properties, as required by the provisions of this section.

b)

The hours of the day, and the number of months or years, that the plant will be operating.

c)

How the project site will be rehabilitated upon conclusion of the drilling or upon lapse of any required Conditional Use Permit, whichever occurs first, including finish contours, grading, sloping, and the location and amounts of vegetation.

d)

An access road plan and a traffic impact analysis including a load analysis and road and safety conditions for Town streets in the project area and vicinity. The analysis shall include ingress/egress, truck and employee parking and loading areas, on-site circulation, and estimates of the average and maximum number of trucks per day.

e)

Additional information requested by the Community Development Director and related to the impacts of the project on the surrounding area or the certainty that the site will be rehabilitated.

2)

Where the operation is adjacent to subdivided or developed commercial or residential property, fencing or buffering may be required by the Community Development Director to minimize noise, dust, and other impacts to neighboring properties.

3)

Where the access road plan or traffic analysis indicates potential health or safety concerns on the project site or the surrounding vicinity, the Town Engineer may place reasonable restrictions on the use of public rights-of-way, or may require the use of alternative access roads to minimize those impacts.

4)

Batching or loading or operations shall not be permitted within 250 feet of a dwelling unit unless the owner and occupant of the residence have consented in writing to such operation.

5)

Batching and asphalt equipment shall be set back at least 100 feet from all road rights-of-way and watercourses, and existing trees and ground cover along public road frontage and watercourses shall be preserved, maintained, and supplemented, if necessary, to reduce noise, dust and erosion impacts to neighboring properties.

6)

Operation shall be limited to the hours of 6:00 a.m. to 10:00 p.m. unless longer or shorter hours of operation are approved as part of the Conditional Use Permit.

7)

The operation shall comply with the plan, as modified by the Community Development Director and/or Town Engineer pursuant to this section, and the provisions of the plan and all other conditions set forth in this section become part of the Conditional Use Permit for the operation.

8)

If the use has not operated within two years of obtaining the Conditional Use Permit and a request for extension has not been received and approved by the Planning Commission, the Conditional Use Permit will expire. Extension requests shall explain the reasons for the delay in operations and why those reasons will not apply during the extension period.

9)

The Town shall have all rights of access to the project site for purposes of verifying compliance with the provisions of this Land Use Code.

H)

Cannabis Establishments.

1)

Definitions. As used in this section, the following terms shall have the meanings set forth below:

a)

Cannabis: (1) means all parts of the plant genus Cannabis containing a delta-9-tetrahydrocannabinol concentration of more than three-tenths percent on a dry weight basis, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or its resin; and (2) does not include: (a) the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks, fiber, oil or cake; or the sterilized seed of the plant that is incapable of germination; or (b) the weight of any other ingredient combined with cannabis products to prepare topical or oral administrations, food, drink or another product;

b)

Cannabis consumption area means an area where cannabis products may be served and consumed;

c)

Cannabis establishment means: (1) a cannabis testing laboratory; (2) a cannabis manufacturer; (3) a cannabis producer; (4) a cannabis retailer; (5) a cannabis research laboratory; (6) a vertically integrated cannabis establishment; (7) a cannabis producer microbusiness; or (8) an integrated cannabis microbusiness;

d)

Cannabis manufacturer (Class I through Class IV) means a person that: (1) manufactures cannabis products; (2) packages cannabis products; (3) has cannabis products tested by a cannabis testing laboratory; or (4) purchases, acquires, sells or transports wholesale cannabis products to other cannabis establishments. The Cannabis Control Division ("CCD") rules created four classes of manufacturer licenses that allow for different types of licensed activity and have corresponding requirements depending on the allowable activity. The different manufacturer classes may be found in 16.8.2.29 NMAC, which are adopted herein by reference, and are as follows:

(1)

Class I: A licensee that only packages or repackages cannabis products, or labels or relabels the cannabis product container;

(2)

Class II: A licensee that conducts Class I activities, and manufactures edible products or topical products using infusion processes, or other types of cannabis products other than extracts or concentrates, and does not conduct extractions;

(3)

Class III: A licensee that conducts Class I and Class II activities, and extracts using mechanical methods or nonvolatile solvents; and

(4)

Class IV: A licensee that conducts Class I, Class II, and Class III activities, and extracts using volatile solvents or supercritical CO2;

e)

Cannabis producer means a person that: (1) cultivates cannabis plants; (2) has unprocessed cannabis products tested by a cannabis testing laboratory; (3) transports unprocessed cannabis products only to other cannabis establishments; or (4) sells cannabis products wholesale;

f)

Cannabis producer microbusiness means a cannabis producer at a single licensed premises that possesses no more than 200 total mature cannabis plants at any one time;

g)

Cannabis product means a product that is or that contains cannabis or cannabis extract, including edible or topical products that may also contain other ingredients;

h)

Cannabis research laboratory means a facility that produces or possesses cannabis products and all parts of the plant genus Cannabis for the purpose of studying cannabis cultivation, characteristics or uses;

i)

Cannabis retailer means a person that sells cannabis products to qualified patients, primary caregivers or reciprocal participants or directly to consumers;

j)

Cannabis testing laboratory means a person that samples, collects and tests cannabis products and transports cannabis products for the purpose of testing;

k)

Commercial cannabis activity: (1) means the cultivation, production, possession, manufacture, storage, testing, researching, labeling, transportation, couriering, purchase for resale, sale or consignment of cannabis products; and (2) does not include activities related only to the medical cannabis program, to cannabis training and education programs or to the personal cultivation or use of cannabis;

l)

Cultivation means any activity involving the planting, growing, harvesting, drying, curing, grading or trimming of cannabis;

m)

Consumer means a person 21 years of age or older who purchases, acquires, owns, possesses or uses a cannabis product for a purpose other than resale;

n)

Daycare center means a child care center, or other child care facility, required to be licensed by the State that provides care, services and supervision to children for less than 24 hours a day, pursuant to N.M. Code R. § 8.16.2.7(1), but does not include non-licensed family child care homes;

o)

Department means the regulation and licensing department;

p)

Director means the director of the division;

q)

Division means the cannabis control division of the department;

r)

Facility means a building, space or grounds licensed for the production, possession, testing, manufacturing or distribution of cannabis, cannabis extracts or cannabis products;

s)

Integrated cannabis microbusiness means a person that is authorized to conduct one or more of the following: (1) production of cannabis at a single licensed premises; provided that the person shall not possess more than 200 total mature cannabis plants at any one time; (2) manufacture of cannabis products at a single licensed premises; (3) sales and transportation of only cannabis products produced or manufactured by that person for wholesale purposes; (4) operation of only one retail establishment; and (5) couriering of cannabis products to qualified patients, primary caregivers or reciprocal participants or directly to consumers;

t)

Licensed premises means a location that includes: (1) all enclosed public and private areas at the location that are used in the business and includes offices, kitchens, restrooms and storerooms; (2) all areas outside of a building that are specifically included in the license for the production, manufacturing, wholesale sale or retail sale of cannabis products; and (3) with respect to a location that is specifically licensed for the production of cannabis outside of a building, the entire unit of land that is created by subsection or partition of land that the licensee owns, leases or has a right to occupy;

u)

Manufacture means to compound, blend, extract, infuse, package or otherwise prepare a cannabis product;

v)

Public place means a place to which the general public has access and includes hallways, lobbies and other parts of apartment houses and hotels that do not constitute rooms or apartments designed for actual residence; highways; streets; sidewalks, schools; places of amusement; parks; playgrounds; open spaces; and places used in connection with public passenger transportation;

w)

School means a discernable building or group of buildings where one or more teachers offer on-site instruction and is generally recognized as an elementary, middle, junior-high or high school, or any combination thereof, and includes public, private, and charter schools, but does not include home schools;

x)

Retail establishment means a location at which cannabis products are sold to qualified patients, primary caregivers and reciprocal participants and directly to consumers;

y)

Vertically integrated cannabis establishment means a person that is authorized to act as any of the following: (1) a cannabis courier; (2) a cannabis manufacturer; (3) a cannabis producer; and (4) a cannabis retailer.

2)

The following cannabis establishments are allowed in the following zoning districts:

a)

A cannabis testing laboratory is allowed only in the Industrial Zoning District;

b)

Cannabis manufacturers.

i)

A cannabis manufacturer Class I, II, and III is allowed in the Industrial and Highway Commercial Zoning Districts, and also allowed in the Mixed-Use and Historic Downtown Commercial Zoning Districts with a conditional use permit;

ii)

A cannabis manufacturer Class IV is only allowed in the Industrial Zoning District. Class IV manufacturing is not allowed in any integrated business outside of the Industrial Zone;

c)

A cannabis producer is allowed in the Industrial and Rural Zoning Districts, and in the Historic Downtown Commercial and Highway Commercial Zoning Districts with a conditional use permit;

d)

A cannabis retailer is allowed in the Highway Commercial Zoning District, and in the Historic Downtown Commercial and Mixed-Use Zoning Districts with a conditional use permit;

e)

A cannabis research laboratory is allowed only in the Industrial Zoning District;

f)

A cannabis producer microbusiness is allowed in the Highway Commercial, Industrial and Rural Zoning Districts, and in the Historic Downtown Commercial and Mixed-Use Zoning Districts with a conditional use permit.

g)

A vertically integrated cannabis establishment is allowed in the Industrial Zoning District, Light Commercial Zoning District, and the Highway Commercial Zoning District and, with a Conditional Use permit, in the Mixed-Use Zoning District and the Commercial-Historic Zoning District.

h)

A cannabis producer microbusiness is allowed in the Commercial-Historic Zoning District, Light Commercial Zoning District, Highway Commercial Zoning District, the Industrial Zoning District, and with a Conditional Use permit, in the Mixed-Use Zoning District.

i)

An integrated cannabis microbusiness is allowed in the Light Commercial Zoning District, the Highway Commercial Zoning District, the Industrial Zoning District, and with a Conditional Use Permit, in the Mixed-Use Zoning District and the Commercial-Historic Zoning District.

3)

No person or cannabis establishment shall engage in the production, manufacture, sale, testing or research of cannabis or cannabis products in any zoning district without a valid business license issued by the Community Development Department of the Town. All cannabis establishments shall abide by and be licensed pursuant to the provisions, terms, and conditions of the Cannabis Regulation Act, and must abide by all state law, state regulations, and all town law and regulations.

4)

The hours of operation for a cannabis retailer and retail establishment shall be 7:00 am until Midnight.

5)

A cannabis establishment is prohibited within 300 feet from a school or daycare center that existed at the time the cannabis establishment was licensed by the state.

6)

It shall be unlawful for any person to smoke a cannabis product in or at any public place, except at a cannabis consumption area upon approval of such areas by the Town. As used in this section, "smoke" means to inhale, exhale, burn or carry any lighted or heated device or pipe or any other lighted or heated cannabis products intended for inhalation, whether natural or synthetic, in any manner or in any form. Any person who violates the provision of this paragraph shall be subject to a civil penalty of $50.00.

7)

Any cannabis establishment that is licensed by the state and located within the town municipal limits after the effective date of this ordinance shall be required to be in a standalone building or structure, or have a separate heating, ventilation, and air conditioning system that is dedicated solely to the establishment. All cannabis establishments must possess a heating, ventilation, and air conditioning system that is sufficient to abate odors and prevent odors from escaping the establishment.

8)

Cannabis consumption areas. A cannabis consumption area is defined as an area where on-site consumption of cannabis is permitted. Upon the date of enactment of this ordinance, a cannabis consumption area shall be located inside or co-located at the same location with a cannabis retailer establishment.

a)

Licensing. In order to operate as a cannabis consumption area within the town limits and pursuant to the provisions of this Cannabis Establishments' Ordinance, every cannabis consumption area licensee that obtains a license from the Division on or after the date of the enactment of this ordinance must also possess a cannabis retail store license (cannabis retailer), and the cannabis consumption area must be co-located in a separate, completely partitioned room on the premises where the cannabis retail store is located. However, a cannabis consumption area that has operated continuously at its licensed location before the adoption of this ordinance may continue as a standalone cannabis consumption area, if the licensee is in compliance with all state and local laws. Subsequent requests to transfer a cannabis consumption license that was in existence before the adoption of this ordinance to a new location shall require the licensee to apply for and obtain a co-located cannabis retail license and comply with all other conditions of this ordinance.

b)

Unless licensed pursuant to the Lynn and Erin Compassionate Use Act, cannabis consumption areas shall be restricted to persons 21 years of age and older.

c)

The smoking of cannabis products in consumption areas is only allowed if the cannabis consumption area is in a separate, self-contained, partitioned, and designated smoking room or in a standalone building (defined as a building whose heating and ventilation and air-conditioning system only services that building), from which smoke does not infiltrate other indoor workplaces or other indoor public places where smoking is otherwise prohibited pursuant to the Dee Johnson Clean Indoor Air Act, Chapter 24, Article 16, NMSA 1978, meaning, for the purposes of this ordinance, the consumption area shall have a separate heating, ventilation and air-conditioning (HVAC) system designed and constructed so as to prevent the spread of smoke or contaminants into any other occupied space or structure, or other parts of the cannabis establishment premises.

d)

The designated cannabis consumption area shall be located in a restricted access area that other employees are not required to enter as a condition of their employment during hours of operation or while in use by patrons.

e)

The designated cannabis consumption area shall have signage to designate the established cannabis consumption area.

f)

The designated cannabis consumption area shall be in a separate room, completely separated from the remainder of the premises, and all entry and exit doors shall be self-closing.

9)

Zoning Verification Required. In order to obtain a business license for a cannabis establishment, a licensee must apply for and obtain a Cannabis Zoning Verification Application from the Community Development Department. The application will review all applicable regulations of this section and a licensee must be in compliance with all state and local laws. The non-refundable application fee is $250.00.

10)

Any person convicted of violating the provisions of this paragraph, for which a penalty has not been already prescribed, shall be subject to punishment as prescribed by general penalty Section 1-9 of Chapter 1.

I)

Cemeteries.

1)

Grave sites shall be set back from property and street lines at least 100 feet.

