ZONE CHANGE EXTRA-TERRITORIAL ZONING COMMISSION

Transcription

1 ZONE CHANGE EXTRA-TERRITORIAL ZONING COMMISSION DOÑA ANA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT Doña Ana County Government Complex 845 N. Motel Blvd. Las Cruces, New Mexico Office: (575) MEETING DATE: March 22, 2012 CASE #: REQUEST: OWNER: APPLICANT: LOCATION: PROPERTY SIZE: Z11-006/Chavez Zone Change from ER4M to EI1 Rudy Chavez Rudy Chavez, Javier Jaramillo, Agent 655 Taos Lane Mesilla Park, NM 0.49-acres RECOMMENDATION: DENIAL CASE MANAGER: Steve Meadows, Planner SUMMARY: The applicant, Rudy Chavez, Javier Jaramillo, Agent, is requesting a Zone Change from ER4M (Residential, 0.5-acre minimum new lot size, single family site built and mobile homes) to EI1 (Light Industrial, 5,000 sq. ft. minimum lot size) to permit an existing fencing business on a 0.49 acre parcel (as required by Article 3, Section 3.1.M.3.b). The subject parcel is located south of the City of Las Cruces and is addressed as 655 Taos Lane. The property is located within Section 31, Township 23 South, Range 2 East, is described as that portion of U.S. Bureau of Reclamation Tract No as recorded in the office of the Doña Ana County Clerk on November 17, 1994, in Book 387, Pages , and can be further identified by Map Code # The ETZ Commission, at the February 16, 2012 hearing, postponed this case to this date by a vote of REPORT CONTENTS: (1) Case Analysis and Staff Recommendation, (2) GIS Information & Maps (3) Application and Supporting Documents Extra-territorial Zoning Commission March 22, 2012 Page 1 of 29

2 SURROUNDING ZONING AND LAND USE SITE ZONING LAND USE North South East West ER4M Residential, 0.5 acre minimum new lot size, single family site built and mobile homes ER4 Residential, 0.5 acre minimum new lot size, single family site built homes ER4 Residential, 2.0 acre minimum new lot size, single family site built homes ER3/4 Residential, 0.75 acre minimum new lot size, single family site built homes Residential uses Agricultural uses Residential uses with some small agricultural uses Residential and agricultural uses BACKGROUND The Request: The applicant is requesting a zone change from ER4M to EI1 to continue operations of an existing fencing business (Pro Tech Fence Co.). The existing business has operated in this location without proper zoning or permits for approximately 14 years. Existing Conditions and Zoning: The subject property is a 0.49-acre residential parcel that is roughly rectangular in shape. It contains the applicants 1,792 sq. ft. residence with a 209 sq. ft. porch, a 15 X 50 (750 sq. ft.) storage building, and a 700 sq. ft. open-aired carport that is used as a prefab and light welding area for the business. Open storage of materials is also located near the south portion of the parcel. The parcel is bounded on the north and the east by private unimproved dirt roads, Taos Lane and Jerry Street, respectively. Both are classified by the Las Cruces MPO as local roads. The nearest paved, County maintained road is Calle de Las Margaritas, approximately 467 feet west of the subject parcel. The residence has a septic system (#LC000332) and water is provided by Jornada Mutual Domestic Water Consumers Association (JMDWCA). APPLICABLE PLANS, POLICIES, AND CRITERIA FOR APPROVAL 1. Las Cruces Extra-territorial Zoning Ordinance No , as Amended Section 1.6 Definitions Spot Zoning: An amendment to a zoning ordinance that is not compatible with a comprehensive scheme of zoning, whether one lot, several lots or a large area. Spot zoning can also be created through variances, which are granted without regard for impact on the surrounding area. Extra-territorial Zoning Commission March 22, 2012 Page 2 of 29

