17. SECTION 17: ZONING ADMINISTRATION AND AMENDMENTS: THE PARADISE HILLS SPECIAL ZONING DISTRICT ORDINANCE, ADMINISTRATIVE SECTION. NEW MEXICO STATE STATUTES REGARDING TRANSPARENCY AND PUBLIC ENGAGEMENT COMPLIANCE (OPEN MEETINGS ACT, IPRA, SUNSHINE PORTAL, AND ETHICS AND CONFLICT IN INTEREST 17.1.PUBLIC ENGAGEMENT 17.1.1.The District Commission must allow the public to attend and listen to the Commission's public meetings. The right applies to public or online public meetings. 17.1.2.The District Commission must make reasonable efforts to accommodate audio and video recording devices and publish recorded video and audio transcripts of meetings. 17.1.3.The Open Meetings Act does not guarantee citizens the right to speak at public meetings. However, like most public bodies in New Mexico, the District Commission includes time in public meetings for public comment. Citizens have a United States Constitution First Amendment right to speak freely when a forum is made available for public speaking. Public bodies risk running afoul of the First Amendment if they attempt to regulate citizens' speech based on its content or the speaker's identity. 17.2.REQUEST FOR INFORMATION AND THE INSPECTION OF PUBLIC RECORDS ACT (IPRA) NM Stat § 14-2-12 (2021) 17.2.1.The District Commission will handle all Inspection of Public Records Act (IPRA) requests in a manner that complies with New Mexico State law, and the intent of this Ordinance is to respect the prompt disclosure of public information. The Inspection of Public Records Act (IPRA) is a New Mexico state law that provides the public and media access to public information. The law requires access to almost all state and local government public records, with few exceptions. Under IPRA, the public has the right to take legal action if access to public records, an important mechanism to empower the public, is denied. 17.2.2.The Attorney General has the statutory authority to enforce IPRA, as do district attorneys. A printable copy of the IPRA Compliance Guide is available online. For questions about IPRA, contact the Open Government Division for further information at (505) 827-6070. 17.3.THE TRANSPARENCY PORTAL 17.3.1.The Paradise Hills Special Zoning District Commission shall maintain an electronic transparency portal that provides the public with searchable access to public records, generally referred to as a "Sunshine Portal." The current portal is within the District Commission website: https://www.paradisehillsspecialzoning.org/ 17.3.2.The District Commission is the custodian of District Zoning records delegated through state statutes. Should the Commission intend to destroy records (historic and non-conforming or recently made digital), it shall give notice by registered or certified mail to the state records administrator, state records center, Santa Fe, New Mexico, of the date of the proposed destruction and the type and date of the records he intends to destroy. The notice shall be sent at least sixty days before the date of the proposed destruction. If the state records administrator wishes to preserve any records, the official shall allow the state records administrator to have the documents by calling for them at the storage place. NM Stat § 14-1-8 (2021) 17.4.ACCOUNTABILITY Page 1 of 16
17.4.1.Elected officials and employees of the Paradise Hills Special Zoning District, a zoning district of Bernalillo County, derive their mission and authority from the zoning district residents, taxpayers, zoning fee payers, and voters of the District. These citizens have the right to participate in their government to hold public officials accountable. Public access to information and records generated by government institutions is essential to the government's accountability to the public. This Ordinance Section intends to offer information and convenient access to public documents, records, and meetings. The Section also explains the New Mexico State Statutes mandating government transparency and accountability for elected officials within New Mexico. 17.4.2.Accounting, reporting and public funds (reserved) 17.5.OPEN MEETINGS ACT COMPLIANCE 17.5.1. Paradise Hills Special Zoning District Commissioners shall conduct meetings in compliance with New Mexico State law. The meetings shall include agendas, meeting dates, and minutes for any public body administered, formed, and appointed by the District Commissioners. 17.5.2.To increase accountability, all agenda items included for consideration or action by the District Commissioners will consist of the name of the Commissioner, elected official, department director, or county manager proposing the item or "PHSZD District Commission" when the proposed action, discussion, and motion to place the item on the agenda approved by a majority of Commissioners. 17.5.3.NEW MEXICO OPEN MEETINGS ACT LAW REQUIREMENTS (OMA) NM Stat § 10-15-1 (2021). The Paradise Hills Special Zoning District will follow the New Mexico Open Meetings Act Law Requirements. The District Commission will adopt procedures in compliance with the Act. The New Mexico Open Meetings Act ensures the public receives the most significant possible information regarding the affairs of government and the official acts of those officers and employees who represent them. If a particular meeting is subject to the Open Meetings Act, the Paradise Hills Special Zoning District Commission's requirement for holding an open public meeting is to give reasonable notice to the public as defined by the New Mexico Open Meetings Act. Every public body establishes its procedures for notifying the public, spelled out in an annual Open Meetings Act Resolution. 17.5.4.OMA COMPLIANT PUBLIC NOTICE FOR REGULAR PUBLIC MEETINGS 17.5.5.The Attorney General's Office recommends the following notice for best practices: (10) ten days for a regular meeting, three (3) days for a Special Public meeting, and twenty-four (24) hours for an emergency meeting. The District Commission will send requesting broadcast stations and newspapers PHSZD meeting notices. 17.5.6. The Commission will list all meeting dates on the Paradise Hills Special Zoning District Commission Webpage for the PHSZD. 17.5.7.The District Commission will make final agendas available to the public 72 hours in advance (Note, this is a change in the law that became effective in 2013.) 17.5.8.The Commission's meeting agenda must list specific items of business to be discussed or transacted. Except in cases of emergency, the District Commission as Page 2 of 16