2)

Maintenance buildings and outside storage areas shall be screened from view of adjacent public roads and dwellings.

3)

Perimeter fencing not less than three feet high, and not more than four feet high, shall be required.

4)

Cemeteries shall not be located in a floodplain.

5)

Cemeteries shall be kept mowed and repaired at all times.

J)

Child Care Centers.

1)

A zoning permit shall not be issued until the applicant has submitted evidence of a valid certificate or license by the New Mexico Department of Children, Youth, and Families. After approval, a copy of an annual report with evidence of continuing certification or licensing shall be submitted to the Community Development Director in January of each year.

K)

Communications Facilities.

1)

General.

a)

All radio and television transmission towers and telecommunications facilities shall comply with the standards of this Land Use Code, all applicable standards of the Federal Telecommunications Act of 1996, and all applicable requirements of the Federal Communications Commission (FCC) and the Federal Aviation Administration. Copies of any applicable FCC approvals shall be provided to the Community Development Department.

b)

No such tower or facility shall exceed a height of 50 feet, unless the applicant provides a report by a licensed electrical engineer certifying that adequate service to the Silver City area cannot be provided from a tower of such height, in which case the tower shall not exceed the minimum height deemed necessary by such engineer, or 100 feet, whichever is less.

c)

Every such tower and facility shall be installed according to manufacturer specifications.

d)

Every such tower and facility shall be set back from all property boundaries a distance equal to 120 percent of its height.

2)

Attached Telecommunications Facilities. Attached telecommunications facilities shall be allowed by right in the districts referenced in the Use Table provided that they comply with all applicable standards of the underlying zone district, including any maximum height standards. If visible from RA or RB zone districts, attached telecommunications facilities shall be screened or painted to minimize their visibility from such areas.

3)

Telecommunications Facilities Towers. Telecommunications facility support structures shall not be subject to the maximum height standards of the underlying zone district, but shall be subject to any height restriction imposed at the time of approval of the applicable Conditional Use Permit pursuant to subsection (1) above. All telecommunications facility support structures shall be landscaped, screened, and/or painted to minimize their visibility.

4)

Disputes. If an applicant for a telecommunications facility claims that one or more standards of this Land Use Code are inconsistent with the Federal Telecommunications Act of 1996 or would prohibit the effective provision of wireless communications within the Silver City area, the Community Development Director may require that the application be reviewed by a qualified engineer for a determination of whether compliance with one or more standards of this Land Use Code would prohibit effective service. If the consultant finds that a standard prohibits effective service, the applicant shall be granted the minimum variance necessary to allow such service. Any costs of such review shall be charged to the applicant.

L)

Small Cell Wireless Communication Facilities.

1)

Purpose.

a)

To establish policies and procedures for the placement of small wireless facilities in rights-of-way within the Town, which will provide public benefit consistent with the preservation of the integrity, safe usage, community character, and visual qualities of the Town rights-of-way and the Town as a whole;

b)

To prevent interference with the use of streets, sidewalks, alleys, parkways and other public ways and places;

c)

To prevent the creation of visual and physical obstructions and other conditions that are hazardous to vehicular and pedestrian traffic;

d)

To prevent interference with the facilities and operations of facilities lawfully located in rights-of-way;

e)

To preserve the character of the neighborhoods in which facilities are installed;

f)

To facilitate rapid deployment of small wireless facilities to provide the benefits of advanced wireless services;

g)

To ensure Town zoning regulations are applied consistently with federal and state telecommunications laws, rules and regulations of the Federal Communications Commission ("FCC") and controlling court decisions; and

h)

To provide regulations which are specifically not intended to, and shall not be interpreted or applied to, (1) prohibit or effectively prohibit the provision of personal wireless services, (2) unreasonably discriminate among functionally equivalent service providers, or (3) regulate wireless communication facilities and wireless transmission equipment on the basis of the environmental effects of radio frequency emissions to the extent that such emissions comply with the standards established by the FCC.

2)

Definitions. As used in this section, the following terms shall have the meanings set forth below:

a)

"Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals and that is used to provide wireless services.

b)

"Antenna array" means a single or group of antenna elements, not including small wireless facilities, and associated mounting hardware, transmission lines, remote radio units, or other appurtenances which share a common attachment device such as a mounting frame or mounting support structure for the sole purpose of transmitting or receiving wireless communication signals.

c)

"Applicable codes" means uniform building, fire, electrical, plumbing or mechanical codes adopted by a recognized national code organization and enacted by the Town, including the local amendments to those codes enacted by the Town solely to address imminent threats of destruction of property or injury to persons, to the extent that those amendments are consistent with the Wireless Consumer Advanced Infrastructure Investment Act ("Act").

d)

"Applicant" means a wireless provider that submits an application.

e)

"Application" means a request submitted by an applicant to the Town for a permit to collocate one or more small wireless facilities or to approve the installation, modification or replacement of a utility pole or wireless support structure.

f)

"Collocate" or "collocation" means to install, mount, maintain, modify, operate or replace one or more wireless facilities on, in or adjacent to a building, wireless support structure or utility pole for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

g)

"Design district" means an area zoned or otherwise designated by municipal ordinance and for which a municipality maintains and uniformly enforces unique design and aesthetic standards, including, but not limited to open spaces, parks, trails, and the areas designated as the Historic Overlay Zoning District as specified in Article IV, Section 4 of the Town's Land Use Code, and areas designated as the Arts and Cultural District by municipal ordinance.

h)

"Distributed Antenna System" or "DAS" means a network consisting of equipment at a central hub site to support multiple antenna locations throughout the desired coverage area.

i)

"FAA" means the Federal Aviation Administration.

j)

"FCC" means the Federal Communications Commission.

k)

"Fee" means a one-time charge.

l)

"Historic district" means a group of buildings, properties or sites that fall within the category defined in 47 C.F.R. 1.1307(a)(4) and are: (a) listed in the national register of historic places or formally determined eligible for listing in that register by the keeper of the register in accordance with the nationwide programmatic agreement found in 47 C.F.R. Part 1, Appendix C; or (b) designated as a historic district in accordance with the Historic District and Landmark Act; or (c) listed by the New Mexico Historic Preservation Division in the Registers of Cultural Properties.

m)

"Law" means federal, state or local law.

n)

"Permit" means the written permission of the Town for a wireless provider to install, mount, maintain, modify, operate or replace a utility pole or to collocate a small wireless facility on a utility pole or wireless support structure.

o)

"Person" means an individual, corporation, limited liability company, partnership, association, trust or other entity or organization and includes the Town.

p)

"Rate" means a recurring charge.

q)

"Right-of-way" means the area on, below or above a public roadway, highway, street, sidewalk, alley or utility easement. Right-of-way does not include the area on, below or above a federal interstate highway, a state highway or route under the jurisdiction of the department of transportation, a private easement or a utility easement that does not authorize the deployment sought by a wireless provider.

r)

"Section" means the entirety of the Small Cell Wireless Communication Facilities ordinance as specified herein.

s)

"Shot clock" means any period of time (a time limit) required by the FCC or specified in the section in which the Town is mandated to carry out an action.

t)

"Small wireless facility" or "small wireless facilities" mean(s) a wireless facility that:

i)

Is mounted on structures 50 feet or less in height including their antennas; or

ii)

Is mounted on structures no more than ten percent taller than other adjacent structures; or

iii)

Does not extend existing structures on which they are located to a height of more than 50 feet or by more than ten percent, whichever is greater;

iv)

Has antennas that each are, or could fit, inside an enclosure no more than three cubic feet in volume; and

v)

Has other ground- or pole-mounted wireless equipment and any pre-existing associated equipment on the structure, not including the following, that are 28 or fewer cubic feet in volume:

a.

Electric meter;

b.

Concealment elements;

c.

Telecommunications demarcation box;

d.

Grounding equipment;

e.

Power transfer switch;

f.

Cutoff switch;

g.

Vertical cable runs for the connection of power and other services; and

h.

Design elements required by the Town.

vi)

The facilities do not require antenna structure registration under federal law;

vii)

The facilities are not located on Tribal land as defined under federal law; and

viii)

The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified under federal law.

u)

"Stealth design" means a design that minimizes the visual impact of wireless communication facilities by camouflaging, disguising, screening or blending into the surrounding environment. Examples of stealth design include, but are not limited to, facilities disguised as trees (monopines), flagpoles, utility and light poles, bell towers, clock towers, ball field lights and architecturally screened roof-mounted antennas or flush-mounted antennas that are either painted to match or enclosed in an architecturally-applicable box.

v)

"Tower" means any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.

w)

"Town" means the Town of Silver City.

x)

"Town utility pole" means a utility pole, owned or operated by the Town, in a right-of-way.

y)

"Utility pole" means a pole or similar structure used in whole or in part for communications services, electricity distribution, lighting or traffic signals. Utility pole does not include a wireless support structure or electric transmission structure.

z)

"Wireless facility" means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including equipment associated with wireless communications; radio transceivers, antennas, coaxial or fiber-optic cables, regular and backup power supplies and comparable equipment, regardless of technological configuration; and includes a small wireless facility. Wireless facility does not include:

1)

The structure or improvements on, under or within which the equipment is collocated;

2)

A wireline backhaul facility, coaxial cable or fiber-optic cable between wireless support structures or utility poles; or

3)

Coaxial or fiber-optic cable otherwise not immediately adjacent to, or directly associated with, an antenna.

aa)

"Wireless infrastructure provider" means a person, other than a wireless services provider, that may provide telecommunications service in New Mexico and that builds or installs wireless communications transmission equipment, wireless facilities' utility poles or wireless support structures.

bb)

"Wireless provider" means a wireless infrastructure provider or wireless services provider.

cc)

"Wireless services" means services provided to the public that use licensed or unlicensed spectrum, either mobile or at a fixed location, through wireless facilities.

dd)

"Wireless services provider" means a person that provides wireless services.

ee)

"Wireless support structure" means a freestanding structure, including a monopole or guyed or self-supporting tower, but not including a utility pole.

ff)

"Wireline backhaul facility" means a facility used to transport services by wire from a wireless facility to a network.

3)

Exempt Facilities. The following are exempt:

a)

FCC licensed amateur (ham) radio facilities;

b)

Satellite earth stations, dishes or antennas used for private television reception not exceeding one meter in diameter; and

c)

A temporary, commercial wireless communication facility installed for providing coverage of a special event such as news coverage or sporting event, subject to approval by the Town. The facility shall be exempt from the provisions of this section for up to one week before and after the duration of the special event.

4)

Permitted Use; Application and Fees.

a)

Permitted Use. Collocation of a small wireless facility or a new or modified utility pole for the collocation of a small wireless facility shall be a permitted use subject to the other requirements of this section.

b)

Permit Required. No person shall place a small wireless facility in the rights-of-way, without first filing a small wireless facility application and obtaining a permit therefore.

c)

Permit Application. All small wireless facility applications for permits filed pursuant to this section shall be on a form, paper or electronic, provided by the Town.

d)

Application Requirements. The small wireless facility permit application shall be made by the wireless provider or its duly authorized representative and shall contain the following:

i)

The applicant's name, address, telephone number, and email address;

ii)

The names, addresses, telephone numbers, and email addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application;

iii)

A general description of the proposed work and the purposes and intent of the small wireless facility. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with special emphasis on those matters likely to be affected or impacted by the work proposed;

iv)

A small wireless facility shall comply with all applicable codes.

e)

Routine Maintenance and Replacement. The Town may not require an application, approval or permit or impose a fee, rate or other charge for the routine maintenance of a small wireless facility, the installation, maintenance, operation, placement or replacement of a micro wireless facility that is, in accordance with applicable codes, suspended on cables strung between utility poles or wireless structures or the replacement of a small wireless facility with one that is similar in size to, the same size as or smaller than it as long as the wireless provider notifies the Town of the replacement at least ten days before the replacement. As used in this subparagraph, "micro wireless facility" means a small wireless facility less than 24 inches long, 15 inches wide and 12 inches high whose exterior antenna, if any, is less than 11 inches long. The Town may require a permit for routine maintenance or replacement of a small wireless facility in the rights-of-way that affect traffic patterns or require lane closures.

f)

Application Fees. The Town may charge an applicant an application fee in the amount of $100.00 for each of up to five small wireless facilities and $50.00 for each additional small wireless facility whose collocation is requested in a single application.

5)

Application Review.

a)

Review of Small Wireless Facility Applications.

i)

The Town shall review the application for a small wireless facility permit in light of its conformity with applicable regulations of this section, and other applicable local ordinances, including, but not limited to the requirements found in Chapter 42, Article VII, Section 42-210, of the Town's Code of Ordinances, and shall issue a permit on nondiscriminatory terms and conditions subject to the following requirements:

a.

Within ten days of receiving an application for a small wireless facility, the Town must determine and notify the applicant whether the application is complete. If an application is incomplete, the Town must specifically identify the missing information in writing. Upon resubmission by the applicant, the Town has ten days to notify the applicant again of an incomplete application and the shot clock will reset. Thereafter, the shot clock will be tolled only by mutual agreement between the Town and the applicant, or in cases where the Town determines upon a resubmission that the application is incomplete. The processing deadline is then tolled from the date the Town sends the notice of incompleteness to the date the applicant provides the missing information. The application is deemed complete if the applicant is not notified within the ten-day period subject to resetting the shot clock or tolling.

b.

Make its final decision to approve or deny the application within 60 days of receipt of an application for placement of small wireless facilities on an existing structure (subject to the resetting of the shot clock under federal law) and within 90 days of receipt of an application for the placement of small wireless facilities on a new structure (subject to the resetting of the shot clock under federal law), and subject to the tolling provisions herein; and

c.

