6.1.1 Planning and Zoning Commission.

A)

There shall be a Planning and Zoning Commission consisting of five members, all of whom shall be appointed by the Mayor with the advice and consent of the Town Council, and shall reside within the Town.

1)

Commission members shall be appointed for terms of two years, but may continue to serve until their successors have been appointed. All appointees shall be "at-large", but the Mayor shall make reasonable attempts to appoint members from each of the four voting districts of the Town. A vacancy in the membership of the Commission shall be filled for the remainder of the unexpired term.

2)

The Commission shall elect its chair from among its members for a term of one year with eligibility for re-election, and may fill such other of its offices as it may create in a manner prescribed by the rules of the Commission.

3)

The Commission shall hold at least one regular meeting each month and shall adopt rules for transaction of its business and keep records of its resolutions, transactions, findings and determinations which shall be public records. However, for good cause, the Commission may postpone or cancel an upcoming regular meeting. Good cause shall include a lack of business on an agenda.

4)

Members of the Commission shall be required to attend more than 75 percent of all regular meetings held during each year of a member's term. Failure to attend any three of 12 meetings shall be considered just cause and grounds for removal of that member.

5)

The Mayor, with the approval of the Town Council, may remove a member of the Commission for cause stated in writing and made part of the public record.

6)

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

7)

Members of the Planning and Zoning Commission shall not:

a)

Communicate, directly or indirectly, with any party or his or her representatives in connection with the merits of any issue before the Commission; or

b)

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

c)

Inspect the site at issue with any party or his or her representative, except as part of publicized and organized visit involving the entire Commission, the public, and any other parties.

8)

The Commission shall have those powers and duties provided herein and by state law (§ 3-19-4 NMSA 1978 or as subsequently amended). Among other things, the Commission may:

a)

Adopt a hearing schedule outlining submittal deadlines and staff review periods, and identify other timetables and requirements;

b)

Make studies, and recommend to the Town Council, plans, goals and objectives relating to the growth and development of the Town and the surrounding ETJ planning area;

c)

Develop and recommend to the Town Council policies, ordinances, administrative procedures, and other means for carrying out plans in a coordinated and efficient manner;

d)

Render final decisions on applications for conditional use permits and variances for major projects;

e)

Make recommendations to the Town Council concerning amendments to the text or map of this Land Use and Zoning Code, annexations, Planned Unit Developments (PUDs), and preliminary and final plats;

f)

Consider and decide appeals taken from administrative decisions made by staff;

g)

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

h)

Coordinate planning and development review processes in the Town's ETJ with its counterpart in Grant County;

i)

Possess all such other powers as may be necessary to enable the Commission to fulfill and perform its functions, promote municipal planning, and carry out the purposes of this Land Use and Zoning Code; and

j)

Perform any other duties assigned by the Town Council.

9)

From time to time, the Town Council may appoint one or more persons to help the Commission carry out its planning responsibilities. Members of any such Advisory Committee shall sit as nonvoting members of the Commission and lend their talents, energies and expertise to the Commission. However, all formal recommendations to the Town Council shall be made by the Commission.

6.1.2 Town Council. In addition to the responsibilities conferred by New Mexico Statutes upon the Town Council as the Governing Body of the Town of Silver City, the Town Council shall have the following powers and duties under the provisions of this Land Use Code:

A)

Consider and decide appeals taken from the final decisions of the Planning and Zoning Commission;

B)

Enact amendments to this Land Use Code and the Official Zoning Map;

C)

Defer authority to make decisions on specific types of items to Town staff as an administrative delegation;

D)

Review the recommendations forwarded by the Planning and Zoning Commission and/or Planning Director regarding applications for major subdivisions, rezoning of land, PUDs, annexation, or other matters authorized by this Land Use Code, and make final decisions regarding such matters;

E)

Study all issues which may impact the future growth, development and preservation of the environment of the Town, and adopt ordinances, regulations and policies related to such issues;

F)

Establish from time to time such policies and rules not in conflict with other laws as it may deem necessary to assure the proper administration and enforcement of this Land Use Code; and

G)

Coordinate planning and development review processes for the Town's ETJ with the Board of County Commissioners for Grant County, New Mexico.

6.1.3 Community Development Director. The Community Development Director, or his or her designee, shall have primary responsibility for administering and enforcing this Land Use Code, including the following duties and responsibilities:

A)

Review, consider and render interpretations of the text of this Land Use Code;

B)

Review and decide whether applications are complete and eligible for processing pursuant to the terms of this Land Use Code;

C)

Review and prepare staff reports with recommendations for the disposition of applications made pursuant to the terms of this Land Use Code;

D)

Ensure that adequate public notice is provided pursuant to the terms of this Land Use Code;

E)

Maintain the permanent files of each application and for each enforcement action undertaken pursuant to the provisions of this Land Use Code;

F)

Review site plans, drawings and specifications for building permits in coordination with the Town's building official;

G)

Undertake the current and long-range comprehensive planning responsibilities;

H)

Maintain the Official Zoning Map;

I)

Review demolition plans of registered historic landmarks and discuss potential alternatives to demolition with the owners of such structures;

J)

Review and approval of administrative subdivisions (Section 6.3.15);

K)

Review, as necessary, but at least every five years, the Comprehensive Plan and this Land Use Code and recommend amendments to the Planning and Zoning Commission and the Town Council;

L)

Coordinate other local, regional, state and federal planning and permitting processes affecting the Town and serve as liaison to such local, regional, state and federal planning agencies having jurisdiction over development; and

M)

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

6.1.4 Town Attorney. The Town Attorney shall have the following responsibilities and duties under this Land Use Code:

A)

Review for form, upon request, the written findings of fact and resolutions drafted by the Community Development Director, Planning and Zoning Commission and Town Council;

B)

Review for form, upon request, development agreements, easements, declarations of covenants, letters of credit, performance guarantees or other such documents;

C)

Initiate legal proceedings against violators of this Land Use Code as may be directed by the Town Council;

D)

Ensure that the public hearings required by this Land Use Code are conducted in the manner required by law; and

E)

Advise the Town Council, the Planning and Zoning Commission and the Community Development Director in regard to legal issues which may arise during the implementation of the Comprehensive Plan and this Land Use Code.

6.1.5 Town Engineer. The Town Engineer, or his or her designee, shall have the following responsibilities and duties under this Land Use Code:

A)

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

B)

Review and make recommendations regarding applications where required by this Land Use Code or requested by the Community Development Director.

C)

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

D)

Produce, approve, make and retain records of all drainage plans, drainage reports, design analyses, design drawings, as-built drawings and maintenance schedules related to all drainage control, flood control and erosion control facilities constructed within the Town's rights-of-way or easements.

E)

To review and make determinations regarding applications for drainage and grading permits and other permit applications requiring engineering review.

6.1.6 Floodplain Administrator. The Town's Floodplain Administrator shall have the responsibilities and duties under this Land Use Code, as described in Section 4.1.4.

6.1.7 Building Official. The Town's Building Official, certified by the State of New Mexico Construction Industries Division, shall have such powers and duties as are enumerated in the Building Code adopted by the provisions of Chapter 7 of the Code and as set forth in the current editions of the New Mexico Building Code or as may be required under the Town's Charter.

6.1.8 Design Review Committee. The Design Review Committee shall consist of a minimum of five members who have a demonstrated interest in historic preservation including the Community Development Director, the Director of the Silver City Museum, one architect appointed by the Mayor with experience in the modification or restoration of historic structures, and one building contractor appointed by the Mayor with experience in the modification or restoration of historic structures, and a resident of one of the four historic districts, each of which shall serve until the appointment of his or her replacement.

The Design Review Committee shall have the following responsibilities and duties under this Land Use Code:

A)

To designate structures as Silver City Landmark Structures pursuant to the procedures set forth in Section 4.2.3; and

B)

To consult with owners of designated landmark structures to determine if proposed internal or external modifications will compromise the historical character of the structure.

C)

The Committee shall adopt such bylaws, rules of conduct, and design standards as it may feel appropriate to accomplish its duties under Section 4.2.

1)

The Design Review Committee shall meet a minimum of four times a year at regular intervals, advertised in advance and open to the public.

2)

The Design Review Committee shall serve in an advisory role to departments of local government and other officials as required under 4 NMAC 4.10.10 as amended from time to time.

D)

To review and approve Mural Permit applications submitted for any mural proposed within the incorporated limits of the Town of Silver City pursuant to the regulations and procedures set forth in Section 6.3.22.

E)

To maintain a list of Registered Historic Structures and Structures Eligible for Registration. Within the Historic Overlay Zoning District, the Design Review Committee shall review nominations and maintain a current list of registered historic structures and a current list of buildings eligible to become registered historic structures according to standards established by the New Mexico Historic Preservation Division.

(Ord. No. 1189, 11-8-2011; Ord. No. 1222, 7-9-2013)

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

A)

The applicant may submit any information that he or she believes will assist the Community Development Director in understanding the type and scale of the proposed development, including any available drawing of the proposed development.

B)

The Community Development Director shall summarize the requirements of the Land Use Code and the applicable goals and policies of the Comprehensive Plan. The Community Development Director shall make a preliminary determination of the type of development approvals and permits required by the applicant, discuss the procedures for application submittal and review, and provide the applicant with the appropriate application and a checklist of the submittal requirements.

C)

The pre-application stage is for the informal exchange of information only, and neither the applicant nor the Town staff, Planning and Zoning Commission nor the Town Council, shall be bound by any statements or determinations made during the pre-application conference. Any time limits imposed by this Land Use Code will not be applicable to the pre-application conference.

6.2.2 Types of Plats. Land may not be divided into lots or tracts for sale or development except in accordance with and pursuant to one of the following types of plats:

A)

Administrative Plat.

B)

Final Plat.

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

A)

Building Permit;

B)

Conditional Use Permit*;

C)

Dimensional Adjustment Permit;

D)

Drainage and Grading Permit;

E)

Encroachment Permit*;

F)

Floodplain Development Permit*;

G)

Home Business Permit;

H)

Sign Permit;

I)

Work Order;

J)

Yard License;

K)

Zoning Permit;

L)

Accessory Use Occupancy of a Parked Recreational Vehicle;

M)

Moving Permit.

* Recorded with the Grant County Clerk.

In some cases, a permit cannot be issued until a subdivision of the land has been approved (see Sections 6.3.15 and 6.3.16).

6.2.4 Application Process. Applications shall be made on the forms provided by the Community Development Director.

A)

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

B)

With respect to all plans and other documents required by this Land Use Code, the applicant shall submit the number of copies (not to exceed 15) that the Community Development Director deems necessary to expedite the review process and to provide necessary permanent records.

C)

Applications shall be submitted to the Community Development Director, who shall have responsibility for determining whether the submitted application is complete.

1)

The time frames for review and action set forth in this Land Use Code shall begin when the Community Development Director deems the application complete.

2)

If the Community Development Director determines that the application is not complete, he or she shall provide the applicant with a written statement of the additional items required within 10 days of submission of the application.

3)

Applications shall be deemed abandoned when information and/or fees identified as necessary by the Community Development Director for the completion of the application are not received by the Community Development Director within 90 days of notification. During the 90-day time period, the applicant may request an extension of up to 180 days to complete the application. No review or public hearings shall be conducted on incomplete or abandoned applications.

D)

If more than one permit or review process is required, the applicant may elect to submit a consolidated application for review. Consolidated applications shall be reviewed, considered and decided by the highest level decision-maker that would have decided any part of the development proposal if it had been submitted, processed and considered as separate development applications. Decision-makers, from highest to lowest level, are the Town Council, the Planning and Zoning Commission, and the Community Development Director.

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

6.2.6 Applications to be Processed Expeditiously. Recognizing that inordinate delays in acting upon appeals or applications may impose unnecessary costs to the applicant or appellant, the Town shall make every reasonable effort to process permit applications and appeals as expeditiously as possible, consistent with the need to ensure that all development conforms to the requirements of this Land Use Code.

6.2.7 Information Required.

A)

Written Applications. Every applicant shall complete a written application containing at least the following information as deemed appropriate by the Community Development Director:

1)

The name, address, and phone number of the applicant.

2)

If the applicant is not the owner of the property in question, (i) the name, address, and phone number of the owner, and (ii) the legal relationship of the applicant to the owner that entitles the applicant to make application.

3)

The date of the application.

