00_1101.MEETING MINUTES

PLANNING AND ZONING COMMISSION

REGULAR MEETING

November 1, 2000

MEMBERS PRESENT:

Ms. Ginna L. Sanders, First Vice-Chairman.

Mr. Daniel Schwebke, Second Vice-Chairman.

Ms. Paula J. Dardin, Member.

Mr. Preciliano J. Martín, Member.

Mr. Robert J. Jaramillo, Ex-Officio Member.

MEMBERS ABSENT:

Mr. Michael M. O’Hara, Chairman

STAFF PRESENT:

Ms. Sharon L. Few, City Planner.

Mr. Dean Hunt, Engineer.

Mr. J. Gregory Garcia, Recording Secretary.

                OTHERS PRESENT:

Mr. Walter Dickinson; Ms. Jenny Dickinson; Mr. Bradley Shelton; Ms. Martha Shelton; Mr. Mike Gallegos; Ms. Sulan Canter; Dr. E.C. Staley, D.V.M.; Master David C. Staley; Ms. Han Chase; Ms. Mary Goodman; and other unidentified persons.

1. CALL TO ORDER. Acting Chairman Sanders called the regularly scheduled November 1, 2000, meeting to order at approximately 1:35 p.m. Acting Chairman Sanders noted that a total of three (3) items were to be considered, all under Public Hearing. Recommendations to the City Commission are to be made by the Planning and Zoning Commission for approval or denial of the requests. The City Commission will consider these requests at its meeting of November 28, 2000, to render final decisions.

2. APPROVAL OF AGENDA. Commissioner Schwebke made a motion "TO APPROVE THE AGENDA, AS WRITTEN". Seconded by Commissioner Dardin. All voted "AYE", passing the motion by a vote of 4-0-0.

3. MINUTES OF October 4th REGULAR MEETING, AND October 29th INSPECTION TOUR, 2000. Commissioner Dardin made a motion "TO APPROVE THE MINUTES, AS WRITTEN". Seconded by Commissioners Martin and Schwebke. All voted "AYE", approving the motion by a vote of 4-0-0.

4. PUBLIC HEARING.

A. CASE: Z-00-0597(A). PETITIONER: John M. Foster, owner. REQUEST: approval of an ordinance to amend the official zoning map of the City of Alamogordo and change the zoning to District "D" (Business) with conditions or a more restrictive classification; which, if approved, would allow the property to be used for business uses, which would include a veterinary office. TOTAL AREA: ± 32,168 square feet. LOCATION: 2820 Indian Wells Road. CURRENT LEGAL: Lot 3, Block 3, Heights Addition "C" Annex Replat. CURRENT ZONE: District "C" (Multi-family Dwelling).