Advise the applicant in writing of its final decision, and in the final decision document the basis for a denial, if any, including specific code provisions on which the denial was based, and send the documentation to the applicant. In the 60 or 90 days, as applicable, after the Town receives an application to collocate a small wireless facility on an existing structure or a new structure, the Town may provide public notice of the application and an opportunity for written public comment on the application, submit the written public comment to the applicant and request that the applicant respond to it. If the Town determines that applicable codes or laws require that a utility pole or wireless support structure be replaced before an application for collocation is approved, the Town may condition approval of the application on that replacement. The applicant may cure the deficiencies identified by the Town and resubmit the application within 30 days of the denial without paying an additional application fee. The Town shall approve or deny the revised application within 30 days of receipt of the amended application. The subsequent review by the Town shall be limited to the deficiencies cited in the original denial. The Town may require the applicant to certify that the small wireless facilities to be collocated conform with the FCC's regulations concerning radio frequency emissions.

ii)

If the Town fails to act on an application within the 60 or 90 day review period, as applicable, subject to resetting the shot clock once and tolling, the application is deemed approved. The Town may also request an extension of the 60 or 90 day period, and the Town and the applicant may agree to extend that period. An applicant shall not unreasonably deny a Town's request to extend the period.

iii)

The Town may only deny a completed application to collocate small wireless facilities if the application does not conform with applicable codes or local laws concerning:

a.

Public safety;

b.

Design for utility poles to the extent that the standards are objective;

c.

Stealth and concealment but only to the extent that the restrictions are reasonable; and

d.

The spacing of ground-mounted equipment in a right-of-way; or

e.

If there is non-conformance with design district or historic district requirements, including, but not limited to the requirements found in Chapter 42, Article VII, Section 42-210, of the Town's Code of Ordinances.

iv)

An applicant seeking to collocate small wireless facilities may, at the applicant's discretion, file a consolidated application and receive a single permit for multiple small wireless facilities. Provided, that the Town's denial of one or more small wireless facilities in a consolidated application shall not delay the processing of any other small wireless facilities submitted in the same application.

v)

The Town may require an applicant to obtain one or more permits to collocate a small wireless facility in a right-of-way if the requirement is of general applicability to users of the right-of-way. An applicant seeking to collocate within the Town up to 25 small wireless facilities, all of which are substantially the same type, on substantially the same types of structures, may file a consolidated application for the collocation of the facilities. An applicant shall not file with the Town more than one consolidated application in any five-business-day period. The applicant shall include in a consolidated application an attestation that, unless a delay in collocation is caused by the lack of commercial power or fiber at the site, the collocation will begin within 180 days after the permit issuance date. The Town and provider may subsequently agree to extend that period.

6)

Small Wireless Facilities in the Right-of-Way; Maximum Height; Other Requirements.

a)

Maximum Size of Permitted Use. Small wireless facilities, and new or modified utility poles for the collocation of small wireless facilities, may be placed in the rights-of-way as a permitted use contingent upon the approval of an application by the Town and subject to the following requirements:

i)

A new replacement or modified utility pole associated with the collocation of a small wireless facility in the right-of-way is not subject to zoning review and approval, except for that which pertains to under-grounding prohibitions, unless the utility pole is higher than whichever of the following is greater: ten feet plus the height in feet of the tallest existing utility pole excluding a utility pole supporting wireless facilities that is in place on the effective date of the Act, located within 500 feet of the new, replacement or modified utility pole, in the same right-of-way, and 50 or fewer feet above ground level or 50 feet.

ii)

New small wireless facilities in the rights-of-way may not extend:

a.

More than ten feet above an existing utility pole in the rights-of-way in place as of the effective date of this section; or

b.

More than ten feet above the height for a new utility pole.

iii)

A small wireless facility collocated on a utility pole or wireless support structure that extends ten or fewer feet above the pole or structure in a right-of-way in any zone is classified as a permitted use and is not subject to zoning review or approval.

b)

Application Required for a Utility Pole. An application for the installation of a new, replacement or modified utility pole for the collocation of a small wireless facility in the right-of-way is required. The application shall be approved unless the installation does not conform with:

i)

Applicable codes or laws regarding public safety, design, or under-grounding prohibitions if those regulations require under-grounding by a date certain within one year after the application, include a waiver of zoning or other processes and allow the replacement of utility poles;

ii)

Federal or state standards for pedestrian access or movement;

iii)

Design or historic district requirements, including, but not limited to the requirements found in Chapter 42, Article VII, Section 42-210, of the Town's Code of Ordinances;

iv)

Contractual requirements between the Town and a private property owner concerning the design of utility poles in the right-of-way; or

v)

The Town's laws concerning public safety and reasonable minimum spacing requirements for new utility poles in the rights-of-way.

c)

Application Processing. An application for a permit to install a new, replacement or modified utility pole for the collocation of a small wireless facility shall be processed within 90 days after receipt of the application. If the Town fails to act on the application within that time period, subject to resetting the shot clock once and tolling, the application is deemed approved. The application fee shall be $750.00.

Installation, modification or replacement shall begin within 180 days after the permit issuance unless the Town and wireless provider agree to extend that time or a delay is caused by a lack of commercial power or fiber at the site. The new, modified or replacement utility pole may be maintained for ten years and the permit will be renewed for one ten year period unless the utility pole does not conform with applicable codes or local laws. At the expiration of the permit renewal/extension, the permit shall lapse and a new application will be required.

d)

Zoning. Any wireless provider that seeks to install, modify, operate or replace a utility pole in the rights-of-way that exceeds the height or size limits contained in this section shall be subject to applicable zoning requirements.

e)

Decorative Poles. A wireless provider shall be permitted to replace a decorative pole when necessary to collocate a small wireless facility, but any replacement pole shall reasonably conform to the design aesthetics of the decorative pole being replaced and shall be subject to local approval, which shall not be unreasonably denied.

f)

Underground District. In areas designated solely for underground or buried cable and utility facilities, the Town shall allow replacement of Town poles in the designated area. The wireless provider is permitted to seek a waiver of the undergrounding requirements for the placement of a new utility pole to support small wireless facilities.

g)

Historic and Design Districts. The Town may require as they pertain to small wireless facilities located in design districts or historic districts reasonable, technically feasible, non-discriminatory and technologically neutral design or concealment measures and reasonable measures for conforming to the design aesthetics of design districts or historic districts. Any such measures may not have the effect of prohibiting a wireless provider's technology.

7)

Effect of Permit.

a)

Authority Granted. A permit from the Town authorizes an applicant to undertake only certain activities in accordance with this section and does not create a property right or grant authority to the applicant to impinge upon the rights of others who may already have an interest in the rights-of-way.

b)

Permit Duration. Work described in a permit granted pursuant to this section shall begin within 180 days of the permit issuance date unless the Town and applicant agree to extend this period due to delay caused by the lack of commercial power or communications facilities. Subject to applicable relocation requirements and the applicant's right to terminate collocation at any time, the permit is valid for a period of ten years, and will be renewed for one ten-year term unless the Town finds that the small wireless facility does not conform with applicable codes and local laws. At the expiration of the permit renewal/extension, the permit shall lapse and a new application will be required.

8)

Removal, Relocation or Modification of Small Wireless Facilities in the Right-of-Way.

a)

Notice. Within 90 days following written notice from the Town, a wireless provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any small wireless facilities within the rights-of-way whenever the Town has determined that such removal, relocation, change or alteration is reasonably necessary for the construction, repair, maintenance, or installation of any Town improvement in or upon, or the operations of the Town in or upon, the rights-of-way.

b)

Emergency Removal. The Town retains the right and privilege to cut or move any small wireless facility located within the rights-of-way of the Town, as the Town may determine to be necessary, appropriate or useful in response to any public health or safety emergency. If circumstances permit, the Town shall notify the wireless provider and provide the wireless provider an opportunity to move its own facilities prior to cutting or removing a facility and shall notify the wireless provider after cutting or removing a small wireless facility.

c)

Abandonment of Facilities. Upon abandonment of a small wireless facility or utility pole within the rights-of-way of the Town, the wireless provider shall notify the Town in writing of its intention to discontinue use of a small wireless facility or utility pole. The notice shall inform the Town of the time and the way in which the small wireless facility or utility pole will be removed. The wireless provider is responsible for the costs of the removal. The Town may require the wireless provider to return the property to its pre-installation condition according to the Town's reasonable and nondiscriminatory requirements and specifications. If the wireless provider does not complete the removal within 45 days after notice, the Town may complete the removal and assess the costs of removal against the wireless provider. The permit for the small wireless facility or utility pole expires upon removal.

d)

Damage and Repair. The Town may require a wireless provider or the provider's contractor to repair all damage to the Town's property or rights-of-way caused by the activities of the wireless provider or contractor and return the property and rights-of-way to their pre-damage condition according to the Town's requirements and specifications upon written notice of the requirements to the provider. If the wireless provider fails to make the repairs within a reasonable period after receiving the notice, the Town may effectuate those repairs and charge the provider the reasonable, documented cost of such repairs.

9)

Rates.

a)

Annual Rate for Use of Right-of-Way. The Town may charge a wireless provider for the provider's use of the right-of-way in constructing, installing, maintaining, modifying, operating or replacing a utility pole or in collocating a small wireless facility in the right-of-way an annual rate of $250.00 multiplied by the number of small wireless facilities placed by the wireless provider in the Town's right-of-way.

b)

Annual Rate Increase for Use of Right-of-Way. To the extent allowed by law, the Town may adjust the annual rate, but no more often than once a year and by no more than an amount equal to one-half the annual change, if any, in the most recent Consumer Price Index for all urban consumers for New Mexico, as published by the United States Department of Labor. The Town shall notify all wireless providers charged the pre-adjusted rate of the prospective adjustment and shall make the adjustment effective 60 days or more following that notice.

c)

Annual Rate for Use of Town Utility Poles. The rate for collocation of a small wireless facility on a Town utility pole in the right-of-way shall be $20.00 per year.

10)

Attachment to or Utility Poles in the Right-of-Way.

a)

Placement of Small Wireless Facilities and Poles. Subject to the approval of an application by the Town, a wireless provider may collocate small wireless facilities and construct, install, modify, mount, maintain, operate and replace utility poles associated with the collocation of a small wireless facility along, across, on or under Town right-of-way. The Town shall not enter into an exclusive agreement with a wireless provider for the use of a right-of-way in constructing, installing, maintaining, modifying, operating or replacing a utility pole or collocating a small wireless facility on a utility pole or wireless support structure.

b)

Review of Applications. The Town shall process an application for approval to collocate a small wireless facility on a Town utility pole in accordance with this section. The Town may condition the issuance of a permit on the wireless provider's replacement of the Town utility pole if applicable codes or local laws concerning public safety require that replacement. The Town shall process an application for a permit to install a replacement Town pole in accordance with this section. The Town shall retain ownership of the replacement utility pole.

11)

Proper Placement.

a)

A wireless provider that deploys a utility pole or small wireless facility in a right-of-way shall construct, maintain and locate it so as not to obstruct travel, endanger the public or interfere with another utility facility in the right-of-way. The wireless provider's operation of a small wireless facility in the right-of-way shall not interfere with the Town's public safety communications. The wireless provider shall comply with the National Electric Safety Code and all applicable laws. The Town may, through its Public Works Department, adopt reasonable regulations concerning the separation of the wireless provider's utility poles and small wireless facilities from other utility facilities in the right-of-way.

b)

If the Town determines that a utility pole or the wireless support structure of a wireless provider must be relocated to accommodate a public project, the provider shall assume the cost of relocating the wireless facility deployed on the pole or structure.

c)

Without the Town's written consent, a wireless provider shall not install a new utility pole in a right-of-way adjacent to a street or thoroughfare that is 50 feet wide or less and adjacent to single family residential lots or other multifamily residences or to undeveloped land designated for residential use by zoning or deed restrictions.

d)

Exempt From Zoning Review.

i)

Small wireless facilities, DAS, micro wireless facilities and other similar networks on poles in public rights-of-way, on Town-owned property, on private property, or on other structures, including stealth facilities, monopoles or replacement poles under 50 feet that are located in the public rights-of-way for placement of small wireless facilities, DAS and other similar networks, are exempt from zoning review and shall be subject only to encroachment or building permits by administrative review.

ii)

Notwithstanding any other provision of this section, the Town may not require an applicant or provider to submit an application or pay a rate for:

a.

Routine maintenance that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way;

b.

Replacing or upgrading a small wireless facility, DAS, or other similar network with a facility that is substantially similar in size or smaller and that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way;

c.

Temporary small wireless facilities, DAS or communications facilities placed for a period of not more than:

a)

21 days for temporary uses related to special events;

b)

90 days for temporary uses related to repair of facilities; or

c)

Not more than 90 days at any location within the Town after declaration of an emergency or a disaster by the Governor of New Mexico.

iii)

For purposes of the foregoing exemptions, a small wireless facility, DAS, other similar network, or pole is considered to be "substantially similar" if:

a.

The new or upgraded facility, including the antenna or other equipment element, will not be more than ten percent larger on a one-time basis than the existing facility, provided that the increase may not result in the facilities exceeding the size limitations provided elsewhere in this section;

b.

The new or upgraded pole will not be higher than the existing pole;

c.

The replacement or upgrade does not include replacement of an existing service pole;

d.

The replacement or upgrade does not defeat existing concealment elements of the existing pole; and

e.

The determination of whether a replacement or upgrade is substantially similar is made by measuring from the dimensions of the small wireless facility or pole as approved by the Town.

e)

Collocation. Support structures for small wireless facilities or similar networks shall be capable of accommodating the collocation of other service providers.

f)

Signage. Signs located at the small wireless facilities, DAS, and similar networks shall be limited to ownership and contact information, FCC antenna registration number (if required) and any other information as required by an applicable governmental authority. Commercial advertising is strictly prohibited.

g)

Accessory Equipment. Accessory equipment, including any buildings, cabinets or shelters, shall be used only to house equipment in support of the operation of the small wireless facility or its support structure. Any equipment not used in direct support of such operation shall not be stored on the site.

