Valencia County Unincorporated
City Zoning Code

REVIEW CRITERIA

AND REQUIREMENTS

§ 154.055 GENERALLY.

(A) Burden of proof. The applicant shall bear the burden of proof for the satisfying the requirements of this chapter or the conditions imposed thereof of any land use action described in this chapter.

(B) Findings. Findings made by the decision-making body in justification of any application authorized pursuant to this chapter shall be made in writing and shall be provided to the applicant.

(1) Any request which involves more than 1 type of land use action on a particular parcel or parcels under the same ownership may be combined at the discretion of the Department if the combination would result in greater efficiency in consideration of the land use applications.

(2) Any request for similar land use actions which involve more than 1 applicant or parcel may be combined at the discretion of the Department if the requests involve abutting parcels and the combination would result in greater efficiency in consideration of the land use applications.

(Ord. 2004-05, passed 9-15-2004)

§ 154.056 TEMPORARY USE CRITERIA AND REQUIREMENTS.

(A) Generally.

(1) Temporary use permits shall be required for any non-permissive use in any zone district which is intended to last for a limited period of time; e.g., fireworks sales, car washes, and the like.

(2) Other temporary uses may be provided for elsewhere in this chapter, and in these case, the more stringent requirements apply in case of a conflict with this section.

(3) In no case shall a temporary use permit be issued for a period exceeding 9 months, unless the permit is renewed pursuant to this chapter, or is subject to division (D) below.

(B) Standards and requirements. The following minimum requirements shall apply to temporary use permits:

(1) A structure for which a temporary permit is issued shall be subject to the standards, limitations and requirements of the zoning district in which it is located.

(2) The structure shall meet all applicable county health and safety requirements.

(3) Temporary uses or activities shall comply with applicable county, state and federal regulations and requirements.

(4) Temporary uses must be compatible with vicinity uses or otherwise satisfactory and not create an undue nuisance to surrounding property owners.

(5) In the event that the use or activity involves a temporary structure, the structure shall be removed upon expiration of the temporary use permit unless a new application is approved by the Department.

(1) In issuing a temporary use permit, the Department may impose reasonable conditions as necessary to preserve the basic purpose and intent of the underlying zoning district.

(2) These conditions may include, but are not limited to, the following:

(a) Increasing the required yard dimensions;

(b) Requiring fencing, screening or landscaping to protect adjacent or nearby property;

(d) Limiting the time for certain activities;

(e) Limiting the total duration of the use; or

(f) Posting reasonable bonds or other financial assurances to guarantee compliance with conditions of approval.

(D) Termination or non-renewal.

(1) (a) If the applicant for a temporary activity or use fails to maintain compliance with conditions of approval, or if the activity or use is determined, upon appeal of the Department's decision, to be inconsistent with the provision of the applicable zoning district, the use may, upon 30 days notice by the Department, be terminated.

(b) An appeal may be made at any time during the duration of permit approval, and is not subject to other time limitations.

(2) If the temporary use is determined to be incompatible with vicinity uses or otherwise unsatisfactory, and the conditions cannot be mitigated, the temporary activity or use may be denied renewal by the Department.

(3) If at any time the Department determines that a temporary use is more permanent than temporary in nature, the use shall comply with all applicable provisions of this chapter.

(Ord. 2004-05, passed 9-15-2004; Am. Ord. 09, passed 9-15-2004) Penalty, see § 154.999

§ 154.057 CONDITIONAL USE CRITERIA AND REQUIREMENTS.

(A) Purpose.

(1) The purpose of a conditional use is to provide for those uses which possess unique and special characteristics making impractical their inclusion as outright permitted uses in the underlying zoning district.

(2) These uses shall not be incompatible with the type of uses permitted in surrounding areas.

(3) Location and operation of designated conditional uses shall be subject to review and authorized only by issuance of a conditional use permit.

(B) Review criteria. A conditional use may be authorized, subject to the Type B application procedure set forth in § 154.076, upon adequate demonstration by the applicant that the proposed use will be compatible with vicinity uses, and satisfies all relevant requirements of this chapter and the following general criteria:

(1) The use is listed as a conditional use in the underlying zoning district;

(2) The use is not inconsistent with those goals and policies of the comprehensive plan which apply to the proposed use;

(3) The parcel is suitable for the proposed use considering its size, shape, location, topography, existence of improvements and natural features;

(4) The proposed use will not substantially alter the character of the surrounding area any more than the existing permissive uses in the zone or in a manner which substantially limits, impairs or prevents the use of surrounding properties for the permitted uses listed in the underlying zoning district;

(5) The proposed use is appropriate, considering the adequacy of public facilities and services existing or planned for the area affected by the use; and

(6) The use is or can be made compatible with existing uses and other allowable uses in the area.