Dean Hunt, Engineer, reported that John M. Foster owns Lot 3, Block 3, Heights Addition "C" Annex Replat. The property has a vacant residential structure on it. The requested rezoning will allow the property to be used for business uses, which would permit a veterinary office/clinic. The property, 2820 Indian Wells Road, is zoned "C" (Multi-family Dwelling) District, which allows professional offices, hospitals, and clinics. Land located on the north side of Indian Wells Road is, in general, zoned District "D" (Business) while land on the south side of Indian Wells Road, between Carmel Drive and Scenic Drive is zoned District "C" (Multi-family Dwelling). Zoning the land, as requested, to "D" will not create "spot" zoning but will introduce a "peninsula" of District "D" within the "C" District which exists on two (2) sides (east and west) of the property. Single family zoning and uses exist south of the property (south of the alley). Rezoning to District "D" would open the property to a wide range of allowed uses, which may not be compatible with the adjacent residential uses. The current "C" zoning does not allow animal hospitals or clinics. Rezoning to the lesser, more restrictive neighborhood business classification of "D-2" would not allow a veterinary clinic. Should rezoning of the property to District "D" be approved, it is recommended that it be conditioned for only a veterinary clinic with no outside activity (i.e. agility courses, large animal stocks, animal runs, etc.). The 1971 Master Plan designates this property to be developed as high density residential. The proposed rezoning will not conform to the Master Plan and will create a peninsula of business zoning surrounded by residential (multi-family and single family) zoning. Any change in the occupancy (e.g. use) of the property will require full compliance with the Uniform Building Codes (U.B.C.) and other applicable Codes. Pursuant to Section 29-01-020, of the Code of Ordinances of the City of Alamogordo, New Mexico, notice of the time and place of the public hearing was advertised on September 17 and October 15, 2000, in the Alamogordo Daily News, and twenty-two (22) notices were mailed to property owners within the 200 foot legal protest area on September 19 and October 12, 2000. Protests which represent 43.95 percent of the land within the 200 foot legal protest area have been received, as follows: One (1) petition with sixteen (16) owners' signatures for twelve (12) of the properties within the 200 foot legal protest area, two (2) residents' signatures of people who reside on two (2) of the properties within the 200 foot legal protest area, and nine (9) owners' signatures for seven (7) properties outside the 200 foot legal protest area; Six (6) letters with ten (10) owners' signatures for six (6) properties within the 200 foot legal protest area [two (2) letters duplicate four (4) signatures on the petition]; and One (1) letter with a signature of a resident within the 200 foot legal protest area. No protests have been withdrawn since the October meeting. When an applicant requests postponement of a public hearing for which publication has already been completed, the applicant shall reimburse the city for actual costs incurred for re-notification and/or publication. City Commission action on any public hearing item shall not be final until payment in full has been made to the City. Consideration of this application [Z-00-0597(A)] in a public hearing was continued at the request of Ms. Chris Foster. Therefore, a total of $84.33 ($18.77 pro-rated share of legal publication and $56.32 for 22 notices at $2.98 each) is to be paid to the City no later than November 28, 2000. Staff is recommending denial of the request for unconditional or conditional rezoning to District "D" (Business).

Ms. Few, as a property owner within the 200 foot legal protest area, removed herself from the proceedings of this item. Mr. Dean Hunt, Engineer, filled-in as City Planner. Ms. Foster was not available to speak for the petition. Mr. Brad Shelton spoke on behalf of the property owners present from Carmel Dr. Mr. Shelton stated that Mrs. Foster called many of the property owners to try and convince them to cancel their petitions of protest. Mr. Shelton also stated that the protests will not be withdrawn and the property owners, including him, are still solid on their original protests against the rezoning. Commissioner Schwebke made a motion "TO RECOMMEND DENIAL OF THE REQUEST OF AN ORDINANCE TO AMEND THE OFFICIAL ZONING MAP OF THE CITY OF ALAMOGORDO AND CHANGE THE ZONING TO DISTRICT "D" (BUSINESS)." Commissioner Dardin seconded the motion. All voted "AYE’, passing the motion by a vote of 4-0-0.

B. CASE: V-00-0434(A). PETITIONER: Walter O. Dickinson, Jr. and Jenny Dickinson, owners. REQUEST: Approval of a variance of six feet (6') from Section 29-03-020, of the Code of Ordinances of the City of Alamogordo, New Mexico, governing front yard setbacks; which, if approved, would allow the construction of a covered porch nineteen feet (19') from the front property line, rather than the twenty five foot (25') front setback required by Code. TOTAL AREA: ±6,600 square feet. LOCATION: 1901 Mountain View Avenue. CURRENT LEGAL: Lot 7, Block 9, Mountain View Addition No. 1. CURRENT ZONE: District "A" (Single Family Dwelling).