12)

General Requirements for Towers and Poles.

a)

Inventory of Existing Sites. Each applicant for a pole or tower exceeding the height limitation of the affected zoning district shall provide to the Community Development Department an inventory of its existing poles or towers that are either within the jurisdiction of the Town or within one mile of the border thereof, including specific information about the location, height, and design of each pole or tower. The applicant shall only be required to provide this information in its first application following implementation of this section, and not thereafter. The Community Development Department may share such information with other applicants applying for permits under this section or other organizations seeking to locate poles or towers within the jurisdiction of the Town, provided, however, that the Community Development Department is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

b)

Lighting. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views.

c)

State or Federal Requirements. All towers and antennas must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this section shall bring such towers and antennas into compliance with such revised standards and regulations within six months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency.

d)

Building Codes; Standards. To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable industry standards for towers, as amended from time to time. If, upon inspection, the Town concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have 30 days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said 30 days shall constitute grounds for the removal of the tower at the owner's expense.

e)

Visual Impact. All towers, poles and small wireless facilities, including equipment enclosures, shall be sited and designed to minimize adverse visual impacts on surrounding properties and the traveling public to the greatest extent reasonably possible, consistent with the proper functioning of the structure or equipment. Such equipment enclosures shall be integrated through location and design to blend in with the existing characteristics of the site. Such enclosures shall also be designed to either resemble the surrounding landscape and other natural features where located in proximity to natural surroundings, or be compatible with the built environment, through matching and complimentary existing structures and specific design considerations such as architectural designs, height, scale, color and texture or be consistent with other uses and improvements permitted in the relevant zone.

i)

Towers shall either maintain a galvanized steel finish or, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness.

ii)

At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials, colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings.

iii)

If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible.

f)

Use of Stealth Design. Concealment techniques in design districts and historic districts must be appropriate given the proposed location, design, visual environment, and nearby uses, structures, and natural features. Stealth design shall be designed and constructed to substantially conform to surrounding building designs or natural settings, so as to be visually unobtrusive.

g)

Building-Mounted Equipment.

1)

All transmission equipment shall be concealed within existing architectural features to the maximum extent feasible. Any new architectural features proposed to conceal the transmission equipment shall be designed to mimic the existing underlying structure, shall be proportional to the existing underlying structure or conform to the underlying use and shall use materials in similar quality, finish, color and texture as the existing underlying structure.

2)

All roof-mounted transmission equipment shall be set back from all roof edges to the maximum extent feasible consistent with the need for "line-of-sight" transmission and reception of signals.

3)

Antenna arrays and supporting transmission equipment shall be installed so as to camouflage, disguise or conceal them to make them closely compatible with and blend into the setting or host structure.

h)

Pole-Mounted or Tower-Mounted Transmission Equipment. All pole-mounted or tower-mounted transmission equipment shall be mounted as close as possible to the pole or tower so as to reduce the overall visual profile to the maximum extent feasible consistent with safety standards.

i)

Concealment of Pole-Mounted Equipment. All pole-mounted equipment must be reasonably concealed to the extent technically feasible in a manner that minimizes the visual impact of the pole-mounted equipment. The concealment method and materials must receive prior written approval from the Town, not to be unreasonably withheld. Antenna size limitations are exclusive of any concealment materials or fabrication. Concealment materials shall have a color and finish consistent and appropriate with the pole on which they are mounted.

j)

Accessory Equipment. All accessory equipment located at the base of a small wireless facility shall be located or placed (at the applicant's choice) in an existing building, underground, or in an equipment shelter that is (a) designed to blend in with existing surroundings, using architecturally compatible construction and colors; and (b) be located so as to be unobtrusive as possible consistent with the proper functioning of the small wireless facility.

k)

Site Design Flexibility. Individual small wireless facility sites vary in the location of adjacent buildings, existing trees, topography and other local variables. By mandating certain design standards, there may result a project that could have been less intrusive if the location of the various elements of the project could have been placed in more appropriate locations within a given site. Therefore, the small wireless facility and supporting equipment may be installed so as to best camouflage, disguise them, or conceal them, to make them more closely compatible with and blend into the setting or host structure.

l)

Structural Assessment. The owner of a proposed tower shall have a structural assessment of the tower conducted by a professional engineer, licensed in the State of New Mexico, which shall be submitted with the application for a permit.

m)

Radio Frequency Emissions Compliance Report. A radio frequency ("RF") emissions compliance report will be prepared, signed and sealed by a New Mexico-licensed professional engineer or a competent employee of the applicant, which assesses whether the proposed small wireless facility demonstrates compliance with the exposure limits established by the FCC. The employee of the applicant must be qualified in the field of RF emissions and provide satisfactory evidence of his/her qualifications to the Town.

n)

Residential Provisions.

i)

All small wireless facilities on residentially zoned property are encouraged to either be painted or treated the same color as the primary structure or the surface to which the facilities are attached.

ii)

Screening or painting of roof-mounted structures is required on all sides of the residential property in which a small wireless facility is to be or is placed.

o)

Screening of Ground-Mounted Equipment. Ground equipment and equipment enclosures outside of the right-of-way shall be screened by a screen wall, painted, and/or landscaped.

i)

Screening and equipment enclosures shall blend with or enhance the surrounding area in terms of scale, form, texture, materials, and color. Equipment shall be concealed as much as possible by blending into the natural and/or physical environment. All screening shall be at the reasonable discretion of the Town.

ii)

When trees, bushes, rocks, and other forms of landscaping are used for screening, such landscaping must match the predominant landscaping form and species within one block of the facilities.

p)

Additional Screening Requirements. Any new, modified, or replacement poles installed in the right-of-way in conjunction with the installation of a small wireless facility, including any ground mounted equipment, electrical service meter, and screening shall:

i)

Be designed to blend in with the surrounding streetscape with minimal visual impact;

ii)

Satisfy all required Americans with Disabilities Act requirements;

iii)

Not impair or interfere with line of sight visibility; and

iv)

Not block or obstruct existing roadway or commercial signage.

13)

Preferred Tower Locations.

a)

New small wireless facilities must, to the maximum extent feasible, be collocated on existing towers or other structures of a similar height to avoid construction of new towers.

b)

The Town encourages all applicants for new towers to follow siting priorities, from most-preferred (i) to least-preferred (viii):

i)

Town-owned or operated property or facilities, not including rights-of-way;

ii)

Commercial and industrial zones;

iii)

Office zones;

iv)

Other non-residential zones;

v)

Town rights-of-way in non-residential zones;

vi)

Town rights-of-way in residential zones;

vii)

Parcels of land in residential zones;

viii)

Designated design or historic districts.

c)

Collocation Consent. A written statement will be signed by a person with the legal authority to bind the applicant and the project owner, which indicates whether the applicant is willing to allow other transmission equipment owned by others to collocate with the proposed small wireless facility whenever technically and economically feasible and aesthetically desirable.

d)

Documentation. Applications submitted under this section for small wireless facilities shall include the following materials:

i)

A color visual analysis that includes to-scale visual simulations that show unobstructed before-and-after construction daytime and clear-weather views from at least four angles, together with a map that shows the location of each view.

ii)

A written analysis that explains how the proposed design complies with the applicable design standards under this section to the maximum extent feasible. A design justification must identify all applicable design standards under this section and provide a factually detailed reason why the proposed design either complies or cannot feasibly comply.

iii)

A noise study, if requested by the Town.

iv)

A scaled site plan clearly indicating the location, type, height and width of the proposed small wireless facilities, on-site land uses and zoning, adjacent land uses and zoning, separation distances, adjacent roadways, a depiction of all proposed transmission equipment, proposed means of access, setbacks from property lines, elevation drawings of the proposed small wireless facilities and any other structures, topography and utility runs.

v)

The setback distance between the proposed small wireless facility and the nearest residential unit, platted residentially zoned properties, and unplatted residentially zoned properties.

vi)

The separation distance from other poles and towers within one mile of the subject pole or tower, shall be shown on an updated site plan or map.

vii)

If applicable, the method of camouflage and illumination.

viii)

A written statement of purpose which shall minimally include: (1) a description of the objective to be achieved; (2) a to-scale map that identifies the proposed site location and the targeted service area to be benefited by the proposed project; and (3) full-color signal propagation maps with objective units of signal strength measurement that show the applicant's current service coverage levels from all adjacent sites without the proposed site, predicted service coverage levels from all adjacent sites with the proposed site, and predicted service coverage levels from the proposed site without all adjacent sites. These materials shall be reviewed and signed by a New Mexico-licensed professional engineer or a qualified employee of the applicant. The qualified employee of the applicant shall submit his or her qualifications with the application.

14)

Independent Technical and Legal Review. Although the Town intends for Town staff to review administrative matters to the extent feasible, the Town may retain the services of independent experts of its choice to provide technical and legal evaluations of permit applications for small wireless facilities, towers and poles. The expert's review may include, but is not limited to (a) the accuracy and completeness of the items submitted with the application; (b) the applicability of analysis and techniques and methodologies proposed by the applicant; (c) the validity of conclusions reached by the applicant; and (d) whether the proposed small wireless facilities comply with the applicable approval criteria set forth in this section. The applicant shall pay the actual, direct and reasonable cost for any independent consultant fees through a deposit, paid within ten days of the Town's request. When the Town requests such payment, the application shall be deemed incomplete for purposes of application processing timelines until the deposit is received. In the event that such costs and fees do not exceed the deposit amount, the Town shall refund any unused portion within 30 days after the final permit is released or, if no final permit is released, within 30 days after the Town receives a written request from the applicant. If the costs and fees exceed the deposit amount, then the applicant shall pay the difference to the Town.

15)

Safety Review.

a)

For the period beginning on the date a permit is issued and ending on the date the permitted work is accepted, the Town may perform a safety review of construction, reconstruction or installation of all small wireless facilities and poles as it deems necessary to ensure compliance with this section and the Municipal Code. All Town plans, reviews, inspections, standards, and other rights and actions related to the wireless provider's improvements are for the Town's sole and exclusive benefit and neither the wireless provider nor any other person may rely on the Town's safety reviews or have any rights related to the reviews. The preceding sentence does not prevent the wireless provider from relying on consents, permits, or approvals the Town may grant based on the Town's plans, reviews, and inspections. As a condition of obtaining the permits authorized by this section, the wireless provider grants the Town the right to access the wireless provider's small wireless facilities and poles. Except for emergencies, this right of access is limited to dates and times agreed to by the parties.

b)

To the extent allowed by law, the Town may recover the Town's costs incurred to perform such safety reviews.

16)

Final Inspection.

a)

A certificate of completion will only be granted upon satisfactory evidence that the small wireless facilities were installed in substantial compliance with the approved plans.

b)

If it is found that the small wireless facilities installation does not substantially comply with the approved plans, the applicant shall make any and all such changes required to bring the facilities into compliance promptly and in any event prior to putting the facilities in operation.

17)

Compliance.

a)

All small wireless facilities must comply with all standards and regulations of the FCC and any state or other federal government agency with the authority to regulate those facilities.

b)

The site and small wireless facilities, including all landscaping, fencing and related transmission equipment, must be maintained at all times in a neat and clean manner.

c)

If any FCC, state or other governmental license or any other governmental approval to provide communication services is ever revoked as to any site permitted or authorized by the Town, the permittee must inform the Town of the revocation within 30 days of receiving notice of such revocation.

18)

Indemnification. Each permit issued for small wireless facilities located in Town right-of-way or on other Town property shall be deemed to have as a condition of the permit a requirement that the wireless provider defend, indemnify and hold harmless the Town and its officers, agents, employees, volunteers, and contractors from any and all liability, damages, or charges (including attorneys' fees and expenses) arising out of claims, suits, demands, actions or causes of action that are caused by or result from the wireless provider's, or its agent's or contractor's, construction, performance, operation, maintenance, repair, replacement, removal, or restoration of the small wireless facilities.

19)

Laws, Rules and Regulations. This section shall be subject to all applicable laws, rules and regulations now or hereafter enacted.

20)

Severability. The various parts, sentences, paragraphs, sections and clauses of this section are hereby declared to be severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of the section shall not be affected thereby.

21)

Conflicts. In the event of a conflict between the provisions of this section, federal laws, rules, regulations, FCC Orders or the Act, the more restrictive shall control. Any ordinance or parts thereof or other provisions of the Municipal Code in conflict with the provisions of this section are hereby repealed to the extent of such conflict.

M)

Community Gardens.

1)

Site users must have an established set of operating rules addressing the governance structure of the garden, hours of operation, maintenance and security requirements and responsibilities; a garden coordinator to perform the coordinating role for the management of the community gardens and to liaise with the Town; and must assign garden plots in a fair and impartial manner according to the operating rules established for that garden. The name and telephone number of the garden coordinator and a copy of the operating rules shall be kept on file with the Town of Silver City Community Development Department.

2)

The garden must follow universal design principles where possible, including accessible entrances, exits and paths to encourage broad use for persons of all ability levels.

3)

Site users must provide evidence of on-site soil tests to determine the presence, type and level of contaminants. Any historical sources of soil contamination should be identified prior to using the site as a garden. Appropriate remediation procedures must be undertaken to ensure that soil is suitable for gardening. Ground water quality testing may also be required if the site does not plan to use the Town's treated water system to cultivate food.

4)

Site users are permitted to use raised beds with new soil when past use of the proposed garden site indicates a risk of soil contamination.

5)

The site is designed and maintained so that water will not drain onto adjacent property.

6)

Site users are encouraged to utilize sustainable growing and cultivation practices, and are discouraged from using pesticides and chemical fertilizers.

7)

No buildings or structures shall be permitted on the site; however, sheds for storage of tools, greenhouses that consist of buildings made of glass, plastic, or fiberglass in which plants are cultivated, benches, bike racks, raised/accessible planting beds, compost or waste bins, picnic tables, seasonal farm stands, fences, garden art, rain barrel systems and children's play areas subject to the requirements of Section 3.3.2(C) and Section 3.3.2(E) shall be permitted. The combined area of all buildings or structures should not exceed 15 percent of the garden site lot areas. Any signs shall comply with applicable Town ordinances.

8)

Fences shall not exceed six feet in height and shall be at least 50 percent open if they are taller than four feet. For any garden that is 15,000 square feet in area or greater and is in a location that is subject to design review and approval by the Design Review Committee, no fence shall be installed without review by the Community Development Director so that best efforts are taken to ensure that the fence is compatible in appearance and placement with the character of nearby properties.