a public body can only take action on agenda items that appear on the final meeting agenda. 17.5.9.New action items cannot be added during the Commission's meeting unless there is a true emergency. 17.5.10.The District Commission must allow the public to attend meetings and make reasonable efforts to accommodate audio and video recording devices. 17.5.11.The Open Meetings Act does not guarantee citizens the right to speak at public meetings. However, the District Commission meeting as a public body in New Mexico includes time for public comment. Citizens have a United States Constitution First Amendment right to speak freely when a forum is made available for public speaking. Public bodies risk running afoul of the US Constitution First Amendment if they attempt to regulate citizens' speech based on its content or the speaker's identity. 17.5.12.THE CLOSURE OF PUBLIC MEETINGS AS ALLOWED BY OMA. The District Commission may close the meeting only for specific topics as allowed under the New Mexico Open Meetings Act. The District Commission as a public body must take these three steps to close an open meeting that's already in progress, 17.5.13. (1) Approve the closure by a roll-call vote of all the members. (2). Announce the authority for the closure (i.e., which Section of the Open Meetings Act allows a closed discussion) and the subject that the District Commission will discuss "with reasonable specificity." (3). After the closed session, the District Commission will state in Commission's public records that the Commissioners limited the District Commission's closed-door discussion only to those topics specified in the motion for closure. 17.5.14.The District Commission as a public body can hold an entirely closed meeting, provided the Commission provides members and the public with advanced notice. The notice states the authority for the closure and the topic to be discussed, again with "reasonable specificity." The District Commission must report specific emergency meetings defined by the New Mexico Open Meetings Act to the Office of the New Mexico Attorney General under some Open Meetings Act criteria and follow the most recent Guidance published by that office. 17.6.THE DISTRICT COMMISSION MUST KEEP MINUTES. 17.6.1. District meeting minutes must include, at a minimum, the date, time, and place of the meeting. The record of decisions and votes taken must show how each member voted, the names of members of the Commission in attendance at the Commission meeting and those absent, and the substance of the proposals considered. 17.6.2.Minutes of District Commission meetings shall record the name of any commissioner abstaining on a matter because of disqualification or personal recusal. The District Commission must keep all minutes open to public records inspection, including draft minutes. Draft minutes must be prepared ten (10) working days after the District Commission's meeting and approved, amended, or disapproved at the next meeting where a quorum is present. 17.7.QUORUM 17.7.1.The Paradise Hills Special Zoning District Commission shall have a quorum of members of the District Commission present to take any action within the authority Page 3 of 16
or delegated authority of the District Commission. District Commission members must be present when acting as an administrative, adjudicatory, legislative, or policymaking body with A quorum of members. NMSA 2006, §0-15-3 — Invalid actions; standing 17.8.ONLINE MEETING. 17.8.1.The New Mexico Open Meetings Act (OMA) applies to all meetings of a quorum of members; the Commission also holds information sessions with the public without voting. An OMA proscribed Quorum equals one more than half of the District Commission's members. A Quorum may exist even if members are not present together at the same time and place. If otherwise allowed by law or rule of the District Commission, a Commissioner (public body member) may participate in a Commission meeting employing a conference call or other similar communication equipment when it is otherwise difficult or impossible for the member to attend the meeting in person. The Paradise Hills Special Zoning District adopted the rules for online meetings and has maintained online meetings via ZOOM since 2020. 17.8.2.On March 11, 2020, Governor Michelle Lujan Grisham declared a state of emergency in New Mexico under Executive Order 2020-004. The Attorney General, through the Open Government Division, is statutorily tasked with enforcing the Open Meetings Act, NMSA 1978, NMSA 1978, §§ 10-15-1 to -4 (1974, as amended) and the Inspection of Public Records Act, NMSA 1978, §§ 14-2-1 to -14 (1947, as amended). The following Guidance was issued to public entities across the State of New Mexico regarding their ongoing obligations to comply with: the Open Meetings Act (OMA) and the Inspection of Public Records Act (IPRA) during the emergency in New Mexico. A state-authorized commission may proceed with a virtual meeting, provided its notice of meeting contains detailed information (password, phone number, and instructions) about how members of the public may attend and listen via telephone, live streaming, or other similar technologies. Online meetings made the District Commission more accessible to District residents and allowed better viewing of the documents supporting permit applications and the automated digital application system. More specifically, The District Commission as a New Mexico public body shall follow the OMA procedures for online meetings adopted by the District Commission resolution in 2020 and the Paradise Hills Special Zoning District Comprehensive Ordinance (PHSZD Ordinance) in 2022. 17.8.3.At the start of the meeting, the chair should announce the names of those members of the District Commission (the public body) participating remotely. All members of the public body participating in the Public Meeting must identify themselves whenever they speak and be audible to the other members of the public body and the public. The public attendees should be afforded remote access via live stream or other similar technology, if possible, or a call-in number for listening by phone. The Commission Chair should suspend discussion if the audio or video is interrupted. All votes of the public body must be by roll call vote. The public body should produce and maintain a recording of the open session of the meeting. 17.8.4.The District Commission publishes PHSZD Online Meeting Rules on the District Commission website, the online permit application, and each meeting agenda (posted at least seventy-two (72) hours before the meeting). The District Page 4 of 16