(1) In approving an application for a conditional use, the P&Z may impose conditions to protect the area surrounding the proposed use and to preserve the basic purpose and intent of the underlying zoning district.

(2) (a) These conditions may be set forth in a formal affidavit executed by the applicant and Valencia County.

(b) The affidavit shall be recorded in the deed and mortgage records of Valencia County.

(3) These conditions may include, but are not limited to, the following:

(a) Increasing the required parcel area or yard dimensions;

(b) Limiting the height, size or location of buildings and structures;

(d) Increasing the road width;

(e) Increasing the number of required off-street parking or loading spaces;

(f) Limiting the number, size, location or lighting of signs;

(g) Requiring fencing, screening or landscaping to protect adjacent or nearby property;

(h) Prescribing exterior finish for buildings or additions thereto; or

(I) Prescribing a time limit within which to fulfill any established conditions.

(D) Performance bond. The P&Z may require an applicant, upon approval of a conditional use permit, to enter into a performance agreement with the county and to furnish the county with an appropriate financial guarantee to ensure that the required improvements are completed according to the plans approved by the P&Z, and that standards established in granting the conditional use permit are observed.

(E) General requirements. Any conditional use authorized pursuant to this chapter shall be subject to the following additional requirements:

(1) (a) A conditional use shall be subject to the standards of the zoning district in which it is located except as these standards have been modified in authorizing the conditional use.

(b) No modification of a zoning district standard shall have the effect of changing the existing zoning district where the property sits.

(2) A conditional use may be enlarged or altered pursuant to the following:

(a) Major alterations of a conditional use including changes, alterations or deletion of any conditions imposed shall be processed as a new conditional use permit application, in accordance with the Type B application procedure set forth in § 154.076.;

(b) Minor alterations of a conditional use may be approved by the Department if requested prior to issuance of building permits for the conditional use. Minor alterations are those changes which may affect the siting and dimensions of structural and other improvements relating to the conditional use, and may include small changes in the use itself. Any change which would affect the basic type, character, arrangement or intent of the conditional use originally approved shall be considered a major alteration;

(c) Where the granting of a conditional use permit is contingent upon an amendment to this chapter and an application for the amendment has been recommended for approval by the P&Z, the P&Z may authorize the granting of a conditional use permit contingent upon the necessary final action of the Commission in respect to the required chapter amendment and further action by the P&Z shall not be necessary; and

(d) A conditional use approval involving construction shall be null and void 1 year from the date of final approval unless completion or substantial construction has taken place. In any case where a conditional use approval does not involve construction, the approval shall be null and void 1 year from the date of final approval unless the approval has been implemented. The Department may extend the conditional use permit for an additional period not to exceed 2 years upon receipt of a written request from the applicant demonstrating good cause for the delay and provided that the request to extend the permit is received by the Department prior to expiration of the original conditional use approval.

(F) Compliance with conditions.

(1) Compliance with conditions imposed in granting a conditional use permit and adherence to the approved plan shall be required. Any departure from these conditions of approval and approved plans constitutes a violation of this chapter.

(2) The Department may revoke any conditional use permit for failure to comply with any prescribed condition of the conditional use permit approval or for any other violation of this chapter.

(G) Revocation of a conditional use permit. The procedure for the revocation of a conditional use permit shall be as follows:

(1) If, upon review by the Department, a failure to comply with any condition imposed in granting a conditional use permit or other violations of this chapter is found, the Department shall inform the applicant by registered letter and first class mail of the violation and shall require compliance within 60 days, or the Department will take action under division (2) below of this section to revoke approval of the conditional use. The Department letter, constituting notice of intent to revoke, may be appealed to the Commission within 30 days of its mailing. The Commission shall consider the appeal in accordance with § 154.062 and may affirm, reverse or modify the Department notice of intent to revoke. The applicant must comply with the Commission's order on appeal of notice of intent to revoke within 30 days of the issuance of the Commission's decision. If the applicant does not comply with the Commission's order within 30 days, the Department shall take action under division (2) below of this section to revoke approval of the conditional use. The Department may extend the time for compliance if the applicant provides financial or other assurances suitable to the Department that the conditions of approval will be satisfied and maintained.