4)

Identification of the particular permit, or development approval sought.

5)

A succinct statement of the nature of the development proposed under the permit or the nature of the variance.

6)

Identification of the property in question by street address and tax map reference.

7)

The zoning district within which the property lies.

8)

The number of square feet in the lot where the development is to take place.

9)

The gross floor area of all existing or proposed buildings located on the lot where the development is to take place.

B)

Site Plans. The Community Development Director shall inform the applicant if a site plan is required to accompany the application. Generally, site plans will be required for projects involving commercial, industrial or multi-family development. The site plan may include the following as deemed appropriate by the Community Development Director:

1)

Include a location map that shows the location of the project in the broad context of the Town.

2)

Be drawn to scale, using such scale that all features required to be shown on the plan are readily discernible.

3)

Show on the first page the name of the applicant, the name of the development (if any), north arrow, legend and scale.

4)

Show all existing and proposed natural, man-made and legal features on the land where the development is to take place, including, but not limited to, the following:

a)

Existing natural features, including:

i)

Tree line of wooded areas;

ii)

Streams, ponds, drainage ditches, boundaries of floodways and floodplains;

iii)

Base flood elevation data for proposed subdivisions; and

iv)

Topographical contour lines (shown as dotted lines) with no larger than two-foot contour intervals.

b)

Existing and proposed man-made features, including:

i)

Buildings, structures and signs (including dimensions of each);

ii)

Streets, private roads, sidewalks and other walkways and/or trails;

iii)

Vehicle accommodation areas (including parking areas, loading areas, circulation areas), surface materials and the layout of existing parking spaces and direction of travel lanes, aisles or driveways;

iv)

Curbs and gutters and other stormwater or drainage facilities;

v)

Underground and aboveground utility lines and facilities;

vi)

Fire hydrants;

vii)

Location of exterior light fixtures; and

viii)

Finished grades, cut and fill slopes, landscaping, revegetation plans, and drainage facilities.

c)

Existing legal features, including:

i)

Zoning of the property, including zoning district lines where applicable;

ii)

Property lines, with dimensions identified;

iii)

Street right-of-way lines; and

iv)

Utility or other easement lines.

d)

Proposed new legal features on the land where the development is to take place, including:

i)

New property lines;

ii)

Street right-of-way lines;

iii)

Utility and other easements; and

iv)

Proposed new man-made features.

C)

Additional Information Required. In addition to a written application and/or a site plan, whenever the nature of the proposed development makes information or documents such as the following relevant, the Community Development Director may require that such information or documents be provided by the applicant.

1)

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

2)

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

3)

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

4)

Bonds, letters of credit, or other surety devices.

5)

Complete documentation justifying any requested deviation from specific requirements established by this Land Use Code.

6)

Time schedule for completion of phases in staged development.

7)

The environmental impact of a development, including its effect on historically significant or ecologically fragile or important areas and its impact on pedestrian or traffic safety or congestion.

8)

Traffic impact study or analysis.

D)

Every applicant shall submit those items identified for the application or approval requested, as set forth in Section 6.3.

6.2.8 Citizen Participation.

A)

Purpose. The purpose of this section is to facilitate neighborhood involvement in the planning process, by requiring applicants to involve members of the public in the land use and development process. It is not intended to result in complete consensus on an application, but rather to facilitate communication between an applicant and the citizens affected by the applicant's proposal(s). More specifically, the provisions of this section are designed to achieve the following objectives:

1)

Ensure that the citizens and property owners of Silver City have the opportunity to learn, early in the application process, about land use proposals that may affect them.

2)

Afford citizens an opportunity to voice opinions on proposals that may impact the neighborhoods in which they live or own property.

3)

Ensure that citizens and property owners have the opportunity to work with applicants and Town staff to resolve concerns they may have regarding such proposals.

4)

Encourage applicants to be good neighbors by working to mitigate any real or perceived impacts their proposals may have on the community.

B)

Applicability.

1)

Any land use or development-related application that requires a public hearing before the Planning and Zoning Commission, as indicated in Table 6.3.1, shall require a citizen participation report unless such requirement is waived by the Community Development Director or designee. The decision to require a citizen participation report shall be final and is not subject to appeal.

2)

Upon receiving an application requiring a public hearing before the Planning and Zoning Commission, the Community Development Director or designee shall determine whether a citizen participation report is required. Situations in which a citizen participation report may be waived include, but are not limited to:

a)

Proposals anticipated to have a negligible impact on surrounding properties.

b)

Final plats for major subdivisions for which a citizen participation report has already been submitted.

c)

Proposals located in exclusively non-residential areas.

d)

Variance requests for less than 25 percent of the requirements outlined in Table 3.4.2, "Density and Dimensional Standards."

e)

Appealed applications.

3)

In instances where the citizen participation report has been waived by the Community Development Director or designee, the Planning and Zoning Commission or Town Council may require by ⅔ vote of those present and not abstaining that a citizen participation report be submitted. At any time during the application review and approval process, the hearing body (Planning and Zoning Commission and/or Town Council) also may require any of the following:

a)

That a larger target notification area be designated.

b)

That the applicant conduct additional notification.

c)

That the applicant hold a citizen participation meeting or hold an additional meeting, with a summary of the results of this meeting to be attached as an addendum to the applicant's original citizen participation report.

d)

That the applicant implement another form of citizen participation.

4)

When any of the items listed in Subsection (B)(3) above has been required by the hearing body the application shall not be scheduled for a subsequent public hearing until all procedures are complete and, if required, the addendum to the original citizen participation report has been submitted to the Community Development Department.

5)

The total number of citizen participation procedures required by the Community Development Director, the Planning and Zoning Commission and the Town Council shall not exceed three per application, although the applicant may choose to conduct additional procedures that are not otherwise required.

C)

Application Procedure.

1)

Public notification: The target notification area required for the citizen participation effort may vary according to the type of application and location of the site. Within five business days of receiving a completed application requiring a hearing before the Planning and Zoning Commission, the Community Development Director or designee shall determine the extent of the public notification area and shall provide the applicant with a contact list of all property owners within the public hearing notice area as required in Section 6.2.11. (G, H and J) and the Citizen Participation Report form. The Community Development Director or staff shall inform the applicant of the due date for the contact list and the Citizen Participation Report form.

2)

A larger target notification area may be required for proposals that are anticipated to have a significant impact on the surrounding area for reasons including, but not limited to:

a)

Size and intensity of the proposed project;

b)

Increase in density;

c)

Anticipated major traffic impacts and/or increase in vehicular traffic;

d)

Change in category of land use; and/or

e)

History of prior neighborhood concerns regarding development in the area.

3)

At a minimum, those notified shall include property owners within the public hearing notice area (as defined in Section 6.2.11, G, H, and J). Those required to be notified may also include the following, which the Community Development Director or designee shall include on the contact list:

a)

Any identifiable homeowners association within the required notification area;

b)

Town Councilor in whose district the proposal is located;

c)

Any person who has made a written request for notice of such application(s); and

d)

Any public agency or entity that may have an interest in land within the required notification area (e.g., Bureau of Land Management, State Land Office, Grant County, school district).

4)

Compliance with all notification procedures for citizen participation shall be the sole responsibility of the applicant.

D)

Citizen Participation Procedure. For any application requiring a citizen participation report, the applicant shall implement the citizen participation procedures, as follows:

1)

The applicant shall contact all parties within the target notification area as identified on the contact list provided by the Community Development Department. The applicant shall note the date(s) and time(s) each property owner is contacted and the method(s) of contact(s).

2)

Prior to the scheduled public hearing on the application, the applicant shall provide those within the target notification area an opportunity to discuss the proposal and express any concerns, issues, or problems with the proposal. The citizen participation procedures may include any of the following:

a)

A neighborhood meeting or open house at which the applicant presents the proposal and gives those affected or otherwise interested an opportunity to comment;

b)

A letter sent to all parties on the contact list describing the proposal and providing a way to contact the applicant to discuss the proposal; and/or

c)

A personal visit to each party on the contact list to discuss the proposal.

3)

The applicant is strongly encouraged to work with those within the target notification area to resolve as many differences as possible prior to the formal public hearing. This may require conducting more than one citizen participation procedure.

4)

After completion of the citizen participation procedures, the applicant shall complete the Citizen Participation Report form for submittal to the Community Development Department. The contact list and Citizen Participation Report shall be made available at the Community Development Department for public review and comment.

E)

Citizen Participation Report Submittal Requirements.

1)

After completion of the citizen participation procedure(s), the applicant shall submit the Citizen Participation Report form to the Community Development Department. This report shall contain the results of the completed citizen participation effort. The report must be submitted by the due date as determined by the Community Development Director or designee. Staff will review the citizen participation report for completeness.

2)

At a minimum, the Citizen Participation Report form shall include the following information:

a)

General information regarding the application;

b)

Techniques the applicant used to involve the public; and

c)

A written summary of the concerns, issues and problems expressed during the citizen participation process, including:

i)

The substance of the concerns, issues and problems;

ii)

How the applicant addressed or intends to address the concerns, issues and problems expressed during the process; and

iii)

Concerns, issues and problems that the applicant is unwilling or unable to address and why.

3)

Incomplete citizen participation reports shall be returned to the applicant for completion. Failure to submit a complete Citizen Participation Report form and contact list may delay the scheduling of the application on a public hearing agenda and/or may be taken into consideration by the hearing body.

6.2.9 Staff Report. For applications requiring review by the Planning and Zoning Commission or the Town Council, the Community Development Director shall refer the application to the appropriate review agencies and prepare a Staff Report that indicates whether, in the opinion of the Community Development Director, the development application complies with all applicable standards of this Land Use Code. Conditions for approval may also be recommended to eliminate any areas of existing non-compliance or mitigate any adverse impacts of the development proposal. Prior to the public hearing, the Community Development Director may request appropriate Town departments and public agencies to comment on the application. Comments received shall be made a part of the record of the public hearing.

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

A)

When the Community Development Director determines that the application is complete and that a public hearing is required by this Land Use Code, the hearing shall be scheduled for the next regular meeting according to the adopted schedule of the Planning and Zoning Commission or Town Council, whichever is the decision-making body, providing adequate time to ensure that the public notice requirements can be satisfied, or such later time as is mutually agreed upon by the applicant and the Community Development Director.

B)

The hearing shall be open to the public and all persons interested in the outcome of the appeal or the application shall be given an opportunity to present evidence and arguments and ask questions of persons who testify.

C)

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

D)

Knowing and willful submission of false or misleading testimony or evidence shall be a violation of this Land Use Code. Testimony offered by any party or witness appearing during the course of an application proceeding shall be presumed to be true and correct. If reliable information, however, shall come to the attention of the Community Development Director, the Planning and Zoning Commission, or the Town Council that false or misleading evidence was given by any person appearing in any proceeding, either in person or by written submission, where such false or misleading evidence was material to the outcome of the application process, the Community Development Director or the adjudicating body so involved shall take such steps as are required to investigate the matter. Evidence presented shall be deemed by the chair who is officiating the public hearing to be relevant and non-redundant. Applications shall remain pending during such investigation. Any application which has been found to have been affected by such false or misleading evidence shall be reconsidered by the adjudicating person or body, and the matter referred to the Town Attorney for consideration.

E)

The public hearing shall be conducted in the following manner:

1)

Testimony and evidence shall be taken under oath or affirmation.

2)

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

3)

Each person appearing at a public hearing shall state his or her name, state an address, and if appearing on behalf of an organization, state the name and mailing address of the organization.

F)

The order of the proceedings shall be as follows:

1)

All parties providing testimony are sworn and the packets provided to Commissioners or Councilors are made part of the record.

2)

The Community Development Director, or designated representative, shall present a written Staff Report which includes a narrative and/or graphic description of the application and may include a recommendation.

3)

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

4)

Public testimony shall be heard, and the public may question the applicant or staff.

5)

The applicant may respond and question any person providing testimony or evidence.

6)

The Community Development Director, Community Development Department staff, the Town Attorney, the Town Engineer, and any other Town staff may respond to any statement made by the applicant or any public comment.

G)

The decision-making body may impose reasonable limitations on the number of witnesses heard and the nature and length of their testimony.

H)

The decision-making body may continue the public hearing to a fixed date, time and place announced prior to recess. An applicant shall have the right to one continuance of the public hearing, if he or she so requests within the 72 hours preceding the hearing. The request must be filed in writing with the Community Development Director. Any subsequent continuances requested by any party shall be granted at the discretion of the body conducting the public hearing, and only upon a showing of good cause.