Commission publishes the Online Meeting Links on the website's HOME page. The PHSZD website also has CONTACT and MEETING REQUEST portals for automated meeting requests and requests for information. The website and agenda list a phone number with voicemail to email. Group Gmail for the Commission and the website email are contact@paradisehillsspecialzoning.org. 17.9.However, "Rolling quorums," meaning sequential discussions and voting with individual District Commission members, are not allowed. Meetings Not Covered By OMA are social situations, chance meetings, or clerical dispositions of Commission business performed as a staff function. 17.10.Policymaking Bodies under the New Mexico Open Meetings Act have a joint authority to act. They may delegate authority to a Hearing Officer or Subcommittee or receive comments from an Advisory Board. The District Commission as a public body must give reasonable advance notice of meetings of a quorum, whether open or closed. No secret meetings are allowed. The District Commission must determine reasonable notice annually in an open meetings resolution. 17.11.The following rules apply to situations where the District Commission must recess and reconvene. Before suspending, the District Commission must specify a date, time, and place to continue the meeting's agenda. The Commission must post notices at the door of an original public meeting site and one other appropriate location or online at the Commission's website. The District Commission must restrict topics discussed at the rescheduled meeting to items appearing on the original meeting agenda. 17.12.District Commission meeting notices must include a meeting agenda or where the public can obtain a copy of the meeting agenda. The District Commission inserts digital copies of the meeting agenda on the District's ANNOUNCEMENTS blog page: https:// www.paradisehillsspecialzoning.org/blog. 17.13.The District Commission inserts meeting agendas as text and a download pdf on the same District Commission website page. The District Commission also posts the District Commissioner's Meetings on the website calendar located on the HOME page. 17.14.The District Commissioners must report District Commission Emergency action to the Office of the Attorney General within ten (10) days; actions resulting from a declared state or national emergency are the exception. The Open Meetings Act (OMA) is a state law that provides statutory guidelines for conducting public meetings. The Attorney General has the statutory authority to enforce OMA and ensure that those public meetings covered by OMA comply with state law. In order to assist the public and those that OMA covers, the Paradise Hills Special Zoning District Commission has a complete printable copy of the OMA Compliance Guide. 17.15.Parties with complaints about possible violations or questions about OMA should contact the Open Government Division. The Division enforces the Act by investigating and responding to written complaints from citizens. Phone: (505) 827-6070. 17.16.EX PARTE COMMUNICATIONS AND PARADISE HILLS SPECIAL ZONING DISTRICT ADOPTED ETHICS STANDARDS 17.16.1.Commissioner, acting as hearing examiners, shall not initiate, permit or consider a communication directly or indirectly with a party or his representative outside the presence of the other parties concerning a pending rule-making, after the record has been closed or before an awaiting adjudication. Page 5 of 16
17.16.2.Commissioners acting as hearing examiners shall not initiate, permit or consider a communication directly or indirectly with a party or his representative outside the presence of the other parties concerning a pending rule-making or adjudication. 17.16.3.Notwithstanding the provisions of this Section, The Ordinance permits the Commissioner's Ex Parte communications for the following exceptions. (1) where circumstances require, Ex Parte communications for procedural or administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are allowed if the commissioner or hearing examiner reasonably believes that no party will gain an advantage as a result of the Ex Parte communication and the commissioner or hearing examiner makes provision to promptly notify all other parties of the substance of the Ex Parte communication; (2) a commissioner may consult with another commissioner or with advisory staff whose function is to advise the Commission in carrying out the Commissioner's rule-making or adjudicative responsibilities; (3) a hearing examiner may consult with the Commission's advisory staff; (4) Commissioners acting as hearing examiners may obtain the advice of a nonparty expert on an issue raised in the rule-making or adjudication if the commissioner or hearing examiner gives notice to the parties of the person consulted and the substance of the advice and affords the parties reasonable opportunity to respond; and (5) Under the PHSZD commission's rule-making authority, a party to a proceeding may consult with the Commission's advisory staff or commissioners acting as advisory staff but not hearing examiners. (6) When the PHSZD Commission has no permanent advisory staff. District Commissioners acting as advisory staff or project reviewers must request recusal from working as hearing examiners or voting Commissioners on tasks where they perform staff duties. They must disclose such involvement at quasi-judicial and other hearings requiring a vote on action concerning the project. 17.16.4.A District Commissioner or hearing examiner who receives or who makes or causes to be made a communication prohibited by this Section shall disclose it to all parties, allowing the other parties to respond. 17.16.5.A District Commissioner or hearing officer may have recourses to receipt of a communication knowingly made or caused to be made by a party in violation of this Section. The District Commissioner or hearing examiner may require the party to show cause why his claim or appeal in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of the violation of this Section. Any such disposition shall be consistent with the interests of justice and the policy of the underlying statutes. 17.17.RECUSAL AND DISQUALIFICATION OF A DISTRICT COMMISSIONER 17.17.1.A commissioner may recuse from a particular matter. 17.17.2.A commissioner shall recuse from any matter in which the Commissioner is unable to make a fair and impartial decision or in which there is reasonable doubt about whether the Commissioner can make a fair and equitable decision, including: Page 6 of 16
(1) For this paragraph, "personal bias or prejudice" means a predisposition toward a person based on a previous or ongoing relationship that renders the Commissioner unable to exercise the Commissioner's functions impartially; (2) When the Commissioner has a financial interest in the outcome of the matter; or a close family member (father, mother, sister, brother, child, step-child, spouse, grandfather, grandmother, nephew, niece, son-in-law, daughter-in-law, mother-in-law, father-in-law, sister-in-law, brother-in-law), has a financial interest or relationship with the project; (3) In previous employment, the Commissioner served as an attorney, adviser, consultant, partner, or witness in the matter to be determined by a District Commission ruling. 17.18.A party to the proceeding may request the recusal of a commissioner. The requesting party shall provide the Commission with the grounds for the recusal request. If the Commissioner declines to recuse upon a party's submission to the proceeding, the Commissioner shall provide a complete explanation supporting the refusal to recuse. 