(2) If the violation is not corrected within the time required by division (1) above, the Department shall notify the applicant by registered and first class mail that the conditional use permit has been revoked, and that any subsequent action on the application will require a new application for conditional use approval.

(Ord. 2004-05, passed 9-15-2004) Penalty, see § 154.999

§ 154.058 VARIANCES.

(A) Purpose and scope.

(1) The purpose of a variance is to provide administrative relief when a strict application of the zoning requirements of lot width, lot depth, building height, setback, access or other dimensional requirements would impose practical difficulties or unnecessary hardship.

(2) These difficulties or hardships may result from geographic, topographic or other physical conditions on the site or in the immediate vicinity.

(B) Review criteria. A variance may be authorized, subject to the Type B application procedure set forth in § 154.076 and pursuant to divisions (C) and (D) below, and upon adequate demonstration by the applicant that the proposed variance satisfies the following criteria:

(1) Special conditions and circumstances exist which are peculiar to the land, building or structure involved;

(2) The granting the proposed variance would be in the public interest and would be in harmony with the purpose and scope set forth in division (A) above, the intent and purpose of the underlying zoning district and the intent and purpose of this chapter;

(3) The variance would result in minimal detriment to the immediate vicinity;

(4) The variance requested is the minimum variance which would make possible the reasonable use of the applicant's land, building or structure;

(5) The special conditions and circumstances on which the application is based do not result from the negligent or knowing violation of this chapter by the applicant; and

(6) Granting the variance would not violate any State Environmental Regulations.

(1) In approving an application for a variance, the decision-making body may impose conditions as it deems appropriate to ensure that the intent of this section is carried out.

(2) These conditions shall be reasonably related to the variance criteria set forth in division (B) above.

(D) General requirements. Any variance authorized pursuant to this chapter shall be subject to the following additional requirements.

(1) An authorized variance is not personal to the applicant and shall be deemed to run with the land.

(2) (a) A variance shall be null and void 1 year from the date it is granted unless completion or substantial construction has taken place.

(b) The Department may extend the variance for an additional period not to exceed 1 year upon the receipt of a written request from the applicant demonstrating good cause for the delay and provided that the request for extension is received by the Department prior to expiration of the original variance approval.

(3) No variance shall be granted which allows the establishment or expansion of a use otherwise prohibited or subject to conditional use procedures.

(4) No variance shall be granted which shall have the effect of rezoning the property.

(5) No variance shall be granted which allows the creation of a parcel which is substandard to the minimum parcel size requirements of the particular zoning district.

(E) Compliance with conditions.

(1) Compliance with conditions imposed in approval of a variance and adherence to an approved site plan shall be required.

(2) Any departure from these conditions of approval and approved plans constitutes a violation of this chapter.

(3) The Department may revoke approval of any variance for failure to comply with any condition imposed in approval of the variance or for any other violation of this chapter.

(F) Revocation of variance. The procedure for the revocation of approval of a variance shall be as follows:

(1) If, upon review by the Department, a violation of any condition imposed in approval of a variance is found, the Department shall inform the applicant by registered letter and first class mail of the violation and shall require compliance within 60 days, or the Department will take action under division (2) below of this section to revoke approval of the variance. The Department's letter, constituting notice of intent to revoke variance may be appealed to the Commission within 30 days of its mailing. The Commission shall consider the appeal in accordance with § 154.062 and may affirm, reverse, or modify the Department's notice of intent to revoke variance. The applicant must comply with the Commission's order on appeal of notice of intent to revoke variance within 30 days of the issuance of the Commission's decision. If the applicant does not comply with the Commission's order within 30 days, the Department shall take action under division (2) below of this section to revoke approval of the variance. The Department may extend the time for compliance if the applicant provides financial or other assurances suitable to the Department that the conditions of approval of the variance will be satisfied and maintained.

(2) If the violation is not corrected within the time required by division (1) above, the Department shall notify the applicant by registered and first class mail that the variance has been revoked, and that any subsequent action on the application will require a new application for a variance.