Ms. Few reported that Walter O. Dickinson, Jr., and Jenny Dickinson own Lot 7, Block 9, Mountain View Addition No. 1. They want to have a cover constructed over an existing front patio. The property, 1901 Mountain View Avenue, is zoned "A" (Single Family Dwelling) District. The 1971 Master Plan designates this property to be developed as low density residential. A front yard having a depth of not less than twenty-five feet (25') is required. The roof is to be extended over the existing front patio. The new roof extension will have a front yard setback of nineteen feet (19'). Therefore a variance of six feet (6') has been requested. A variance to dimensional regulations may be granted where: (1) such action will not be materially detrimental to the public interest; and (2) such action, will not grant a discriminatory benefit to the land owner and/or harm neighboring properties; and (3) such action, owing to conditions peculiar to the property or the neighborhood and not the result of actions or the situation of the applicant, a literal enforcement of the Code of Ordinances of the City of Alamogordo, New Mexico, and not in conflict with any other adopted code, would result in practical difficulties or unnecessary hardship. The applicants noted that the existing patio settled and is not properly pitched to allow water to runoff the roof. As such, water drains towards the house and down the wall. The siding has been damaged and damage to the foundation is expected if the situation is not corrected. By constructing a porch roof over the patio, which drains properly away from the house, it is expected that further damage to the house can be prevented. Pursuant to Section 29-01-070(c), of the Code of Ordinances of the City of Alamogordo, New Mexico, notice of the time and place of the public hearing was advertised October 15, 2000, in the Alamogordo Daily News, and thirty-nine (39) notices were mailed to property owners within the 200 foot legal protest area on October 10, 2000. No protests to the requested variance have been received; Staff recommends approval of the six-foot (6') front setback variance to allow the roof extension and prevent further damage to the house.

Mr. Walter Dickinson was available to speak for the request. Mr. Dickinson stated that the previous owners of the house build a brick patio and it settled against the house. Now, the rainwater collects puddles and collects against the house, which has damaged it. The covered porch will help divert the water away from the house. Mr. Dickinson went on to say that the existing slab is already considered part of the property and the setback. The porch would be build straight up from the existing slab. Commissioner Schwebke asked if it would be cheaper to pull-up the existing slab, pour another one and set the proper slope away from the house. Mr. Dickinson stated that in order to pour another slab, he would need a variance anyway. So, rather than getting a variance to pour another slab, he would prefer to get the variance for a porch and then screen it in. Ms. Few stated that, for the record, Mr. Dickinson would not need a variance to only pour a new slab. An unenclosed patio or porch may extend ten feet (10’) into the required from setback. Commissioner Schwebke made a motion "TO RECOMMEND APPROVAL OF THE VARIANCE OF SIX FEET (6’)". Commissioner Dardin seconded the motion. All voted "AYE", passing the motion by a vote of 4-0-0.

C. CASE: Z-00-0600(A). PETITIONER: Mike Gallegos and Yolanda Gallegos, owners. REQUEST: Approval of an ordinance to amend the official zoning map of the City of Alamogordo and change the zoning to District "D-2" (Neighborhood Business), which, if approved, would allow the property to be used for limited retail business, which would allow the sale of shoes, apparel and hair styling. TOTAL AREA: ± 8,236 square feet. LOCATION: 708 N. Florida Avenue. CURRENT LEGAL: Lot 1, Block 112, Alamo Blocks. CURRENT ZONE: Conditional District "D-2" (Neighborhood Business), for only the sale of ladies shoes.

Ms. Few reported that Mike Gallegos and Yolanda Gallegos own Lot 1, Block 112, Alamo Blocks. The requested rezoning will allow the property to be used for all types of neighborhood business. The property, 708 N. Florida Avenue, is zoned conditional "D-2" (Neighborhood Business) District. The condition restricts the business activity to only the sale of ladies shoes. Rezoning the property, as requested, to "D-2" will give permanency to the existing "spot" zoning within the "B" district. It will also open the property to a wide range of allowed uses. The 1971 Master Plan designates this property to be developed as low density residential. The proposed rezoning will not conform to the Master Plan and will establish a spot (island) of neighborhood business zoning as permanent. Should the rezoning be approved, it could be accompanied by expanded conditions. For example, those conditions could include the sale of men's and/or women's apparel and accessories (shoes, hats, jewelry, etc.) and beauty/barber shops. The City Attorney noted that New Mexico appellate courts, while not deciding whether spot zoning is always illegal, have enumerated two factors to weigh in deciding if illegal spot zoning has occurred. Those factors include: (a) if the use fails to comply with the comprehensive plan, and: (b) if the use is inconsistent with the surrounding area, grants a discriminatory benefit to the landowner, and/or harms neighboring properties or the community welfare. In this instance, the proposed use does not comply with the comprehensive plan; the Commission must determine whether the second set of factors is present. Concerns have been noted on the availability of parking for the businesses. The possibility of vehicle backing movement onto Florida Avenue is another concern that has been raised again. Pursuant to Section 29-01-020, of the Code of Ordinances of the City of Alamogordo, New Mexico, notice of the time and place of the public hearing was advertised on October 15, 2000, in the Alamogordo Daily News, and twenty-nine (29) notices were mailed to property owners within the 200 foot legal protest area on October 12, 2000. No protests to the requested rezoning have been received. One response in support of the request has been received. Staff recommends Denial of the rezoning to District "D-2" (Neighborhood Business).

