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: February 16, 2012 CASE #: REQUEST: OWNER: APPLICANT: LOCATION: PROPERTY SIZE: Z11-005/Gonzalez Zone Change from EC1 to ER3/4M Benito Gonzalez Benito Gonzalez SW corner of the intersection of Holman Rd. & Blue Topaz Ave Holman Rd acres RECOMMENDATION: DENIAL CASE MANAGER: Steve Meadows, Planner SUMMARY: The applicant, Benito Gonzalez, is requesting a Zone Change from EC1 (Neighborhood Commercial, 5 acre maximum new lot size, limited service and retail establishments) to ER3/4M (Residential, 3/4 acre minimum new lot size, single family site-built and mobile homes) to place a 1120 sq. ft. mobile home. The 0.89-acre subject property is located within Section 1, Township 22 South, Range 2 East, northeast of the City of Las Cruces and north of Hwy. 70 at the SW corner of the intersection of Holman Rd. and Blue Topaz Ave. The property is described as Tract C, Amber Mesa Subdivision, as recorded on October 20, 1988, in Book 15, Pages in the Office of the Doña Ana County Clerk. The parcel can be further identified by Map Code # REPORT CONTENTS: (1) Case Analysis and Staff Recommendation, (2) GIS Information & Maps (3) Application and Supporting Documents Extra-territorial Zoning Commission February 16, 2012 Page 1 of 28

2 SURROUNDING ZONING AND LAND USE SITE ZONING LAND USE North South East West EC 1 Neighborhood Commercial, 5-acre maximum new lot size, limited service and retail establishments ER 3/4M Residential, 0.75-acre minimum new lot size, single family site built and mobile homes ER 7 Residential, 2.0 acre minimum new lot size, single family site built homes ER 3/4M Residential, 0.75-acre minimum new lot size, single family site built and mobile homes Vacant land Residential development Vacant land Residential development BACKGROUND The Request: The applicant is requesting a zone change from EC1 to ER 3/4M on a 0.89 acre parcel to convert the commercially zoned property to residential and place a 1,120 sq. ft. single wide mobile home. As a court ordered subdivision no infrastructure improvements were required at the time of approval. Existing Conditions and Zoning: The subject property is an undeveloped 0.89-acre rectangular parcel. It is bounded on the east by Holman Rd. a paved County maintained road, listed as a Minor Arterial by the Las Cruces MPO, and on the north by Blue Topaz Ave., a graded County maintained road that the Las Cruces MPO has classified as a proposed Collector road. The parcel is zoned EC1. Water is available from Moongate Water Co., Inc. and a 1200 gallon per day capacity commercial septic system was permitted and installed in 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. 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. Extra-territorial Zoning Commission February 16, 2012 Page 2 of 28

3 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. 2.1.D D D D.4 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. Extra-territorial Zoning Commission February 16, 2012 Page 3 of 28

4 2.1.D D D D D.9 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.D.1 ER3/4M RESIDENTIAL DISTRICT 3.1.D.1.a PURPOSE The purpose of the ER3/4M district is to provide for single-family site-built homes an 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.D.1.b DEVELOPMENT REQUIREMENTS Minimum lot size 3/4 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 Maximum building height 35 feet 3.1.D.1.c ER3/4M PERMITTED USES The following uses are permitted by right in the ER3/4M 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. Extra-territorial Zoning Commission February 16, 2012 Page 4 of 28

5 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 12. Keeping large animals on lots of one (1) acre or greater size subject to Article VIII of this Ordinance 3.1.D.1.d ER3/4M 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: Current Zoning District: 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 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 Section 3.1.J EC1 NEIGHBORHOOD COMMERCIAL DISTRICT 3.1.J.1 PURPOSE The EC1 district is intended to accommodate limited retail and service establishments as a convenience to nearby residential neighborhoods. This zone is designed to be compatible and consistent with the needs and character of a residential neighborhood. Uses such as the sale of vehicles, engines, mobile homes, body shops, pet shops and similar uses are not permitted in the EC1 district. No uses which exceed ten thousand (10,000) square feet of gross floor area per business are permitted in order to avoid creation of undue traffic congestion, noise or other problems that would be detrimental to the residential character of the neighborhood. Extra-territorial Zoning Commission February 16, 2012 Page 5 of 28