17.19.A party may appeal a District Commissioner's refusal to recuse. Suppose the propriety of a Commissioner's participation in a particular matter is in the issue. In that case, the majority of the other District Commissioners present and voting and not identified in the complaint will decide the Commissioner's involvement by majority vote. 17.20. A disqualified Commissioner shall not participate in any proceedings referencing the matter pertaining to the Commissioner's disqualification. A recused commissioner shall be excused as a voting Commissioner or hearing examiner from portions of meetings when discussions concerning the matter require recusal. A recused commission acts as advisory staff and may introduce materials in a Quasi-judicial Hearing as part of the project review or to answer other questions concerning public information submitted into the record. 17.21.Should two or more commissioners have recused themselves or are disqualified from participating in a proceeding. The remaining commissioners shall appoint temporary commissioners to participate in that proceeding. A majority vote by the remaining commissioners shall make appointments of temporary commissioners. The appointments shall be per geographical representation requirements and the qualifications outlined in The Paradise Hills Special Zoning District Resolution in Compliance with the Local Election Act (2019) 17.22.The Commission shall promulgate rules for the recusal and disqualification of commissioners, for an appeal of a recusal decision, and the appointment of temporary commissioners per the geographical representation requirements and the qualifications outlined in Paradise Hills Special Zoning District Ordinance and PHSZD Commission Resolutions on an annual basis. 17.23.The Paradise Hills Special Zoning District Commission was the first zoning and planning entity in New Mexico directly elected by zoning district voters. The fee schedule for the Commission District is commensurate with adjoining zoning districts. The District does not receive any County property tax mill rates, disaster relief funding, and state statutes have prohibited all state supplemental funding for zoning enforcement to the District: "All necessary costs incurred by the zoning commission of a special zoning district in connection with official acts performed pursuant to the Special Zoning District Act shall be borne by the parties in interest. Provided, that the commission may by ordinance impose reasonable fees Page 7 of 16
upon parties in interest, and such fees shall be used to defray the costs incurred by the commission." This Act [3-21-15 to 3-21-26 NMSA 1978] may be cited as the "Special Zoning District Act."NM 17.24.POWERS AND DUTIES. The Paradise Hills Special Zoning District Zoning Commission shall administer this Ordinance and, in furtherance of said authority, shall: 17.25.Issue all business and zoning certificates (permits) as required, and make and maintain records thereof. 17.26.Inspect buildings, structures, and land use to determine compliance and enforcement as delegated by New Mexico State Statues under the Special Zoning District Act and proscribed by the Paradise Hills Special Zoning District Comprehensive Ordinance (Ordinance) regulations. This provision does not grant the right of entry without due process when Commission entry for purposes of enforcement is necessary. 17.27.The District Commission shall maintain permanent and correct records of this Ordinance, including but not limited to all zoning maps[1], amendments, special and conditional use permits,[2] variances, planned developments, and appeals. 17.28.Provide public information availability relative to all matters arising out of this Ordinance in compliance with New Mexico State statutes. 17.29.Issue certificates of zoning (permits) for non-conforming uses existing at the effective adoption date of this Ordinance or approved amendments. 17.30.In addition to other remedies, the Commission may initiate any appropriate action or proceeding to present such unlawful action, correct or abate such violation, structures, or land, or prevent any illegal act, conduct, business, or use in or about such premises. No building[3] or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure, or land used in violation of this Ordinance, 17.31.Variances. Purpose. The purpose of this Section is to provide a mechanism in the form of a variance that grants a landowner relief from standards in this Ordinance where, due to extraordinary and exceptional situations or conditions of the property, the strict application of the Ordinance would result in peculiar and exceptional practical difficulties or exceptional and undue hardship on the owner. The granting of an area variance shall allow a deviation from the dimensional requirements and standards of the Ordinance, but in no way shall it authorize prohibited uses of land in the relevant zoning district. 17.31.1.Process. The District Commission will process all variances applications per this Section of the Ordinance. A letter addressing review criteria must accompany the application explaining the need for a variance. 17.31.2.Applicability. When consistent with the review criteria listed below, the District Commission may grant a zoning variance from any provision of the PHSZD Ordinance, except that the District Commission shall not grant a variance that authorizes uses of land prohibited in the relevant zoning district. 17.31.3.The District Commission will investigate all applications for variances from the building (height of)[4], area, parking, or density regulations of this Ordinance and grant such applications using the following criteria: 17.31.4.Review criteria. A variance may be granted only by a majority of all the members of the District Commission based upon the following criteria: (1). where the request is not contrary to the public interest; Page 8 of 16
(2). where due to extraordinary and exceptional situations or conditions of the property, the strict application of the code would result in peculiar and exceptional practical difficulties or exceptional and undue hardship on the owner; and (3)To the extent necessary to permit the property owner's reasonable use of his land in those specified instances where there are peculiar, exceptional, and unusual circumstances in connection with a specific parcel of land, and the circumstances are not generally found within the locality or neighborhood concerned. 