(G) Administrative adjustments. As a result of unique characteristics of specific lands, uses or structures, and in the event that setbacks, building heights, lot area or other dimensional chapter standards are determined to be unreasonable or inappropriate by the Department, limited administrative adjustment of these standards may be authorized at the time application for building permit or land division is made providing the adjustment does not exceed 15% of the required standard and the applicant can demonstrate satisfaction of one of the following criteria:

(1) The adjustment is needed to permit a structural addition or new construction no closer to a property line than the existing structure(s).

(2) That the adjustment would provide for setbacks no less restrictive than those for structures on affected adjacent property(s).

(3) That the combined setbacks of structures on the parcel in question and adjacent affected parcels meet the combined respective setback requirements.

(4) That other special conditions or circumstances exist which are peculiar to the land or use structure involved, and which justify an adjustment, while still satisfying the intent of the standard.

(Ord. 2004-05, passed 9-15-2004; Am. Ord. 09, passed 9-15-2004) Penalty, see § 154.999

§ 154.059 NON-CONFORMING USES.

(A) Purpose and scope.

(1) Within the zoning districts established by this chapter and amendments thereto, lots or parcels existing which were legally platted and recorded with the County Clerk as of 1-1-1988, but which would be prohibited or restricted under the terms of this chapter are hereby excepted from the requirements of this section. The general purpose of this section is to encourage the conversion of non-conforming uses to conforming uses.

(2) This section allows non-conforming uses and structures to be continued, altered, restored or replaced subject to satisfaction of the review criteria specified in division (C) below. Nothing contained in this chapter shall require any change in the plans, construction or designated use of any structure for which a building permit was issued and actual construction commenced prior to the date of adoption of this chapter or any amendments thereto. No alteration of a non-conforming use shall be permitted except in compliance with the provisions of this section.

(B) Definitions. For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ALTERATION. A change in structure, an increase in the number of structures, or a change of use. Where the term ALTERATION is applied to a change of a structure, it is intended to be applied to any change, addition or modification in the structure, except for cosmetic changes such as painting, cleaning and the like. When the term ALTERATION is applied to a change of use, it is intended to be applied to changes of use from 1 business, trade, occupation or use to another, or from 1 division of trade or use to another.

ACTUAL CONSTRUCTION. The placement of construction materials in a permanent position and fastened in a permanent manner. Where excavation, or demolition or removal of an existing structure has substantially begun preparatory to rebuilding, the excavation or demolition or removal shall be deemed to be actual construction, provided that work shall be carried on diligently.

(1) The Department shall authorize alteration, restoration or replacement of a non-conforming use or structure pursuant to this section, and subject to the Type A application procedure set forth in § 154.075, when any of the following circumstances apply:

(a) The alteration is necessary to comply with any lawful requirements for alteration of the use or structure; or

(b) Restoration or replacement is made necessary by fire, casualty, or natural disaster. Any restoration or replacement approved pursuant to this section shall be commenced within 1 year from the occurrence of the fire, casualty or natural disaster, or be subject to the provisions of division (F) below.

(2) In any other circumstance, the alteration, restoration or replacement of a non-conforming use or structure pursuant to this section may be authorized by the Department, subject to the Type A application procedure set forth in § 154.075, and provided that the applicant demonstrates that the proposal satisfies the following criteria:

(a) The alteration of use would result in a reduction in non-conformity of the use, or would have no greater adverse impact on the surrounding area than the existing non-conforming uses or than those uses permitted by this chapter.

(b) The alterations of structures or physical improvements would result in a reduction in non-conformity of the structures or improvements or would have no greater adverse impact on the surrounding area than existing non-conforming structures or physical improvements or than those permitted by this chapter.

(c) A request to verify that a use or structure is legally non-conforming pursuant to this section may be approved by the Department, subject to the Type A application procedure set forth in § 154.075, and provided that the applicant submits evidence of the following:

1 The nature and extent of the use for at least 10 years from the adoption of this chapter prior to the date of application for verification of non-conformity;

2 The use or structure was in existence at least 10 years prior to the date the application for verification of non-conformity is submitted; and

3 The use has continued uninterrupted, or the structure has been occupied continuously, for at least 10 years prior to the date the application for verification of non-conformity is submitted.

(D) Conditions of approval. In approving the alteration, restoration or replacement of a non- conforming use, the decision-making body may impose conditions as it deems appropriate to ensure that the intent of this section is carried out. These conditions shall be reasonably related to the criteria set forth in division (C) above.