6 3.1.J.2 DEVELOPMENT REQUIREMENTS Maximum lot area Minimum lot width Minimum lot depth Minimum front setback Minimum side setback Minimum rear setback Maximum building height 5 acres 60 feet 70 feet 25 feet 7 feet 15 feet 35 feet Total district area shall not exceed five (5) acres. Residences in the EC1 district shall comply with the development requirements for the ER5 district as outlined in Section 3.1.F.1 of this Article. Landscape buffering may be required between commercial and residential uses. 3.1.J.3 PERMITTED USES IN EC1 DISTRICT The following uses are permitted by right in an EC1 district provided the gross floor area of each business does not exceed ten thousand (10,000) square feet. 3.1.J.3.a PERMITTED USES - NO CONDITIONS 1. Arts and crafts studios 23. Jewelry stores 2. Banks and other similar financial 24. Knitting and yarn shops institutions with no drive-up services 3. Barber shops 25. Libraries 4. Beauty parlors 26. meat and seafood markets 5. Bicycle (non-motorized) sales and 27. Messenger and telegraph services service 6. Bookstores, newsstands and 28. Office equipment sales and service stationary shops 7. Cigarette and cigar shops 29. package liquor stores 8. Coffee shops and snack bars 30. Photography studios 9. Community buildings (publicly or 31. Photostat tic copying services privately owned) 10. Dealers in coins, stamps or similar 32. Post offices collectors items 11. Delicatessens 33. Private clubs and lodges 12. Dental and medical laboratories 34. Professional and business offices 13. Dressmaking shops 35. Public parks, playgrounds and other similar recreational facilities 14. Drug stores 36. Real estate offices 15. Dry goods or notion stores 37. Restaurants without drive-in service 16. Florist shops 38. Schools for teaching art, dance, music and other similar activities 17. Furniture stores 39. Self service Laundromats 18. Gift shops 40. Shoe and boot repair shops 19. Grocery stores 41. Small appliance sales and service 20. Hardware stores 42. Tailor shops 21. Health gymnasiums 43. Theaters, excluding open air or drive in theaters Extra-territorial Zoning Commission February 16, 2012 Page 6 of 28

7 22. Hobby shops 44. Private towers 3.1.J.3.b PERMITTED USES - WITH CONDITIONS The following uses are permitted in EC1 in accordance with stated conditions: 1. Automotive accessories, parts and supplies There shall be no installation, repair, rebuilding, modification or outside storage of parts on the premises 2. Automotive, truck, motorcycle and motor bicycles (mopeds) repair service Repair work shall be done within a completely enclosed building at least twenty (20) feet from any residential zone. Storage of not more than five (5) vehicles awaiting repair shall be permitted, provided that the outdoor area in which such vehicles are stored shall be enclosed by a solid wall or fence at least six (6) feet high. 3. Bakeries All products produced on the premises shall be sold at retail on the premises 4. Child care centers, nurseries or similar uses Play area shall be in accordance with state licensing requirements and enclosed by a solid wall or fence five (5) feet high. A stacking lane for access shall be provided at least twenty-seven (27) feet long and fifteen (15) feet wide for each ten (10) children served. 5. Christmas tree sales Temporary, not prior to 15 NOV and provided that lots are removed by 31 DEC 6. Churches Permitted when on a site of two (2) acres or larger 7. Construction yard or building (temporary use) Permitted only during construction, provided the use or building is removed upon the completion of construction or within three (3) years from the date of the building permit, whichever is sooner. Construction yards and buildings shall be enclosed by a solid fence for a minimum of five (5) feet in height, however, there shall be no fence or wall more than three (3) feet in total height above street-curb level within thirty (30) feet of an intersection. 8. Drive-up banks and other similar financial institutions Must have at least one (1) stacking lane the (10) feet in width and one hundred twenty (120) feet in length for each drive-up window that is designed to ensure no business traffic backs onto the street giving access. 9. Drive-in restaurant Must have at least one (1) stacking land ten (10) feet in width and two hundred (200) feet in length for each drive-in window that is designed to ensure no business traffic backs on the street giving access. 10. Dry cleaning, commercial laundry and clothes pressing services Permitted, provided only non-flammable or non-combustible materials are used in the cleaning process, the number of employees does not exceed Extra-territorial Zoning Commission February 16, 2012 Page 7 of 28