3 Section 2.1.B Zoning District Changes: Rezoning A zoning district change or rezoning is a change in classification of the zoning district map and shall be recorded and shown on the Official Zoning District Map. Zoning district changes shall not include initial zoning whenever ETZ boundaries are realigned. Conditional Zoning 2.1.B B B B B B D Evaluation Criteria Conditional Zoning may be initiated by the Planning Director, the Zoning Commission or by the applicant and shall limit and/or restrict those uses within the zoning district which would otherwise be permitted by right. A rezoning subject to condition is appropriate to allow certain uses that are compatible with the surrounding uses and environment. A condition attached to a zoning district may: a. limit the use of property affected so that one or more of the uses which would otherwise be permitted in the district being adopted shall not be permitted in the specific district as conditioned. b. require traditional design standards, time limitations relating to the construction of buildings, landscaping, streets, roadways, pathways, utilities, drainage ways and other site design features as may be necessary to protect the community or the environment from the impact of development. It shall be unlawful to utilize, sell or lease property rezoned with conditions without first providing to any prospective buyer or lessee a disclosure statement stipulating the conditions of the rezone, and without filing a copy of said disclosure with the County Planning Division. A conditional zoning shall be revoked and revert to the previous zoning district if the property within said district is not used or developed in accordance with the new district regulations within two (2) years from the date of the ETZ Authority. Any use or structure allowed by a Special Use Permit under the specified zoning district shall not be permitted by Conditional Zoning. Zone change procedures prescribed by this Code shall be applicable to Conditional Zoning. 2.1.B.7 Amendments to the Official Zoning Map shall be reflected by the lowercase c following the zone designation. The Planning Director and the ETZ Commission may use the following general criteria when reviewing Special Use Permits and Zoning applications. The ETZ Commission shall have the authority to require additional specific information on any of the following criteria. Unless additional justification is presented, the fact that there is an existing legal nonconforming use shall not be considered sufficient grounds for a zone change in order to bring that use into conformity. Extra-territorial Zoning Commission March 22, 2012 Page 3 of 29

4 2.1.D D D D D D D D D.9 Determination of potential number of homes, population and population demographics. Determination of potential traffic flows (average daily traffic) and where they will impact the transportation system. Determination of need for new commercial activity. Determination of potential water and sewage needs. Evaluation of existing infrastructure capacities and an analysis of the ability of the existing system to accommodate the new development. The difference between capacity and impact should be stated. Those areas which are appropriate for the developer to underwrite should be negotiated between local government and developer. The ETZ should reserve the right to place appropriate zoning categories on environmentally sensitive areas, areas of historical significance or areas which contain endangered or rare species of animal or plant life. Any analysis required should be undertaken and paid for by the developer and verified by the ETZ Commission. Determination of impact of a proposed zone change on surrounding properties. Proposed Zoning District: Section 3.1.M EI1 LIGHT INDUSTRIAL DISTRICT 3.1.M.1 PURPOSE The purpose of the EI1 district is to provide a wide variety of light industry, fabricating, processing, wholesale distributing and warehousing uses appropriately located relative to major transportation facilities. The major portion of the business activity is conducted within enclosed buildings. Land use in this district shall be constructed and operated to ensure there is no excessive noise, vibration, smoke, dust or other particulate matter, toxic or noxious matter, humidity, heat or glare at or beyond any lot line of the parcel on which it is located. Excessive is defined as a degree exceeding that caused in their customary manner of operation by users permitted in the EI1 district, a degree injurious to the public health, safety, welfare or to a degree to which it is a nuisance by reason of excessiveness. Residential uses shall not be permitted except for a residential watchman, caretaker or proprietor of a commercial use. 3.1.M.2 DEVELOPMENT REQUIREMENTS Minimum lot area 5,000 square feet Minimum lot width 60 feet Minimum lot depth 70 feet Minimum front setback 25 feet Minimum side setback 7 feet Minimum rear setback 15 feet Maximum building height 50 feet Extra-territorial Zoning Commission March 22, 2012 Page 4 of 29

5 3.1.M.3 EI1 PERMITTED USES The following uses are permitted by right in the EI1 district: 3.1.M.3.a PERMITTED USES - NO CONDITIONS 1. Automobile and truck parking garages 12. Lumber yards and lots 2. Automobile and truck service stations 13. Newspaper establishments, distribution centers 3. Business offices 14. Paint supplies, sales and distribution 4. Commercial or trade schools 15. Rental and sales of contractor equipment 5. Dwelling for resident watchmen and 16. Restaurants with no drive-in service caretakers employed on the premises, and business proprietors, provided they are located on the same property as the business. 6. Electrical shops 17. Service establishments for repair and maintenance of home and business appliances, building maintenance and repair, including pest control, tree and lawn services 7. Engraving shops 18. Sign construction and sales 8. Fence and wall sales and storage 19. Storage building and warehouses 9. Glass cutting and finishing 20. Telephone exchange stations 10. Hardware stores 21. Tire sales and service establishments 11. Laboratories- research, experimental 22. Welding and light fabrication or testing 3.1.M.3.b PERMITTED USES - WITH CONDITIONS The following uses are permitted in EI1 in accordance with stated conditions: 1. Automobile, mobile home, trailer and truck sales, rentals and storage: The vehicle area must be graded and surfaced with asphalt, concrete or other materials that will provide equivalent protection against potholes, erosion, dust, and a solid wall or fence six (6) feet high shall be maintained along any side of such area abutting or contiguous to any residential zone. 2. Construction or contractor s yard: Yard shall be maintained in a neat and orderly fashion and enclosed by a solid wall or fence of a minimum six (6) feet in height. However there shall be no fence or wall more than three (3) feet of a street intersection. 3. Garages for repair of passenger motor vehicles, light trucks, vans and motorcycles, including body work: All work must be performed in a completely enclosed building. There shall be no storage of junk automobiles for salvage purposes. Only those motor vehicles awaiting repairs can be parked on the premises behind a solid wall or fence so that such vehicles will not be visible from surrounding properties. 4. Heavy equipment repair service (accessory use): Permitted only as an incidental or accessory use to heavy equipment sales or rentals. Floor area for repair shall not exceed three thousand (3,000) square feet and not exceed thirty (30) percent of the total gross floor area. Welding is permitted only in conjunction and shall not be used for the purpose of heavy equipment assembly. Extra-territorial Zoning Commission March 22, 2012 Page 5 of 29