17.32.Conditions of approval. (1). The District Commission may impose conditions on a variance request necessary to accomplish the purposes and intent of the PHSZD Ordinance and the PHSZD Commission and to prevent or minimize adverse impacts on the general health, safety, and welfare of property owners and area residents. (2). All approved variances run with the land unless conditions of approval imposed by the District Commission specify otherwise. (3). All approved variances automatically expire within one year of approval unless the Applicant files a plan implementing the variance or substantial construction of the building or structure authorized by the variance occurs within that time. 17.33.Administrative minor deviations. The Administrator is authorized to administratively approve minor deviations upon a finding that the deviation is required, that the result is consistent with the intent and purpose of this PHSZD Ordinance, and that the deviation is not detrimental to adjacent or surrounding properties as follows: (1). minor deviations from the dimensional requirements not to exceed ten percent (10%) of the required dimension; and (2). minor deviations from the density dimensional standards not to exceed five-tenths of a percent (0.5%) of the gross acreage allowed in the zoning district. (3) The District Commission will investigate all applications for variances. Application for an expansion above the amount otherwise authorized should only be granted if the site for the proposed increase is adequate in size and shape to accommodate such development and if the proposed development will have no adverse effect on the neighborhood or seriously conflict with the character of the area. 17.34.Conditional Use Permits (CUP). 17.34.1.Purpose and Findings. This Section provides for specific uses that, because of unique characteristics or potential impacts on adjacent land uses, are not permitted in zoning districts as a matter of right but may, under appropriate standards and factors set forth herein, be approved. The District Commission shall permit these uses by issuing a conditional use permit (CUP). 17.34.2.Applicability. Conditional uses are those uses that are generally compatible with the land uses permitted by right in a zoning district but that require individual review of their location, design, and configuration, and the imposition of conditions or mitigations in order to ensure the appropriateness of the use at a particular location within a given zoning district. Only those uses enumerated as conditional uses in a zoning district may be authorized by the District Commission. No inherent right exists to receive a Conditional Use Permit. Concurrent with approving a Conditional Use Permit, additional standards, conditions, and mitigating requirements may be Page 9 of 16
attached to the zoning permit. Additionally, every Conditional Use Application application shall comply with all applicable requirements in the PHSZD Ordinance. 17.34.3.Application. An applicant may apply for a Conditional Use Zoning Permit by applying for an online application and submitting a letter describing how the use meets the criteria under the PHSZD Ordinance. Approval requires a full meeting of the District Commission and a request through the meeting portal on the website for an agenda item listing the project. A site development plan is required to be submitted with any CUP application and shall include all supporting documents required pursuant to the PHSZD Ordinance and online instructions. The District Commission recommends a pre-application conference as part of a public meeting. 17.34.4.Review. The application shall be referred to the Hearing Officer or District Commission to schedule a quasi-judicial public hearing and conduct a preliminary review. 17.34.5.Approval Criteria. The District Commission may only approve the Conditional Use Zoning Permit if the uses requested for the permit will not: (1). be detrimental to the health, safety, and general welfare of the area; (2). tend to create congestion on roads; (3). create a potential hazard for fire, panic, or other danger; (4). tend to overcrowd land and cause undue concentration of population; (5). interfere with adequate provisions for schools, parks, water, sewerage, transportation, or other public requirements, conveniences, or improvements; (6). interfere with adequate light and air; and (7). be inconsistent with the purposes of the property's zoning classification or in any other way inconsistent with the spirit and intent of the PHSZD Ordinance or Paradise Hills Special Zoning District Commission. 17.35.Conditions. In approving any Conditional Use Zoning Permit, the District Commission may: 1. Impose such reasonable standards, conditions, or mitigation requirements, in addition to any general standard specified in the PHSZD Ordinance, as the District Commission may deem necessary. Such additional standards, conditions, or mitigation requirements may include, but are not limited to: a. availability of adequate public facilities or services; b. reservations and dedications; c. adoption of restrictive covenants or easements; d. special buffers or setbacks, yard requirements, increased screening or landscaping requirements; e. development phasing; f. standards concerning traffic, circulation, noise, lighting, hours of operation, protection of environmentally sensitive areas, or preservation of archaeological, cultural, and historic resources; and i. provision of sustainable design and improvement features, the solar, wind, or other renewable energy sources, rainwater capture, storage, and treatment or other sustainability requirements. (2). Encourage voluntary development agreements between the owner/applicant and the County to carry out all requirements, conditions, and mitigation measures. Page 10 of 16
17.36.Scope of Approval. The CUP approval applies only to the project presented and approved at the hearing. If the project changes in any way, it will be subject to amendments and provisions of The Ordinance 17.37.Recording Procedures. At the Applicant's expense, the Conditional Use Permit showing the site layout and conditions of approval shall be retained in PHSZD records and recorded in the office of the County Clerk. 17.38.Amendments. An amendment is a request for an enlargement, expansion, greater density or intensity, relocation, decrease in a project's size or density, or modification of any condition of a previously approved and currently valid Conditional Use Permit (1). Minor Amendments. Shifts in on-site location and changes in size, shape, intensity, or configuration of less than five percent (5%), or a five percent (5%) or minor increase in either impervious surface or floor area over what was initially approved, may be authorized by the Commission reviewer, provided that such changes comply with the following criteria: a. no previous minor amendment was granted pursuant to this Section; b. nothing in the currently valid Conditional Use Permit precludes or otherwise limits such expansion or enlargement; and c. the proposal conforms to the PHSZD Ordinance and is consistent with the goals, policies, and strategies of the Regional Comprehensive Plan. (2). Minor Amendments Causing Detrimental Impact. If the District Reviewer determines that there may be any detrimental impact on the adjacent properties caused by the minor amendment's change in the appearance or use of the property or other contributing factor, the owner/applicant shall be required to file a major amendment. (3). Major Amendments. Any proposed amendment, other than minor amendments provided for in shall be approved in the same manner and under the same procedures applicable to issuing the original Conditional Use Permit development approval. 