8 five (5) and the portion of the structure in which any cleaning process is done is at least fifty (50) feet from a residential district. 11. Feed stores for retail sales All outside storage must be enclosed by a solid wall or fence six (6) feet high on all sides abutting residential districts 12. Firewood sales A maximum of twenty (20) cords per business can be stored on site (a) must be enclosed by a six (6) foot opaque fence on all sides abutting residential districts (b) wood may not be stacked above the fence (c) no wood may be stored closer than ten (10) feet to any property line or within ten (10) feet of any structure (d) ingress/egress and fire lanes within the lot area must be maintained and unobstructed to a width of fifteen (15) feet (e) cutting of firewood is prohibited 13. Mini storage units Units shall not be used for commercial sales of products, merchandise, service or repair. Buildings shall be separated by a twenty-five (25) foot aisle. 14. Nursery or greenhouse All outside storage, other than plant material, shall be enclosed by a six (6) foot high solid wall or fence on all sides 15. Pet shops for retail sales of animals, including grooming services All workrooms and cages must be maintained within a completely enclosed soundproof building and the shop must be operated in such a way as to provide no objectionable noise or odors 16. Public utility installation, substations and water wells Sites 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 17. Storage - incidental to primary use Storage shall be permitted only for merchandise incidental to the primary use of the business. Such storage shall be totally enclosed within the building of primary use and at least ten (10) percent of the gross floor area shall be used for retail sales or service. 18. Swimming pools Permitted only when a protective fence six (6) feet in height is provided around the yard, lot or pool area. The pool shall be no closer than six (6) feet from any property line and approval from all utilities is required to ensure overhead safety 19. Trailer rentals There shall be no outside storage of automobiles or parts and no body or fender work, painting or upholstery work done on the site 20. Veterinary clinic for small animals Extra-territorial Zoning Commission February 16, 2012 Page 8 of 28

9 There shall be no boarding of animals and no overnight confinement facilities. Clinic treatment shall be limited to five (5) animals. 21. Commercial tower uses Refer to Section 4.2.E.2 of this Ordinance for conditions 3.1.J.3.c EC1 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. Auto and truck washing services 2. Bars and lounges 3. Gasoline pumps (accessory to grocery stores) 4. Golf courses and country clubs 5. Halfway houses and quasi-institutional uses 6. Hospitals and overnight health clinics 7. Institutions- public, educational, religious and philanthropic 8. Satellite parking areas 9. Service stations 10. Mobile homes on a temporary basis during construction for the purpose of housing security guards, pursuant to Section 3.1 of this Article. Conditions shall be attached regarding unobtrusive sitting and screening. 2. ETZ Comprehensive Plan The Zone Change Request does meet the following Objectives, Policies and Goals of the ETZ Comprehensive Plan: 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 1.1.3: Discourage leap-frog development in areas that lack the necessary infrastructure, such as roads and utilities. Goal 2: Develop the physical structure of the ETZ in a manner that provides a sense of community and reflects a logical, efficient, aesthetic and environmentally sound overall form that will serve to: 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 in the developed portion of the ETZ area. Policy 2.2.2: Land use development shall be designed to require compatibility between residential and non-residential uses, infrastructure, public facilities, and services. Goal 6: Provide for the housing needs of citizens residing in the Extraterritorial Zone. Promote housing availability and affordability. Provide for compatible, safe and attractive locations for site-built, manufactured homes and mobile housing units. Extra-territorial Zoning Commission February 16, 2012 Page 9 of 28