N)

Drive-Through Facilities.

1)

Adequate area for six stacking spaces for each lane (window space counts as one stacking space) shall be provided as determined in Section 5.9.2. Such stacking area shall not interfere with traffic circulation in any parking lot or the free flow of traffic on any street adjacent to the use.

2)

The drive-through access way for the use shall be at least 25 feet away from adjacent properties used for residential purposes, and shall accommodate adequate stacking spaces to avoid interference with the free flow of traffic on streets.

O)

Farmers' Markets.

1)

All farmers' markets and their vendors shall comply with all federal, state, and local laws and regulations relating to the operation, use, and enjoyment of the market premises.

2)

All farmers' markets and their vendors shall receive all required operating and health permits, and these permits (or copies) shall be in the possession of the farmers' market manager or the vendor, as applicable, on the site of the farmers' market during all hours of operations.

3)

All farmers' markets shall have an established set of operating rules addressing the governance structure of the farmers' market, hours of operation, maintenance and security requirements and responsibilities; and appointment of a market manager.

4)

All farmers' markets shall have a market manager or his or her designee authorized to direct the operations of all vendors participating in the market on the site of the market during all hours of operation.

5)

All farmers' markets and their vendors are encouraged and should work to accept forms of payment by participants of federal, state, or local food assistance programs, including but not limited to the Supplemental Nutrition Assistance Program (SNAP), formerly known as "food stamps"; Women, Infants and Children (WIC) program; and the Senior Farmers' Market Nutrition Program. Such forms of payment include but are not limited to coupons, vouchers and Electronic Benefit Transfer (EBT) cards.

P)

Gasoline Stations.

1)

Gasoline pumps shall be located at least 30 feet from the edge of the right-of-way of a public street.

2)

All tanks containing fuel, oil, waste oils and greases, or similar substance shall be placed at least 25 feet from any property line, and vented, and shall comply with all applicable New Mexico statutory and regulatory requirements.

3)

All discarded materials such as tires, cans, drums, and the like, shall be stored in an enclosed area and under cover.

4)

A canopy over the fuel pumps that is detached from the principal building may be erected provided that such structure is located at least 10 feet from the property line or street right-of-way.

5)

All gasoline stations shall contain separate lavatories for men and women.

Q)

Golf Courses, Sports and Recreation Membership Clubs, and Outdoor Commercial Amusements.

1)

Shooting ranges shall be subject to applicable code provisions on weapons: Chapter 34, Article V of the Code of Ordinances.

2)

Based on the size or level of anticipated use, a traffic impact analysis may be required that assesses the impacts of the proposed use on existing roads, intersections, and circulation patterns, and to set forth mitigation measures to eliminate or substantially reduce such impacts.

3)

One dwelling unit may be maintained on the property to accommodate a manager or a caretaker of the facility and his or her family.

4)

Access to the facility, storage of vehicles or materials on the property, and hours of operation may be controlled to ensure no adverse impacts on adjacent properties.

5)

Principal structures such as pools, bath houses, restaurants, or clubhouses shall be set back at least 100 feet from the front property line and at least 50 feet from all other property lines.

6)

Golf course development shall, to the maximum extent feasible, use recycled water instead of fresh water for all watering.

7)

Operation of outdoor activities shall be limited to the hours of 6:00 a.m. to 10:00 p.m.

R)

Group Living Facility.

1)

All group living facilities should preferably be located so as to provide convenient access to grocery and other retail stores and other commercial services, public transportation access points, and public recreation facilities.

2)

If active and continuous operations are begun, and later discontinued for a period of 12 consecutive months, in a facility that was approved pursuant to this Land Use Code, the group living facility shall be considered to be abandoned. The use may be reinstated only after obtaining a new Conditional Use or Zoning Permit.

3)

No kitchen facilities shall be located in any bedroom.

4)

If located in an existing structure and designed to house more than five clients, such use shall meet the requirements set forth in the current building codes.

5)

Adequate provisions shall be made for access by emergency medical and fire vehicles.

S)

Hotels and Motels.

1)

Based on the size or anticipated extent of the use, a traffic impact study may be required to assess the impacts on existing roads, intersections, and circulation patterns, and to set forth mitigation measures to eliminate or substantially reduce all identified adverse impacts.

T)

Manufactured Homes and Modular Homes.

1)

Skirting is considered integral to the manufactured home and modular home. All manufactured homes and modular homes within the incorporated limits of the Town, shall be fully skirted within 90 days from the date of installation or relocation, according to the standards in the Manufactured Housing Act and Regulations for ground level installation (if applicable), including ventilation screening installed that prevents entry of rodents. All materials used for skirting must be fire-resistive, which shall include any of the following, concrete block (CMU), rock, vinyl or sheet metals or other siding materials listed by a recognized national agency or other material as allowed by the Community Development Director and shall enclose the space between the lower (floor) elevation of a manufactured home and modular home and the ground, and shall completely conceal the undercarriage portion of such homes.

2)

All manufactured homes within residential zone districts, excluding manufactured home parks, shall comply with the following standards. These standards apply only to new manufactured homes brought into the Town limits after the date of the adoption of this amended Land Use Code.

a)

The structure shall be placed on a permanent foundation in compliance with the State of New Mexico Manufactured Housing Division Administrative Code Section 14.12.2.57;

b)

The hitch, axles, and wheels must be removed; and

c)

A main entrance shall be built consisting of at least one of the following features:

i)

site-built stairs resting on a permanent foundation, self-supporting and attached or adjacent to the manufactured home for access to the front door; or

ii)

permanent deck or porch at least 20 square feet in area, self-supporting and attached or adjacent to the manufactured home and providing access to the front door.

d)

As an alternative to a main entrance improvement in subsection (c) above, a garage, carport or building addition of at least 100 square feet, self-supporting and attached or adjacent to the longest side of the structure may be built.

3)

Relocation of, or addition to a manufactured home that is older than 1976 or that does not meet the HUD Code within the Town is prohibited.

U)

Manufactured Home Parks.

1)

Site conditions. Condition of soil, ground water level, drainage and topography shall not create hazards to the property or the health and safety of the occupants.

2)

Minimum area of tract. The tract for a manufactured home park must be at least one acre in size.

3)

Subdivision procedure. Manufactured home parks shall be approved in accordance with the subdivision process set forth in Section 6.3.16, except that in the event of any conflict between dimensional standards applicable to subdivisions in general and those applicable to manufactured home parks, the latter shall govern.

4)

Access to the site. Direct vehicular access to the park shall be provided by means of an approved public street. The width and construction of the access streets or ways shall be suitable for the vehicular traffic requirements of the properties served.

5)

Design of entrances and exits. Entrances and exits shall be designed for safe and convenient movement of traffic into and out of the park, and to minimize marginal friction with free movement of traffic on adjacent streets. All traffic into and out of the park shall be through such entrances and exits.

6)

Internal streets and walkways. Internal streets shall be provided to furnish principal traffic-ways for safe and convenient access to all spaces and to facilities for common use by park occupants. Fencing or other suitable barriers shall restrict direct access from those spaces and facilities onto streets that are outside of the park. Such streets shall be privately owned, constructed and maintained, and shall meet all of the following requirements:

a)

Street width. Street widths shall be sufficient to permit free movement from or to the stream of traffic or the public streets and no parking shall be permitted which in any way interferes with such free movement. All two-lane roads shall allow at least 22 feet free width. Space for roadside parking shall not be taken from this width. All one-lane, one-way roads shall allow at least 16 feet free width. Space for roadside parking shall not be taken from this width.

b)

Street alignment and gradient. Street alignment and gradient shall be properly adapted to topography, to safe movement of types of traffic anticipated, and to satisfactory control surface and ground water.

c)

Street surfacing and maintenance. A sound all-weather driving-surface shall be provided and maintained.

d)

Walkways. From each entrance and exit, all spaces for manufactured homes and all facilities for common use by park occupants shall be accessible by sidewalks. These sidewalks shall be constructed to the standards specified in Section 5.4.

7)

Driveways. Driveways shall be provided on the site where necessary for convenient access to service entrances of buildings, to delivery and collection points for refuse and other materials. Driveways serving a single facility or single manufactured home space shall have a minimum full-width of eight feet where it does not serve as a walk, or 10 feet where it is also used as a walk.

8)

Access to manufactured home space. Convenient access shall be provided to each manufactured home space by means of an access way reserved for maneuvering manufactured homes into position. The minimum width of the access way shall be 12 feet, plus extra width as necessary for maneuvering a manufactured home on a curve.

9)

Manufactured home space. The manufactured home space shall provide for practical placement on and removal from the space of both the manufactured home and its appurtenant structures and the retention of the home on the lot in a stable condition. A space shall be provided for every manufactured home in the park.

a)

Size. The size of the space shall be suitable for the general market to be served by the individual proposal, and it shall fit the dimensions of the manufactured homes anticipated, including their appurtenant structures or appendages. The space area established for each manufactured home shall be in conformance with the dimensions of the manufactured home placed therein.

b)

Location. The location of each manufactured home space shall be at such elevation, distance and angle in relation to the access street and the manufactured home access way that placement and removal of the manufactured home is practical.

c)

Gradient. Each space shall have a zero percent to five percent longitudinal and adequate crown or cross-gradient for surface drainage.

d)

Construction. The space shall be properly graded, placed and compacted, so as to be durable and adequate, for the support of the maximum anticipated loads during all seasons.

10)

Manufactured home space setbacks. The minimum side to side spacing between manufactured homes or any permitted building or structure shall be at least 15 feet. The minimum end-to-end spacing between manufactured homes shall be at least 15 feet. No manufactured home shall be closer than 20 feet from the right-of-way of a main thoroughfare, unless separated from the thoroughfare by a substantial fence or wall, and no manufactured home shall be closer than 10 feet from the manufactured home park property line.

11)

Special external setback requirement. Where a parcel adjoins at a lot-line (without an intervening street or alley) the boundary of a more restrictive or less restrictive zone district, the setback requirement of the manufactured home park will be in accordance with the setback requirements of the zone where the manufactured home park is located. The Community Development Director shall require walls, fences or vegetative screening at the outer edges of such setbacks.

12)

Skirting. All manufactured homes shall be fully skirted within 90 days from the date of installation or relocation in accordance with subsection (R)(1) above.

13)

Recreation area. Not less than 15 percent of the gross site area shall be devoted to open space for recreational purposes, and at least 50 percent of the required open space shall be located in one contiguous area.

14)

Pedestrian circulation. The pedestrian circulation system shall be designed, constructed and maintained by the owner for safe and convenient movement from all spaces to principal destinations within the park and, if appropriate, shall provide access to pedestrian ways leading to destinations outside the park. Minor streets and collector streets, which are privately owned, may be used as pedestrian ways except where concentration of either pedestrian or vehicular traffic appears likely to lead to congestion or hazards.

15)

Exterior lighting. All exterior lights shall comply with Section 5.12.

16)

Landscaping. All manufactured home parks must comply with Section 5.10.

17)

Residential occupancy. No space shall be rented for any use other than residential use of a manufactured home or for a storage trailer in any manufactured home park.

V)

Manufactured Home Subdivisions.

1)

Codes and requirements. The manufactured home subdivision shall comply with the regulations, restrictions and requirements of the UBC, Plumbing Code and the Electrical Code of the State of New Mexico, and shall comply with all those standards for a subdivision set forth in Article V of this Code.

2)

Minimum area of tract. The tract shall contain at least five acres of land and all land involved shall be so dimensioned and related so as to facilitate efficient design.

3)

Lot area. The minimum lot area established for each manufactured home shall not be less than 5,000 square feet with a width of at least 50 feet along the front yard setback line.

4)

Subdivision procedure. Manufactured home subdivisions shall be approved in accordance with the subdivision process set forth in Section 6.3.16.

5)

Skirting. All manufactured homes shall be fully skirted within 90 days from the date of installation or relocation in accordance with subsection (R)(1) above.

W)

Multiple-Family Dwelling Units. Front doors of multi-family dwelling units in the C-Hwy zone shall not be oriented towards the highway.

X)

Oil and Gas Drilling. All oil, gas and other drilling operations, on public or private lands, shall be subject to the following standards.

1)

All State and Federal permits must be obtained and evidence of approval of applicable permits and the names, addresses and phone numbers of the project contractors shall be submitted to the Town before construction or drilling begins.

2)

Where the operation is adjacent to subdivided or developed commercial or residential property, fencing or buffering may be required by the Community Development Director to minimize noise, dust, and other impacts to neighboring properties.

3)

All oil and gas well wastes must be disposed of in an approved sanitary landfill manner, and all produced water shall be disposed of in an approved disposal site.

4)

All pits shall be fenced and backfilled after evaporation of fluids.

5)

At the conclusion of the drilling or upon lapse of any required Conditional Use Permit, whichever occurs first, the site shall be restored in accordance with a restoration plan approved by the Community Development Director and designed to minimize adverse impacts to neighboring properties.

6)

The Town shall have all rights of access to the project site for purposes of verifying compliance with the provisions of this Land Use Code.

Y)

Mining and Extractive Uses.

