Administrative Review Board

A G E N D A Administrative Review Board City Council Chambers 800 Municipal Drive, Farmington, NM December 6, 2018 at 6:00 p.m. Item Page No. 1 Call Meeting to Order 2 Approval of the Agenda 3 Approval of the Minutes from the November 8, 2018 Meeting 56 4 Discussion and Approval to reschedule or cancel the ARB meeting for July 4, 2019 5 Petition No. ARB 18-87 – a request from Leaf Properties, Inc., represented by 1 Doug Kinsey, for a variance to increase the height of a freestanding sign from 10- feet to 20-feet for property in the LNC, Local Neighborhood Commercial district located at 4515 Wildflower Parkway. (Helen Landaverde) 6 Petition No. ARB 18-84 – a request from Charles and Kim Wilson to allow a gate 21 to fully encroach into a public right-of-way (alley) that abuts the southern parcel line of 1804 Knudsen Avenue in the SF-7, Single-family district. (Gary Leikness) 7 Business from: Floor: Chairman: Members: Staff: 8 Adjournment All decisions of the Administrative Review Board are final unless appealed in writing to the City Clerk ‘s office within 15 days. ATTENTION PERSONS WITH DISABILITIES: The meeting room and facilities are fully accessible to persons with mobility disabilities. If you plan to attend a meeting and need an auxiliary aid or service, please contact the City Clerk's office at 599-1101 or 599-1106, prior to the meeting so arrangements can be made. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20  Petition Report ARB 18-84 Page 1 COMMUNITY DEVELOPMENT DEPARTMENT STAFF REPORT ARB Appeal of Administrative Decision Petition No. ARB 18-84 A. STAFF REPORT 12/6/2018 PROJECT INFORMATION Applicant Charles and Kim Wilson Representative Charles and Kim Wilson Date of Application 11/02/18 Requested Action Appeal of an Administrative Decision Location Alley, south of 1804 N Knudsen Ave Existing Land Use Alley Existing Zoning SF-7, Right of Way North: SF-7; Single family residences Surrounding Zoning South: SF-7; Single family residences & East: SF-7; Single family residences Land Use West: SF-7; Single family residences Publication of Notice for the ARB public hearing appeared in the Daily Times on 11/18/2018. Property owners within Public Notice 100 feet were sent notice by certified mail, on 11/14/2018 and a sign was posted on 11/20/2018. Staff Planner Gary Leikness, AICP, CFM Description and Background of Petition Petition ARB 18-84, is an appeal of an administrative decision made by the Community Development Department, specifically the Chief Building Official, as authorized by the Director of Community Development. The appellant originally submitted an application (Revocable Encroachment Permit Application) (See Exhibit G) to the City requesting that he be allowed to encroach into a City right-of-way (alley), and install cables and posts to block the alley from all vehicular usage. The Community Development Department (CD) made a determination to not allow the blocking of the Alley based on the recommendations made by the Traffic Engineering Division to not allow the Alley to be blocked. The decision to deny the original Encroachment Permit relied on the Traffic Study which included analyses and conclusions, performed by the Traffic Engineer (See Exhibit D and E) The Study included not only the Alley, but also traffic patterns and 21  Petition Report ARB 18-84 Page 2 vehicle trips for a relevant portion of the neighborhood. The study looked at the clear vision of the alley and found it to be safe and functioning well. ARB 18-84 Aerial Photo Subject Alley Figure 1 Denial Letter A formal letter stating denial for the request was delivered from the Community Development Department to the Appellant. (Exhibit B). Comments- For this appeal, additional Staff and agencies have posted their comments/concerns. Listed here are those responses. 22  Petition Report ARB 18-84 Page 3 Fire Marshall- “A gate of any type will delay response to the areas affected. If approved, it will require a knox lock for the Fire Department to use.” Police/Code Compliance- “This alley needs to remain open for constant access to the power lines and utilities. Also, this would limit access for the surrounding properties to the rear of their property if a fences there to block the alley. Additionally, Emergency Services need access at all times to deal with specific emergencies.” Public Works- “The Public Works Engineering Department has no conflict with this petition request. However, any encroachment permits granted within the alley should have a signed agreement between all the adjacent property owners to the alley (1803 and 1801 Sage Drive, 1804 and 1704 Knudsen Ave), as well as the consent of the affected utilities that currently utilize the alley (COF Electric, NM Gas, etc.). (COF Code of Ordinance – Article 4. – Encroachment on City Property.” New Mexico Gas Company (NMGCO)- “has a gas main in this alley, we need access for meter reading- Line Locating- Leak Survey- gas Line maintenance & Emergency situations.” Applicable regulations 1) City of Farmington Municipal Code, Chapter 24, Article 4 (Encroachment on City Property) This section of the Municipal Code sets forth the procedures for how the City may or may not grant encroachments on City property. 