6 5. Open or exterior storage and display of merchandise, materials: Storage or display of materials on the exterior of a building shall be completely enclosed by a fence or wall of solid construction, no less than six (6) feet in height, except for mobile homes, cars, trucks or motorcycles 6. Paint shop, mixing, treatment and spraying: Buildings shall be located on hundred (100) feet from any residential zoning district and obtain approval from the County Fire Prevention Inspector 7. Public utility installations, substations and water wells: The site shall be developed and maintained in conformance with the general character and appearance of the zoning district, and shall include landscaping and suitable screening in the form of a solid wall, fence or compact shrubbery around the perimeter of the lot or tract 8. Restaurants with drive-in service: Must have at least one (1) stacking lane ten (10) feet in width and two hundred (200) feet in length for each drive-in window that is designed to ensure that no business traffic backs onto the street giving access 9. Storage of wrecked or dismantled vehicles and parts (accessory use): The storage of wrecked and dismantled vehicles and parts thereof shall be permitted only as an incidental or accessory use to a vehicle repair establishment or body shop permitted in the EI1 district. Such use shall be in accordance with the following a. Storage shall be within an enclosed building or within a site obscuring fence at least six (6) feet in height above adjacent road grades b. Vehicles and parts stored at the exterior of a building shall be owned by customers of the business and such storage shall be only for the purpose of repair and return to customers c. Exterior storage of vehicles shall not remain on the premises for a period exceeding three (3) months d. There shall be a maximum of twenty (20) wrecked vehicles stored at the building exterior during any one time e. Exterior storage shall be a minimum of one hundred (100) feet from a residential zoning district 3.1.M.4 EI1 SPECIAL USE PERMITS The following uses require a public hearing pursuant to Section 2.1.G of this Ordinance and approval by the ETZ Commission: 1. Airports or heliports 2. Bus passenger terminals, including storage of buses 3. Major facilities for generation of energy, water treatment plants, sewer treatment plants, commercial and public radio and television broadcasting and microwave broadcasting and receiving facilities, storage yards for public utilities and similar uses. 4. Recycling centers 5. Satellite parking areas 6. Wind driven electrical generators or wind driven pumps 7. Mobile homes on a permanent basis for the purpose of housing security guards pursuant to Section 3.01 of this Article. Conditions shall be attached regarding unobtrusive sitting and screening. Extra-territorial Zoning Commission March 22, 2012 Page 6 of 29