1)

To obtain a Conditional Use Permit for mining and extractive uses the applicant shall comply with the following:

a)

A plan shall be required for any mining or extractive use and shall contain the following information:

i)

A detailed description of the method of operation of extraction and rehabilitation to be employed, including any necessary accessory uses such as, but not limited to, crushers, batch plants and asphalt plants.

ii)

A traffic impact analysis for Town streets, including a load analysis, ingress/egress, parking and loading areas, on-site circulation, estimated average and maximum number of trucks per day (ranges are acceptable). In addition, the operator shall submit a haul road plan to the Town Engineer and receive permission to use for haulage a public right-of-way not designated for such haulage by reason of load limit, dust, right-of-way or pavement width or other relevant factors. The Town Engineer may place reasonable restrictions on such right-of-way use. Alternative haul routes shall be developed where haul route impacts the health, safety and welfare of the local area.

iii)

Copies of all state and federal permitting application forms and supplementary materials shall be provided to the Community Development Department.

iv)

Additional information as may be requested by the Community Development Director.

v)

Upon approval, the excavation and rehabilitation plans shall be filed with the Town Clerk. Any change in the plan shall be prohibited unless approved by the Town Council.

b)

Excavation or deposit of overburden shall not be permitted within 30 feet of a boundary of adjacent property easement, irrigation ditch or right-of-way unless by written agreement of the owner of such property, easement, irrigation ditch or right-of-way.

c)

Excavation within 125 feet of a dwelling unit shall be prohibited unless by written agreement of the owner and occupant of the residence, and no excavation involving the use of rock crushers, asphalt plant, cement batch plant and other similar equipment shall take place within 250 feet of a dwelling unit.

d)

All excavation activities shall be set back at least 100 feet from road rights-of-way and watercourses. The watercourse setback may be varied, based on New Mexico Department of Game and Fish and New Mexico Environment Department comments concerning site-specific factors. Existing trees and ground cover along public road frontage and drainageways shall be preserved, maintained and supplemented, if necessary, from the depth of the setback to protect against and reduce noise, dust and erosion. The Community Development Director shall be authorized to require the installation of a Landscape Buffer (see Section 5.10) along roads and watercourses when necessary to control dust and mitigate other adverse impacts.

e)

Haul roads within the premises shall be maintained in a reasonably dust-free condition and shall be contained within the pit (after excavation allows) to the maximum extent feasible. This may include, depending on local conditions, watering, oiling, or paving,

f)

Operation shall be limited to the hours of 6:00 a.m. to 10:00 p.m. unless longer or shorter hours of operation are approved as part of the Conditional Use Permit.

g)

Prior to starting excavation, where the operation is adjacent to subdivided or developed commercial, residential, or industrial property, fencing may be required to prevent the visibility of the mining operation, and buffering and screening may be required if deemed necessary by the Community Development Director, subject to appeal to the Town Council. The operator may fence, buffer or screen the entire parcel or fence only areas of excavation as it proceeds. None of these shall be removed until rehabilitation has been completed.

h)

Where the operation is adjacent to subdivided property or to developed commercial or residential property, once mining has been completed, the site shall not to be used as an area to stockpile sand or gravel resources.

i)

A development schedule shall be submitted to the Community Development Department describing the life span of the mine in years or a range of years and, if applicable, the years included in each phase. Diligence in meeting this schedule is required.

i)

Up to a two-year extension may be granted by the Community Development Director if a written request is submitted outlining the factors and reasons for the extension. New conditions, if any, will be considered.

ii)

Requests for extensions up to five years and appeals of the Community Development Director's decision will be submitted to the Town Council at a public hearing.

j)

If the use has not operated or if no material has been extracted within two years of obtaining the Conditional Use Permit and a request for extension has not been received and approved by the Town Council, the Conditional Use Permit will expire. Extension requests shall provide information concerning the factors and reasons for the request. The Town Council will consider these factors and reasons as well as the extent conditions have changed in the area, if any, in granting extensions.

Z)

Outdoor Sales, Repair, and Activities.

1)

Outdoor operations or activities shall not include the storage or accumulation of waste products, including tires, waste oils, grease, or other flammable, toxic, or hazardous materials.

AA)

Recreational Vehicle Parks.

1)

[Tents allowed.] In addition to recreational vehicles, tents are allowed in recreational vehicle parks.

2)

Site planning and required improvements. Site planning and improvements shall provide for safe, comfortable, convenient and sanitary use by occupants under all weather conditions during periods of occupancy.

3)

Site conditions. Same as for Manufactured Home Parks, Section 3.3.1(S).

4)

Minimum area of tract. The tract shall contain at least one acre of land and all land involved shall be dimensioned and related so as to facilitate efficient design.

5)

Recreational vehicle space. The recreational vehicle space shall provide for practical placement on and removal from the space of a recreational vehicle. A space shall be provided for every recreational vehicle in the park.

a)

Size. The size of the space shall be suitable for the general market to be served by the individual proposal, and it shall fit the dimensions of the recreational vehicles anticipated, including their appurtenant structures or appendages. The space area established for each recreational vehicle shall be in conformance with the dimensions of the recreational vehicle placed therein.

6)

Location and access. Same as for Manufactured Home Parks, Section 3.3.1(S).

7)

Design of entrances and exits. See Manufactured Home Parks, Section 3.3.1(S).

8)

Internal streets. Same as for Manufactured Home Parks, Section 3.3.1(S).

9)

Internal walkways. There shall be a walkway from the entrance of each recreational vehicle lot to the service facilities, where such are required, or the street line in those parks not required to furnish service facilities. A walkway may be defined as an unobstructed, graded, paved or unpaved right-of-way for pedestrian traffic within the recreational vehicle park.

10)

Driveways. Driveways shall be provided on the site where necessary for convenient access to service entrances of buildings and to delivery and collection points for refuse and other materials. Driveways serving a single facility, a recreational vehicle, or camp space shall have a minimum full-width of eight feet when it is not also used as a walk, or 10 feet where it is also used as a walk.

11)

Restrooms. Restroom facilities shall be for the sole use of residents or other paid-use patrons.

12)

Speed limits. Posted speed limit of five miles per hour shall be enforced by the management.

13)

Setbacks.

a)

Side-to-side spacing shall be not less than 10 feet and back-to-back spacing shall be not less than 10 feet for recreational vehicles. The distance between a recreational vehicle and any building shall be not less than 15 feet, provided that an accessory building serving a single space may be located on the space served.

b)

The minimum lot width for a recreational vehicle space shall be 27 feet.

c)

No recreational vehicle shall be closer than 20 feet from the right-of-way of a main thoroughfare, unless separated from the thoroughfare by a fence or wall; and no recreational vehicle shall be less than 10 feet from the recreational vehicle park property line.

d)

Any occupied recreational vehicle shall be parked in a space designated for occupancy by a vehicle. A maximum of one recreational vehicle is allowed per space, with the exception of group sites for tents.

e)

If a designated overflow parking area is provided, a dump station shall be included as a design feature in such area.

14)

Special external setback requirements. Same as for Manufactured Home Parks. Section 3.3.1(S).

15)

Disposal of waste water, sewage, garbage and trash. No unit, self-contained or dependent, shall dispose of waste water, sewage, garbage or trash except in approved facilities provided by the management for that purpose. For purposes of this subsection, a self-contained recreational vehicle is a unit which can operate independent of connections to external sewer, water and electrical systems, and contains water storage facilities, a toilet and holding tank for solid waste.

16)

Service building. No recreational vehicle space shall be located more than 200 feet from a service building containing required toilet and bath facilities.

17)

Recreation area. Not less than 15 percent of the gross site area shall be devoted to open space for recreational purposes. The open space should have a central location and shall not be made up of only perimeter strips of land.

18)

Total toilet facilities. Toilet facilities shall be required for each gender according to the table below. One urinal may be substituted for one toilet; however, the number of toilets provided for each gender must not be less than two-thirds of the number required by the table. The service building shall be of permanent construction. Above the number of sites listed in the table below, bathing facilities shall be increased by one for each additional 20 sites; lavatory and toilet facilities shall be increased by one for each additional 12 sites, rounding down.

19)

Sanitary stations.

a)

Facilities shall be provided for removing and disposing of wastes from all holding tanks in a clean, efficient and convenient manner.

b)

Each sanitary station shall consist of a drainage basin constructed of impervious material, containing a disposal hatch and self-closing cover, and related working facilities.

c)

Sanitary stations shall be located not less than 30 feet from any space or other residential area. Such facilities shall be screened from other activities by visual barriers such as fences, walls or natural growth.

d)

The disposal hatch of sanitary station units shall be connected to the park sewage disposal system. A wash down hose shall be provided at all sanitary stations to wash holding tanks and the general area of the sanitary station and shall be connected to the park water supply system with a backflow prevention valve. In parks not containing a sewage disposal system, sanitary vaults shall be pumped out as needed.

20)

Pedestrian circulation. Same as for Manufactured Home Parks, Section 3.3.1(S).

21)

Cooking shelters, barbeque pits and fireplaces. Cooking shelters, barbeque pits and fireplaces shall be so located, constructed, maintained and used so as to minimize fire hazards and smoke nuisance both on the property on which used and on neighboring property. No open fire shall be permitted except in facilities provided. No open fire shall be left unattended, and all open fires shall be extinguished before occupants of spaces retire or leave the area. No fuel or material shall be used or burned, which emits dense smoke or objectionable odors.

22)

Quiet hours. Each recreational vehicle park shall require occupants to refrain from noise that would disturb other occupants or the residents of the nearby properties between the hours of 10:00 p.m. and 6:00 a.m., and shall enforce that restriction.

23)

Codes and requirements. The recreational vehicle park shall comply with the provisions and requirements of the UPC and the Electrical Code of the State of New Mexico. If the park is not served by the Town's sewer system, an alternative wastewater collection, treatment and disposal facility approved by the New Mexico Environment is required.

24)

Accessory uses. Management headquarters, recreational facilities, toilets, showers, coin-operated laundry facilities and other uses and structures customarily incidental to operation of a recreational vehicle park are permitted as accessory uses.

BB)

Recreational Vehicle Subdivisions.

1)

Codes and requirements. The recreational vehicle subdivision shall comply with the regulations, restrictions and requirements of the IBC, Plumbing Code and the Electrical Code of the State of New Mexico, and shall comply with all those standards for a subdivision set forth in Section 5.1 of this Code. For the purposes of this section, the term "recreational vehicle" shall meet the definition given in Article II.

2)

Minimum area of tract. The tract shall contain at least three acres of land and all land involved shall be so dimensioned and related so as to facilitate efficient design.

3)

Dimensional and density requirement. The minimum lot area established for each recreational vehicle shall not be less than 2,500 square feet. The recreational vehicle parking site must adhere to setback standards specified in the Table 3.4.2.

4)

Special external setback requirement. Where a parcel adjoins at a lot-line (without an intervening street or alley) which is the boundary of a more restrictive or less restrictive zone district, the setback requirement of the recreational vehicle subdivision will be in accordance with the setback requirements of the zone where the recreational vehicle subdivision is located. The Community Development Director may require walls, fences or vegetative screening at the outer edges of such setbacks.

5)

Permitted uses. The following uses shall be permitted:

a)

One (1) single family residence per lot limited to a recreational vehicle.

b)

Accessory uses and structures as permitted in the applicable zoning district, such as: garages and carports, storage sheds, outdoor kitchens, private swimming pools, walls and fences, signs and parking, but not accessory dwelling units.

6)

Utilities. At a minimum, the following utilities shall be provided to each recreational vehicle subdivision parcel: electricity, telephone, Town water, and Town sewer; easements shall be provided as required. All utilities shall be placed underground.

7)

Service and recreation facilities. In addition to subdivision requirements for land dedication established in Section 5.1.6, additional recreational and service facilities are allowed for private use by residents of the Recreational Vehicle Subdivision. Service facilities may be provided in conjunction with or in addition to recreation facilities, including management headquarters (with a maximum of one dwelling unit), refuse collection areas for front-load container-type pickup as approved by the Department of Public Works, coin-operated laundry facilities in enclosed structures, and toilet and washroom facilities meeting requirements for a Recreational Vehicle Park, Section 3.3.1(Y)(18).

8)

Management. A property owners association shall be established for any recreational vehicle subdivision use. The property owners association shall be responsible for the management and maintenance of all landscaping, private utilities, and common area facilities as specified herein, and/or provided in addition to these minimum development standards.

9)

Subdivision procedure. Recreational vehicle subdivisions shall be approved in accordance with the subdivision process set forth in Section 6.3.16. A detailed development plan shall be prepared in conjunction with the preliminary subdivision plat and shall identify the location of all streets, recreational vehicle lots, recreational areas, parking lots, service facility areas, and any permanent structure(s) that may be provided for use of property owners. Said development plan shall be sufficiently detailed to illustrate full compliance with all development standards as specified herein. Articles of incorporation for the property owners association, including management rules and conditions, covenants, and restrictions, shall be submitted for review and approval by the city before subdivision approval.

CC)

Recycling Centers.

1)

Exterior storage.

a)

Shall allow for short-term storage (no more than 30 days) of any recoverable, non-hazardous resources in dedicated bins.

b)

Any exterior storage shall be fenced, screened or landscaped to reduce the visibility of such storage from adjacent properties and the street frontage. Fencing and screening must be at least eight feet in height and of sufficient mass to be opaque. Landscaping shall also be at least eight feet in height and of sufficient mass to be opaque, or shall become so in no more than 12 months, and remain opaque throughout the year.

c)

Shall not include long-term storage (more than 30 days) of any recoverable, hazardous, or non-hazardous resources.

2)

Type of processing and materials.

a)

Recycling Collection and Transfer Center.

i)

Shall allow for light disassembling and sorting of materials that would require hand-held tools and manual labor, but shall not allow for heavy disassembling of materials that would require heavy machinery, industrial separators or other industrial equipment to disassemble materials,

ii)

Shall not include the collection of hazardous waste products, including tires, waste oils, grease or other flammable, toxic or other hazardous materials; shall not include the collection cars, trucks, recreational vehicle, motorcycles, or other fuel-powered vehicles.

b)

Recycling Processing Center.

i)

Shall allow for heavy disassembling of materials that would require heavy machinery, industrial separators, or other industrial equipment to disassemble or process resources, to be performed in an enclosed structure.

ii)

Shall allow for short-term storage (no more than 30 days) of any hazardous resources or byproducts produced during processing in an enclosed structure, which must follow all applicable Town, County and State safety laws and procedures.

DD)

Schools.

1)

Any outdoor play area shall be enclosed by an opaque fence of four feet in height or a chain link fence that is six feet in height, unless otherwise dictated by the nature of the activity.

2)

Any parking area shall be a minimum of 25 feet from adjacent properties used for residential purposes.

3)

Safe areas for pick-up and discharge of students shall be provided that do not interfere with the free flow of traffic on adjacent streets.

4)

Adequate provisions shall be made for access by emergency medical and fire vehicles.