Mr. Mike Gallegos was available to speak for the request. Mr. Gallegos stated that the first time he requested the rezoning, he was under the impression that the building was for commercial use. His wife was using the building for selling ladies shoes. He then rented out the other side of the building as a beauty shop. Later his wife used her shop to sell women’s clothes. He then was informed that the use of the building was restricted to ladies shoes only. Mr. Gallegos stated that the off-street parking will accommodate approximately nineteen (19) vehicles. Commissioner Schwebke commented to Mr. Gallegos that while his parking lot is very nice, it would only accommodate about ten (10) vehicles, including handicapped parking spaces. Commissioner Schwebke also commented on how the neighbor has to use the parking lot to back-out of his property. This might create hardship on him if the parking lot was full. Mr. Gallegos stated that while he wishes the parking lot would always be full, the most ever there at one time is ten (10) vehicles. Commissioner Martin commented that the building was built without a zoning change, then, a request was made to zone the building after the building was complete. Mr. Gallegos stated that his original plan was to build apartments there, then his wife asked to make it a retail business. He then changed his plans and permits to construct a business at this location. Ms. Few stated that the original building permit was issued for a duplex, which was the zoning for the property. Mr. Gallegos changed his mind half-way through construction and came in for a permit amendment. He was told that he would have to rezone the building to allow the classification of neighborhood business. There were protests on the original application and many staff concerns. Mr. Gallegos was in front of the City Commission and told them that he only wanted the rezoning so his wife could use the shop for the sale of ladies shoes. The City Commission then granted the rezoning only for the sale of ladies shoes. After it was filed at the County Courthouse, a copy of the rezoning ordinance stating the action of the City Commission was mailed to Mr. Gallegos. The building permit was amended and subsequently the business registration was allowed with the notation that only the sale of lades shoes was allowed. Later, a second business came in and during the review of that business registration, we said we couldn’t allow this because the zoning doesn’t support it. It was then that we found out Mrs. Gallegos had already expanded her business to include the sale of women’s clothes. The existing business and the proposed business did not comply with the conditions of the rezoning agreement. Mr. Gallegos requested that the business be zoned for commercial business. Ex-Officio, Jaramillo wanted to clarify that the original business was zoned for strictly ladies shoes. Ms. Diane Dirton was available to speak for the request. Ms. Dirton represents the second business in the building requesting approval for the zoning in order to open a beauty shop. She stated the neighbor in back that was in question earlier, does not have any problem backing out of the area even when there are cars in the parking lot. Commissioner Schwebke asked Ms. Few how long the business has been operating selling ladies shoes. Ms. Few reported that the rezoning was approved on December 22nd1998 for only shoes and was several months before the business went in. Ms. Few confirmed that there were protests on the original request, but didn’t know what the percentage was at the time. Commissioner Schwebke asked about traffic problems from the parking lot onto the street. Ms. Few stated that she did not document that, and the street is a collector street, it is not designed for backing purposes. Also because of the way that the building is laid-out, there could be a problem with backing, but staff doesn’t want to have an issue arise because of it. Ex-Officio Jaramillo asked if at the time of the construction the building was approved for a duplex. Then, halfway through the construction decided to make it a business. Now there is a clothes shop and beauty/barber shop combination. Ms. Few answered by saying that the business was changed from being a duplex to a ladies shoe shop, which was eventually rezoned for and conditionally approved. However, when Ms. Dirton came in for her business registration to use the other side of the building for a beauty salon, we found out that Mrs. Gallegos had expanded to women’s clothes, contrary to the allowed usage and zoning. Commissioner Martin asked if the conditional change in zoning was granted by the City Commission. Acting Chairman Sanders answered yes. Commissioner Martin suggested that because there have been too many errors made at this business already; and because the City Commission granted the original conditional rezoning, Mr. Gallegos can ask the City Commission to readdress the case at its next meeting. Commissioner Martin therefore made a motion, based on staff findings, "TO RECOMMEND DENIAL OF THE REZONING TO D-2 (BUSINESS)." The motion for denial died for the lack of a second. Commissioner Schwebke asked why the rezoning has to come before the Planning and Zoning Commission and not just the City Commission, because they granted the original temporary variance for one item. Ms. Few stated that there was no variance granted. The rezoning was granted specific with conditions, and therefore any changes need to go through the regular procedure. The zoning was advertised as is noted on the agenda to change the zoning to "D-2". Ms. Few also stated that staff recommends that the rezoning not be approved. The Planning and Zoning Commission may, however, make a recommendation for complete approval or that expanded conditions be allowed. Commissioner Martin commented about the note of staff concerning discriminatory benefits, and stated his concerns about the business not having the proper qualifications, and now requesting rezoning after the fact of having operated under unallowable zoning conditions. Commissioner Dardin made a motion "TO RECOMMEND APPROVAL OF AN EXPANSION TO THE CURRENT CONDITIONAL D-2 ZONING TO INCLUDE A BEAUTY SHOP, WOMEN’S CLOTHING AND SHOES". Commissioner Schwebke seconded the motion. All voted "AYE", passing the motion with a vote of 4-0-0.