7 Current Zoning District: Section 3.1.E.1 ER4M RESIDENTIAL DISTRICT 3.1.E.1.a PURPOSE The purpose of the ER4M district is to provide for single-family site-built and mobile homes in low densities together with such recreational facilities, public uses and accessory uses as may be necessary or are normally compatible with residential surroundings. 3.1.E.1.b DEVELOPMENT REQUIREMENTS Minimum lot size 1/2 acre (except cluster development) Minimum lot width 100 feet Minimum lot depth 100 feet Minimum front setback 25 feet Minimum side setback 10 feet Minimum rear setback 25 feet Minimum building height 35 feet 3.1.E.1.c ER4M PERMITTED USES The following uses are permitted by right in the ER4M district: 1. Cluster developments in accordance with the Subdivision Regulations adopted by the ETZ Authority. 2. Detached single-family site-built homes and mobile homes. 3. Garage and yard sales or similar uses, limited to three (3) sales in a one (1) year period at a single address and each sale shall be limited to three (3) consecutive days. 4. Greenhouses (non-commercial), garden and tool sheds. If detached from the main dwelling, the structures are subject to the provisions of Accessory Buildings under Article VII of this Ordinance. 5. Home occupations subject to Section 3.4 of this Article. 6. Private swimming pools provided the provisions of Article 5 of this ordinance for fencing are met. The pool shall be no closer than five (5) feet from any property line and approval from all utilities is obtained to ensure overhead safety. 7. Recreational vehicles such as boats, trailers or similar uses, limited to a maximum of one (1) per dwelling unit in the front or side yard, and no limitations for the rear yard, provided there is at least a distance of five (5) feet from any property line. 8. Residential type satellite dishes, television or receiving antenna, roof mounted, and not exceeding twenty (20) feet in height at the highest point on the roof. 9. Septic tanks in accordance with the regulations of the New Mexico Environmental Improvement Division (EID) and Section 3.02 of this Article. 10. Temporary real estate offices, when used in conjunction with a residential subdivision, provided such use is discontinued upon the completion of the development or within three (3) years from the date the building permit is issued, whichever is sooner. 11. Keeping small animals subject to Article VIII of this Ordinance. Extra-territorial Zoning Commission March 22, 2012 Page 7 of 29

8 12. Keeping large animals on lots of one (1) acre or greater size subject to Article VIII of this Ordinance. 3.1.E.1.d ER4M SPECIAL USE PERMITS The following uses require a public hearing pursuant to Section 2.1.G of this Ordinance and approval by the ETZ Commission: 1. All types of agriculture. 2. Boarding houses and rest homes. 3. Cemeteries. 4. Community and publicly owned recreational centers, clubhouses and similarly used buildings and structures open to the public. 5. Day care center or child care center for five (5) or more children 6. Guest ranches. 7. Parks, golf courses, churches, schools and other public or semi-public and open recreational uses. 8. Public utility installations, substations and water wells. 9. Keeping large animals and fowl on lots of less than one (1) acre in size. 10. Keeping wild or exotic animals and fowl. 11. Sale of farm produce provided it is raised on the premises. 12. Veterinary facilities. 2. ETZ Comprehensive Plan The proposed Zone Change Request does meet the following Goals, Policies, and Objectives of the ETZ Comprehensive Plan : Objective 8.2: Support, maintain and assist growth and expansion of the region s existing business, industrial and agricultural base. The proposed Zone Change Request does not meet the following Goals, Policies, and Objectives of the ETZ Comprehensive Plan : Section 3.4 ETZ General and Specific Sub-Area Issues of the Comprehensive Plan which is a listing of the most critical issues, and states, North/South River Valleys: Non-agricultural commercial development should be minimized unless major transportation access is available. Policy 1.1.1: Develop the physical structure of the ETZ in a manner supportive of a sense of community, which reflects a logical, efficient, aesthetic and environmentally sound overall form of development. Policy 2.2.1: Encourage development only where it can be supported by existing or planned expansions to infrastructure, without having a negative impact on the level of services available. Policy 2.2.2: Land use development shall be designed to require compatibility between residential and non-residential uses, infrastructure, public facilities, and services Objective 2.3: Identify possible future locations for commercial and industrial nodes whenever compatible with surrounding development or development patterns. Policy 6.3.2: All development shall adhere to quality design that facilitates the coordination of services, infrastructure and compatibility with adjacent land uses. Extra-territorial Zoning Commission March 22, 2012 Page 8 of 29