(E) General requirements. Authorization of any alteration, restoration or replacement of a non-conforming use or structure pursuant to this chapter shall be subject to the following additional requirements:

(1) Any approval issued hereunder is not personal to the applicant and shall be deemed to run with the land.

(2) Building permits issued in connection with any part of an approved alteration, replacement or restoration of a non-conforming use shall be issued only on the basis of the approved plan.

(3) Any proposed changes in connection with an approved plan shall be processed as a new application subject to the provisions of this section and in accordance with the applicable application procedure set forth in §§ 154.075 et seq.

(4) Any alteration, replacement or restoration of a non-conforming use approved hereunder shall be null and void 1 year from the date it is granted unless completion or substantial construction has taken place. The Department may extend the approval for an additional period not to exceed 1 year upon receipt of the applicable fee and a written request from the applicant demonstrating good cause for the delay and provided that the request to extend approval is received by the Department prior to expiration of the original approval.

(F) Change of ownership or occupancy, or discontinuation of a non-conforming use.

(1) (a) A change of ownership or occupancy of a non-conforming use shall be permitted. If any non-conforming use is discontinued for a period of 6 months time, the non-conforming use shall not be resumed and any subsequent use of the property and structure involved shall conform to the requirements of this chapter.

(b) The change of any non-conforming use to a permitted use shall constitute discontinuance of the non-conforming use.

(2) If the non-conforming use is primarily an agricultural, farm or ranching use and the non-conforming use is discontinued for a period of 2 years, the non-conforming use shall not be resumed and any subsequent use of the property and structure involved shall conform to the requirements of this chapter.

(3) A stay ordered by a bankruptcy court of competent jurisdiction over the property interest pursuant to 11 U.S.C. § 362(a)(3) of the Bankruptcy Code, as the same may be amended from time to time, shall operate to stop the time under division (F)(1) and (2) above of this chapter if the time under this section does not begin to accrue prior to the order of stay.

(G) Changes in certain non-conforming uses subject to conditional use permit.

(1) Any non-conforming use or structure which is allowed as a conditional use in the particular zoning district under the terms of this chapter shall be allowed to continue; however, no alteration, restoration or replacement of a use or structure shall be permitted unless the appropriate conditional use permit is first obtained.

(2) Upon approval of a conditional use permit, the use shall no longer be considered a non-conforming use, but shall be considered a conforming conditional use subject to any and all conditions of approval. In the event that a conditional use application is denied, the use shall revert to non-conforming use status, and may be continued as it existed before the application was made.

(H) Compliance with conditions.

(1) Compliance with conditions imposed in granting a permit for alteration, restoration or replacement of a non-conforming use and adherence to the approved site plan shall be required

(2) Any departure from these conditions of approval and approved plans constitutes a violation of this chapter.

(3) The Department may revoke any permit issued hereunder for failure to comply with any prescribed condition of approval, or for any other violation of this section.

(I) Revocation of a permit for alteration, restoration, or replacement of a non-conforming use. The procedure for the revocation of a permit for alteration, restoration or replacement of a non-conforming use shall be as follows.

(1) If, upon review by the Department, a violation of any condition imposed in granting the permit is found, the Department shall inform the applicant by registered letter and first class mail of the violation and require compliance within 60 days or the Department will take action under division (2) below to revoke approval of the permit for alteration, restoration or replacement of a non-conforming use. The Department's letter, constituting revoke, may be appealed to the Commission within 30 days of its mailing. The Commission shall consider the appeal in accordance with § 154.062 and may affirm, reverse or modify the Department's notice of intent to revoke. The applicant must comply with the Commission's order on appeal of notice of intent to revoke within 30 days of the issuance of the Commission's decision. If the applicant does not comply with the Commission's order within 30 days, the Department shall take action under division (2) below of this section to revoke approval of the permit.

(2) The Department may extend the time for compliance if the applicant provides financial or other assurances suitable to the Department that the conditions of approval will be satisfied and maintained.

(3) If the violation is not corrected within the time required by division (1) above, the Department shall notify the applicant by registered and first class mail that the permit for alteration, restoration or replacement of the non-conforming use has been revoked, and that any subsequent action on the application will require a new application for alteration, restoration or replacement of a non-conforming use.