2) Unlawful (Sec. 24-4-1) “No person shall encroach on, in, over, or under any real property owned by the City or any public right-of-way, as defined in Sec. 24-5-1, including easements, by any structure or object of any kind or character, temporary or permanent in nature, and whether such encroachment is real, personal, or mixed Property.” 3) Criteria for Allowing Encroachments (Sec. 24-4-3(c) (1-4) (1) The proposed permit would not cause public property to become dangerous or hazardous to the Public when used by the Public for the purpose for which it was intended to be. (2) The proposed encroachment will not in itself become in a dangerous or defective condition or unreasonably endanger or interfere with Public health, safety, or convenience. (3) The encroachment will not become unsightly; and (4) The issuance of the permit is otherwise in the interest of the health, safety, and welfare of the citizens of the City. 4) Appeals (Sec. 24-4-8.) “The purpose of the hearing will be to determine if the decision of the Community Development Director was properly made pursuant to this Article.” 23  Petition Report ARB 18-84 Page 4 Analysis The following narrative is intended to tie the above mentioned regulations to the decision made by the Community Development Department. Subject Alley Figure 2 24  Petition Report ARB 18-84 Page 5 Regulations 5) City of Farmington Municipal Code, Chapter 24, Article 4 (Encroachment on City Property) This section of the Municipal Code sets forth the procedures for how the City may or may not grant encroachments on City property. 6) Unlawful (Sec. 24-4-1) “No person shall encroach on, in, over, or under any real property owned by the City or any public right-of-way, as defined in Sec. 24-5-1, including easements, by any structure or object of any kind or character, temporary or permanent in nature, and whether such encroachment is real, personal, or mixed Property.” There are no exceptions or exemptions for the proposed a gate, or barrier on City property. 7) Criteria for Allowing Encroachments (Sec. 24-4-3(c) (1-4) (5) The proposed permit would not cause public property to become dangerous or hazardous to the Public when used by the Public for the purpose for which it was intended to be. It was determined by the Traffic Study, performed by the Traffic Engineering Division of the City of Farmington Public Works Department, states that a gate will “force an unsafe pull out onto Knudsen.” The Department appropriately addressed this criterion in the decision. (6) The proposed encroachment will not in itself become in a dangerous or defective condition or unreasonably endanger or interfere with Public health, safety, or convenience. The proposed gate will interfere with public convenience by limiting yard access (Traffic Study). In addition, the alley is “limited to only a single access lane because of gas meters and other utility fixtures.” Finally, the Traffic Study admonishes that the “gate could potentially impede emergency and first responders, such as ambulance, police and fire operations.” The Department appropriately addressed this criterion in the decision. (7) The encroachment will not become unsightly; and The encroachment would not be maintained by the City. The Department appropriately addressed this criterion in the decision. (8) The issuance of the permit is otherwise in the interest of the health, safety, and welfare of the citizens of the City. As mentioned in the Traffic Study, the Alley is on top of a vertical, therefore promoting good visibility. Whereas the alternative access to Knudsen Avenue is via Yucca Avenue.” The Traffic Study does warn of a city-wide precedent that might occur, should the alley encroachment be approved. 25  Petition Report ARB 18-84 Page 6 There are two recommendations to not approve the encroachment request, from property owners directly abutting the alley. (See Attachment H) The Department appropriately addressed this criterion in the decision. 8) Appeals (Sec. 24-4-8.) “The purpose of the hearing will be to determine if the decision of the Community Development Director was properly made pursuant to this Article.” As the purpose of the meeting is to determine whether or not the Community Development Department, in consultation with other City departments (Exhibit D), made a proper decision. The Department relied upon the Traffic Study performed by the Traffic Engineering, which included analyses and advisement. The analysis was performed by our own experts and therefore should be considered valid and applicable. By relying on this Study, the Department made a proper decision to deny the encroachment request. Staff Comments- For this appeal, additional Staff and agencies have posted their comments/concerns. Listed here are those responses. Fire Marshall- “A gate of any type will delay response to the areas affected. If approved, it will require a knox lock for the Fire Department to use.” Police/Code Compliance- “This alley needs to remain open for constant access to the power lines and utilities. Also, this would limit access for the surrounding properties to the rear of their property if a fences there to block the alley. Additionally, Emergency Services need access at all times to deal with specific emergencies.” Public Works- “The Public Works Engineering Department has no conflict with this petition request. However, any encroachment permits granted within the alley should have a signed agreement between all the adjacent property owners to the alley (1803 and 1801 Sage Drive, 1804 and 1704 Knudsen Ave), as well as the consent of the affected utilities that currently utilize the alley (COF Electric, NM Gas, etc.). (COF Code of Ordinance – Article 4. – Encroachment on City Property.” New Mexico Gas Company (NMGCO)- “has a gas main in this alley, we need access for meter reading- Line Locating- Leak Survey- gas Line maintenance & Emergency situations.” 