9 Objective 8.1: Use existing resources, structures, and commercial or industrial zoned spaces for economic development activities in a manner that will support the expansion and diversification of the region s economic base. Policy 8.1.1: Identify commercial and industrial nodes that are compatible with existing development/zoning districts. Program : Development of industrial sites shall be encouraged to locate on existing or planned arterial or collector streets or in planned industrial parks. 3. Miller Criteria The Supreme Court of New Mexico, Miller versus Albuquerque, September 9, 1976, stated: The fundamental justification for an amendatory or repealing zoning ordinance is a change of conditions making the amendment or repeal reasonably necessary to protect the public interest. Also, a zoning amendment may cover and perfect previous defective ordinances or correct mistakes or injustices therein. 4. Spot Zone Spot zoning (Bennett v. City Council For City of Las Cruces, 1999-NMCA-15, 126 N.M. 619) is determined on an ad hoc basis, considering: 1) the disharmony with the surrounding area; 2) the size of the area rezoned; and 3) the benefit of the rezoning to the community or the owner of the parcel. AGENCY COMMENTS DAC Engineering: 1) Must follow all required setbacks. 2) Adhere to all regulatory agencies comments. Some agencies may require certain licenses or permits to be obtained. 3) Adhere to subdivision regulations and requirements. 4) Minimum access must be 50 road or utility easement. DAC Flood Commission: General Comments 1) Pursuant to Flood Insurance Rate Map (FIRM) No C0633 E, the subject property is not within a FEMA Special Flood Hazard Area. The Flood Zone information for the subject property is Zone X, Areas determined to be outside the 500-year floodplain. 2) Please be aware that the subject property is still susceptible to localized flooding despite not being identified within a FEMA Special Flood Hazard Area. Applicant s Responsibility 1) Any new development that increases impervious areas shall have that drainage runoff maintained within the subject property limits. DAC Fire Marshal: 1) Prior to approval of zone change it is recommended that all fire code and fire flow requirements must be met. 1/11/12. 2) After looking further, because he does not have a commercial structure there is no requirement for fire flow at this time. If he ever decides to construct one then that would of course trigger all fire and building codes. Currently all road access standards will have to be met and maintained. It appears that there will be no issues with meeting these requirements but without looking at a more detailed description of the roads I cannot say for certain. In short here are the requirements: Extra-territorial Zoning Commission March 22, 2012 Page 9 of 29

10 D102.1 Access and loading. Facilities, buildings or portions of buildings hereafter constructed shall be accessible to fire department apparatus by way of an approved fire apparatus access road with an asphalt, concrete, or other approved driving surface capable of supporting the imposed load of fire apparatus weighing at least 75,000 lbs. (34,050 kg). D103.1 Access road width with a hydrant. Where a fire hydrant is located on a fire apparatus access road, the minimum road width shall be 20 feet (7.925m) D103.4 Dead Ends. Dead-end fire apparatus access roads in excess of 150 feet (45.72 m) shall be provided with 120-foot Hammerhead, 60-foot Y or 96-foot diameter cul-de-sac and a minimum width of 20 feet. DAC Building Services: No permits are required. DAC Rural Addressing Coordinator: No comments. DAC Advanced Planning: 1) Proposed zone change is not suitable to surrounding residential development. 2) Proposed non-residential land use (including zoning) should be considered spot zoning and is not compatible with surrounding residential uses and zoning. 3) Proposed zoning does not encourage affordable or diverse housing types instead it encourages the potential for removing any existing housing and placing industrial type structures on property. DAC Zoning Codes: We have an open case for operating a business in a residential zone. Case # DASO Codes: No violations NMED: Wastewater Treatment and Disposal- The property has a permit (#LC000332) for a total flow of 375 gpd. As long as the current usage on the property does not exceed 375 gpd (equivalent to a 3-bedroom home) the permit is valid. Surface Drainage/Land Clearing/Dust Control- No comment. NMDOT: No significant impact to state s highway system. CLC MPO: Taos Lane and Jerry St. are local roads. CLC Planning Dept: No ETZ Subdivision issues exist for this property. State Engineer s Office: N/A EBID: No comments received. EVALUATION OF THE 2.1.D DETERMINATION CRITERIA The ETZ Commission may recommend a Zone Change to the ETA as specified by the Extraterritorial Zoning Ordinance Article II, Section 2.1.B/Zoning District Changes: Rezoning and by using the criteria defined by the Extra-territorial Zoning Ordinance Article II, Section 2.1.D/Evaluation Criteria: (See pages for Applicant s responses) (Staff response in italics) Extra-territorial Zoning Commission March 22, 2012 Page 10 of 29