10 Provide housing opportunities in rural and urban areas of the ETZ that meet the needs of present and future populations in all socioeconomic groups. Policy 6.3.1: Provide for quality development of new housing and protection of existing neighborhoods in a manner that ensures safe, sanitary, habitable and well-maintained structures. Objective 6.4: Promote the provision of fair, decent, safe, affordable housing for rental or purchase that meets the needs of present and future ETZ residents. Policy 6.4.1: Affordable housing shall be encouraged in all areas that are appropriate for residential and mixed-use residential development. Policy 6.4.2: Support and encourage the development of innovative strategies designed to address the housing needs of the ETZ. The Zone Change Request does not meet the following Objectives, Policies and Goals of the ETZ Comprehensive Plan: Objective 8.1: Use existing resources, structures, and commercial or industrial zoned spaces for economic development activities in a manner that will be 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. Policy 8.1.2: Preference for the development of commercial activity should be located at major intersections (i.e., intersections of two arterials, two collectors, or an arterial road and a collector road). 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. Extra-territorial Zoning Commission February 16, 2012 Page 10 of 28

11 AGENCY COMMENTS DAC Engineering: 1) Adhere to all regulatory agencies comments. Some agencies may require certain licenses or permits to be obtained. 2) Adhere to all subdivision requirements. DAC Flood Commission: General Comments 1) Pursuant to Flood Insurance Rate Map (FIRM) No C0550 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) Please be aware of the onlot drainage ponding requirements for increases to impervious areas. 2) On-lot ponding shall be located at a minimum of five feet (5 ) from property lines and ten feet (10 ) from any structure. 3) If applicable, on-lot ponding shall not be located above septic tanks or their leach fields. DAC Fire Marshal: No issues with zone change. DAC Advance Planning: 1) Proposed zone change is similar to surrounding development. 2) Proposed development will limit impervious area generally attributed to commercial development and protect groundwater from runoff. 3) Site is connected to public water source. 4) Residential uses generally use less lighting than commercial uses. 5) Traffic for residential uses is considerably less than commercial uses. DAC Building Services: A Mobile Home Installation Permit is required and must meet all County, State and code requirements. The permit has been applied for and is on hold by the Planning Department. DAC Rural Addressing Coordinator: No comments. DAC Zoning Codes: Checked codes database and there are no open or closed cases for the parcel in question. DASO Codes: No violations NMED: Wastewater Treatment and Disposal- The lot meets the minimum lot size of a net acreage of 0.75-acres for a 3 bedroom home to install a conventional septic system. The system was designed to handle a restaurant on a small lot. The system is oversized for a single home. Surface Drainage/Land Clearing/Dust Control- No comment. NMDOT: No significant impact to state s highway system. CLC MPO: Blue Topaz Ave. is a future Collector and Holman Rd. is a minor Arterial. Property is probably zoned commercial to provide for future services in area. CLC Planning Dept: No ETZ Subdivision issues exist for this property. State Engineer s Office: No comment. Extra-territorial Zoning Commission February 16, 2012 Page 11 of 28

12 EBID: Out of District. EVALUATION OF THE 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 18 for Applicant s responses) (Staff response in italics) 2.1.D.1 Determination of the number of homes, population, and population demographics. There will be one residence placed on the property with one family. 2.1.D.2 Determination of potential traffic flows (average daily traffic) and where they will impact the transportation system. Three cars will be added to the traffic flow. 2.1.D.3 Determination of need for new commercial activity. The applicant is proposing to convert the property to residential with the zone change therefore, no commercial activity will take place on the parcel. 2.1.D.4 Determination of potential water and sewage needs. The applicant has a valid septic permit #DA installed in 2008 for a commercial 30-seat restaurant. It is over sized for a residential use as indicated by the NMED comments. 2.1.D.5 Evaluation of existing infrastructure capacities and an analysis of the ability of the existing system to accommodate the new development. Water is available per Moongate Water Co. and a valid septic permit has adequate capacity. 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. There will be no difference with the capacity and impact of the infrastructure on the site. 2.1.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. Applicant has indicated none are known and no agency comments suggest otherwise. 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. 2.1.D.9 Determination of impact of a proposed zone change on surrounding properties. The impact of changing the parcel from a commercial zone to residential will have a positive impact as less traffic will be using the road system, lighting impact should be less, there will be less impervious areas so drainage will be better, and the residential use will be more appropriate to the adjacent residential properties. Extra-territorial Zoning Commission February 16, 2012 Page 12 of 28