26  Petition Report ARB 18-84 Page 7 STAFF CONCLUSION The Department denied the encroachment application based upon the Traffic Study, performed by the Public Works Department, which included analyses and advisement. The analysis was performed by our own experts and therefore valid and applicable. By relying on this Study, the director made a proper decision to deny the encroachment request. In addition, other Staff and Agencies have provided their concerns and comments (Exhibit D), which support the conclusion made to deny the encroachment request STAFF RECOMMENDATION The Community Development Department recommends that the Administrative Review Board uphold the decision to deny. 27  Petition Report ARB 18-84 Page 8 Exhibits: A. Article 4 –Encroachment on City Property B. Denial Letter C. Traffic Study, includes Executive Summary D. Comment Summary E. Petitioner Appeal F. Original Encroachment Application G. Objection Letter H. Newspaper Notice I. Certified Letter- notice of public hearing J. Mailing Address List 28  Petition Report ARB 18-84 Page 9 Exhibit A Article 4 –Encroachment on City Property 29  Petition Report ARB 18-84 Page 10 30  Petition Report ARB 18-84 Page 11 31  Petition Report ARB 18-84 Page 12 Exhibit B Denial Letter 32  Petition Report ARB 18-84 Page 13 Exhibit C Traffic Study 33  Petition Report ARB 18-84 Page 14 34  Petition Report ARB 18-84 Page 15 35  Petition Report ARB 18-84 Page 16 36  Petition Report ARB 18-84 Page 17 37  Petition Report ARB 18-84 Page 18 38  Petition Report ARB 18-84 Page 19 39  Petition Report ARB 18-84 Page 20 40  Petition Report ARB 18-84 Page 21 41  Petition Report ARB 18-84 Page 22 42  Petition Report ARB 18-84 Page 23 43  Petition Report ARB 18-84 Page 24 Exhibit E Petitioner Appeal To: City of Farmington From: Kim and Charles Wilson Subj: Appeal Revocable Encroachment Permit Denial Thank you for hearing our appeal concerning our Revocable Encroachment Permit Application to install a gate in the alley adjacent to our house at 1804 Knudsen Avenue. The purpose of the gate is to help control through traffic between Sage Drive and Knudsen Avenue. As described in the traffic study the alley is primarily a dirt road approximately 22 feet wide and 275 feet long designed for utility use. The setback distance from the alley for houses is approximately 10 feet as opposed to 25 feet from the paved residential street. The alley runs adjacent to four houses with ours being the only one with a driveway attached to the alley at the Knudsen end. The other houses have driveways accessed only from either Knudsen Avenue or Sage Drive. Our complaint is that our alley has been used as a through street multiple times per day and often starts in the early morning hours. The alley is closer to our house than the street and it is basically a graveled dirt road. This is much noisier than traffic in the street and is loud enough that not only is it heard in the house but also disturbs sleep. The intersection of the alley and Knudsen is tight enough that over the years we have had some damage to our wall near the alley entrance and some gravel thrown against our house. The alley is not designed to be used as a street, there are no garages attached to the alley, and the much narrower alley intersections are not designed to the same standards as the residential streets. We have been working with the city to reduce the traffic in the alley and limit the traffic to the alley's designed purpose for about the last 18 months or so. At the time we started this process we were getting between 6 to 8 trips per week day, often with the first trip before 6am. The police explained their enforcement issues to reduce the traffic so we starting working with traffic engineering for a resolution. The revocable encroachment permits for a gate restricting through traffic would be a solution that would not incur cost to the city for either installation or maintenance and would still allow utility use of the alley. The city provided requirements for the gate design and placement. The design requirements included the minimum distance between the gate posts so that even the largest city emergency vehicle could safely pass through. The placement requirements for the gate considered the neighbor's access to their back yards and the fire departments access to all 4 houses. The basic gate design is similar to gates used in other alleys, I specifically looked at the gates off of Carlton Avenue, between 30th and Butler Street, as examples. 