I)

In response to questions or comments by persons appearing at the hearing or to suggestions or recommendations by the Planning and Zoning Commission or Town Council, whichever the case may be, the applicant may agree to modify his or her application, including the plans and specifications submitted. Unless such modifications are so substantial or extensive that the decision-maker cannot reasonably be expected to understand the nature and impact of the proposed changes without revised plans before it, the decision-maker may approve the application with the stipulation that the permit will not be issued until plans reflecting the agreed upon changes are submitted to the Community Development Director.

J)

The decision-making body conducting the public hearing shall record the public hearing. The written or taped record of the proceedings, including testimony and statements of personal opinions, the minutes of the Secretary, all applications, exhibits and papers submitted, the Staff Report, and the decision of the decision-making body shall constitute the record.

K)

All records of decision-making bodies, including findings and a statement of the basis upon which such facts were determined, shall be public records, open for inspection at the Community Development Department during normal business hours upon reasonable notice.

L)

A copy of the public hearing record may be obtained by any person upon applying to the Community Development Department and paying the cost for duplication of the record.

6.2.11 Notice Required. Notices required pursuant to this Land Use Code shall conform to the requirements of State law and this section in order to afford the applicant, the public and interested citizens an opportunity to fully participate in the processes.

A)

Notice of public hearings shall be provided for each item below in accordance with the following requirements (B through K below).

1)

Adoption and/or amendments to the Official Zoning Map (B, C, D, E, F, G, H, and J below).

2)

Adoption and/or amendments to the text of this Land Use Code (B, C, E and I below).

3)

Adoption and/or amendments to any regulations, rules, resolutions that implement a specific provision of this Land Use Code, excluding policy guides of a technical nature used for design purposes (B, C, E and I below).

4)

Adoption and/or amendments to the Comprehensive Plan (B, C, and I below).

5)

Major subdivisions and annexations (B, C, D, E, F, G, H, I, and J below).

6)

Appeals taken pursuant to the terms of this Land Use Code (B, C, D, E, G, H, I, J and L below).

7)

Variances to the requirements of this Land Use Code, Conditional Use Permits, vacations, and encroachments (B, C, D, E, F, G, H, and J below).

8)

Administrative subdivisions, lot line adjustments, and easement vacations (K below).

B)

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

C)

Notice of all public hearings shall be published one time in a paper of general circulation in the Town of Silver City at least 15 days prior to the date of the public hearing.

D)

Notice shall be provided to the applicant by first class mail at least 10 days prior to the date of the public hearing.

E)

The Town shall endeavor to provide written notice to any person who has made a written request for notice and paid reasonable postage fees.

F)

The applicant shall post and maintain on the property one or more signs regarding the public hearing, as provided by the Community Development Director, at least 15 days prior to the date of the public hearing. One sign shall be posted along each public right-of-way abutting the property that the application would affect, in a location visible from the nearest public right-of-way. The applicant shall be responsible for removing the sign(s) within five days following the public hearing. Failure to properly post and maintain sign(s) during the posting period is grounds for deferral or denial of the application.

G)

Notice shall be given to neighboring property owners by first class mail at least 10 days prior to the public hearing. Neighboring property owners include all owners of real property as shown on the latest County Assessor's records where property lies partially or entirely within 300 feet of the property that is the subject of the public hearing.

H)

The same notice provided in subsection (G) above shall be given to all tenants of any or manufactured home park that is located within 300 feet of the property that is the subject of the public hearing.

I)

Written notice shall be provided to the Grant County Board of Commissioners at least 10 days prior to any public hearing to be held on subdivision applications, and amendments to this Land Use Code or the Comprehensive Plan pertaining to property located within the ETJ.

J)

The owners of real property to be noticed pursuant to this section shall be those owners identified on the latest County Assessor's ownership maps and records. The mailed notice is satisfied when notice is mailed to the last known addresses of such real property owners as identified in the latest County Assessor's records. Any person who attends the public hearing shall be considered to be legally noticed unless that person can provide evidence that they were not notified according to the provisions of this section.

K)

The applicant shall post and maintain on the property one or more signs indicating the intent to subdivide the parcel at least five days before approval. One sign shall be posted along each public right-of-way abutting the property that the applications would affect, in a location visible from the nearest public right-of-way. The applicant shall be responsible for removing the sign(s) within five days of approval of the subdivision. Failure to properly post and maintain sign(s) during the posting period is grounds for deferral or denial of the application.

L)

In the case of an appeal, any posting requirement shall be the burden of the subject property owner.

6.2.12 Notification of Decision. After the close of the public hearing, the decision-making body conducting the public hearing shall consider the application, the relevant supporting materials, the Staff Report and the public testimony given at the public hearing and shall render a decision or recommendation, as appropriate, either to approve, approve with conditions, or disapprove the application based on the standards of this Land Use Code.

A)

Decisions and recommendations shall be reduced to writing and include findings of fact and other factors considered, and a statement of the basis which such facts or factors were determined, with specific reference to the application of those findings to the relevant standards for approval or denial set forth in this Land Use Code.

B)

The Community Development Director shall notify the applicant of the written decision by certified mail within 15 business days of the decision. A copy of the decision shall also be made available to the public at the office of the Community Development Director, during normal business hours.

6.2.13 General Considerations in Rendering Decisions. This Land Use Code is intended to protect the interests of both present and future residents, landowners, neighbors and the general public. In rendering a decision, the decision-makers shall be bound to use the standards of this Land Use Code and other applicable regulations. The following rules shall govern decisions.

A)

Except as provided in B and C below, all decisions shall be based solely on written standards of this Land Use Code, or other relevant Town, county, state, or national codes, regulations and ordinances.

B)

The minimum standards of this Land Use Code shall be met; however, if written findings are made regarding the unique health, safety or general welfare concerns of a particular project or a particular site, higher standards may be imposed. Considerations of variances shall be pursuant to Section 6.3.19.

C)

Where interpretation is required in rendering a decision, the Purposes set forth in Section 1.3 shall be used to guide decisions.

D)

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

6.2.14 Opportunity for Appeal. All administrative decisions made by the Community Development Director shall be reviewed on appeal by the Planning and Zoning Commission. All final decisions made by the Planning and Zoning Commission shall be reviewed by the Town Council if appealed. Final decisions of the Town Council may be appealed to District Court pursuant to NMSA 1978, § 39-3-1.1. A decision made pursuant to this Land Use Code is final unless an appeal is filed with the Community Development Director within 15 days following the date the decision is mailed to the applicant.

6.2.15 Compliance with Permit Conditions. Permits are issued only when a review of the application submitted indicates that the development will comply with the provisions of this Land Use Code if completed as proposed.

A)

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

B)

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

6.2.16 Effect of Permit on Successors and Assigns. The permits issued pursuant to this Land Use Code authorize the permittee to make use of land and structures in a particular way. Such permits (except Home Business Permits and Yard Licenses) are transferable with the title or use of the property to which they relate. However, so long as the land or structures or any portion thereof covered under a permit continues to be used for the purposes for which the permit was granted, then:

A)

No person (including successors or assigns of the person who obtained the permit) may make use of the land or structures covered under such permit for the purpose authorized in the permit except in accordance with all terms and requirements of that permit.

B)

The terms and requirements of the permit apply to and restrict the use of land or structures covered under the permit, not only with respect to all persons having an interest in the property at the time the permit was obtained, but also with respect to persons who subsequently obtain an interest in all or part of the covered property and wish to use it for or in connection with purposes other than those for which the permit was originally issued, so long as the persons who subsequently obtain an interest in the property had actual or record notice of the existence of the permit at the time they acquired their interest.

C)

Whenever a permit is issued to authorize development (other than single-family or two-family residences) on a tract of land in excess of one acre, nothing authorized by the permit may be done until the record owner of the property signs a written acknowledgment that the permit has been issued so that the permit may be recorded in the Grant County Clerk's Office and indexed under the record owner's name as grantee.

6.2.17 Minor Deviations from Permits and Plans.

A)

Minor deviations from permits issued or plans approved by the Town Council, the Planning and Zoning Commission, or the Community Development Director are permissible and the Community Development Director may authorize such minor deviations. A deviation is minor if it has no discernible impact on the neighboring properties, the general public, or those intended to occupy or use the proposed development. No request for an increase in approved density, an increase in structure height, a decrease in open space, or a reduction in any required setback may be processed as a minor deviation.

B)

All other deviations or modifications from approved permits or plans will be processed as new applications. If such requests are required to be acted upon by the Town Council or Planning and Zoning Commission, new conditions may be imposed, but the applicant retains the right to reject such additional conditions by withdrawing his or her request for an amendment and may then proceed with the construction as originally approved under the previously issued permit.

C)

The Community Development Director shall determine whether a request qualifies as a minor deviation under the standard set forth above.

D)

Applicants for minor deviations shall submit a written request for such approval to the Community Development Director, and that request shall identify the changes requested and the reasons why such changes are needed. No fee shall be charged, and no public hearing shall be held. The Community Development Director shall approve or deny all changes in writing.

6.2.18 Expiration of Permits.

A)

All permits issued pursuant to the terms of this Land Use Code, regardless of type and placement within any Article of this Land Use Code shall expire automatically if, within one year after the issuance of such permits:

1)

The use authorized by such permits has not commenced, in circumstances where no substantial construction, erection, alteration, excavation, demolition, or similar work is necessary before commencement of such use, or

2)

Less than 10 percent of the total cost of all construction, erection, alteration, excavation or similar work on any development authorized by such permits has been completed on the site.

3)

Notwithstanding the provisions of subsections A) and B) of this section, the use authorized by such permits shall result in completion of the entire project for which the permit was issued within a time period of three years, unless otherwise provided for by the terms of this Land Use Code.

B)

If, after some physical alteration to land or structures begins to take place pursuant to a permit, and such work is discontinued for a period of one year, then the permit authorizing such work shall immediately expire.

C)

The Planning and Zoning Commission may extend for a period up to six months the date when a permit would otherwise expire if he or she concludes that:

1)

The permit has not expired, and

2)

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

3)

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

D)

Successive extensions may be granted for periods up to six months upon the same findings. All such extensions may be granted without resort to the formal processes and fees required for a new permit.

E)

Notwithstanding any of the provisions of Article VII (Non-conformities), this section shall be applicable to permits issued prior to the date this Land Use Code becomes effective.

6.2.19 Expiration or Vacation of Final Plats.

A)

Final plats approved in accordance with this Code shall lapse and shall not be effective to result in the creation of legal lots or parcels for sale or development if the Final Plat has not been recorded within one year after final approval by the Town Council.

B)

Recorded Final Plats shall be eligible for vacation or partial vacation by action of the Town Council if, within three years of their recording:

1)

No lots or tracts have been sold for consideration through deeds referencing the plat; and

2)

No work has commenced to complete improvements required by the terms of the plat or in any related Development Agreement.

C)

Vacation of a plat, or a portion of the plat, may be initiated by either the Town Council, the developer, or the property owners of the affected parcels.

D)

Before vacating or partially vacating an approved Final Plat, the Town Council shall hold at least one public hearing and shall give the same notice of such hearing as would be required for approval of the Final Plat; except that in addition to such notice, all property owners of the affected parcels shall receive notice by first class mail of the public hearing.

E)

The Town Council may vacate, or partially vacate, a Final Plat if it finds that: (1) it is unlikely that the subdivision will be developed as reflected on the Final Plat or that required improvements will be constructed; (2) vacation or partial vacation of the plat will not result in denial of access to any parcel offering legal access through streets shown on the Final Plat; and (3) the vacation or partial vacation of the Final Plat is reasonable to protect the health, safety and general welfare. The Town Council shall not vacate or partially vacate a Final Plat if it will adversely affect the interests or rights of persons in contiguous territory or within the subdivision being vacated.

F)

The Town Council may require that streets, and other public improvements, dedicated to the Town in the original plat shall continue to be dedicated to the Town. If the Town Council determines that such public improvements or streets are not necessary for the public health, safety and general welfare of the community, then the owners of lots on the vacated plat or on the portion of the plat being vacated may enclose in equal portions the adjoining streets and alleys which are authorized to be abandoned by the Town Council. The rights of any utility already existing shall not be affected by any vacation or partial vacation of a Final Plat.