17.39.Expiration of Conditional Use Permit (CUP) Substantial construction or operation of the building, structure, or use authorized by the Conditional Use Permit must commence within twenty-four (24) months of the permit granting the CUP, or the CUP shall expire. Provided the District Commission may extend the deadline for up to twelve (12) additional months. The District Commission will not grant a further extension under any circumstances, and any changes in the requirements of the PHSZD Ordinance or federal or state law shall apply to any new CUP development approval application. 17.40.The District Commission will investigate all applications for conditional use permits authorized in this Ordinance and grant such applications if: 17.41.The site for the proposed use is adequate in size and shape to accommodate such use, and all yards, open spaces, walls and fences, parking, loading, landscaping, and other features required by this Ordinance to adjust such use to the land use pattern in the neighborhood. 17.42.The proposed use will have no adverse effect on the neighborhood or seriously conflict with the area's character. 17.43.The District Commission will investigate any conditions deemed necessary to protect public health, safety, and general welfare. Such conditions may include requirements relative to: 17.43.1.Open space and buffers. 17.43.2.Walls, fences, and signs. Page 11 of 16
17.43.3.Surfacing of parking areas. 17.43.4.Location of points of vehicular egress and ingress. 17.43.5.Landscaping and maintenance thereof. 17.43.6.Noise, vibration, odor, lighting, and health hazards. 17.43.7.View plans and protected view corridors defined by regional sector plans and comprehensive plans must be preserved as proscribed. 17.43.8.Traffic patterns, congestion, or unsafe conditions 17.43.9.Such other conditions will make possible the development of the District in an orderly, efficient manner and conformity with the intended purpose of this Ordinance. 17.44.REVIEW AND APPROVAL 17.45.The District Commission may amend approved Special Use and Planned Development Zoning Classification uses, master plans, and development plans, including plans submitted with the concurrence of the Bernalillo County Planning and Development Department, provided: 17.46. Any such amendment shall result in equal or less intense land use than that first approved by the Paradise Hills Special Zoning District Commission or Bernalillo County before 1976. 17.47.The Paradise Hills Special Zoning District Zoning Commission will not modify the minimum or additional requirement imposed on any development plan by the existing District Commission decisions unless the exigent circumstances for the original criteria have changed. 17.48.The Paradise Hills Special Zoning District Commission may approve modifications or stipulations or deny applications for Special Use or Planned Development overlays, including attendant Master Plans, zoning or rezoning petitions, transportation designations, drainage, the intensity of development, and other elements. 17.49.Said overlays, Special Use Classifications, Planned Development designations, Master Plans, and related documentation shall be reflected on all official zone maps, together with dates of effect; and, 17.50.Such records shall be maintained in the same manner as provided for within this Ordinance. 17.51.The District Commission shall review subsequent applications for permits, subdivisions, revisions, and determinations for either: 17.51.1.Conformance with said Master Plan; or, 17.51.2.Conformance with the underlying zoning restrictions and allowances in the same fashion as if no prior plan existed. 17.52.ZONING AMENDMENTS 17.52.1.The Paradise Hills Special Zoning District Commission may, from time to time, amend, supplement, or change by Ordinance the boundaries of the zones or the regulations herein established. Any proposed amendment, supplement, or change shall be published as required. 17.52.2.Any application made to the Paradise Hills Special Zoning District Commission for amendment of the text of this Ordinance or the zone map shall be in writing on forms prescribed by the Paradise Hills Special Zoning District Commission (District Commission). A filing fee, permit fee, application fees, or other fees established by the Commission (published in an annual resolution by the District Commission) shall Page 12 of 16
accompany a request for a change to the text of the Zoning ordinance, Zone Map, or Administrative Hearing. 17.53.Each application shall be accompanied by an accurate recorded legal description and plot plan, site plan, building development plan, sketch, development plan, or other related material and information as required by the Paradise Hills Special Zoning District Commission or by this Ordinance. Submission of inaccurate material or supporting information with an application shall be grounds for denial. Approval of any Applicant shall not construe District Commission approval of an application as approval of a building permit[5]. An applicant's petition for all rezoning necessary for the development is published, posted, or advertised for a public hearing by the District Zoning Commission or the parties in interest for the application and must be complete. The District Commission will not provide incremental approvals and shall not accept another application for a change affecting the same property within 12 months from the publication, posting, or advertisement of a hearing or zone change from the same parties in interest. 17.54.Annually, the District Commission will determine fees for work performed by the Commission by resolution. The Commission will publish the PHSZD fee schedule on the District Commission website and integrate the current fee schedule into online forms: https://www.paradisehillsspecialzoning.org/ 17.55.When applicants withdraw an application after scheduling, online publication, or advertising for a public hearing by the District Zoning Commission, the District Commission will not refund any fees to the Applicant. 17.56.NOTIFICATION. 17.56.1.The District Commission must issue public notice of a public hearing for an application to be considered and published in at least one publication in a daily newspaper of general circulation in Bernalillo County after the hearing and at least fifteen days before the end of the appeal period, with the results of the District Commission's Zoning Determination. The District Commission must direct parties in interest, or the Commission may charge parties in interest and conduct notifications for the Administrative hearing for: 17.56.2. An area of one block or less, written notice by certified mail, not less than 15 days before the date of the hearing, to the owners of all property within the area proposed to be changed and to all owners of property within 200 ft. of the exterior boundaries, excluding public rights of way, using for these purposes the last known name and address of the owners shown in the records of the Bernalillo County Assessor. 