44  Petition Report ARB 18-84 Page 25 I would like to address some of the Traffic Engineer's concerns. The alley traffic count would go down any time the city made measurements around the alley whether it was traffic count on Knudsen or measurements around the alley or the Yucca intersection. The traffic count would gradually increase again until the next interest was shown in our area. The alley traffic counter was set up on August 3rd and had to stay until August 28th to get a week's worth of data. The initial installation was vandalized and then there were some technical difficulties when the counter was re-installed. The traffic group's persistence and other attention paid by the city, reduced the traffic flow to the measured utility level. It also showed that there is no daily need for anyone to get to their garages or are limited to alley use only to get to Knudsen Avenue. The position of the gate would not limit access to back yards and, even when closed allows fire department access to front, back, and alley side of all four houses adjacent to the alley. The gate design exceeds the city's stated requirement for width to allow utility and emergency vehicles to pass through. Our gate would not be the first in Farmington and would meet all of the city's stated requirements. The gate design is similar to the gates used in other locations. We are asking for a gate that can be opened and closed. This is a Revocable Encroachment Permit Application and should the city change the use of the alley the gate can be removed. We understand that the city is concerned about the neighborhood and the city as a whole but even if they would have found the Yucca to Knudsen intersection to be out of specification they would not have re-routed traffic through the much narrower alley as any permanent fix for the intersection. 45  Petition Report ARB 18-84 Page 26 46  Petition Report ARB 18-84 Page 27 Exhibit F Original Encroachment 47  Petition Report ARB 18-84 Page 28 48  Petition Report ARB 18-84 Page 29 49  Petition Report ARB 18-84 Page 30 50  Petition Report ARB 18-84 Page 31 Exhibit G Objection Letter 51  Petition Report ARB 18-84 Page 32 Exhibit H Newspaper Notice 52  Petition Report ARB 18-84 Page 33 Exhibit I Certified Letter- notice of public hearing 53  Petition Report ARB 18-84 Page 34 Exhibit J Mailing Address List 54  Petition Report ARB 18-84 Page 35 55  MINUTES ADMINISTRATIVE REVIEW BOARD November 8, 2018 – 6:00 P.M. The Administrative Review Board met in regular session on Thursday, November 8, 2018 at 6:00 p.m. in the City Council Chamber, 800 Municipal Drive, Farmington, New Mexico. Members present Chair-Ireke Cooper James Dennis Paul Martin Members absent: Jeff Johanson Oliver Roe Staff present: Helen Landaverde Gary Leikness Mary Holton Karen Walker Others addressing the Board: Andrew Bates Jeff Woolley Call to Order The meeting was called to order at 6:00 p.m. by Chair Cooper and there being a quorum present the following proceedings were duly had and taken. Approval of the Agenda A motion was made by Board Member Martin and seconded by Board Member Dennis to approve the agenda. The motion passed unanimously by a vote of 3-0. Approval of the Minutes from the October 4, 2018 Regular Meetings Board Member Dennis made a motion to approve the minutes of the October 4, 2018 regular meeting. The motion was seconded by Board Member Martin and passed unanimously by a vote of 3-0. Election of Officers This agenda item was moved and voted on after Board Action on Petition ARB 18-76. A motion was made by Board Member Martin to elect Jim Dennis as Chairman. The motion was seconded by Board Member Cooper. The vote was 2-0. A motion was made by Board Member Dennis to elect Paul Martin as Vice-Chairman. The motion was seconded by Board Member Cooper. The vote was 2-0. Swearing in of Witnesses All parties that wished to speak on behalf of any agenda item were sworn in by Karen Walker.  Petition No. ARB 18-76 Variance to reduce setbacks within a well site, and to reduce side yard setbacks Discussion of ARB No. 18-76 on November 8, 2018 Associate Planner Helen Landaverde presented the staff report for ARB 18-76, a request from Jeffrey and Pamela Woolley for a variance (1) to reduce the required setback of 100 feet to 72 feet for buildings constructed within any well site equipment, and (2) to reduce the side yard setback from 15 feet to 10 feet in the RE-1, Residential Estate district for property located at 7500 Las Brisas Trail. The size of the property is 1.19 acres. There is a residence and a detached structure on the property. A gas well site is within close proximity to the subject property. The well site is currently shut-in. XTO Energy, Inc. has a long term shut-in compliance agreement and the well will be re-evaluated yearly, based on economic and operational considerations. Hilcorp is the current operator of the well site. Pursuant to the City Municipal Code Section 19-1-3(c): “No building, other than buildings necessary for the operation of the well, shall be constructed or moved within 100 feet of any wellhead, production equipment or hydrocarbon storage tank”. Many of the lots in the Villas Las Brisas Subdivision have drainage easements within the setback requirements that range from 10 feet to 101 feet. Lot 7A has a 10-foot drainage easement on the south side of the property. The lot sizes in this subdivision range from 1.19 acres to 2.22 acres. The subject property