EE)

Vehicle Repairs and Services.

1)

All minor or major repair work, vehicle washing, lubrication, and installation of parts and accessories shall be wholly performed within an enclosed structure and under cover.

2)

All automobile parts, dismantled vehicles, and similar materials shall be stored within an enclosed building or totally screened from view by a solid or privacy fence. A chain link fence with slats shall not constitute acceptable screening or fencing for the purposes of this provision.

3)

All vehicles awaiting repair shall be stored on site in approved parking spaces and shall not be stored on or obstruct access to a public right-of-way.

4)

All discarded materials such as tires, cans, drums, and the like, shall be stored in an enclosed area and under cover.

3.3.2 Accessory Uses and Structures.

A)

Allowed Uses and Structures. Permitted uses and approved conditional uses shall be deemed to include accessory uses, structures, and activities that are necessarily and customarily incidental and subordinate to the principal uses allowed in the zoning district, including those uses and structures listed in this section, unless specifically prohibited or unless they create a nuisance to the public in general or to neighboring properties. Accessory uses, structures, and activities shall be subject to the following regulations in addition to the regulations that apply to principal uses in each zoning district.

B)

Time of Establishment. No accessory use shall be established and no accessory structures shall be allowed on the subject parcel until after all required permits and approvals for the principal use or activity have been obtained.

C)

Residential and Rural Accessory Uses. Examples of residential and rural accessory uses shall include the following accessory uses, activities, and structures:

1)

Accessory dwelling units provided the following conditions are met:

a)

The lot containing the primary structure and accessory dwelling unit must meet the applicable dimensional requirements, including but not limited to: minimum lot size and setback requirements.

b)

Only one accessory dwelling unit is allowed per lot.

c)

Single-section manufactured homes are not allowed as an accessory dwelling unit.

d)

The accessory dwelling unit must be situated on a permanent foundation.

e)

An accessory dwelling unit must meet the restrictions of subsection 3.3.2(E), Dimensional and Operational Standards, for accessory buildings.

f)

One on-site parking space is required per accessory dwelling unit.

g)

Either the accessory dwelling unit or the primary residence may be rented under the condition that one or the other residence is occupied by an owner of the property as the owner's permanent and principal residence. If the owner is not living on the premises, only the primary residence may be rented out. The total number of renters on the property may not exceed the limit established in Section 3.3.2(C)(13).

2)

Barns and silos provided the lot has an area of one acre or more.

3)

Fences and walls eight feet or less in height, provided that a five-foot wide corridor is maintained between the fence or wall and the primary structure for the purpose of emergency access, and a clear-sight triangle is maintained in accordance with Chapter 42 of the Town of Silver City Code of Ordinances. A Zoning Permit is required for deviations from this regulation to ensure compliance with fire safety regulations. (Note that fences and walls over six feet tall require a building permit from the New Mexico Construction Industries Division.)

4)

Gardens, provided no sales occur from the premises.

5)

Greenhouse or hothouse, provided no sales occur from the premises.

6)

Home businesses, subject to the standards set forth in subsection 3.3.2(F) Standards Governing Home Businesses.

7)

The keeping of domestic/household pets, and other animals and fowl as allowed Chapter 6, Article I, Section 6-6 of the Code of Ordinances.

8)

In the Ru District, livestock may be kept for non-commercial purposes but shall not exceed one cow, one horse, or one goat for each 10,000 square feet of lot area, or one sheep for each 4,000 square feet of lot area, or an equivalent combination.

9)

In the RU, C-Lt, C-Hwy, and I districts, Kennels or Hobby Breeding, provided the lot has an area of one acre or more and complies with the provisions of Chapter 6 of the Code of Ordinances.

10)

Playhouses, patios, cabanas, porches, gazebos, and incidental household storage buildings are allowed as residential accessory uses, provided that the height of such structures shall not exceed 15 feet.

11)

Private garages, carports, and off-street parking areas used to serve the residents of the property are allowed as residential accessory uses, provided that:

a)

The height of a garage or carport serving a single-family dwelling unit shall not exceed 25 feet; and

b)

The garage is located at least 20 feet back from the closest edge of the right-of-way of the street that provides access to the garage. The setbacks established in Table 3.4.2 (Density and Dimensional Standards) will apply to carports.

c)

A private garage or carport may be detached from or attached to the principal structure, provided it complies with all applicable zone district regulations.

12)

Private recreational facilities for use of the residents of the property and their guests provided that:

a)

Outdoor lighting shall be shielded and shall not constitute a nuisance to adjacent property owners or neighbors;

b)

The height of any recreational or play facility shall not exceed 15 feet; and

c)

All swimming pools shall be subject to the restrictions of (19) below.

13)

Renting of rooms to not more than two persons per bedroom, provided that the dwelling is also occupied by the owner, and provided the following conditions are met:

a)

The total number of unrelated persons, including roomers residing in any one dwelling unit, shall not exceed eight persons; and

b)

Living quarters used by the roomers must not be more than one-third the total floor area of the dwelling unit.

14)

Satellite dish antennas 40 inches or less in diameter, provided that such satellite dish antenna shall be located in the rear or side yard of the residential use.

15)

Solar energy systems.

16)

Repair and restoration of residents' personal residential equipment including cars, trucks, and major recreational equipment, provided that equipment use is primarily personal and not for resale or service. Number of inoperable vehicles undergoing restoration shall be limited to a total of two.

17)

Outdoor storage or parking of operable trucks, cars, or boat trailers, subject to the restrictions set forth in subsection (E) below. Parking of inoperable vehicles shall be in accordance with Chapter 32, Article II of the Code of Ordinances.

18)

Parking of recreational vehicles, subject to the following requirements. Whenever this section refers to recreational vehicles, the term shall include boats, motorized homes, horse trailers, boat trailers, or travel trailers.

a)

A recreational vehicle may be parked:

i)

Inside a structure; or

ii)

Outside in the side yard or the rear yard; or

iii)

Outside in the front yard, provided:

a.

The unit is parked perpendicular to the front curb; and

b.

The body of the recreational vehicle is at least 10 feet from the street right-of-way.

b)

A parked recreational vehicle may not be used for dwelling purposes, except:

i)

Any single recreational vehicle may be used for dwelling purposes for a maximum of 14 consecutive days in a calendar year on any given lot; and

ii)

No single recreational vehicle may be used for dwelling purposes for more than 60 days in a calendar year on any given lot without a permit applied for in accordance with Section 6.3.1 and issued by the Community Development Director; and

iii)

No recreational vehicle or parking space for a recreational vehicle shall be rented out.

c)

A parked recreational vehicle can be attached only by quick disconnect-type utilities, with no permanently attached condition. The recreational vehicle may be connected to electricity for charging batteries and other purposes if the receptacle and the connection from the recreational vehicle have been inspected and approved by the Town fire marshal.

d)

A parked recreational vehicle's electrical generator using internal combustion engines shall not be operated.

19)

Swimming pools, subject to the following additional requirements:

a)

No swimming pool may be located in any required front or side setback abutting a street.

b)

Every swimming pool must be completely surrounded by a fence or wall not less than six feet in height with no openings large enough to permit children to pass through, other than gates or doors that can be fastened to protect against entry. A building may be used as part of such required enclosure.

c)

All gates or doors opening through such enclosures must be equipped with a self-closing and self-latching device for keeping the gate or door securely closed at all times when not in actual use.

20)

Other accessory uses that the Community Development Director determines are similar in size and height to those listed above, and that do not create greater impacts on nearby properties than those listed above.

21)

Accessory buildings and structures in residential zone districts shall not be rented out separately and independently from the entire property for commercial purposes, except as otherwise expressly allowed in this section for accessory dwelling units and for home businesses.

D)

Non-residential Accessory Uses and Structures. Examples of commercial, retail, institutional, and industrial accessory uses and structures shall include the following:

1)

Automated teller machine (ATM).

2)

Cafeteria, dining halls, and similar food services when operated primarily for the convenience of employees, clients, customers, or visitors to the principal use.

3)

Clubhouses, including space for the sale of golf or other sporting equipment, food, and refreshments, as accessory uses to golf courses or indoor recreational facilities only.

4)

Dormitories, as an accessory use to a college, university, or boarding school.

5)

Business residence, other than a single-section manufactured home, provided no more than one business residence is established.

6)

Gates and guard houses.

7)

Outdoor and sidewalk dining or sales provided that such facilities do not block or interfere with pedestrian traffic. A minimum of three feet of thoroughfare on sidewalk must be maintained to allow for wheelchair passage.

8)

Outdoor storage of goods not for display or sale provided that the storage area in C zone districts shall be visually screened from all adjacent building sites and public streets and alleys by a solid masonry wall, fence or landscaping. If chain link fencing is used for screening, it shall be screened with either slats or vinyl covering, in combination with a five-foot-wide landscaped area.

9)

Parking garages and off-street parking areas for employees, customers, and guests.

10)

Private recreational facilities for use by employees and guests, subject to the standards set forth in subsection (C)(19) above for swimming pools.

11)

Restaurants, bars, news stands, gift shops, clubs, and lounges when inside the principal building containing a permitted hotel use.

12)

Retail sales of goods as part of another permitted commercial, institutional, or industrial use, subject to the following conditions:

a)

Hours of operation shall be limited to 8:00 a.m. to 10:00 p.m., unless the character of the merchandise indicates otherwise;

b)

Items for sale shall either be manufactured by the principal use or part of its stock;

c)

Maximum gross floor area of the accessory retail use shall be either 10 percent of the total gross floor area of the principal use or 5,000 square feet, whichever is less; and

d)

Parking for the retail accessory use is provided in accordance with the off-street parking standards for retail uses as set forth in Section 5.9 of this Land Use Code.

13)

Satellite dish antennas that are 80 inches or less in diameter, provided that, to the maximum extent feasible, the satellite dish antenna is located to the rear of the principal building.

14)

Storage of merchandise and non-hazardous materials when located in the same building as the principal use.

15)

Swimming pools and tennis courts located on the same parcel of a permitted hotel use, subject to the standards set forth in subsection (C)(19) for swimming pools above.

16)

Other accessory uses that the Community Development Director determines are similar in size and height to those listed above, and that do not create greater impacts on nearby properties than those listed above.

E)

Dimensional and Operational Standards for Accessory Uses and Structures. The standards of this section shall apply to all accessory uses and structures in all districts unless otherwise expressly stated.

1)

Distance from principal structure. No part of any accessory building or structure shall be located closer than 10 feet to any principal structure, either on the same lot or an adjacent lot, unless it is attached to, or forms a part of, such principal structure.

2)

Front setback. No accessory use, structure, or activity, except for allowed fences or walls, and off-street parking areas for non-residential uses, shall be located or take place within a required front street setback.

3)

Side setback. No accessory building or structure except for allowed fences or walls shall be located within a required side yard setback. Accessory buildings or structures on corner lots shall be set back from the side street a distance not less than that required for the principal building.

4)

Rear setback. Accessory structures shall comply with the rear setback/yard requirement for the principal use, with the following exceptions:

a)

Allowed fences and walls may be located in the rear setback; and

b)

If an alley of 20 foot width or greater is located to the rear of the property, garages or carports may be located within the rear setback with access from that alley.

5)

Easements. No accessory structure, with the exception of allowed fences and walls, shall be located within any platted or recorded easement or over any known utility.

6)

Maximum building or structure size in residential areas. Except as otherwise expressly limited or allowed in this section, and except for accessory recreational facilities including swimming pools, the maximum floor area of accessory buildings and structures in residential areas shall be calculated as follows:

a)

600 square feet of building footprint on any legal parcel; or

b)

1,000 square feet of gross floor area on parcels smaller than one-half acre or 50 percent of the gross floor area of the principal structure, whichever is less; or

c)

50 percent of the gross floor area of the principal structure on parcels one-half acre or larger located in areas where adjacent lots are one-half acre or larger.

7)

Height. Playhouses, patios, cabanas, porches, gazebos, and incidental household storage buildings shall not exceed 15 feet in height. Except as otherwise expressly limited or allowed, no accessory structure shall exceed 25 feet in height.

8)

Other bulk regulations. Accessory structures and uses shall otherwise comply with the bulk regulations applicable to principal buildings/structures in the zoning district in which they are located.

F)

Standards Governing Home Businesses. Home businesses shall be allowed as provided for and shall be governed by the following regulations.

1)

Operational standards.

a)

Home businesses shall be operated entirely from an enclosed structure. No outside activities or operations associated with the business shall be permitted at the home.

b)

No equipment shall be used that creates a nuisance due to noise, odor, glare, vibrations or electrical interference, as detectable at the property lines.

c)

The operation shall not result in increased on-street parking in the area.

2)

Outdoor appearance.

a)

The home business shall be conducted in such a manner so as to maintain the residential character of the building and in such a manner as not to give an outward appearance nor manifest any characteristic of a business.

b)

No changes in the exterior appearance of the dwelling to accommodate the home business shall be allowed, except that one home business sign complying with all applicable requirements of Section 5.15 shall be allowed per dwelling unit.

c)

No outdoor storage of materials or equipment in conjunction with the home business shall be permitted.

3)

Employees. There shall be a maximum number of two non-resident employees per home business.

4)

Parking.

a)

A home business shall provide additional off-street parking adequate to accommodate all needs created by the home business, but in no case shall designate more than two additional, permanent off-street parking spaces.

b)

Required off-street parking to serve a home business shall not be permitted in the front setback of the dwelling, other than in a driveway.

5)

Personal and professional services. Personal and professional services shall be provided on an appointment-only basis.

6)

Prohibited home businesses. The following uses and activities shall not be permitted or conducted as a home business, although they may be permitted as businesses in some zones under other provisions of this Land Use Code:

a)

Adult business uses;

b)

Bed and breakfast inns;

c)

Funeral homes;

d)

Hotels;

e)

Metal work and blacksmithing;

f)

Restaurants;

g)

Retail sales and services, except the following, which are permitted: catalog and mail order services that do not maintain stock for sale on the premises; home occupations which involve hand work, such as the making of rugs, blankets, clothing, pottery, jewelry, painting, and baskets; and artist studios;

h)

Vehicle or equipment sales, rental, or repair;

i)

Veterinary facilities/small animal clinics, kennels or hobby breeder facilities;

j)

Any occupation involving the storage of hazardous materials for commercial application; or

k)

All industrial uses.