G)

In the event that the Town Council decides to vacate or partially vacate a Final Plat, the revised plat shall be filed in the office of the County Clerk provided that the owners of the land in the territory proposed to be vacated sign a statement, duly acknowledged, declaring the plat or a portion of the plat to be vacated and the statement is endorsed "Approved" by the Town Council.

H)

The County Clerk shall mark the applicable words "Vacated" or "Partially Vacated" across the plat and shall refer on the plat to the volume and page on which the statement of vacation or partial vacation is recorded.

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

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

6.3.1 Summary Table of Administrative Procedures. Table 6.3.1 summarizes the review and approval procedures for specific types of applications.

R—Review and recommendation, D—Decision-Maker, final action, H—Public hearing, A—Considers Appeal. (1)—Building Permits are appealed to the Construction Industries Division.

6.3.2 Amendments to Official Zoning Maps or Text of this Land Use Code. This section provides a means for changing the boundaries of the Official Zoning Maps or the text of this Land Use Code. Amendments are for the purpose of making necessary adjustments in light of changed conditions or changes to the Comprehensive Plan. Changes to the official zoning maps may include changes in zoning as well as setbacks (Section 3.4.2(B)) and large lot overlay zones (Section 3.4.2(C)), as applicable.

A)

Initiation of Amendments.

1)

An amendment to the Official Zoning Map may be proposed by the Town Council, the Planning and Zoning Commission, the Community Development Director, or the landowner by application.

2)

An amendment to the text of this Land Use Code may be proposed by the Town Council, the Planning and Zoning Commission, or the Community Development Director.

3)

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

B)

Review Procedure.

1)

The Community Development Director shall prepare a Staff Report concerning the proposed amendment which shall include his or her recommendation to approve, modify or deny the proposed amendment.

2)

The Planning and Zoning Commission shall conduct at least one public hearing and make a recommendation to the Town Council to approve, modify or deny the proposed amendment.

3)

Following the public hearing and recommendation by the Planning and Zoning Commission, the Town Council shall conduct at least one public hearing to make the final decision.

4)

The Town Council shall also consider any opinions and recommendations submitted by interested state and local agencies and the Grant County Board of County Commissioners.

5)

At the conclusion of the public hearing on a proposed amendment, the Town Council may proceed to vote on the proposed amendment, refer it back to the Planning and Zoning Commission for further study, or take any action consistent with its rules of procedure.

C)

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

D)

Findings Required. When the Planning and Zoning Commission makes its recommendation to the Town Council, and when the Town Council makes the final decision, they shall, at a minimum, make at least one of the following findings:

1)

The proposed amendment is in substantial compliance (or not in substantial compliance) with the Town's Comprehensive Plan;

2)

The proposed amendment will not adversely affect the implementation of the goals and policies of the Town's Comprehensive Plan (or it will adversely affect the implementation of the goals and policies of the Town's Comprehensive Plan);

3)

The proposed amendment is justified in order to correct a mistake in the Town's Comprehensive Plan (an error in the assumptions about the property, surrounding uses, population forecasts, rate of land consumption or other factors);

4)

The proposed amendment will not adversely impact the public health, safety or general welfare and will promote the original purposes of the Land Use Code (or it will adversely impact the public health, safety or general welfare and will not promote the original purposes of the Land Use Code);

5)

The proposed amendment responds to changed conditions, such as changes in assumptions on capital investments, road locations, population trends, land committed to development, density, use or further studies that have been completed since adoption of the Land Use Code (or does not respond to changed conditions);

6)

The proposed amendment is necessary in order to respond to State and/or Federal legislation;

7)

The proposed amendment provides additional flexibility in meeting the objectives of this Land Use Code without lowering the standards of the Land Use Code.

E)

Effective Date. An amendment to the Land Use Code or the Official Zoning Map shall become effective after the Town has complied with the notice and publication provisions required by law for passage of ordinances.

F)

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

G)

Moratorium. The Town Council may declare a moratorium on the acceptance and processing of applications for development and/or issuance of building permits for a specific geographical area and for a specified length of time for the purposes of preparing an amendment to the text of the Land Use Code.

1)

Only the Town Council or the Planning and Zoning Commission may initiate the process for declaring a moratorium. The process shall be initiated by resolution. The Community Development Director may prepare a Staff Report with recommendations.

2)

Following notice, the Planning and Zoning Commission shall conduct a public hearing and make a recommendation to the Town Council to approve, modify or deny the proposed moratorium.

3)

When making its recommendation for approval or modification, the Planning and Zoning Commission shall, at a minimum, make one of the following findings:

a)

The moratorium is necessary to promote the health, safety and welfare of the area described in the moratorium;

b)

The moratorium is necessary to permit the staff, Planning and Zoning Commission, the Town Council, and the public to focus on the efficient and effective preparation of an amendment to the Land Use Code;

c)

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

4)

The final decision to approve, modify or deny a proposed moratorium shall be made by the Town Council after a public hearing. In declaring a moratorium, the Town Council shall, at a minimum, affirm the findings made by the Planning and Zoning Commission or make such findings listed in subsection (3) as may be appropriate.

5)

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

6.3.3 Annexation.

A)

Statutory Compliance. Annexation of lands to the Town shall be in accordance with the laws of the State.

B)

Initiation of Annexations. An annexation may be initiated in one of the following ways:

1)

The Town Council, by resolution of intent filed with the County Clerk, may seek to annex contiguous territory through the arbitration process (NMSA 1978, § 3-7-5);

2)

The Town Council may petition the municipal boundary commission (appointed according to State Statue, NMSA 1978, §§ 3-7-11 through 3-7-16 or as amended from time to time) to annex territory to the municipality; or

3)

Property owners may petition the Town Council to annex contiguous territory to the municipality. Annexation requests shall be accompanied by the appropriate applications for development, including subdivision application(s) and Conditional Use Permit application(s), where applicable. The applicant for an annexation undertaken by the petition method shall agree in writing to the timing of future capital expenditures necessary for major streets, water, sanitary sewer, and stormwater control facilities and is responsible for the costs of these improvements. The applicant must deed all water rights to the Town attached to the parcel to be developed and necessary to serve the new development. All applications and petitions for annexation shall be filed with the Community Development Director. The applicant is responsible for all fees associated with the annexation including, but not limited to surveying, engineering analysis, traffic impact studies, and legal fees.

C)

Information Required.

1)

Concept Plan. A Concept Plan is a generalized land use plan and development envelope for the area proposed to be annexed. A Concept Plan must cover all of the land area to be included in the annexation and identify the type, total amount, and location of all development to occur within the area (dwelling units and non-residential floor area); a proposed plan for pedestrian and vehicular circulation within and leading to the area to be annexed; and identification of all facilities and services, including water and sewer provision. The Concept Plan shall be used to assess the potential impact of the proposed annexation and shall not constitute approval of any specific pattern or land use.

2)

Fiscal Impact Analysis. A fiscal impact analysis shall be prepared for all annexation requests. The analysis shall project increased demands for the Town's services and facilities as a result of the annexation and projected growth within the annexed area. Revenue projections which offset increased financial demands should be considered and may include: increased property taxes, changes in water rates, and short-term stimuli resulting from new construction (e.g. Gross Receipts Taxes). An unfavorable fiscal impact analysis does not require that an annexation proposal be rejected, if it is determined that other favorable impacts to the community will result from the annexation.

3)

Levels of Service. The Town will identify the level of services existing within the Town and the level of services to be provided to areas proposed for annexation. Town services for which level of services shall be identified shall include, but may not be limited to, the following: water, sewer, streets, parks and recreation, fire, police, stormwater drainage and library. Applications for annexation shall be reviewed for potential impacts on the level of services identified by the Town.

D)

Review Procedures.

1)

The Planning and Zoning Commission shall conduct a public hearing in accordance with the notification and hearing procedures of this Code concerning the proposed annexation and forward its recommendation to approve, modify or deny the proposed annexation to the Town Council. The recommendation shall also include a recommendation on the proper zoning for the lands to be annexed.

2)

The Town Council shall conduct a public hearing following its receipt of the recommendation from the Planning and Zoning Commission. Following the public hearing, the Town Council shall determine whether to initiate the annexation process through either the arbitration method or the municipal boundary commission. Only if the public hearing is held to consider an annexation petition filed by property owners, shall the Town Council make the final decision.

E)

Criteria. The following criteria shall apply to petitions for annexation to the municipal limits. Furthermore, applications for subdivision plats in the Town's ETJ will be reviewed by the Town for consistency with the following criteria and the requirements of this Land Use Code.

1)

The territory to be annexed shall be contiguous to the Town limits and result in a more uniform and distinguishable Town form. This form may be defined by: (a) natural features such as drainage or ridges; (b) major roadways; (c) service boundaries; or (d) established lot lines.

2)

The territory to be annexed should be similar in character to the Town. Features to determine similar character may include lot size or land use for developed areas, or natural features such as a valley or ridge line for undeveloped areas. A similarity in density patterns between the Town and the territory to be annexed is also indicative of similar character.

3)

The territory to be annexed shall provide a positive long-term economic benefit to the Town as determined by a fiscal impact analysis.

4)

The territory to be annexed may include community features desired by the Town and identified in adopted community plans and policies. Examples include the opportunity to site a public facility not easily sited elsewhere (such as a landfill), or unique natural features (such as an undeveloped ridge top), or an economic development opportunity.

5)

The territory to be annexed may include environmental features which enhance the Town or may be preserved by incorporation into the Town's municipal limits.

6)

The territory to be annexed may include areas developed, or proposed to be developed, pursuant to a comprehensive mixed land use plan.

7)

The territory to be annexed, upon build-out, shall not diminish the level of services identified by the Town, unless such impacts can be mitigated within a reasonable period of time through development impact fees or other methods.

8)

The applicant has agreed to remedy any conditions of the property which are designated by the Town as adversely affecting health, safety, or general welfare, or that constitutes a nuisance or a hazard to the public.

9)

The applicant acknowledges that no building or utility permits shall be issued for the property until all applicable conditions have been met.

10)

The Town shall designate zoning districts to annexed land in accordance with the procedures of Section 6.3.2, including, as appropriate, overlay zones described in Section 3.4.2(B) for street setbacks and 3.4.2(C) for large lots.

6.3.4 Appeals.

A)

Aggrieved Persons May Appeal. The following persons may be considered aggrieved by a decision of the Community Development Director, the Town Engineer, the Town Attorney, other Town staff, or the Planning and Zoning Commission, and may file appeals with the Community Development Director.

1)

The applicant;

2)

Any person(s) having a legally protected personal interest, a pecuniary interest, a property right or property interest in the subject matter of the hearing which is adversely affected by the decision;

3)

Any person(s) owning a property interest within 300 feet of the subject site (excluding public rights-of-way).

B)

Requirements for Application. An appeal is made by filing a written notice of appeal with the Community Development Director which clearly articulates the reasons for the appeal, specifically citing and explaining one or more alleged errors:

1)

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

2)

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

3)

In acting arbitrarily or capriciously or manifestly abusing discretion.

C)

Review Procedures.

1)

An appeal must be filed with the Community Development Department within 15 days following the date the decision is mailed to the applicant. Untimely appeals shall not be considered,

2)

Upon receipt of a notice of appeal, the Community Development Director shall transmit to the Town Council or the Planning and Zoning Commission, whichever will hear the appeal, all the papers and other documents which constitute the record relating to the action appealed from. The appeal shall be heard no later than 45 days from receipt of the appeal by the Community Development Director, unless a waiver is mutually agreed upon by all concerned parties.

3)

An appeal to the Town Council shall be considered a public hearing subject to the requirements of Section 6.2.10.

4)

An appeal stays all actions by the Community Development Director seeking enforcement of or compliance with the order or decision appealed from, unless the Community Development Director certifies to the Town Council that a stay would cause imminent peril to life or property, because of facts stated in the certificate. In that case, proceedings shall not be stayed except by order of the Town Council or a court.

5)

In the case of an appeal from a decision of the Planning and Zoning Commission, notice of public hearing as required in Section 6.2.8 and 6.2.11 of this Code must be given by the Community Development Department and the appellant, provided that any posting requirement shall be the burden of the subject property owner. Proof thereof must be submitted at the time of hearing.