17.56.3.When any of the property immediately beyond the radius described herein is under the same ownership as the property that is the subject of the application, the owner of the property next adjacent, disregarding public ways, also shall be notified. 17.56.4.The District Commission will ensure notification of Property owners within 200 ft. by certified mail if the action permits more than one building in the block. 17.57.PROCEDURES. 17.57.1.The District Zoning Commission shall make its decision on each application. The District Zoning Commission shall fix a regular time and place for regular meetings. Paradise Hills Special Zoning District Commission may schedule and publish online Page 13 of 16
the District Commission's Administrative Hearings and special public hearings schedule and may schedule these meetings at other than the established standard time or place or hearing method (online or public). The District Commission shall provide public notice that the hearing is given at least seventy-two (72) hours in advance or twenty-four (24) hours for emergency meetings or meetings recessed and rescheduled before completion. The District Zoning Commission shall keep minutes of its proceedings, including a record of the vote of each member on each question, and the minutes shall be made available as public records. 17.57.2.Valid and complete Applications for a change to the Zone Map shall be deemed approved if not scheduled on the Commission's agenda for any consecutive 3- month period. 17.57.3.Recording and Publication. The District Commission shall record and publish zoning amendments following the law. When the revisions involve map changes to existing zoning district boundaries, the amending Ordinance shall contain a narrative description of the land to be reclassified or reference to an accompanying plat of such land, showing the new zoning classifications and designating the new boundaries. The Administrator shall refer to the attested Ordinance as a record of the current zoning status until the zone map is physically changed. 17.57.4. Registered Neighborhood Associations and Coalitions within two hundred feet of a proposed project or zoning change requiring an Administrative Hearing will receive notice of the hearing by certified mail. 17.57.5.Elective email notification by the District Commission is available to parties with legal standing or community interest groups wishing to receive email notification of Administrative meetings, ordinance text amendments, or zone map changes instead of receiving meeting notifications by certified mail. Parties indicate a voluntary enrollment for the meeting notification process by sign-up through the District Commission's website portal. The District Commission must post lists of each such set of zoning notifications and contacts. The notification materials will be through a group email, sent seventy-two (72) hours before the public hearing with digital links to project documents placed on the website. The email zoning notifications must include identical data as certified notifications and will serve as legal records. HEARING STANDARDS. 17.58.Legislative Hearings. 17.58.1.Conduct of Hearing. The property owner and Applicant, any member of the public, or the County or other affected governmental entities may present testimony. District Commissioners, staff, or professional representatives may submit testimony without oath or affirmation. The Hearing Officer or District Commission Chair for the proceedings may establish a time limit for testimony and may limit testimony where it is repetitive. 17.58.2.Special Rules: Contesting Zoning Matters by Petition. A contested zoning matter by petition means owners of twenty percent (20%) or more of the area of adjacent property or representing more than twenty percent (20%) of the lots included in an area proposed to be changed by a zoning regulation, or within one hundred feet, excluding public right-of-way, of the site to be altered by a zoning regulation, protest in writing the proposed change in the zoning regulation. The proposed change in Page 14 of 16
zoning shall not become effective unless a two-thirds vote of the eligible voting Commissioners approves the zoning change of the Board. NMSA 1978, §3-21-6(C). 17.58.3.Minutes. Recorded verbatim minutes shall be prepared and retained with the evidence submitted at the final hearing. Summary minutes shall be ready and include the evidence presented at a subsequent hearing. 17.58.4.District Commission Action. The District Commission shall hold a public hearing to consider a legislative application. 17.59.Quasi-Judicial Public Hearings. 17.59.1.Public Hearings for annexations, zone changes, Special Use Zoning Classifications, Planned Developments, final plats, and text amendments to this Ordinance or Zoning Map conform to the Ordinance only after a public hearing. All interested parties and citizens shall have an opportunity to be heard. The Paradise Hills Special Zoning District Commission directs participants in Quasi-Judicial Hearings that the hearings are Quasi-judicial and participants shall present evidence and testimony under oath of law. 17.59.2.Conduct of Hearing. Any person may appear at a quasi-judicial public hearing and submit evidence on their behalf or as a representative. Each person who appears at a public hearing shall take a proper oath and state, for the record, their name, address, and, if appearing on behalf of an association or coalition, the name and mailing address of the association or coalition and hearing subject before speaking, showing exhibits, or submitting testimony into the legal record for the application hearing. The Commission conducts most hearings online and makes video and audio recordings for the legal public record and Summary minutes. All are available through the District Commission website: 17.59.3.https://www.paradisehillsspecialzoning.org/ 17.59.4.Procedures and Permits 17.59.5.The District Commissioners shall conduct District Commission meetings under the procedures set forth in the District Commission's Rules of Order (updated annually) and conform to state statutes (the Open Meetings Act, Inspection of Public Records Act). At any point, members of the District Commission or the Hearing Officer conducting the hearing may ask questions of the owner, Applicant, staff, public, or any witness or require cross-examination by persons with standing in the proceeding to be conducted through questions submitted to the chair of the Commission, or to the Hearing Officer, who will, in turn, direct questions to the witness. The order of proceedings shall be as follows: (1). The acting Chair of the Commission or other District Commission member designated by the Commissioners shall present a description of the proposed development, the relevant sections of the PHSZD Ordinance, area, District or community plans, and state and federal law that apply to the application, and describe the legal or factual issues to be determined. The Administrator, consultant, or staff member shall have the opportunity to present a recommendation and respond to questions from the District Commission or Hearing Officer concerning any statements or evidence after the owner/applicant has had the chance to reply; (2). The owner/applicant may testify, experts, consultants, or lay witnesses and documentary evidence that the owner/applicant deems appropriate, subject to cross- Page 15 of 16