3.3.3 Temporary Uses.

A)

Uses Allowed. Temporary uses shall be allowed in accordance with the standards of this subsection. These uses may require an approved Zoning Permit from the Community Development Department and in some cases a Business License.

1)

Fairs, carnivals and other public gatherings. Fairs, carnivals and other public gatherings shall be allowed as follows:

a)

In RA and RB zoning districts, such uses shall be allowed for up to three consecutive days on the site of an institutional or civic use. Two events are allowed per calendar year.

b)

In R, C, I, and PUD zoning districts, such uses shall be allowed for up to five consecutive days.

2)

Natural disaster and emergencies personal assistance locations. Temporary uses and structures needed to provide personal services as the result of a natural disaster or other health and safety emergencies are allowed for the duration of the emergency.

3)

Parking lot sales. Parking lot sales are allowed in C and I zoning districts for up to seven consecutive days at any one time. Up to four such sales are allowed per calendar year.

4)

Seasonal outdoor sales. Seasonal outdoor sales associated with an existing commercial use are allowed for up to one month at any one time.

5)

Farmers market. Seasonal outdoor sales of fresh produce and other items associated with the farming industry.

6)

Real estate sales offices. Sales offices are allowed on residential development sites in any zoning district until all lots or houses are sold. Use of the sales office for sites outside of the project is prohibited.

7)

Short-term recreational and entertainment events. Short-term recreational and entertainment events, such as concerts, shall be allowed in the R, C, I, and PUD zoning districts for up to two consecutive days. Such events shall be exempt from the noise restrictions of Section 5.14 for the duration of the permit.

8)

Other uses. The Community Development Director may approve other temporary uses and activities or special events if it is determined that such uses will not jeopardize the health, safety or general welfare, or be injurious or detrimental to properties near the proposed location of the activity.

B)

General Regulations. All temporary uses shall comply with the provisions of this section.

1)

Permanent changes to the site are prohibited.

2)

Permanent signs are prohibited. All temporary signs associated with the temporary use shall comply with the sign requirements in Section 5.15 and shall be removed when the activity ends.

3)

Temporary uses shall not violate any applicable conditions of approval that apply to the principal use on the site.

4)

All other required permits, such as health department permits, shall be obtained.

5)

Temporary uses shall be subject to site plan review as required by the Zoning Permit process.

C)

Approval Criteria. The Community Development Director shall approve a temporary use if it is determined that all of the following conditions are met:

1)

That the proposed site is adequate in size and shape to accommodate the temporary use;

2)

That the proposed site is adequately served by streets or highways having sufficient width and improvements to accommodate the kind and quantity of traffic that such temporary use will or could reasonably generate;

3)

That adequate parking to accommodate vehicular traffic to be generated by such use will be available either on-site or at alternate locations (with an approved alternative parking plan); and

4)

That the operation of the requested use at the location proposed and within the time period specified will not jeopardize, endanger, or otherwise constitute a menace to the public health, safety, or general welfare.

D)

Conditions of Approval. In approving temporary use requests, the Community Development Director shall be authorized to impose such conditions upon the premises benefited by the Zoning Permit as may be necessary to reduce or minimize any potential adverse impact upon nearby property, so long as the condition relates to a situation created or aggravated by the proposed use and is roughly proportional to its impact. For example, the Community Development Director shall be authorized to require:

1)

Provision of temporary parking facilities, including vehicular access and egress;

2)

Control of nuisance factors such as, but not limited to, the prevention of glare or direct illumination of adjacent properties, noise, vibrations, smoke, dust, dirt, odors, gases, or heat;

3)

Limits on temporary buildings, structures, and facilities, including placement, height and size, location of equipment and open spaces, including buffer areas and other yards;

4)

Provision of sanitary and medical facilities;

5)

Provision of solid waste collection and disposal;

6)

Provision of security and safety measures;

7)

Regulation of operating hours and days, including limitation of the duration of the temporary use to a shorter time period than that requested or specified in this section;

8)

Submission of a performance bond or other financial guarantee to ensure that any temporary facilities or structures used for such proposed temporary use will be removed from the site within a reasonable time following the event and that the property will be restored to its former condition; and

9)

Establishment of acceptable noise levels.

(Ord. No. 1239, 6-9-2015; Ord. No. 1248, 8-9-2016; Ord. No. 1250, 10-25-2016; Ord. No. 1276, 2-26-2019; Ord. No. 1285, 9-24-2019; Ord. No. 1307, § 2, 11-9-2021; Ord. No. 1314, § 2—5, 9-13-2022; Ord. No. 1333, § 2—5, 11-12-2024)

3.4.1 Measurements and Exceptions.

A)

Definitions. All measurements listed in Table 3.4.2 are defined in Article II.

B)

Exceptions to Lot Area. No building permit or development approval shall be issued for a lot that does not meet the minimum area requirements of this Land Use Code except in the following cases:

1)

Utilities. Utilities using land or an unoccupied building covering less than 1,000 square feet of site area are exempt from minimum lot area standards.

2)

Detached dwelling unit exemption. The minimum lot area standards of this Land Use Code shall not prohibit the construction of a detached dwelling unit on a lot that was legally platted or recorded before the adoption of this Land Use Code, provided that the dwelling unit is constructed in compliance with all applicable dimensional standards.

C)

Exceptions and Permitted Encroachments to Setbacks. Setbacks must be unobstructed from the ground to the sky except that the following features may encroach into required front and/or rear setbacks:

1)

Landscaping;

2)

Bay windows, not to exceed three feet;

3)

Chimneys, not to exceed two feet;

4)

Driveways, curbs, and sidewalks;

5)

Flagpoles;

6)

Heating and cooling units, (rear setback only);

7)

Mailboxes;

8)

Overhanging roof, eave, gutter, cornice, or other architectural features and awnings, not to exceed three feet;

9)

Septic systems, well, and underground utilities;

10)

On-site basins for storm drainage;

11)

Steps, stairs, or fire escapes (non-enclosed), not to exceed five feet;

12)

Uncovered, unenclosed terraces or porches not to exceed five feet;

13)

Accessory buildings, within required rear setbacks only;

14)

Fences or walls eight feet or less in height, if otherwise allowed by Town regulations (fences and walls over six feet tall require a building permit from the New Mexico Construction Industries Division);

15)

Yard and service lighting fixtures, and poles; and

16)

Approved accessory uses as outlined in Section 3.3.2(E).

3.4.2 Density and Dimensional Standards. Development in the respective zone districts shall conform to the requirements denoted in Table 3.4.2 and accompanying standards stated in subsections (A) Special Cases, (B) large lot overlay zones and (C) street setback overlay zones. Residential density and non-residential intensity standards are maximum standards that may not be achieved due to site constraints, parking requirements, or other factors. Other regulations of this Land Use Code or site-specific conditions may further limit development on a site.

*See special cases below. N/A = Not Applicable, DU = Dwelling Unit.

A)

Special Cases.

1)

Corner lots or parcels. On a parcel bounded by two or more streets

a)

Setbacks not adjacent to streets shall be five feet.

b)

The owner of the parcel may determine which street the front of the lot shall face, provided that the street is not a major roadway corridor or primary arterial, in which case street setbacks shall conform to the street setback map.

c)

On a corner lot where 20 foot front setbacks are required on two sides, one setback may be reduced to a minimum 10 feet if not otherwise restricted by this Code, provided that the clear-sight triangle is not obstructed.

d)

On corner lots a clear-sight triangle shall be maintained in accordance with Chapter 42, Article V, Section 42-102 of the Code of Ordinances.

2)

Driveways. A driveway shall be at least 20 feet deep as measured from the closest edge of the street right-of-way.

3)

Setbacks of streets not located in a right-of-way. In situations where a street is not located in a right-of-way, the street setbacks shall be measured from a line 25 feet from the centerline of an existing local street and 32 feet from the centerline of an existing collector or arterial street. However, in no case may a structure encroach into a roadway easement.

4)

Attached buildings. No interior side setback is required on the "attached" side of a lot containing an attached dwelling or business. In the C-Lt and C-Hwy zone districts, the only attached buildings allowed are: Single-Family Attached, Mixed-Use and Commercial. In the MU zone district, the only attached buildings allowed are Single-Family Attached and Mixed-Use, but not Commercial.

5)

Accessory uses. Setbacks and other dimensional standards for accessory uses and structures are established in Section 3.3.2(E).

6)

Historic District Overlay Zone design standards. Setbacks and other dimensional standards for buildings in historic overlay zoning districts are established in Section 4.2.6.

7)

Manufactured home and RV park and subdivisions lot size. The minimum lot area per dwelling unit for manufactured home parks, manufactured home subdivisions, RV parks and RV subdivisions shall be as established in Section 3.3.1.

B)

Street Setback Overlay Zones.

1)

The zoning map shall indicate street setbacks in the street setback map according to the following overlay zones:

a)

20' Street setback. The street setback shall be 20 feet.

b)

10' Street setback. The street setback shall be 10 feet.

c)

0' Street setback. The street setback shall be 0 feet, except in locations where there is an inadequate right-of-way for the placement of a sidewalk, a minimum setback of 6 feet shall be maintained to provide for a sidewalk.

d)

50' Street setback. The street setback shall be 50 feet.

e)

Matching Street setbacks. The street setback shall be as established in Section 4.2.6(D).

2)

In zone districts where noted in Table 3.4.2 that street setbacks are set by the setback map, modifications to street setback requirements may be granted through the dimensional adjustment process (Section 6.3.18) or variance process (Section 6.3.19) for individual lots or parcels, and through the zoning map amendment process (Section 6.3.2) for multiple parcels (e.g. for a new subdivision).

C)

Large Lot Overlay Zones. The zoning map shall indicate those properties subject to the requirements of the Large Lot Overlay Zoning District by adding the designation to the underlying zoning district designations. Dimensional standards for the Large Lot Overlay are indicated in Table 3.4.2.

3.4.3 Alternative Residential Development Options. The alternative development options of this section allow for variety in development standards while maintaining the overall character of a single-family residential development.

A)

Flag Lots. Flag lots shall be allowed in the R zoning district pursuant to the standards of this subsection.

1)

Frontage. Each flag lot shall have at least 20 feet of street frontage and at least 20 feet of width for the entire length of the flag.

2)

Number. A maximum of one flag lot is allowed in subdivisions of four lots or less. No more than 20 percent of the lots within a subdivision containing five or more lots shall be flag lots. No more than two flag lots may be contiguous.

3)

Lot area calculation. The area of the flag may not be counted as part of the lot area for the purpose of establishing minimum lot size.

4)

Driveways. Driveways shall be designed to allow vehicles to drive out forward. Common driveways shall be required when two flag lots are contiguous.

B)

Single-Family Attached and Mixed-Use. Attached single-family or mixed-use development shall be allowed in accordance with the Use Table of Section 3.2. No interior side setback is required on the side of a lot where attached buildings are joined. The street, side and rear setback standards shall apply around the perimeter of an attached housing or mixed-use development.

C)

Zero Lot Line. In zero lot line development, houses are shifted to one side of each lot, to provide for greater usable yard space on each lot. These developments require planning for all of the house locations concurrent with the initial subdivision platting. Because the exact location of each house is predetermined, greater flexibility in site development standards are possible while assuring that the single-family detached character of a neighborhood is maintained.

1)

Applicability. Zero lot line developments are allowed by right in any residential zoning district.

2)

Review and approval. Review for compliance with the standards of this section shall occur during the platting process. Restrictions that assure the minimum distance between houses and any required easements must be recorded on the plat and on the deeds of the applicable lots. Proof of such recordation must be submitted as part of the building permit application.

3)

Setbacks. The side building setback on one side of the house may be reduced to zero. This reduction does not apply to the street side setback or to the interior side setback adjacent to lots that are not part of the zero lot line project.

4)

Distance between houses. The minimum distance between all buildings in the development must be equal to twice the required side setback required by the underlying zoning district. A deed restriction must be recorded on the deed of each applicable lot to ensure continued compliance with this setback.

5)

Eaves. The eaves on the side of a house with a reduced setback may project a maximum of 24 inches over the adjacent property line. In this case, an easement for the eave projection must be recorded on the deed for the lot where the projection occurs.

6)

Maintenance easement. An easement to allow for maintenance or repair is required when the eaves or side wall of a house are within four feet of the adjacent property line. The easement on the adjacent property must provide at least 10 feet of unobstructed space between the furthermost projections of the structure (other than eaves) and be wide enough to allow five feet between the eaves or side wall and the edge of the easement.

7)

Privacy. If the side wall of the house is on the property line, or within three feet of the property line, windows or other openings that allow for visibility into the side yard of the adjacent lot are not allowed. Windows that do not allow visibility into the side yard of the adjacent lot, such as a clerestory window or a translucent window, are allowed.

D)

Cluster Development. A cluster development is a residential subdivision in which the lots are allowed to be smaller or narrower than otherwise required in the zoning district (Cluster Lots), but in which the overall number of lots does not exceed the maximum number of lots allowed on the property by the zoning district. In a cluster development:

1)

Preservation of open space. At least 30 percent of the property shown on the subdivision plat must be preserved as contiguous, common open space located along natural corridors or adjacent to existing open space.

2)

Deed restriction or easement. Such common open space shall be preserved from development for a period of at least 40 years through the use of a recorded deed restriction or easement, and shall be conveyed to a Property Owner's Association or other organization with responsibility for maintenance of the open space and the ability to collect assessments or dues for such purpose. The Town shall be named as a third party beneficiary to the deed restriction for purposes of enforcement.

3)

Recording. Proof that such a deed restriction or easement has been recorded with the County Clerk must be submitted before any building permits for construction on a Cluster Lot shall be issued.

(Ord. No. 1239, 6-9-2015; Ord. No. 1276, 2-26-2019)