13 NOTICE / NOTIFICATION 17 letters of notification were sent to addresses within the Area of Notification on January 30. Legal Notification was posted in the Las Cruces Sun News on Sunday, January 29, Signs were posted on the property in a timely manner. Agenda was posted on County Web Site. No correspondence in support or opposition was received by staff. 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 EC1 (Neighborhood Commercial, 5-acre maximum new lot size, limited service and retail establishments) Zoning District to an ER 3/4M (Residential, 0.75-acre minimum new lot size, single family site built and mobile homes) Zoning District to convert the parcel from commercial to residential use and place a 1,120 sq. ft. mobile home on the property. Water to the parcel is available from Moongate Water Co., Inc. and the applicant has provided a Ready, Willing and Able Letter (See page 19). The applicant has also provided a copy of septic permit #DA (See page 21). NMED has commented (See page 11) that the septic permit was originally in place for a 30 seat commercial restaurant by the prior owner, Mr. Moore, and was sized accordingly. They go on to say that it would have sufficient capacity for a residential home as proposed. The 2.1.D Evaluation Criteria Responses indicate that one family with 3 additional vehicles will be added to the area traffic. The applicants home will be located on the 0.89 acre parcel, which meets the size requirements for a conventional septic system per the New Mexico Environmental Department. Moongate Water Co. provides water to the area and they have the capacity to serve this property. There is no commercial activity anticipated as it is strictly proposed as residential development to blend in with the Amber Mesa Subdivision zoning scheme. There are no known threatened or endangered species of plant or animal life present on the site and it is of no historical significance, and the applicant has stated he will pay all fees as necessary. The impact, according to the applicant, will be positive because the proposed residential use will be less intense than a commercial use with the current zoning designation. 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 a change in the conditions in the area of the subject property sufficient to warrant a need to protect the public, or there was a mistake in the original zoning. The applicant asserts that the previous owner Extra-territorial Zoning Commission February 16, 2012 Page 13 of 28

14 was unable to develop the property commercially due to a determination by the office of the DAC Fire Marshal (See page 20) that the required fire flow of 1,500 gpm for 2 hours could not be met by the water provider and there was no fire hydrant. When staff discussed this with the Fire Marshal s office it was noted, by the original permit reviewer, that once the negative review was delivered to the owner, Mr. Fred Moore, he did not respond. DAC Building Services located the electronic record of Plan Review #0069 for a restaurant and Mr. Moore did not complete the permit process, therefore, no building permit was issued. Additionally, the Fire Marshal s office representative said that had Mr. Moore responded to the original denial his office would have offered alternative strategies per the NFPA 1142 Fire Code that Mr. Moore could have pursued (i.e., sprinkler system, fire alarms, etc). Staff believes the applicant s asserted change in conditions does not meet the criteria of the Miller decision because it is not impossible to use the property as the zoning allows, there are other strategies to meet the fire code that can be pursued by the applicant to develop the property within the uses permitted in an EC1 Zoning District. The original zoning could not be considered a mistake because the subdivision was created with parcels that were set aside for commercial purposes and the Fire Code could be met for a commercial businesses on the parcels using alternative strategies that meet the NFPA 1142 Fire Code Regulations. Additionally, the applicant has not overcome the presumption that the current zoning district designation is the most appropriate. Granting the Zone Change request would not be considered a Spot Zone because it would be in harmony with the surrounding area as the residential areas of the Amber Mesa Subdivision, which were originally zoned ER3/4M. This request coincides with the residential zoning, and the proposed land use is consistent with other uses within the subdivision. It would be developed as all the other residential properties within the subdivision and would benefit not only the applicant but the surrounding community as vacant land would be utilized which may enhance or stabilize the surrounding property values. A commercial development would also enhance or stabilize those values. If developed as a residential property, access to the parcel would be problematic because it does not have immediate access to the internal local roads as all other residential properties do within this subdivision. This parcel, Tract C, has no connection to the internal street, Onyx Circle, (See page 23) which would then require the parcel to be accessed from either Holman Rd, a minor arterial, or Blue Topaz, a collector road. The original Amber Mesa Subdivision Plat recorded October 20, 1988, states (See page 22) in Note #2, No residential lot may front on any major arterial and/or collector street. STAFF RECOMMENDATION Based on the following Proposed Findings staff recommends DENIAL of the Zone Change Request Case # Z11-005/Gonzalez. PROPOSED FINDINGS If the Extra-territorial Zoning Commission wishes to recommend Denial of Case # Z11-005/Gonzalez, staff recommends the following proposed findings: Extra-territorial Zoning Commission February 16, 2012 Page 14 of 28