11 2.1.D.1 Determination of the number of homes, population, and population demographics. The applicant states in his submittal that access roads are Watson Lane and Calle de Las Margaritas. Watson Lane is categorized as a Collector but has not been improved to meet those specifications and Calle de Las Margaritas is considered a local road. Additionally, Taos Lane and Jerry St., which provide direct access to the property are both unimproved dirt roads classified as local roads. 2.1.D.2 Determination of potential traffic flows (average daily traffic) and where they will impact the transportation system. The applicant states that there will be no increase in traffic to the site as he only has one employee. Most of the activities at the site include minor welding, assembly and manufacturing, and loading and unloading of materials. Usually the employee is dropped off at the site and they go to the job site for the majority of work. Staff believes that any activities involved at the subject parcel must traverse Jerry St. and Taos Lane which impacts the air quality of the neighborhood because both are unimproved dirt roads. 2.1.D.3 Determination of need for new commercial activity. Although the fencing business has operated for over 14 years without zoning or permitting at this location there are no other permitted industrial businesses in the surrounding area. This business was brought to the attention of DAC by a complaint by a neighbor and the DAC Codes personnel opened DAC Code Case # D.4 Determination of potential water and sewage needs. Applicant states that no water or sewage utilities are utilized by the business. Due to the nature of the business and the hours that the owner and employee are at work sites there would be a minimal impact to those utilities. 2.1.D.5 Evaluation of existing infrastructure capacities and an analysis of the ability of the existing system to accommodate the new development. Applicant does not believe there will be any change or impact to the existing infrastructure. If business increased there would be more activities on site or additional personnel which would impact existing infrastructure. 2.1.D.6 The difference between capacity and impact should be stated. Those areas that are appropriate for the developer to underwrite should be negotiated between local government and developer. The ETZ Ordinance requires that all industrial activities be confined to suitably zoned parcels and Jerry Street, Taos Lane and Calle de Las Margaritas do not meet the requirements of being suitably improved for those activities. There is no paving district in the immediate area so it could possibly fall on local governments to improve them if this changes. The applicant does indicate that the residence also functions as the office as transactions and services are not handled at the home. Business is handled by telephone and D.7 The ETZ should reserve the right to place appropriate zoning categories on environmentally sensitive areas, areas of historical significance, or areas on which contain endangered or rare species of animal or plant life. According to the applicant the area does not contain any environmentally sensitive areas, or endangered or rare species of plants or animals or is it of historical significance. Staff concurs with this assessment as there has been no evidence submitted by reviewing agencies. Extra-territorial Zoning Commission March 22, 2012 Page 11 of 29

12 2.1.D.8 Any analysis required should be undertaken and paid for by the developer and verified by the ETZ Commission. Applicant has paid all the appropriate fees as required. 2.1.D.9 Determination of impact of a proposed zone change on surrounding properties. Applicant has submitted a petition from the surrounding neighborhood and staff was able to verify that 8 of the 15 signatures correspond to DAC Records as the owners of record and an additional 5 signatures are from properties within the area of notification but are not listed as the owner of record. The petition supports the zone change request by the applicant stating that the applicant strives to maintain a clean and well maintained business. The ETZ Ordinance allows industrial type businesses that are located relative to major transportation facilities. The nearest major transportation facility would be Watson Lane, a collector road requiring 85 of R-O-W, more than 2,000 ft away. Watson Ln. is paved but the R-O-W has not been built out per collector road requirements. The route traverses local roads that range in improvements from unimproved private dirt roads (Jerry St. and Taos Ln., thirty (30) foot road easements) to a minimally improved County maintained, paved local road (Calle de Las Margaritas, 50 of R-O-W). NOTICE / NOTIFICATION 26 letters of notification were sent to addresses within the Area of Notification January 30. Legal Notification was posted in the Las Cruces Sun News on Sunday, January 29, Signs were posted on the property. Agenda was posted on County Web Site. No correspondence in support or opposition was received by staff by February 8. STAFF ANALYSIS The Extra-territorial Zoning Commission ( the Commission ) shall recommend approval of the Zone Change to the Extra-territorial Zoning Authority if it finds that a sufficient change in conditions has occurred, is in the public interest, is in conformance with the policies and goals of the ETZ Ordinance and the Comprehensive Plan and is consistent with the character of the surrounding area. The Commission shall evaluate the application and site plan and make a recommendation based on the Applicable Ordinances, Plans, Policies and Criteria listed within this analysis. The applicant is requesting a Zone Change from an ER4M (Residential, 0.5-acre minimum new lot size, single family site built mobile homes) Zoning District to an EI1 (Light Industrial, 5,000 sq. ft. minimum lot size) Zoning District to continue to operate an existing fencing business (Pro Tech Fence Co.). Mr. Chavez s business has been in operation at this location for over 14 years according to his narrative (See Page 17-18). The applicant submitted the application after a complaint was lodged on the business (DAC Codes Case # ). The property (See Site Plan page 16) contains the applicants 1,792 sq. ft. residence, a 700 sq. ft. storage building, and a 700 sq. ft. open-aired carport which is used as a prefab and light welding area for some projects. There is also an area used to store fencing materials. Pro Tech Fence Co. has one employee besides the applicant and the employee does not normally need parking as he is dropped off at the subject parcel each day. If he does bring a vehicle it is parked on the south portion of the property within the fenced area. The rear of the property Extra-territorial Zoning Commission March 22, 2012 Page 12 of 29