6)

If it appears that some additional evidence is necessary for the proper disposition of the appeal, the Town Council or Planning and Zoning Commission, whichever the case may be, shall be permitted to hear new evidence and/or remand the matter back to the person or body from which the original decision came with the specific reasons for the remand.

7)

The Town Council, by a super majority, or the Planning and Zoning Commission, by a simple majority, whichever the case might be, may reverse, affirm (wholly or partly), remand back or modify the order, requirement or decision or determination appealed from and shall make any order, requirement, decision or determination that in its opinion ought to be made in the case before it in order to remedy those situations noted in subsection (B) above.

D)

Appeal Standards. The purpose of the appeal is to determine if the decision being appealed meets the requirements of this Land Use Code. The Town Council (in the case of an appeal from the Planning and Zoning Commission), or the Planning and Zoning Commission (in the case of an appeal from the Community Development Director) is limited to the following determinations:

1)

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

2)

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

3)

The decision-maker made the decision on standards not contained in this or other Town ordinances, regulations or state law; or a standard was applied more strictly or broadly than is appropriate to implement the Town's Comprehensive Plan and this Land Use Code.

4)

The decision-maker made an error in applying a standard or measuring a standard.

5)

The Appellant has provided evidence demonstrating that the decision appealed from creates an undue hardship or unfairness when balanced against the strict enforcement of the Land Use Code.

E)

Judicial Review. The final decision on any application may be appealed to District Court, pursuant to NMSA 1978, § 3-21-9, provided all administrative remedies have been exhausted. Denials that could be approved through a variance or a beneficial use determination shall be submitted to the courts only upon the completion of the procedures contained in this Land Use Code.

6.3.5 Beneficial Use Determination. The purpose and intent of this Land Use Code is that every property owner in the Town should enjoy a beneficial use of his or her property. It is also the intent that such relief not increase the potential for damaging the health, safety or welfare of future users of the property or neighbors that might reasonably be anticipated if the property owner were permitted to build.

A)

General. In the event that a property owner in the Town believes that all beneficial use of his or her property has been denied, or "taken," by the application of this Land Use Code, then he or she shall submit an application for a beneficial use determination. A beneficial use determination is a process by which the Town evaluates the allegation that there is no beneficial use, and can provide relief from the regulations by granting additional development potential to permit a beneficial use of the property. The procedures provided herein shall be used prior to seeking relief from the courts in order that any denial of beneficial use of property may be remedied through a non-judicial forum.

B)

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

1)

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

2)

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

3)

A description of the specific portions of the regulations which are alleged to result in an elimination of all beneficial use of the property together with all appraisals, studies, and any supporting evidence, and any actions taken by the Town related to the property.

4)

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

5)

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

C)

Deprivation Standards. In determining whether a property owner has been deprived of all beneficial use of his or her property, the Town Council shall take into account the following factors:

1)

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

2)

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

3)

The Town Council shall consider whether the property is being singled out for different treatment than similarly-situated properties under this Land Use Code.

4)

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

5)

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

6)

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

7)

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

D)

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

1)

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

a)

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

b)

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

2)

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

6.3.6 Building Permit.

A)

Review Procedures.

1)

The Building Official shall have responsibility for reviewing applications for Building Permits and rendering a decision to grant or deny such a permit.

2)

The decision of the Building Official may be appealed to the Construction Industries Division of the State of New Mexico.

B)

Criteria. Before the Building Permit is issued, the Building Official shall obtain an opinion from the Community Development Director whether the proposed building(s) complies with the provisions of the Land Use Code and the terms of any approvals granted for the parcel pursuant to this Land Use Code. The Building Permit shall be issued if the application is in conformity with this Land Use Code, the IBC, NMBC and any other applicable building codes, as adopted by the Town.

6.3.7 Conditional Use Permit.

A)

Purpose. A Conditional Use Permit shall be required for those uses that are not permitted in the district 'by right', "A", but denoted as a "C" in the Use Table 3.2 in order to ensure that the use will not be detrimental to the public health, safety, and welfare of the community and will not impair the integrity and character of the zoning district in which it is located.

B)

Review Procedures.

1)

The Community Development Director shall prepare a Staff Report concerning the application for a Conditional Use Permit which may include his or her recommendation to approve, modify or deny the Conditional Use Permit.

2)

The Planning and Zoning Commission shall conduct at least one public hearing in accordance with the notification and hearing procedures of this Code and make a determination to approve, modify or deny the Conditional Use Permit.

3)

All conditions and restrictions shall be in writing and given to the applicant within five days of the decision by the Planning and Zoning Commission. The applicant shall acknowledge and agree in writing to the conditions within 10 days of receipt. If there is no signed agreement within such time, the application shall be considered denied.

4)

The decision of the Planning and Zoning Commission shall be final unless appealed to the Town Council in accordance with the procedures for appeals provided herein.

C)

Criteria for Approval/Findings Required. The Planning and Zoning Commission, in approving a Conditional Use Permit, shall make the following findings and may attach to the permit such reasonable requirements, in addition to those specified in this Land Use Code, to ensure that the development in its proposed location:

1)

Will not endanger the public health or safety,

2)

Will not injure the value of adjoining or nearby properties,

3)

Will be in harmony with the area in which it is located, and

4)

Will be in conformity with the Town's Comprehensive Plan, or other plans officially adopted by the Town.

D)

Issuance of Permit. If the applicant has agreed to the conditions, they shall be entered on the Conditional Use Permit and shall be enforceable in the same manner and to the same extent as any other applicable requirement of this Land Use Code. A Conditional Use Permit may be issued for a specified duration.

6.3.8 Drainage and Grading Permit.

A)

Purpose. A Drainage and Grading Permit authorizes the applicant to undertake grading, paving or other activity which is in compliance with design requirements of this Land Use Code. The design, construction and maintenance of all drainage control, flood control and erosion control facilities within the Town shall be performed in accordance with the procedures, criteria, and standards contained in the Land Use Code. A Drainage and Grading Permit shall be required for the following:

1)

Major subdivisions and re-subdivisions, prior to subdivision preliminary plat approval (including manufactured home parks, and recreational vehicle parks).

2)

Any residential, commercial or industrial development, meeting the following criteria, prior to the time of construction or Building Permit application, whichever is sooner:

a)

Grading, cut, fill or importation of material in excess of 50 cubic yards or grading of any area of one acre or more.

b)

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

c)

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

d)

Any development requiring off-site drainage facilities for access.

B)

Submittal Requirements.

1)

In addition to the general submittal requirements contained in Section 6.2.7, the applicant shall provide drainage control, flood control and erosion control information and/or commitments. The particular nature, location and scope of the proposed development will define the degree of detail required. A Drainage Plan, Drainage Report or other level of submittal may be required based on the criteria set forth in the Drainage Policy Guide or as specified by the Town Engineer.

2)

Applications for development of areas known to have been sanitary landfills shall be accompanied by a report which discusses the potential health and soil mechanics problems and their solutions. A geotechnical report may be required by the Town Engineer for cut and fill slopes which pose safety hazards. Such reports shall be prepared by a New Mexico Professional Engineer competent in soil mechanics.

C)

Review Procedures.

1)

The Town Engineer shall have responsibility for reviewing and making determinations regarding applications for Drainage and Grading Permits, based on the criteria below. The determination of the Town Engineer shall be in writing and state the reasons for the decision.

2)

The decision of the Town Engineer may be appealed to the Town Council.

D)

Criteria. The Town Engineer shall issue a Drainage and Grading Permit if he or she finds the following:

1)

The requested permit complies with the requirements of Section 5.6 of this Land Use Code;

2)

The proposed activity or change in the land affected will not result in post-development discharge from the site exceeding discharge from natural conditions (prior to grading or other development), immediately downstream of the proposed site. Downstream capacity shall not be exceeded as a result of development. Exemptions from this provision are:

a)

When drainage improvements built in compliance with Section 5.6 and the Drainage Policy Guide have been provided for the fully developed watershed that includes the proposed development. For purposes of this section, the term "fully developed watershed" refers to a hydrologic condition in which all areas upstream and downstream of a point in question are assumed completely developed, including any undeveloped areas which are assumed to be developed in accordance with development densities established in the Official Zoning Map of the Town of Silver City, adopted facilities master plans, and the hydraulic and hydrologic standards established by Section 5.6.

b)

When it can clearly be demonstrated that detention/retention at the site does not provide off-site flood relief due to the parcel size, location or other factors, and when a drainage fee has been paid, and such fee collected will be used to construct public flood control improvements that will be designed to mitigate the potential flood damage of floodwaters associated with the property from which the fees were paid. The amount of the fee shall be set pursuant to state laws regarding development impact fees, and shall be proportional to the cost of the detention/retention systems otherwise required for the property. The public flood control improvements shall be installed within a reasonable permitted time after the fees are collected.

3)

The requested permit complements and supports the goals of Section 5.6.1.

6.3.9 Encroachment Permit.

A)

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

B)

Review Process. The review shall include the following elements:

1)

The Community Development Director shall have responsibility for reviewing Encroachment Permits and making recommendation to the Town Manager to either approve, approve with conditions or deny the request. Documents necessary to review the application shall include a survey of the proposed or existing encroachment, proof that the applicant owns the property adjacent to the encroachment, and a paragraph explaining the reason for the encroachment request.

2)

The Town Manager shall render a decision to approve, approve with conditions or deny the request.

C)

Approval/Denial Process. An approval or denial shall include the following elements:

1)

Approval of the request shall be in the form of a permit.

2)

Denial requires the reasons be given to the applicant in writing within 15 days of the Town Manager's decision.

3)

The Town Manager's decision may be appealed to the Town Council using the procedure outlined in Section 6.3.4.

D)

Approval Criteria. The Town Manager may approve an Encroachment Permit if it is found that:

1)

The requested permit conforms to the Town's Comprehensive Plan, the Land Use Code and any relevant policies adopted by the Town, and

2)

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

3)

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

E)

Terms of the Permit. The permit shall include the following terms:

1)

The Permit may be terminated by the Town upon 90 days' notice to the permittee. Notice of termination shall require the removal of all encroaching structures or use.

2)

The permit shall never ripen into an easement, use or claim of ownership by the applicant.

3)

The Town shall not be liable for any injury or damage incurred on the area of the encroachment.

4)

The applicant shall indemnify and hold the Town harmless against any claims made against the Town consequent to the encroachment.

6.3.10 Floodplain Development Permit.

A)

Requirements for Application. An application for a Floodplain Development Permit shall be presented to the Town's Floodplain Administrator on forms furnished by him or her and may include, but not be limited to, plans in duplicate drawn to scale showing the location, dimensions and elevation of proposed landscape alterations, existing and proposed structures, including the placement of manufactured homes, and the location of the foregoing in relation to areas of special flood hazard. Additionally, the following information is required:

1)

Elevation (in relation to mean sea level), of the lowest floor (including basement) of all new and substantially improved structures;

2)

Elevation (in relation to mean sea level) to which any non-residential structure shall be flood proofed;

3)

A certificate from a registered professional engineer or architect that the non-residential flood proofed structure shall meet the flood proofing criteria of Section 4.1 of this Land Use Code; and

4)

Description of the extent to which any watercourse or natural drainage will be altered or relocated as a result of proposed development.

B)

Review Procedures.

1)

The Town's certified Floodplain Administrator shall have responsibility for reviewing applications for Floodplain Development Permits and rendering a decision to grant or deny such a permit.

2)

The Town's certified Floodplain Administrator shall also have responsibility for granting variances in accordance with the provisions of paragraph C below.

3)

The decision of the Floodplain Administrator may only be appealed to the Town Council when it is alleged that there is an error in any requirement, decision, or determination made by the Floodplain Administrator in the enforcement or administration of these provisions.

4)

The Floodplain Administrator shall maintain a record of all actions involving an appeal and shall report variances to the FEMA upon request.

C)

Criteria. The Floodplain Administrator shall approve or deny the request for a Floodplain Development Permit based on the requirements of this Land Use Code and the criteria in Section 4.1.4(C)(2).

6.3.11 Home Business Permit.

A)

Purpose. A Home Business Permit authorizes the applicant to conduct a business in his or her home if that business is compatible with the normal use and enjoyment of other homes in the neighborhood.

B)

Review Procedures.

1)

The Community Development Director shall have responsibility for reviewing applications for Home Business Permits and rendering a decision to grant or deny such a permit.