(Ord. 2004-05, passed 9-15-2004; Am. Ord. 09, passed 9-15-2004) Penalty, see § 154.999

§ 154.060 LEGISLATIVE AMENDMENTS TO THE ZONING CHAPTER.

(A) Generally. Any changes to this chapter or the official zoning map that constitutes a policy decision affecting a large number of persons and a vast area of land, based upon general criteria and not the details of any particular landowner, shall be governed by the same process applicable to adoption of county zoning ordinances as provided by NMSA § 3-21-14 as the same may be amended from time to time.

(B) Procedure. Legislative ordinance amendments are processed as follows:

(1) An amendment may be initiated by the Commission, the P&Z or the Department.

(2) An owner of land may petition the Commission, the P&Z or the Department to initiate an amendment, but may not initiate the amendment by making an application.

(3) The amendments shall be made only by the Commission after review and recommendation, and after a public hearing has been held by the Commission, pursuant to NMSA § 3-21-14, as the same may be amended from time to time.

(4) Changes to the county zoning map which result from legislative ordinance amendments shall be made and become effective as provided by NMSA § 3-21-14, as the same may be amended from time to time.

(C) Correcting clerical mistakes. When a proposed correction is consistent with the comprehensive plan, the Commission may, by ordinance, correct comprehensive plan map mistakes or zoning map mistakes upon its determination, supported by written findings of fact and conclusions of law, that the record establishes that the mistake occurred due to a clerical error or mapping error.

(Ord. 2004-05, passed 9-15-2004)

§ 154.061 QUASI-JUDICIAL ZONE DISTRICT CHANGES.

(A) Generally. Any changes in zoning affecting relatively small numbers of property owners shall be governed by the Type C process described in this chapter and by NMSA § 3-21-6, as the same may be amended from time to time. If, in accordance with the provisions of this section, changes are made in zoning district boundaries or other matters portrayed on the official zoning map, the Department shall enter the changes on the official zoning map promptly after the amendment has been approved. The Department shall sign the changed official zoning map, attested by the County Clerk, and shall bear the seal of the county under the following words: "This is to certify that this official zoning map supersedes and replaces the official zoning map adopted on the 9-15-2004, as part of the Valencia County Interim Comprehensive Zoning Chapter, No. 2004-05."

(B) Procedure. A quasi-judicial zone map boundary change is processed as follows:

(1) An amendment may be initiated by the Commission, the P&Z, or by application of an owner of land.

(2) An application for a change by an owner of land shall be made in accordance with the Type C application procedure, § 154.077.

(3) (a) These amendments shall be made only by the Commission, after review and recommendation by the P&Z, pursuant to a Type C application procedure set forth in § 154.077 of this chapter.

(b) The zone map amendment shall not be final until the Commission has adopted the amendment by ordinance pursuant to NMSA § 3-21-6(B), as the same may be amended from time to time.

(4) (a) A decision approving a boundary change shall include written findings of fact and conclusions of law satisfying the criteria in divisions (C) or (D) below as appropriate, and address applicable comprehensive plan goals and policies.

(b) These written findings of fact and conclusions of law shall be prepared promptly by the Commission and shall be included with the minutes of the meeting of the Commission at which the decision was made.

(5) Changes to the applicable zoning maps shall be made and become effective upon filing of record the changed map with the County Clerk.

(C) Review criteria for quasi-judicial zone changes (except from AP). A quasi-judicial zone change to a zoning map may be authorized, pursuant to this section, provided that the request satisfies all applicable requirements of this chapter, and also provided that the applicant demonstrates compliance with the following criteria, except as provided in division (D) below:

(1) The proposed change is consistent with the goals, policies and any other applicable provisions of the comprehensive plan;

(2) The proposed change is appropriate considering the surrounding land uses, the density and pattern of development in the area, any changes which may have occurred in the vicinity to support the proposed amendment and the availability of utilities and services likely to be needed by the anticipated uses in the proposed district; and

(3) The proposed change enhances the county's protection of the public health, safety and welfare of Valencia County.