examination by adverse parties with standing within reasonable time limits established by members of the District Commission or Hearing Officer; (3). Testimony, including expert, consultant, or lay witnesses, and relevant documentary evidence for or against the application, from the public, governmental agencies or entities, and interested parties with standing, shall be received, subject to reasonable time limits established by the Board, Planning Commission or Hearing Officer, subject to cross-examination by the owner/applicant, any adverse interested party with standing, or by the County; (4). The owner/applicant may reply to any testimony or evidence presented, subject to cross-examination; (5). The Board, Planning Commission, or Hearing Officer may pose questions to the owner/applicant, the County, any consultant or lay witness at any time during the hearing concerning any statements, evidence, or applicability of policies and regulations from the SGMP, the SLDC, other County ordinances and regulations, any applicable area, or community plan, or other governmental law or recommendations; and (6). The Board, Planning Commission, or Hearing Officer conducting the hearing shall close the public portion of the hearing and conduct deliberations. The Board or Planning Commission may elect to deliberate in a closed meeting pursuant to the Open Meetings Act, NMSA 1978, §§10-15-1 et seq. 17.59.6.When conducted for an application for approval of a preliminary plat, the first public hearing shall take place within thirty (30) days from the receipt of all requested public agency reviews where all such studies support the viability of the application (with conditions later referenced as conditions of approval), or within thirty (30) days from the date that all public agencies complete their review of additional information submitted by the Applicant pursuant to NMSA 1978, § 47-6-11. All submitted testimony, reports, technical reviews, and studies must be for the record. If the District Commission does not receive a requested opinion or missing supporting documents within sixty days, the District Commission may dismiss the application as non-conforming with or without a public hearing. 17.59.7.Minutes. The District Commission shall have written verbatim minutes retained (currently produced via an online meeting application) and summary minutes prepared, submitted, and approved with the evidence presented at the final hearing conducted on an application. 17.60.APPEALS. 17.60.1.The District Zoning Commission shall only accept appeals submitted in writing to the District Zoning Commission no later than fifteen (15) days after the date of the approved meeting minutes. A written protest signed by the owners of 20% or more of either the area of the lots and lands included in such proposed change or those immediately adjacent within 200 ft. of the area proposed for change, disregarding public ways, shall require a super-majority, or two-thirds vote of qualified District Commissions to vote on the matter and overturn the consensus confirmed by the 20% written protest over the Notice of Zoning Determination. Any changes to the Zone Map or Ordinance text shall require a super-majority of two-thirds of District Commissioners qualified to vote on the amendments. Page 16 of 16
17.60.2.Appellants will submit a written Notice of Appeal with the District Zoning Commission by certified mail. A filing fee shall accompany the Notice of Appeal and will be established yearly by the District Commission as part of the Commission's fee structure. 17.60.3.The District Commission shall publish notice by legal advertisement in the manner prescribed by this Ordinance concerning any Administrative Zoning determinations or Notice of Appeal and final Appeal Determination. The District Commission shall send written email notice of any zoning appeal or notices of an Administrative hearing date to the Applicant, a representative of the zoning opponents, and the appellant (if other than the Applicant). Notices of Zoning Determinations can be requested by the public and are conveyed by email. The District Commission shall send written zoning notices of any zoning appeal or notices of an Administrative hearing date to the Applicant, a representative of the zoning opponents, and the appellant (if other than the Applicant by first class mail. 17.61.Building Permits[6] are issued by Bernalillo County and require prior stamped zoning use approvals by the Paradise Hills Special Zoning District Commission. 17.62.SECTION DEFINITIONS [1] Zone Map: A map delineating the zone boundaries [2] Conditional Use: A use permitted in a zone by approval of the District Zoning Commission, with additional requirements deemed necessary to safeguard the best interest of the adjoining property, neighborhood, and the community. [3] building: Any structure having a roof supported by columns or walls built for the support, shelter, or enclosure of persons, animals, chattels, or property of any kind, but not including any vehicle or trailer (with or without wheels), nor any moving device, and for this Ordinance does not include capital equipment investments or attachments such as furniture, machinery or equipment. When any portion of a building is completely separated from any other part by a division firewall without opening, then each such portion shall be deemed a separate building. [4] Building (Height of): The vertical distance from the grade to (a) the highest point of a flat roof, (b) the deck of a mansard roof, or (c) the average height between eaves and ridge for gable, hip, and gambrel roofs. [5] Building Permit: The certificate issued by Bernalillo County is required by Section 3 hereof and requires prior Paradise Hills Special Zoning District Commission approval of proposed zoned permissible, conditional use, planned development, or Special Use Zoning Classification and Paradise Hills Special Zoning District Commission permitted use of the site. Page 17 of 16