13 is enclosed by a 6 foot opaque fence with access to the construction yard via Jerry St., a dirt road thirty (30) feet wide. Taos Ln., on the north side of the property is also a local dirt road thirty (30) feet wide. The subject parcel is served by Jornada Water and a septic system (#LC000332) is in place for the residence. The applicant states that the majority of work is performed at all of the job sites except for some minor welding, fabrication and assembly that is performed on the subject parcel under the open carport located there. The applicants 2.1.D Evaluation Criteria responses state that there would be no change to the number of homes or people if the zone change is granted. Traffic will not increase on the connecting roadways, water is available from Jornada Water Co. and a septic system is in place but neither is utilized by the fencing business and so will not impact those utilities. There are no threatened or endangered species of plant or animal life present on the site and he will pay all fees as required. The impact, according to the applicant, will be minimal and would not change. He has provided some additional steps he would undertake to minimize any adverse impacts even further (See Narrative pages 17-18) to the surrounding neighborhood by enhancing the privacy screening, removing or relocating excess materials and maintaining a clean yard. He proposes to reduce as much noise, smoke and dust associated with fabrication, assembly, loading/unloading of materials and equipment, and performing any minor welding to normal business hours. He also indicates he would enclose the carport which is used for fabrication, assembly and light welding as well as store materials and equipment off-site if economically feasible. The applicant has also provided a petition (See pages 23-24) signed by members of the neighborhood supporting his zone change request and there have been no negative impacts to the surrounding residents. The petitioners have also stated that the applicant strives to maintain a clean and well maintained business. Of the fifteen signatures, eight (8) have been verified as the owner of record per County records, five (5) others reside within the area of notification but do not appear to be the owner of record. The final two (2) are outside of the area of notification. The DAC Engineering Department commented (See Comments page 9) that access to the property must be via a fifty (50) foot easement. As stated above, both Jerry St. and Taos Ln. are thirty (30) foot wide dirt roads and would not meet this requirement. There were no calculations provided for traffic along any of the roadways but the applicant indicated that Jerry St. is a dead-end road terminating at the rear of the subject property approximately 180 feet from the intersection with Taos Ln. and the traffic is therefore minimal with one other parcel besides the applicants with access to the road. Taos Lane, which is a dead-end on both ends, provides access to 9 parcels (including the applicants ) and traverses a distance of approximately 467 feet. The DAC Fire Marshal has indicated in his comments (See Pages 9-10) that there are two potential problems with the proposed zone change. 1) Access to the site must be on an improved road adequate to handle the Fire Department Apparatus up to 75,000 lbs, and 2) adequate turnaround facilities must be provided if the internal access roads/driveways exceed 150 in length. There have been no provisions in the applicants submittal indicating a capacity to make these improvements to public infrastructure such as R-O-W s, sidewalks, paving, etc. and has stated that he could not do so because they would not be economically feasible for him. Extra-territorial Zoning Commission March 22, 2012 Page 13 of 29

14 DAC Advance Planning has provided comments (See page 10) indicating the proposed zone change is not suitable to the surrounding residential development, does not encourage affordable or diverse housing types because it encourages the potential for removing any existing housing and placing industrial type structures on property, and it could be considered spot zoning. In New Mexico, the primary justification for a zone change is spelled out in the Miller vs. City of Albuquerque ruling of 1976 which says the The fundamental justification for an amendatory or repealing zoning ordinance is a change of conditions making the amendment or repeal reasonably necessary to protect the public interest. Also, a zoning amendment may cover and perfect previous defective ordinances or correct mistakes or injustices therein. This is commonly known as the change or mistake rule which is interpreted as there has been a change in the conditions in the area of the subject property sufficient to warrant a need to protect the public, or that there was a mistake in the original zoning. The applicant has not presented any evidence that the proposed zone change was due to a change in conditions in the area. There has been no extension of wastewater services to the area or any roadway improvements, nor has the applicant provided any evidence that the original zoning was a mistake that should be corrected per the Miller Criteria. Staff cannot consider the use a nonconforming use because the applicant has stated (See page 17) he has been at the location for only 14 years. The fencing business would have to document its existence at this location since 1979 and would have been required, at that time, to obtain a Special Use Permit from DAC to meet the requirement of a non-conforming use per the ETZ Ordinance Section 9.1. This request can be considered a spot zone because it is disharmonious with the surrounding area as there are no similar uses within the neighborhood or any other industrially zoned properties in the immediate vicinity. The surrounding neighborhood is dominated by small lot residential uses and a mobile home park except for the large lots to the south which are under agricultural cultivation. The subject parcel is 0.49 acres in size and the Bennett court ruling has noted that the smaller the property being re-zoned, the more likely the finding of spot zoning; while the larger the tract, the less inclined courts are to find spot zoning. In addition, although some in the neighborhood have indicated their support for the zone change request, the applicant would be the main beneficiary as he would be able to continue his operation without having to pay for any road improvements or infrastructure upgrades as would be required if he were to be operating his business within an industrial zoned area with the required infrastructure. If the ETZ Commission follows the staff recommendation and denies the Zone Change request staff has proposed a code enforcement agreement with the applicant allowing him at least six (6) months to relocate the business to a more suitable location. Code Enforcement and Planning staff met with Mr. Chavez on March 6. A draft agreement was shown to Mr. Chavez spelling out the process and milestones for the relocation. STAFF RECOMMENDATION Based on the following Proposed Findings staff recommends DENIAL of Zone Change Request Case # Z11-006/Chavez and give the applicant a maximum of six (6) months to find a new location to properly store all materials and equipment, or to immediately cease operations at this site. Extra-territorial Zoning Commission March 22, 2012 Page 14 of 29