is the smallest lot in this subdivision. The applicant is proposing to place an RV carport measuring 14 feet tall and 14’ x 60’ in the rear yard area at 73.63 feet away from the well site equipment. To err on the side of caution, staff recommends a variance request for a 72-foot setback from the well site equipment. The carport would be allowed a minimum three-foot side yard setback and a minimum five-foot rear yard setback. Due to the 10-foot drainage easement, an accessory structure is not permitted on an easement; therefore, the applicant is requesting a reduction to the side yard setback from 15 feet to 10 feet to allow for the placement of the RV carport on the edge of the drainage easement. The applicant proposes to use the RV carport for RV storage purposes only. The request meets most of the variance criteria listed in Section 8.12.4 of the UDC, Unified Development Code. The Community Development Department recommends approval of Petition ARB 18-76 subject to the following condition: • No habitable structures will be allowed on the proposed location for the RV carport. Director Mary Holton mentioned that the purpose of the condition to this variance is to insure that safety is maintained in regards to the close proximity of the well site. Ms. Holton referenced a comment made by Ben Mitchell, the local Farmington contact for Hilcorp Energy Company, the current operator for the well site. Mr. Mitchell stated the following in an Email dated October 31, 2018: • Base on my understanding of the petition my only concern is the approval of future activity by the City of Farmington pertaining to the neighboring oil and gas location.  • Consideration should be given at the time the council reviews this petition to future activity at the oil and gas location. I believe that it would be appropriate to have something of record stating that the Property Owner, their successors and assigns, consent to the rights of the mineral lessee and will not limit the right of Hilcorp, its successors and assigns, due to the reduced setback petitioned for by the Property Owner. • The aforementioned should not be taken as disapproval by Hilcorp it is simply trying to head off any future disputes. Jeffrey Woolley, 7500 Las Brisas Trail, stated that he would like to use the carport for storage of his RV. He asked to reduce the side setback to 10 feet to eliminate cutting down a tree in the area. Mr. Woolley said he worked for Hilcorp and the storage tank has only been used to store water. He said there has never been anything flammable stored in that tank. Mr. Woolley said the actual wellhead is 160 feet from the place where the carport will be placed. Andrew Bates, 7410 Las Brisas Trail, is the adjacent landowner and developer of the subdivision. Mr. Bates stated that the covenants of the subdivision approve the carport and he is not in opposition of the carport. Board Member Dennis asked about Hilcorp’s recommendation that there be something on record stating that the “Property Owner, their successors and assigns, consent to the rights of the mineral lessee and will not limit the right of Hilcorp, its successors and assigns, due to the reduced setback petitioner for by the Property Owner”. Ms. Holton said the City cannot enter into an agreement as it would be a private agreement between Hilcorp and the property owners. Ms. Holton suggested that Hilcorp enter into an agreement privately. Chair Cooper asked if a condition could be added acknowledging that the City is not superseding any mineral rights. Ms. Holton said that would be recommended. Ms. Holton said she coordinated with the City legal department to insure that the proper process was followed before bringing the petition before the ARB Board. Due to the fact that the well is shut-in, the City legal department agreed that it was not necessary to call a meeting of the Oil & Gas Commissioners for input. Chair Cooper mentioned that it might not be shut-in in the future. Administrative Review Board Action of November 8, 2018 A motion was made by Board Member Dennis and seconded by Board Member Martin to approve Petition No. ARB 18-76, a request from Jeffrey and Pamela Woolley for a variance (1) to reduce the required setback of 100 feet to 72 feet for buildings constructed within any well site equipment, and (2) to reduce the side yard setback from 15 feet to 10 feet in the RE-1, Residential Estate district for property located at 7500 Las Brisas Trail with the following conditions: • No habitable structures will be allowed on the proposed location for the RV carport. • The approval of this variance will not supersede any mineral rights issues. AYE: Chair Cooper, Board Members Dennis and Martin. NAY: None ABSTAIN: None ABSENT: Board Members Johanson and Roe. APPROVED 3-0 Business from the Floor: There was no business from the Floor. Business from the Chair: There was no business from the Chair. Business from the Members: There was no business from the Members. Business from Staff: Mary Holton introduced the new Planning Manager, Gary Leikness. Adjournment: The November 8, 2018 meeting of the Administrative Review Board was adjourned at 6:25 p.m. _________________________________ ________________________________ Ireke Cooper-Chair Karen Walker-Administrative Assistant