D. CLOSE PUBLIC HEARING. Acting Chairman Sanders declared the public hearing closed.

5. REPORTS.

    A. City Planner.

(1) December Agenda – Ms. Few reported that Monday, November 06, 2000 is the deadline for requesting items to be included on the December agenda. Ms. Few stated that there are already four (4) items on the December agenda.

(2) Ms. Few reported that as an action item, she has provided a list of the first Wednesdays of the month for Planning and Zoning meetings. The first question was whether or not the Commission would like to change the time of the meetings from 1:30 PM. None of the Commissioners wanted to change the time of the meetings. The only potential conflict with the schedule would be the July 4th meeting. Ms Few asked the commission if they would like to move the date of the July meeting to accommodate the holiday. The commission voted that the July Planning and Zoning meeting be changed from the 4th to the 5th of July, 2001. Commissioner Schwebke made a motion "TO KEEP THE SCHEDULE AS WRITTEN FOR THE 2001 PLANNING AND ZONING COMMISSION MEETINGS, WITH THE EXCEPTION OF THE JULY 4TH MEETING BEING CHANGED TO JULY 5TH AND THE INSPECTION TOUR FOR THAT MEETING BEING HELD ON THE PRECEDING SUNDAY." Commissioner Dardin seconded the motion. All voted "AYE", passing the motion with a vote of 4-0-0.

(3) Ms. Few reported that none of the Commissioners have asked to not be reappointed. The expiration of terms includes Commissioners Martin, Dardin and Jaramillo.

(4) The annual report will be coming up. Ms. Few asked that if there are any items that anyone would like to have included, besides the regular information, please let her know as soon as possible so that she may add them to the annual report.

(5) Being that the next Planning meeting will fall between Thanksgiving and Christmas, Ms. Few wished the Planning and Zoning Commission a Happy Thanksgiving.

B. CHAIRMAN - None.

C. COMMISSION - None.

6. PERSONS TO BE HEARD - None.

7. ADJOURNMENT - There being no further business to come before the Commission, Commissioner Schwebke made a motion "TO ADJOURN". Seconded by Commissioner Dardin. All voted "AYE", passing the motion by a vote of 4-0-0. The meeting adjourned at approximately 2:22 p.m.

Approved: December 6, 2000

/s/ Michael M. O’Hara

Michael M. O’Hara, Chairman

ATTEST:

/s/ J. Gregory Garcia

J. Gregory Garcia, Recording Secretary