15 PROPOSED FINDINGS If the Extra-territorial Zoning Commission wishes to recommend Denial of Case # Z11-006/Chavez, staff recommends the following proposed findings: 1. The request of this application is consistent with the requirements of the Las Cruces Extra-territorial Zoning Ordinance Article II, Section 2.1.C/Application Procedures and Section 2.1.G/Public Hearing and Notice Requirements. 2. The subject property is located outside the corporate limits of the City of Las Cruces, but within the five-mile Extra-territorial Zone (ETZ) as set forth by (1), NMSA 1978 and the Joint Powers Agreement between Doña Ana County and the City of Las Cruces. Therefore, the Las Cruces ETZ Commission (ETZ-C) has jurisdiction to review this case. 3. The property is located within an ER4M (Residential, 0.5-acre minimum new lot size, single family site-built and mobile homes) Zoning District. 4. The proposed Zone Change Request does not meet the Section 3.4, Policy 1.1.1, Policy 2.2.1, Policy 2.2.2, Objective 2.3, Policy 6.3.2, Objective 8.1, Policy 8.1.1, or Program of the Goals, Policies, and Objectives of the ETZ Comprehensive Plan Per the Miller Criteria, no substantial change of conditions or a mistake in the original zoning has been presented by the applicant, nor has he overcome the presumption that the current zoning designation is the most appropriate. 6. Per the 1999 Bennett ruling, the proposed Zone Change is a spot zone because it is disharmonious with the surrounding neighborhood, is only acres in size and the main beneficiary of the zone change would be the applicant rather than the entire community. Extra-territorial Zoning Commission March 22, 2012 Page 15 of 29

16 Site Plan Extra-territorial Zoning Commission March 22, 2012 Page 16 of 29

17 Applicant s Narrative Extra-territorial Zoning Commission March 22, 2012 Page 17 of 29

18 Applicant s Narrative (cont) Extra-territorial Zoning Commission March 22, 2012 Page 18 of 29

19 Applicant s 2.1.D Responses Extra-territorial Zoning Commission March 22, 2012 Page 19 of 29

20 Applicant s 2.1.D Responses (cont.) Extra-territorial Zoning Commission March 22, 2012 Page 20 of 29

21 Applicant s 2.1.D Responses (cont.) Extra-territorial Zoning Commission March 22, 2012 Page 21 of 29

22 Jornada Water Co. Ready, Willing and Able Letter Extra-territorial Zoning Commission March 22, 2012 Page 22 of 29

23 Applicant Submitted Petition w/notification List Identifications Extra-territorial Zoning Commission March 22, 2012 Page 23 of 29

24 Applicant Submitted Petition (cont) w/notification List Identifications Extra-territorial Zoning Commission March 22, 2012 Page 24 of 29

25 Zoning Map Extra-territorial Zoning Commission March 22, 2012 Page 25 of 29

26 Area Aerial Map Extra-territorial Zoning Commission March 22, 2012 Page 26 of 29

27 Close-up Aerial Map Extra-territorial Zoning Commission March 22, 2012 Page 27 of 29

28 Area of Notification Map Extra-territorial Zoning Commission March 22, 2012 Page 28 of 29

29 Area of Notification List Extra-territorial Zoning Commission March 22, 2012 Page 29 of 29