2)

The Community Development Director's decision may be appealed to the Planning and Zoning Commission.

3)

Home Business Permits shall not be transferable and shall not run with the land. All Home Business Permits shall expire upon the sale, transfer, or lease of the property to a new owner or tenant.

C)

Criteria. The Community Development Director shall issue a Home Business Permit provided that:

1)

The requested permit is in compliance with Section 3.3.2(F), and

2)

The home business complies with all requirements of the Land Use Code, and

3)

The permit is requested by, and shall be issued to, the resident of the dwelling unit in which the home business is to be conducted. If the resident rents the dwelling unit, the resident shall provide written permission from the dwelling unit's owner as part of the permit application.

6.3.12 Interpretation. An interpretation may be required when the provisions of this Land Use Code are not clear or when a use is proposed that is not listed in the Use Table 3.2.

A)

Review Procedures.

1)

The Community Development Director shall have responsibility for providing interpretations of this Land Use Code upon the request of any member of the public, the Planning and Zoning Commission or Town staff. Such requests shall be in writing and the Community Development Director shall provide his or her interpretation, in writing, within 10 days of the request.

2)

The Community Development Director shall maintain records of all written interpretations to ensure consistency and to provide guidance in the implementation of this Land Use Code in the future. Such records shall be public and available for public inspection.

3)

The Community Development Director's interpretation may be appealed to the Town Council.

B)

Criteria.

1)

Uses that are not listed in Use Table 3.2 shall be placed in the most similar category, or the category with the most similar impacts on nearby streets and properties.

2)

When evaluating a provision of this Land Use Code as to its meaning or application, the intent of the Town's Comprehensive Plan and the purposes listed in Section 1.3 and other sections of this Land Use Code shall be applied.

3)

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

4)

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

6.3.13 Planned Unit Development (PUD) Review.

A)

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

B)

Review Procedures. PUDs are approved in two steps. The first step involves review and approval of a re-zoning application to the PUD district and an accompanying Concept Plan. The second step involves review and approval of a Final PUD Plan for the development. Any major subdivisions proposed as part of a PUD shall be processed according to the subdivision procedure, as well. Applications for subdivision approval may be filed simultaneously with the PUD application; however, preliminary subdivision approval is contingent upon approval of the PUD.

1)

Sketch Plan and Pre-application Meeting. Applicants are required to attend a pre-application meeting and to present a Sketch Plan of the proposed PUD, in a format established by the Community Development Director. The Community Development Director and other Town administrative staff will meet with the applicant, review the Sketch Plan and discuss the goals and policies of the Town's Comprehensive Plan, the requirements of the Land Use Code and any other matters that will assist the applicant in preparing the PUD Concept Plan.

2)

Concept Plan and PUD Re-zoning. A Concept Plan is a generalized land use plan and development envelope for the area proposed to be included within a PUD district. It is required as a means of allowing early review of a proposed PUD before substantial planning work has been undertaken and before substantial expenses have been incurred. A Concept Plan must be processed and approved concurrently with a re-zoning to a PUD district. A Concept Plan must cover all of the land area to be included in the PUD and identify the type, total amount, and location of all development to occur within the PUD (dwelling units and non-residential floor area); a proposed plan for pedestrian and vehicular circulation within and leading to the PUD; and identification of all facilities and services, including water and sewer provision.

a)

The Concept Plan and the PUD Re-zoning applications, along with the required fees, shall be submitted to the Community Development Director.

b)

The Community Development Director may request review and comments from other Town staff. The Community Development Director shall review the Concept Plan and PUD Re-zoning applications, along with written comments provided by administrative staff, and prepare a Staff Report to the Planning and Zoning Commission.

c)

The Planning and Zoning Commission shall conduct a public hearing and make a recommendation for the Town Council to approve, approve with conditions, or deny the application, based on the criteria in subsection (C) below.

d)

After receiving the recommendation of the Planning and Zoning Commission, the Town Council shall hold a public hearing on the proposed Concept Plan and PUD Re-zoning applications. At the close of the public hearing, the Town Council shall approve, approve with conditions or deny the re-zoning and PUD Concept Plan, based on the criteria provided below. The decision of the Town Council shall be accompanied by written findings.

3)

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

a)

Applications for Final PUD Plan approval shall be submitted to the Community Development Director.

b)

The Community Development Director shall review the application to determine whether the application meets all of the applicable requirements of this Land Use Code; the approved Concept Plan and the PUD regulations and prepare a Staff Report with his or her determination.

c)

The Planning and Zoning Commission shall conduct at least one public hearing and make a recommendation of approval if the Final PUD Plan meets all of the applicable requirements of this Land Use Code, the approved Concept Plan and the PUD regulations.

d)

After receiving the recommendation of the Planning and Zoning Commission, the Town Council shall hold a public hearing on the Final PUD Plan. At the close of the public hearing, the Town Council shall approve the Final PUD Plan if the Final PUD Plan meets all of the applicable requirements of this Land Use Code, the approved Concept Plan and the PUD regulations. The decision of the Town Council shall be accompanied by written findings.

C)

Criteria. PUD Re-zonings, Concept Plans, and Final Plans may be approved by the Town Council only if they find that all of the following criteria have been met:

1)

The proposed Concept Plan is consistent with the Town's Comprehensive Plan.

2)

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

3)

The Concept Plan complies with the PUD regulations of the Land Use Code.

4)

The proposal is not significantly different from surrounding land uses within a ½ mile radius in terms of density, intensity and impacts, and it mitigates any potential adverse impacts to the maximum extent practical. For example, a PUD cannot be used to create a free-standing parking lot in a residential area.

5)

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

6)

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

7)

The proposal complies with the Historic Overlay design guidelines, as applicable.

D)

Development Agreements. Development Agreements are required for all PUDs in accordance with Section 5.1.9.

E)

Effect of Approval. A Concept Plan setting forth specific uses, densities, and locations shall be approved concurrently with each PUD Re-zoning. No Concept Plan may be approved without a PUD Re-zoning, and no PUD Re-zoning application may be approved until a Concept Plan for the development has been approved. Approval of a Concept Plan shall constitute acceptance of the uses, development intensities and general layout proposed for the PUD development. The Concept Plan shall govern the preparation of the required Final PUD Plans. Approval of the Concept Plan does not constitute approval of any subdivisions within the PUD.

F)

Lapse of PUD Plans.

1)

Concept Plan. All provisions of a PUD Concept Plan that differ from the previous zone district (prior to the PUD re-zoning) shall lapse and be of no further force and effect if a complete Final PUD Plan application for the PUD or a phase of the PUD has not been submitted within one year of the date of the Concept Plan approval by the Town Council. If the PUD is to be developed in phases, a phasing plan with lapse dates shall be approved as part of the Concept Plan approval. Once any applicable lapsing dates pass without approval of a Final PUD Plan, the Concept Plan shall be deemed to include only the uses, dimensional standards, and other provisions of this Land Use Code applicable to the prior zone district. In the event of a lapse, the Community Development Director shall record a lapse of approval affidavit with the Grant County Clerk and initiate action to re-zone the property to a zoning classification that is consistent with the Town's Comprehensive Plan.

2)

Final PUD Plan. The right to develop in accordance with an approved Final PUD Plan shall lapse and be of no further effect if all development shown on the approved Final Plan is not completed within five years of the date of Final PUD Plan approval or within any deadline set forth in the Final PUD Plan, whichever is greater. Once such date has passed, the Final PUD Plan shall be deemed to include only the uses, dimensional standards, and other provisions of this Land Use Code applicable to the property under the prior zone district. If approval lapses, the Community Development Director shall record a lapse of approval affidavit with the Grant County Clerk and shall initiate action to re-zone the property to a zoning classification that is consistent with the Town's Comprehensive Plan.

6.3.14 Subdivision—Administrative.

A)

Purpose. The administrative platting process allows the Community Development Director to approve or disapprove minor subdivisions, in an expedited manner, without a public hearing. This process is intended to be consistent with the alternate summary procedure provided by state law (NMSA 1978, § 3-20-8). Subdivisions resulting from the administrative platting process shall conform to applicable zoning dimensional requirements, including but not limited to: minimum lot size and minimum street frontage. Subdivisions which qualify as administrative subdivisions are:

1)

Subdivisions of not more than two parcels of land; or

2)

Re-subdivisions, where the combination or recombination or portions of previously platted lots does not increase the total parcels of land; or

3)

Lot line adjustments to relocate a property boundary between two adjoining lots when: a) no new lots or units result, and b) the lot line adjustment does not result in any remnant land; or

4)

Vacation of easements upon written acknowledgement from utility providers.

All other proposed subdivisions shall be reviewed and approved as Major Subdivisions.

B)

Submittal Requirements. In addition to the general submittal requirements contained in Section 6.2.7, the subdivider shall present a final plat certified by a licensed, registered surveyor.

1)

The plat shall refer to permanent monuments and shall accurately describe each lot, number each lot in progression, give its dimensions and the dimensions of all land dedicated for public use or for the use of the owners of lots fronting or adjacent to the land. The plat shall also include the location of existing buildings or structures, utilities, street rights-of-way, recorded easements and floodplain boundaries in relation to the proposed new parcel lines.

2)

The plat shall contain a statement that the subdivision of [insert a correct description of the land being subdivided], appearing on the plat is with the free consent and in accordance with the desire of the undersigned owner and proprietor of the land and shall be acknowledged by the owner and proprietor or his or her authorized agent in the manner required for the acknowledgment of deeds. If the plat is filed by a corporation, the acknowledgment shall be made by its president and secretary. (NMSA 1978, § 3-20-3)

C)

Review Procedures.

1)

The Administrative Plat shall be reviewed by the Community Development Director, who shall take prompt action to approve or deny the plat. However, the applicant or the Community Development Director may at any time refer the application to the Major Subdivision approval process.

2)

If the subject parcel(s) is located within the Town's ETJ, the Community Development Director shall consult with his or her counterpart in Grant County throughout the review process.

3)

If the Community Development Director denies the Administrative Plat, he or she shall promptly furnish the applicant with a written statement of the reasons for disapproval.

4)

The decision of the Community Development Director may be appealed to the Town Council.

5)

Approval of the Administrative Plat is contingent upon the plat being recorded within 60 days after the Community Development Director has endorsed the plat. Plats that are not recorded within such time shall be of no further effect. A copy of the filed plat shall be provided to the Community Development Department.

6)

The applicant shall post and maintain on the property one or more signs indicating the intent to subdivide the parcel at least five days before approval. One sign shall be posted along each public right-of-way abutting property that the application would affect, in a location visible from the nearest public right-of-way. The applicant shall be responsible for removing the sign(s) within five days of approval of the subdivision. Failure to properly post and maintain sign(s) during the posting period is grounds for deferral or denial of the application.

D)

Findings Required. The Community Development Director shall approve the Administrative Plat if he or she finds that:

1)

The plat is in substantial conformity with the requirements of this Land Use Code; and

2)

The plat complies with all applicable requirements as to lot size, lot frontage, street width, setbacks, and the granting of right-of-way and easements for streets, utilities, drainage, and other matters identified in Table 3.4.2 and Section 5.1, unless exempted herein; and

3)

The same parcel has not been subdivided within the previous 12 months to create a new lot. Resubdivisions and lot line adjustments that do not create new parcels, and easement vacations created through administrative subdivisions shall not be restricted to fewer than one per 12 month period; and

4)

Approval furthers the goals and policies of the Town's Comprehensive Plan.

6.3.15 Subdivision—Major.

A)

Purpose. The subdivision review process is intended to ensure that new parcels are created in conformity with the requirements of state law and the standards of the Land Use Code. Whenever feasible, the submittal requirements and reviews for subdivisions, PUDs, and any other development applications will be consolidated. The subdivision review process is a three-step process, unless the subdivision qualifies for review and approval as an administrative plat (see Section 6.3.15).

1)

The first step is submittal and an informal staff review of a sketch plat to assist the applicant with the procedures and requirements of the Land Use Code.

2)

The second step is submittal, review and approval of a preliminary plat.

3)

The third step is submittal, review and approval of the final plat.

B)

Submittal Requirements. In addition to the general submittal requirements contained in Section 6.2.7, the subdivider shall provide the following:

1)

Sketch plat. A sketch plat drawn on a topographic survey map of the area showing the general layout of streets and lots of the proposed subdivision and the area to be developed.