15 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 proposed Zone Change Request does meet Policy 1.1.1, Policy 1.1.3, Goal 2, Policy 2.2.1, Policy 2.2.2, Goal 6, Policy 6.3.1, Objective 6.4, Policy 6.4.1, and Policy of the Goals, Policies, and Objectives of the ETZ Comprehensive Plan The proposed Zone Change Request does not meet Objective 8.1, Policy 8.1.1, and Policy of the Goals, Policies, and Objectives of the ETZ Comprehensive Plan : 5. The original Amber Mesa Subdivision Plat, recorded October 20, 1988, states in Note #2, No residential lot may front on any major arterial and/or collector street, and the subject parcel has no direct access other than Blue Topaz Ave. or Holman Rd. 6. Blue Topaz Ave. is classified as a Collector Road and Holman Rd. as a Minor Arterial by the Las Cruces MPO. 7. Per the 1999 Bennett ruling, the proposed Zone Change is not considered a spot zone because it would be in harmony with the surrounding neighborhood and zoning, and although only one small parcel it would benefit not only the applicant but the surrounding community as vacant land would be utilized which could enhance or stabilize the surrounding property values. 8. Per the Miller Criteria, there has been no change in conditions or a mistake in the original zoning despite the absence of sufficient fire flow, other strategies could be pursued to develop the parcel commercially. Additionally, the applicant has not overcome the presumption that the current zoning designation is the most appropriate. Extra-territorial Zoning Commission February 16, 2012 Page 15 of 28

16 Site Plan Extra-territorial Zoning Commission February 16, 2012 Page 16 of 28

17 Applicant s Narrative Extra-territorial Zoning Commission February 16, 2012 Page 17 of 28

18 Applicant s 2.1.D Responses Extra-territorial Zoning Commission February 16, 2012 Page 18 of 28

19 Moongate Water Co. Ready Willing and Able Letter Extra-territorial Zoning Commission February 16, 2012 Page 19 of 28

20 Fire Marshal Office Plan Review February 2008 Extra-territorial Zoning Commission February 16, 2012 Page 20 of 28

21 Septic Permit #DA Extra-territorial Zoning Commission February 16, 2012 Page 21 of 28

22 Amber Mesa Subdivision Notes Extra-territorial Zoning Commission February 16, 2012 Page 22 of 28

23 Amber Mesa Subdivision Plat Close-up Extra-territorial Zoning Commission February 16, 2012 Page 23 of 28

24 Zoning Map Extra-territorial Zoning Commission February 16, 2012 Page 24 of 28

25 Area Aerial Map Extra-territorial Zoning Commission February 16, 2012 Page 25 of 28

26 Close-up Aerial Map Extra-territorial Zoning Commission February 16, 2012 Page 26 of 28

27 Area of Notification Map Extra-territorial Zoning Commission February 16, 2012 Page 27 of 28

28 Area of Notification List Extra-territorial Zoning Commission February 16, 2012 Page 28 of 28