(D) Review criteria for changes from or to lot sizes of AP zone. A quasi-judicial zone change to amend the designation of land from Agriculture Preservation to another zone, or change the minimum lot size of land designated Agriculture Preservation, may be authorized, pursuant to this section, provided that the request satisfies all applicable requirements of this chapter, and also provided that the applicant demonstrates compliance with the following criteria:

(1) The proposed amendment shall comply with the goals, policies and other applicable provisions of the comprehensive plan;

(2) The proposed designation shall be appropriate for the existing or intended use of the property;

(3) The proposed amendment shall result in an area of at least 10 contiguous acres with the requested designation;

(4) For proposed changes within Agricultural Preservation use designation, the new minimum lot size shall be appropriate to maintain the existing commercial agricultural enterprise in the area.; and

(5) For proposed changes within or to an Agriculture Preservation designation, the new minimum lot size shall be shown to assure:

(a) The opportunity for economically efficient agriculture practices typically occurring in the area; and

(b) The conservation of other agricultural values found on agricultural lands.

(Ord. 2004-05, passed 9-15-2004; Am. Ord. 09, passed 9-15-2004) Penalty, see § 154.999

§ 154.062 APPEALS.

(A) Appeals to P&Z.

(1) (a) The P&Z, on its own motion, may order review of any decision of the Department within 60 days of the decision.

(b) The P&Z may schedule a public hearing to hear the appeal pursuant to the Type B process, § 154.076.

(2) In hearing and deciding an appeal the P&Z may affirm, modify or reverse all or part of the action of the Department so long as the action is in conformity with the chapter.

(B) Appeals to Commission.

(1) Where it is alleged that there is error in any order, requirement, decision or determination made by the P&Z or the Department, an appeal therefrom may be made by an affected party to the Commission on a form prescribed by the Department. The written appeal shall be filed with the Department within 15 days of the decision on a proposed action and shall be accompanied by the appropriate filing fee. The Commission, on its own motion, may order review of any decision of the Department or P&Z within 30 days of the decision. Upon determination that the appeal request is complete and in order, a public hearing before the Commission shall be scheduled and the appeal heard pursuant to the Type C process, § 154.077, provided for in this chapter and pursuant to NMSA § 3-21-8 as the same may be amended from time to time.

(2) In hearing and deciding an appeal the Commission may affirm, modify or reverse all or part of the action of the Department so long as the action is in conformity with the chapter, or may provide any relief describe in NMSA § 3-21-8 as the same may be amended from time to time.

(1) A decision by the Department, P&Z or Commission to approve or deny an application or docket item request may be appealed provided the appellant has satisfied the following:

(a) Filed a written appeal, accompanied by the appropriate filing fee, with the Department within the time required by this chapter submitted in accordance with division (2) below of this section;

(b) Appeared before the P&Z, hearings officer or Commission orally or in writing; and

1. Was entitled by this chapter to notice and hearing prior to decision appealed; or

2. Is aggrieved or has interests adversely affected by the decision.

(2) Any appeal filed shall be in writing, shall explain the basis of the appeal and shall include 1 or more of the following:

(a) A reference to the chapter provisions or plan policies providing the basis of the appeal;

(b) Reasons why the decision is factually or legally incorrect;

(d) A description of any mitigating factors which might be taken to make the decision acceptable.

(D) Review on record. Unless otherwise provided by the P&Z or the Commission under division (E) below, the review of a decision of the P&Z or Department by the Commission shall be confined to the record of the proceedings, which shall include:

(1) All materials, pleading, memoranda, stipulations and motions submitted by any party to the proceeding and received or considered by the Department or the P&Z as evidence;

(2) All materials submitted by the Department with respect to the application;

(3) The minutes or tape of the public hearing of the P&Z;

(4) The findings and action of the Department, P&Z and the notice of review; and

(5) Argument confined to the record by the parties or their legal representatives at the time of review before the Commission.

(E) De novo review.

(1) The Commission or P&Z may, at its option, whether or not upon a motion of a party, hold a de novo hearing or admit additional testimony and other evidence with or without holding a de novo hearing, if it is satisfied that the testimony or other evidence could not have been presented when the matter appealed from was initially decided upon.

(2) In deciding this admission, the Commission shall consider:

(a) Prejudice to parties;

(b) Convenience of locating the evidence at the time of initial hearing;

(d) When notice was given to other parties as to the attempt to admit; and

(e) The competency, relevancy and materiality of the proposed testimony and other evidence.

(Ord. 2004-05, passed 9-15-2004; Am. Ord. 05, passed 9-15-2004; Am. Ord. 09 passed 9-15-2004)