2)

Preliminary plat. Fifteen copies of the preliminary plat shall be submitted and shall include the following:

a)

Vicinity map showing all existing subdivisions and the existing or dedicated streets, alleys and tract lines or acreage of parcels of land, and existing buildings on adjacent unplatted property, together with the names of the record owners of such parcels immediately adjacent to the proposed subdivision. The vicinity map shall also show the proposed subdivision in relationship to any landmarks or arterial streets which serve to influence the proposed subdivision.

b)

Location of, and principal dimension of, all existing or recorded section lines, streets, alleys, easements, watercourses, private sewers, floodplain boundaries or water mains and other important features within and immediately adjacent to the proposed subdivision.

c)

Topographic survey map with not more than two-foot vertical contour intervals.

d)

Location and direction of surface drainage flow.

e)

Location and principal dimension of the right-of-way of all proposed streets, alleys, easements and other areas designated for public use, as well as the projected future street system of the adjacent land.

f)

Proposed street names.

g)

Location of the existing and proposed utility lines and proposed street lighting plan, along with letters of approval or disapproval from appropriate officials of the power, telephone and gas companies.

h)

Zoning district boundary lines.

i)

A summary of site characteristics indicating the gross acreage of the subdivision; acreage devoted to various categories of land use by category; acreage designated for public use (streets, parks and other uses); lot areas; and maximum, minimum and average lot sizes.

j)

Reference to permanent monuments and accurate description and numbering of each lot in progression. The plat shall also include the location of existing buildings or structures in relation to the proposed new parcel lines, lot dimensions and the dimensions of all land dedicated for public use or for the use of the owners of lots fronting or adjacent to the land.

k)

A statement that the subdivision of [insert a correct description of the land being subdivided], appearing on the plat is with the free consent and in accordance with the desire of the undersigned owner and proprietor of the land and shall be acknowledged by the owner and proprietor or his authorized agent in the manner required for the acknowledgment of deeds. If the plat is filed by a corporation, the acknowledgment shall be made by its president and secretary. (NMSA 1978, § 3-20-3)

l)

The preliminary plat shall be accompanied by: (i) the profile of each street with tentative grades; (ii) typical cross-section of the proposed streets; and (iii) a plat and profile of proposed sanitary, stormwater, sewers and transverse drainage structures, with grades and pipe sizes indicated and a plat of the proposed water distribution system showing pipe sizes and location of valves and fire hydrants.

m)

In addition to the above requirements, one copy of a drainage plan or report as specified in Section 5.6 shall be submitted concurrent with the preliminary plat.

3)

Final Plat. The final plat shall be drawn on Mylar with all drawings and signatures in waterproof ink. Fifteen copies of the final plat shall be prepared and submitted in a form suitable for recording with the County Clerk in accordance with the requirements of state law.

a)

The final plat shall include the following:

i)

All information required on the preliminary plat.

ii)

Accurate dimensions of all lines, angles, and curves used to describe boundaries, streets, alleys, easements, areas to be reserved for public use.

iii)

An identification system for all lots and blocks and names for streets.

iv)

Signatures of approval on the final plat from appropriate officials of all public utilities (i.e., power, telephone and gas companies).

v)

Certification of a registered land surveyor, with his or her New Mexico registration number, as to the accuracy of the survey and plat and identification of the planning and platting jurisdiction.

b)

The applicant shall also submit proof that title to the land to be subdivided is vested in fee simple absolute in the owner and proprietor who has signed the final plat, and that the property taxes have been paid in full for the past 10 years. This proof shall be either an opinion of title signed by an attorney, or a commitment from a title insurance company licensed to do business in New Mexico that, contingent only upon the acceptance and recordation of the final plat, it will insure the titles to be acquired by purchasers of land within the subdivision, subject only to conditions and exceptions generally accepted in Grant County. The commitment from the title insurance company shall state that it is an inducement to the County to accept the plat and is offered in fulfillment of the requirement that the subdivider is currently vested in fee simple absolute in the property.

C)

Review Procedures.

1)

Preliminary Plats.

a)

When the Community Development Director deems the preliminary plat and application complete, he or she shall distribute copies of the preliminary plat to the appropriate Town staff and other agencies (including the Silver City Consolidated School District) for review and comments. If the land to be subdivided is located within the ETJ of the Town, the preliminary plat shall also be distributed to the appropriate officials in Grant County for review and comments.

b)

The following milestones shall be met in the review process: Application Deadline (due date for applications), Application Deemed Complete (application deemed complete), Staff Initial Comments (consolidated comments provided to the developer), Final Submittal (developer resubmits application), Completion Deadline (staff determines all comments resolved on the plat, drawings, or supporting documentation), and Delivery Deadline (packets delivered to the Commission members). The schedule for the milestones listed above will be as adopted by the Planning and Zoning Commission.

c)

The Community Development Director shall prepare and present a Staff Report with a recommendation to approve, conditionally approve, or deny the preliminary plat. The Staff Report may incorporate any of the comments received by the Town staff and reviewing agencies.

d)

The Planning and Zoning Commission shall conduct a public hearing on the preliminary plat, in accordance with the notice and hearing procedures of this Land Use Code. Following the public hearing, the Planning and Zoning Commission shall consider the Staff Report and testimony and exhibits submitted at the public hearing and shall recommend to approve, conditionally approve, or deny the preliminary plat.

e)

The Planning and Zoning Commission is authorized to recommend disapproval even though the land proposed for subdivision is zoned for the use to which the proposed subdivision will be put and the proposed use is consistent with the Town's Comprehensive Plan, if the criteria listed in paragraph (B)(2) above are not met.

f)

Following review and recommendation by the Planning and Zoning Commission, the preliminary plat shall be considered by the Town Council. The Town Council shall conduct a public hearing on the preliminary plat, in accordance with the notice and hearing procedures of this Land Use Code. Following the public hearing, the Town Council shall consider the recommendation of the Planning and Zoning Commission, the Staff Report and testimony and exhibits submitted at the public hearing and shall either approve, conditionally approve, or deny the preliminary plat.

g)

The approval of a preliminary plat shall be effective for a period of one year from the date the preliminary plat is approved by the Town Council, at the end of which time the applicant must have submitted a final plat for approval. If a final plat is not submitted within the one year period, the preliminary plat shall be null and void, and the applicant shall be required to submit a new preliminary plat for review subject to the Land Use Code, policies, and regulations then existing.

2)

Final Plat.

a)

A final plat may be submitted for a portion (phase) of the approved preliminary plat or for the entire area encompassed by the approved preliminary plat. If a subdivision is submitted for approval as an entire area, the developer must enter into a Development Agreement and provide a completion guarantee that the work shall be completed within two years. If the subdivision is too large to complete within two years, it must be phased and each phase shall go through the final plat process separately.

b)

When the Community Development Director receives the final plat and application, he or she shall distribute copies of the final plat to the appropriate Town staff and other agencies (including the Silver City Consolidated School District) to confirm compliance with all conditions established at preliminary plat approval. If the land to be subdivided is located within the ETJ of the Town, the final plat shall also be distributed to the appropriate officials in Grant County for review and to confirm compliance with all conditions established at preliminary plat approval.

c)

The Community Development Director has 30 days to confirm that all conditions of preliminary plat approval have been met. If all conditions have not been met, the final plat and application shall be returned to the applicant for completion and resubmission. The 30 day period for determination of completeness is restarted upon resubmission of the final plat and application.

d)

The Community Development Director shall prepare and present a Staff Report with a recommendation to approve or deny the final plat. The Staff Report may incorporate any of the comments received by the Town staff and reviewing agencies. Although the recommendation may require additional information or suggest additional conditions to address items addressed in the preliminary plat review, it shall not suggest conditions inconsistent with the result of the preliminary plat review and approval.

e)

The Town Council shall conduct a public hearing within 35 days from the date the Community Development Director deems the final plat and application complete. This time period may be waived with the written consent of the applicant.

f)

The Town Council shall approve the final plat if it determines that the final plat is in substantial conformance to the approved preliminary plat and any conditions of approval attached to the preliminary plat.

g)

Approval of the final plat shall be indicated by the signatures of the Mayor and the Chair of the Planning and Zoning Commission on the final plat, along with the following language: "Approval of the final plat does not constitute acceptance by the Town of the offer of dedication of any streets, sidewalks, parks, or other public facilities shown on the plat. However, the Town may accept any such offer of dedication by resolution of the Town Council or by actually exercising control over and maintaining such facilities, following inspection and approval by the Town Engineer to ensure that until the subdivider has presented a certificate signed by a Registered Engineer that all roads and other public facilities have been constructed to these approved plans and specifications."

h)

The final plat, with all the necessary signatures and endorsements, shall be filed and recorded with the County Clerk within 30 days following approval of the Town Council. Recordation shall be the responsibility of the subdivider. If the subdivider fails to record the final plat within this time period, the final plat approval shall lapse. If the approved final plat is not recorded with the County Clerk within one year of the date of approval of the final plat, the preliminary plat shall lapse and be of no further effect. If approval lapses, the Community Development Director shall record a lapse of approval affidavit with the Town Clerk.

i)

The subdivider must submit a copy of the recorded final plat to the Community Development Director prior to entering into a Development Agreement.

j)

If the Town suspends final plat approval for any subdivision, it shall record a document with the County Clerk declaring that final plat approval for the subdivision is suspended and that the further sale, lease or development of the property within the subdivision is prohibited except that this prohibition shall not apply to persons or parties who have acquired the property from the subdivider. If any court of competent jurisdiction invalidates final plat approval for any subdivision, the Town shall record a document with the County Clerk declaring that the final plat for the subdivision is no longer valid and that further subdivision activity is prohibited.

D)

Approval Criteria. In making their decision regarding approval of a subdivision within Town limits or the ETJ, the Planning and Zoning Commission and the Town Council shall consider the following factors:

1)

Whether the proposed subdivision furthers the goals and policies of the Town's Comprehensive Plan; and

2)

Whether the proposed subdivision complies with the standards and design requirements of this Land Use Code; and

3)

Whether the proposed subdivision provides a water supply system that is sufficient in terms of quantity, dependability, and quality to provide an appropriate supply of water for the type of subdivision proposed; and

4)

Whether the proposed subdivision has made adequate provision for sewage disposal which complies with federal, state and local laws and regulations; and

5)

Whether the proposed subdivision is compatible with the soil, topography, drainage, and other natural features and physical conditions of the site; and

6)

Whether the subdivider has the financial ability to complete the proposed subdivision in accordance with all applicable federal, state and local laws and regulations.

E)

Vested Rights. No vested rights shall accrue to the subdivider or owner of any subdivision by reason of preliminary or final plat approval or by virtue of recordation of the final plat unless vested rights are specifically granted in a Development Agreement between the Town and the subdivider.

F)

Development Agreements. Development Agreements are required for all major subdivisions and PUDs in accordance with Section 5.1.9.

6.3.16 Vacation, Street.

A)

Purpose. A vacation of a Town street right-of-way by the Town allows the applicant to purchase and have full use and ownership of the property.

B)

Initiation of Street Right-of-way Vacations. A vacation request is initiated by filing an application with the Community Development Director and providing a survey plat by a registered New Mexico surveyor of the right-of-way property or portion thereof proposed for vacation. The applicant may request vacation of any Town street right-of-way or portion of that right-of-way.

C)

Review Procedures.

1)

The Community Development Director shall distribute copies of the request to the appropriate Town staff for review and comment. The Community Development Director shall prepare a Staff Report concerning the vacation request which may include his or her recommendation to approve, modify or deny the vacation, and may incorporate any of the comments received by the Town staff.

2)

The Town Council shall conduct at least one public hearing in accordance with the notification and hearing procedures of this Code, and render a decision on the vacation request. The decision must be in the form of a resolution. The decision of the Council is final.

D)

Criteria. The Town Council may approve vacation of a Town right-of-way, or portion thereof, if it finds that:

1)

The street right-of-way is located within the municipal limits of the Town, and is dedicated to and maintained by the Town.

2)

The requested vacation conforms to the Town's Comprehensive Plan, the Land Use Code, and any relevant policies adopted by the Town, and

3)

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

4)

The Town has no current or future need for the street right-of-way proposed for vacation.

E)

Terms of Street Vacation. If the street right-of-way proposed for vacation is deeded to the Town, the applicant is responsible for an appraisal of the property proposed for vacation. The applicant must purchase the vacated street from the Town at the appraised value. The applicant is responsible for recording the survey plat of the vacated street right-of-way or portion thereof with the County Clerk and providing the Town a copy of the recorded survey plat within 30 days of the approved vacation. If the right-of-way proposed for vacation is an undeeded, dedicated right-of-way, the vacation will be in accordance with applicable state law.

6.3.17 Dimensional Adjustment.

A)

Purpose. A dimensional adjustment allows a building, structure, parking area or street to be built with a minor adjustment to required dimensional standards in the Land Use Code. When a subject lot, building structure, parking area or street has unusual dimensional characteristics within its zone districts, and a minor degree of flexibility is needed to dimensional standards to better situate development, then the Planning and Zoning Commission has the discretion to consider a dimensional adjustment rather than a variance. By granting the dimensional adjustment, the spirit of the Land Use Code will be observed, public safety secured, and substantial justice done.

B)

Initiation of Dimensional Adjustments. A dimensional adjustment request is initiated by filing an application with the Community Development Director. The applicant may request a dimensional adjustment to the following standards of this Land Use Code:

1)

Reductions of street setbacks that do not exceed the average street setback of buildings on abutting lots facing the same street.

2)

Modifications of 20 percent or less of the dimension of any zone district street or rear yard setback, provided that a driveway is at least 20 feet deep from the closest edge of the right-of-way or, where streets are not located in a right-of-way, as calculated in Section 3.4.2(A)(3).

3)

Modifications of 10 percent or less of any zone district lot size or lot width, or height standard.

4)

Alternate parking plans involving a modification of 10 percent or less in the number of off-street parking spaces required in Section 5.9.2.

5)

Reduction in right-of-way width to no less than 40 feet for one-way streets for standards set in Section 5.2.3(B)(3).

6)

Modifications of 20 percent or less of total street width standards as established in Table 5.2.

C)

Review Procedures.

1)

The Community Development Director shall distribute copies of the request to appropriate Town staff for review and comment. The Community Development Director shall prepare a Staff Report concerning the dimensional adjustment request which may include his or her recommendation to approve, modify or deny the dimensional adjustment, and may include comments from other Town staff.

2)

The Planning and Zoning Commission shall conduct at least one public hearing in accordance with the notification and hearing procedures of this Code and render a decision on the dimensional adjustment request. The decision will be final unless appealed to the Town Council.

D)

Findings Required. The Planning and Zoning Commission shall only approve a dimensional adjustment if it makes the following findings:

1)

The requested dimensional adjustment is consistent with the stated purposes of the Land Use Code, and

2)

The requested dimensional adjustment is consistent with the stated purposes of the Comprehensive Plan, and

3)

The granting of the adjustment will not be detrimental to the public health, safety, comfort, convenience and general welfare, and will not adversely affect the established character of the surrounding neighborhood, and

4)

The requested dimensional adjustment will not be injurious to the property or improvements in the vicinity of the property for which a dimensional adjustment is requested.

6.3.18 Variance.

A)

Purpose. A variance allows a building or structure to be built if strict enforcement of the Land Use Code would result in practical difficulties or unnecessary hardships for the applicant and that, by granting the variance, the spirit of the Land Use Code will be observed, public safety and welfare secured, and substantial justice done. Under no conditions shall a variance permit a use that is not otherwise permitted in the zone district where the property is located.

B)

Initiation of Variances. A variance request is initiated by filing an application with the Community Development Director. The applicant may request a variance to any requirement of this Land Use Code, provided, however, that he or she cannot request the approval of a use that is not permitted in the zoning district where the property is located.

C)

Review Procedures.

1)

The Community Development Director shall distribute copies of the request to the appropriate Town staff for review and comment. The Community Development Director shall prepare a Staff Report concerning the variance request which may include his or her recommendation to approve, modify or deny the variance, and may include comments from other Town staff.

2)

The Planning and Zoning Commission shall conduct at least one public hearing in accordance with the notification and hearing procedures of this Code and render a decision on the variance request. The decision will be final unless appealed to the Town Council.

D)

Findings Required. The Planning and Zoning Commission shall only approve a variance if it makes the following findings:

1)

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

2)

The hardship relates to the applicant's land or property, and

3)

The hardship was not created by the deliberate action of the applicant, or by one under his control, and reasonable remedies are not presently available, and

4)

The granting of the variance is consistent with the Town's Comprehensive Plan, and

5)

The granting of the variance is in harmony with the purposes and intent of the Land Use Code, and

6)

The granting of the variance will not be injurious to the neighborhood surrounding the property where the variance is proposed, and otherwise is not detrimental to the public welfare, and

7)

The variance will not result in the extension, expansion or enlargement of a non-conforming structure in violation of Article VII, and will not authorize the initiation of a non-conforming use of land.

E)

Issuance of a Variance. In granting variances, the Planning and Zoning Commission may impose such reasonable conditions as will ensure that the use of the property to which the variance applies will be as compatible as practicable with the surrounding properties, and will create as few impacts as practicable on such properties. A variance may be issued for an indefinite duration or a specified duration only. The nature of the variance and any conditions attached to it shall be entered on the face of the Zoning Permit for the property. All such conditions are enforceable in the same manner as any other applicable requirement of this Land Use Code.

6.3.19 Yard License.

A)

Purpose. The purpose of the Yard License is to authorize a property owner to make use of public rights-of-way that are officially mapped but not constructed as such. The license does not authorize the property owner to build any structures within the public right-of-way. The Town may assess the property owner a reasonable fee for the Yard License.

B)

Review Procedures.

1)

The Community Development Director shall have responsibility for reviewing applications for Yard Licenses and rendering a decision to grant or deny such an application.

2)

If the Community Development Director approves the application, the Community Development Director shall be empowered, on behalf of the Town, to execute a License Agreement between the Town and the property owner.

3)

If the Community Development Director denies the application, the reasons for denial shall be given to the applicant in writing.

4)

The Community Development Director's decision may be appealed to the Town Council.

C)

Criteria. The Community Development Director shall approve the Yard License unless he or she finds that:

1)

The proposed use of the public right-of-way is inconsistent with the Town's Comprehensive Plan, the Land Use Code, or adopted policies; or

2)

The proposed use of the public right-of-way would endanger the health, safety or general welfare of the community; or

3)

The property owner refuses to execute a License Agreement which assigns the rights and responsibilities of the parties.

D)

Terms of License. The License Agreement shall include the following terms:

1)

The Yard License may be terminated by the Town upon 90 days written notice to the property owner.

2)

The Yard License shall never ripen into an easement, use or claim of ownership by the applicant.

3)

The Town will not be liable for any injury or damage incurred on the property.

4)

The property owner will indemnify and hold the Town harmless against any claims made against the Town.

5)

The specific uses for which the Yard License is granted shall be enumerated on the Agreement.

6)

The Yard License may require payment of a reasonable lease fee for the use and enjoyment of the public right-of-way.

7)

Yard Licenses are not transferable and shall not run with the land. All Yard Licenses shall expire upon the sale, transfer, or lease of the property to a new tenant or owner.

6.3.20 Zoning Permit.

A)

Purpose. The purpose of the Zoning Permit is to provide a method for reviewing proposed uses of land to determine if the uses have the potential to adversely affect other land uses, transportation or facilities in the area and to ensure that the proposed development or land use complies with the standards in this Land Use Code. Every new or relocated business within Town limits is required to complete and submit a Zoning Permit for business registration. This permit must be approved prior to opening the proposed business and/or prior to consideration of any liquor license by the Town. A Zoning Permit shall also be required prior to the issuance of a Building Permit, Business License, or moving a manufactured home onto a lot or parcel.

B)

Review Procedures.

1)

An application for a Zoning Permit shall be submitted to the Community Development Director who shall have responsibility for reviewing the application and making a determination whether to grant or deny the Zoning Permit. No hearing shall be required.

2)

The Community Development Director shall request opinions from other Town departments and staff, as appropriate, to coordinate other reviews that must occur prior to issuance of the Zoning Permit. A Zoning Permit related to additional action which requires review by the Planning and Zoning Commission or Town Council shall be consolidated into one review before the appropriate decision-making body, which shall make the decision on the Zoning Permit.

3)

The decision of the Community Development Director to approve or deny the Zoning Permit request shall be in writing and be given to the applicant within five business days of the decision.

4)

The decision of the Community Development Director may be appealed to the Planning and Zoning Commission.

C)

Findings Required. The Community Development Director shall issue the Zoning Permit unless it is found that:

1)

The proposed use is not in compliance with the Use Table in Section 3.2 for the zoning district in which it is located, or

2)

If completed as proposed in the application, the development will not comply with one or more requirements of the Land Use Code; or

3)

The applicant has not obtained other necessary permits or approvals for the development, which are a prerequisite for issuing a Zoning Permit; or

4)

The site is physically not suitable for the type of development and for the intensity of development proposed; or

5)

Issuance of the Zoning Permit would be significantly detrimental to the public health, safety or welfare; injurious to the property or improvements of adjacent properties; or detrimental to the character of the surrounding area.

D)

Modification of a Zoning Permit. The Community Development Director may approve plans for an alteration of an approved use or structure, by annotating and signing the original Zoning Permit, when the alteration complies with all of the following conditions:

1)

The structure or use expansion is incidental to the existing use; and

2)

The structure or use expansion does not result in a change of use; and

3)

The structure or use expansion does not increase the floor area covered by existing structures associated with the use by more than 10 percent; and

4)

The building or use expansion, in the opinion of the Community Development Director, would not have an adverse effect on adjacent property; and

5)

The building or use expansion complies with existing requirements of the Land Use Code and with the requirements of all regulatory agencies having jurisdiction.

E)

New Permit Required. If a proposed expansion does not comply with the conditions in Subsection (D) above, a new Zoning Permit shall be required following the same procedure required for the initial permit.

F)

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

G)

Revocation. A Zoning Permit may be revoked by the Town Council in accordance with the procedures established in Section 8.5.

6.3.21 Mural Permit.

A)

Purpose. The purpose of the Mural Permit is to provide a method for reviewing proposed murals to ensure that the mural complies with the criteria outlined below. By reviewing and acting on Mural Permit applications, the Town is not considering, assessing or responsible for copyright and/or related matters.

B)

Review Procedure.

1)

An application for a Mural Permit shall be submitted to the Community Development Director.

2)

Applicants shall consult with the Design Review Committee. The decision of the Historic Design Review committee shall be final unless appealed to the Town Council.

C)

Criteria. The Design Review Committee shall approve the Mural Permit if the mural meets the following criteria:

1)

The mural meets the definition of "mural" and is not a form of advertisement.

2)

The mural content is not obscene as defined in Section 5.15.8(A) of the Land Use Code.

3)

The mural will not negatively impact the prehistoric and historic resources within Silver City, nor cause these resources to lose their state and national register eligibility.

4)

The artist and property owner have provided proof of a written contract specifying that the mural may be subject to destruction, distortion, mutilation or other modification by reason of removal.

D)

Terms of Permit. The Mural Permit shall, at a minimum, include the following terms:

1)

The mural shall be maintained and shall not be allowed to fade or lose its integrity. If the mural is not maintained, the Community Development Department is granted the authority to require that the mural be covered with opaque paint or other appropriate material. Maintenance responsibility falls to the owner of the building on which the mural is mounted.

2)

If the proposed mural materials are not compatible with the surface mounting, the Committee can require that the mural be placed on its own substrate, set off from the mounting surface.

3)

Sand blasting is not allowed as a cleaning process in the historic overlay districts. No cleaning method shall be used that will damage the surfacing of historic structures.

6.3.22 Moving Permit.

A)

Purpose. A moving permit is required prior to moving a mobile, manufactured or modular home onto a lot within Town limits.

B)

Review Procedures.

1)

The Community Development Director shall have responsibility for reviewing applications for Moving Permits, obtaining approval from the appropriate departments, and rendering a decision to grant or deny such a permit.

2)

The Community Development Director's decision may be appealed to the Town Council.

C)

The Community Development Director shall issue a moving permit unless he or she finds that:

1)

The requested permit is not in compliance with:

Tables 3.2, 5.9.2 and 3.4.2.
Section 3.3.1.

(Ord. No. 1239, 6-9-2015; Ord. No. 1276, 2-26-2019; Ord. No. 1305, §§ 3, 4, 8-24-2021)